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18.01.2018 | Halya Coynash

Donbas reintegration law poses human rights risks & doesn’t help hold Russia to account

Dabaltseve February 2015 (photo Reuters), excavation of mass grave after Girkin & his fighters fled Sloviansk
   

A contentious bill on reintegrating occupied parts of Donbas could be passed by Ukraine’s Verkhovna Rada on Thursday despite warnings from major human rights NGOs that it poses serious dangers unless important amendments are made. 

Law No. 7163 was tabled in parliament by President Petro Poroshenko as urgent on October 4, 2017 and passed in its first reading just two days later.  Amendments were then processed and adapted or rejected by the National Defence Committee behind closed doors, before the amended bill was put forward for the second reading. The final vote was scheduled for January 16, but the process of going through amendments has been slow and the Verkhovna Rada is now due to vote on No. 7163 on January 18 after considering the last 49 amendments and several contentious issues.

The bill identifies the territory of the so-called ‘Donetsk and Luhansk people’s republics’ as occupied, and Russia as an aggressor state.  It specifically states that “the Russian Federation has initiated, organized and supported terrorist activities in Ukraine, is carrying out armed aggression against Ukraine, as well as the occupation of parts of its territory”, and goes on to speak of Russia’s deployment of its own military servicemen, instructors, advisors, etc, and its support, including financial, for armed formations and mercenaries on occupied territory. 

While Russia’s role may not be in dispute, the problem lies in the details, including those pertaining to what Ukraine’s role must be.  

Concern has also been expressed by human rights groups over the secrecy regarding the texts of proposed amendments.  Olena Lunyova from the Human Rights Information Centre notes that the bill reworked behind closed doors is very different from the bill tabled by the President in October 2017.  Her NGO is one of several that have issued a joint statement with Donbas SOS, focusing on five norms which they believe pose a direct threat to human rights.  .

1.   The Russian Federation is identified as bearing liability for moral and material damages caused to the Ukrainian state, to executive bodies and bodies of local self-government, as well as to individuals and legal entities.

This may well be true, but the norm will not help those individuals who have or are suffering material losses.  Lunyova notes that the law does not stipulate the timeframe for such liability, or the territory which it applies to.  Most importantly, this is a norm of domestic legislation, not an international agreement, and therefore need have no legal consequences for the aggressor state.   Just saying that Russia is liable will not bring compensation any nearer.  Possibly quite the contrary, and it is this that Donbas SOS and other human rights NGOs have sounded the alarm over. 

The victims are Ukrainians on Ukrainian territory, and Ukraine cannot pass the buck.  At present, mechanisms (such as they are) for compensation are envisaged under Ukrainian legislation, yet this new law is proposing to place liability with a country from whom compensation can only be obtained through international courts such as the International Court of Justice, the International Criminal Court and the European Court of Human Rights.

2.   The bill simply proposes that ensuring the rights of individuals on occupied territory in Donbas will be in accordance, “after the necessary amendments”, with the current law on ensuring rights and on the legal regime on occupied territory, which at present applies solely to Crimea.  What the necessary amendments will be is not stipulated, nor when they will be added to the law.  The NGOs therefore warn of warranting grounds for fearing that issues linked with safeguarding the rights of citizens in occupied Donbas will simply remain unregulated.  This is of particular importance given the significant differences between the situation in Crimea and areas of Donbas not under Ukrainian government control.

3.  The bill changed since its first reading proposes giving a wide range of powers to military personnel, law enforcement officers and others involved in measures linked with safeguarding national security.  Donbas SOS and other NGOs note that there are no mechanisms specified for control over the use of such powers.  This is  particularly alarming since  they involve the use of weapons, ability to detain people, check documents, carry out inspections of individuals, their things, as well as gaining access to premises in undefined “security zones adjacent to the area of military action”.

The bill will significantly restrict freedom of movement by the civilian population from and to areas under occupation through imposing the need for yet another permit and placing control over the regime for crossing from and to with one single body.  The NGOs fear that this could lead to a sharp reduction in the number of civic organizations working in the military zone and ‘grey zone’ adjoining it.

The NGOs also warm that the President is being given powers which are not foreseen by the Constitution, for example, to decide, without parliamentary control, to deploy the Ukrainian Armed Forces against Russian aggression in Donbas. 

The Ukrainian Helsinki Human Rights Union [UHHRU] has also reiterated its earlier call back in late November on parliament to return No. 7163 for crucial reworking.  

Back then, together with the Kharkiv Human Rights Group and the Media Initiative for Human Rights, they pointed to serious failings in the bill.  These include a dangerously selective approach to fulfilling Ukraine’s commitments as per international humanitarian law.  There needs to be clear acknowledgement of all four Geneva conventions and the protocols to them.  This means that Ukraine must take responsibility for protecting civilians in danger conditions, as required by these conventions.  The bill fails to cover this and does not provide regulations for ensuring the safety of protected persons, such as prisoners of war, hostages, those who are missing in action or who have their freedom restricted. 

There is no clear procedure set out for classifying the conflict in Eastern Ukraine.  This is important since our opinion that Russia’s role is obvious is not enough for international courts.  While recognizing Russia’s occupation of Crimea as an international armed conflict back in 2016, the International Criminal Court’s Prosecutor’s Office is still considering evidence of Russian involvement, to determine to what extent the conflict can be deemed international;.  UHHRU proposes considering a similar approach, whereby the conflict is considered both a non-international and an international armed conflict at the same time. 

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