The Ukrainian authorities have prepared a draft law for the de-occupation of Donbas, which has been under Russian de facto control since 2014. Hromadske has received a copy of the document. We take a look inside.
The Ukrainian National Security and Defense Council and its Secretary, Oleksandr Turchynov, have prepared a draft law on the de-occupation of Donbas.
The National Security Council was scheduled to consider the document for approval at a meeting on July 19, 2017. However, it was postponed. According to Turchynov, this was due to “the need for additional consultation with our strategic partners.”
However, officials and members of parliament who spoke to Hromadske suspect the document will be considered in the autumn, because the current parliamentary session ends on July 14 and, after that, the parliamentarians go on vacation.
The draft document made available to Hromadske was also unusual in that it does not contain transitional provisions, although they are traditional for the text of a bill.
Hromadske has published a copy of the draft law, “On the specifics of state policy on the restoration of the state sovereignty of Ukraine over the temporarily occupied territory of the Donetsk and Luhansk regions of Ukraine.” These are its provisions.
Occupation and Russian Aggression
The opening of the draft law states that the Russian Federation is carrying out armed aggression against Ukraine and occupying its territory. This bill is the first attempt to enshrine this understanding of the war in law.
“The Russian Federation is carrying out armed aggression against Ukraine and the temporarily occupied parts of its territory with the help of the Armed Forces of the Russian Federation,” the bill reads.
Temporarily Occupied Territories
This draft law is also the first document in which Russia’s occupation of Ukrainian territories is actually described. The bill provides a definition of temporarily occupied territories and a list of military formations that control these areas.
“The illegal military formations are created, controlled and financed by the Russian Federation. The Russian occupant administration took control of these territories,” the bill says.
According to the draft law, the Ministry of Defense of Ukraine defines the borders of the temporarily occupied territories according to the recommendations of Central Command of the Armed Forces.
Documents and Property
The second article of the draft law covers documentation and property rights on the occupied territories. In particular, it declares all documents and other legal decisions issued on territory not under Ukrainian control are invalid.
Additionally, the bill preserves the individual’s right — regardless of whether they have internally displaced person (IDP) status — to own property that, since 2014, has wound up in the occupied territories. Likewise, the bill also preserves the state’s right to property on the occupied territories.
“The Ukrainian state and villages, settlements, and cities located in the temporarily occupied territories maintain the right to own property, including immovable property like land,” the draft law reads.
Liberating the Territories
Article four describes the state policy’s aim of restoring Ukrainian sovereignty. It proposes: freeing the occupied territories and restoring constitutional order, and defending the rights and freedoms of people who have suffered as a result of Russian aggression.
Article five deals with maintaining constitutional order: “State authorities use existing opportunities to defend the rights and freedoms of citizens of Ukraine living in the occupied territories.”
However, the bill does not clearly describe what these “opportunities” are.
This article also states that it is necessary “to take comprehensive measures to ensure national security and defense and to deter Russian aggression.”
The bill also outlines the renewal of humanitarian and cultural ties with people who live in the temporarily occupied territories, as well as humanitarian aid and judicial aid for them. It also contains information about access to Ukrainian media for people from those territories.
“The foundation for human rights defense...is assistance that fulfils social and economic needs, renews of humanitarian and cultural contacts, and gives access to Ukrainian media and national legal remedies," the bill reads.
Responsibility and Self-Defense
Article six of the draft law states that Ukraine holds no responsibility for the illegal actions of the the Russian Federation as an aggressor state and the illegal armed formations it controls on the territory of certain parts of Donetsk and Lugansk regions.
Article seven adds that Ukraine has an inalienable right to self-defense, which can be realized. The Armed Forces of Ukraine, the Security Service of Ukraine, the intelligence services, the National Guard, and other forces will be involved in realizing this right.
Defense and Separation of Powers
The draft law also articulates which decisions fall under the purview of the president.
“The president makes decision regarding the usage of the Armed Forces and other military formations to deter and repel the armed aggression of the Russian Federation…,” the bill states. The president also can decide to impose martial law.
Article ten states that the president appoints the Chief of the Joint Operational Headquarters (JOH) of the Armed Forces of Ukraine at the recommendation of the Chief of the General Staff. All forces providing national security in the Donetsk and Luhansk regions are subordinate to the JOH Chief.
According to article eleven, the JOH Chief is charged with establishing the regulations for crossing and transferring goods across the demarcation line between Ukrainian-controlled and occupied territory.
Interpreting the Draft Law
Hromadske received the concept for the de-occupation from its sources. The text fits on one page and consists of a preamble and six paragraphs.
However, these same sources emphasized that this is not the final version of the law, and it may be amended and added to. So far, they suggest, the law appears to have more of a “declarative character,” and it is difficult to predict what it will mean in practice.
The law must contain clear procedures for decision-making, not just “a list of powers or names of different departments,” says Mikhailo Savchin, a professor of constitutional law.
The draft law was prepared largely in secret, hidden both from the public eye and from most parliamentarians. A few days ago, officials in the presidential administration said that the bill would be discussed with Ukraine’s partners — specifically with the United States, where Ukrainian President Petro Poroshenko was flying to meet with President Donald Trump.
A source also said the document was discussed with France and Germany, Ukraine’s partners in the Normandy Format contact group on the situation in the east — but not with Russia, which also takes part in the Normandy format.
Background: The war in Ukraine started in 2014, when Russian forces invaded Donbas and annexed Crimea. Since then, more than 10,000 people have been killed and about 24,000 injured in Ukraine, according to UN reports. According to the European Commission, the conflict in eastern Ukraine has affected over 4.4 million people, 3.8 million of whom are believed to be in need of humanitarian aid.
/translated by Eilish Hart, Matthew Kupfer, Liuda Kornievych