war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.


Vsevolod Rechytsky,Specialist in Constitutional Law for the Kharkiv Human Rights Protection Group

The last traces of the tent settlement in Kyiv have not yet vanished, people from the capital’s Independence Square still examine their «Participant of the Orange Revolution cards», possible ways that events will develop are still being debated on television channels, while the regime has already gone, as Kravchuk expressed it figuratively, «to drink cognac». Indeed, it has deserved it.

After all, what for so long President Kuchma was unable to achieve by administrative efforts and persuasion, suddenly succeeded at the peak of civic opposition. Two weeks of Yushchenko’s Orange Revolution notched up more than all the years of evolutionary reformism of Leonid Kuchma. However contradictory are our purely personal sympathies or emotions of a wider, public level, this is the end «landscape after a battle».

Whether the Ukrainian community has won anything in a strictly constitutional sense is impossible as yet to say. Both revolutions and constitutions stop slowly, just as they gather pace. It is well-known that the later are naturally heavy and inert mechanisms. And although the final version of our constitutional (political) reform was the most reasonable of all those which had been proposed – from those of Pavel Lazarenko to Oleksandr Moroz inclusive – its full effect may be felt clearly not in the nearest future.

In general, the new constitutional system is relatively simple. From now on the President will partially be in charge of the foreign policy of the country, defence, internal security, and also the heads of local state administrations. The rest of the matters of political management will be dealt with by the Cabinet of Ministers. The two-tier power structure in the executive ladder of power is clear, but then it was precisely this, it seems, that the reformers wanted.

As a result of the reform, State Deputies of Ukraine take on the status of «staunch tin soldiers» of parties and parliamentary factions, while their leaders and ideological guides turn into true Chinese Mandarins. At least it is specifically they who will decide on the composition of the Cabinet of Ministers of Ukraine, and the State budget.

The court system has remained virtually untouched, the reanimated authoritarian gains of the Prosecutor are not worth overestimating or dramatizing excessively. It is probable that the supervision of the Prosecutor will immerse still deeper our disinterested wardens of legality into small-scale local and middle-level regional business, but the latter don’t need to get used to that. On the other hand, according to specialists, this partial return of the prosecutor’s supervision over adherence to human rights and civil liberties is explained not so much by Ukraine’s low level of legal development (which is Strasbourg’s official position), as by the low level of income of the Ukrainian population. Indeed, the defence of one’s rights, freedoms and interests in a court of law remains an expensive and casuistic procedure for many ordinary Ukrainian citizens.

In general, it would be possible to reconcile oneself to the reform if Ukraine’s level of civic, political and cultural development were significantly higher, closer, let’s say, to the Czech Republic. However Ukraine is a very young democracy, and it is unlikely that the application of parliamentarian mechanisms and procedures for solving most of its main and most burning problems will truly have an impact on its relatively weakly-developed political system.

Hannah Arendt, in her analysis of the features of any organic revolution, once stated that genuine revolutions always widen the framework of people’s representation. That is, the social basis of state management with every new revolution becomes wider, more democratic. Something clearly contrary to this can be observed in the legal result of the Orange confrontation. According to the reform, the direct influence of the people on Ukrainian politics is actually decreased. Although citizens of Ukraine will continue to elect Presidents, and the mass media will function without «temnyki», this will not significantly influence the political course of the country. It is for this reason that the legal consequences of the Orange movement can be regarded from the angle of real legislative revolution.

Honestly speaking, a President with post-reform authority could in fact be elected by Parliament, and it is only the subordination of local State administrations to him that makes it possible for now to regard his post as a counterbalance to the legislative branch of power in the State If, in future, the heads of the local state administrations start being elected, the national election of a President will finally lose any sense.

The situation is, however, more complicated from the point of view of foreign policy. As everyone knows, to the East and North, Ukraine borders on presidential republics of an entirely authoritarian type. Russia alone can suffice as example.

One should also take into account that after the election of Viktor Yush­chenko President, Ukraine has gained the opportunity not only to become a democracy, but also a country, which (like the Baltic States) maintains a positive separation from post-Soviet republics. However it is precisely Russia’s presence on the long Ukrainian borders that serves as sufficient evidence of the need for Ukrainian presidential republicanism. The key point here is the possibility for a swift presidential reaction to Russian challenges to foreign policy which Ukraine will not lack in the future.

As far as the European and Atlantic political world is concerned, it is not very important whether Ukraine becomes a parliamentarian or a presidential republic. However, the situation is quite opposite from the point of view of optimizing Ukraine’s political relations with its Eastern neighbours. Speaking simply, it will be much more convenient for Ukraine to respond to decisions taken about us by their ‘presidential machines’ with the help of symmetrical political and legal mechanisms.

It is precisely in this context that it is worth paying more attention to the organizational disarray and variety hall «pluralism» of Ukrainian political forces, to the factional self-centredness of their interests, and to the ever present demagogy found in national parliamentary debates.

Moreover, to change the form of government of the Orange Revolutionary march is almost the same as to move the furniture in a national apartment during a flood or fire. Does Ukraine have the necessary historical time, real creative capacity and the human resources for this? Will Ukrainian parliamentarism manage to become an adequate response to the structurally fie­rce, purely presidential pressure of the Russian energy industry and military pyramid?

Virtually no one can doubt today that the constitutional reform was and remains for people of Kuchma’s or Medvedchuk’s ilk a synonym for a lifebelt against the probable consequences of Yushchenko’s presidency. Yet, saving themselves in such a non-standard fashion, they are hardly thinking about deeper, truly national interests. Any doubt expressed on this score would seem to me purely rhetorical.

The paradox of the constitutional reform is seen in the way that, while continuing to dilute responsibility in a mixed parliamentary environment for strategic decisions in the country, the reforms demonstrate a sharply increased level of political demands with regard to tactical parliamentarian maneuvers and operations.

On the one hand, the Cabinet of Ministers of Ukraine and the Verkhovna Rada of Ukraine will in parallel be responsible for the current domestic and strategic foreign (principle-defining) policy of Ukraine. On the other hand, in order to carry out this role in a proper fashion, an unprecedented degree of factional disciple will be introduced into parliament.

Thus, if in accordance with Article 81 of the acting Constitution of Ukraine, a decision about pre-term cessation of the authorities of a state deputy of Ukraine following his or her resignation, or due to withdrawal of citizenship or the person’s departure abroad for permanent residence, is taken by the Verkhovna Rada of Ukraine, in accordance with the reform… «if a state deputy of Ukraine, elected from a political party (electoral bloc of political parties), does not belong to the faction of deputies of this political party (electoral bloc of political parties) or if the deputy of Ukraine leaves this faction, his or her authorities shall be cancelled pre-term on the basis of law at the decision of the higher leadership body of the relevant political party (electoral bloc of political parties) from the date of the decision».

In general, this new procedure for removing a deputy’s authorities demonstrates not only the introduction of tough factional discipline into the Verkhovna Rada, but also the diminished importance of the individual in the Ukrainian political process. From the outside, it is reminiscent of the consolidation of political allies around their ideological leaders, familiar in Ukraine from communist days.

In this way, the constitutional reform is reinstating an imperative (party-corporative) mandate which was already half forgotten in Ukraine. A deputy is again regarded here as a party pawn, a rank-and-file cardholder for electronic voting., whose function is to work «as a cog and wheel» (V. Lenin), although no longer for a national cause.

It looks as though the elections to the Verkhovna Rada of Ukraine risk becoming a link in the mechanism for introducing not so much electoral, as party priorities. It is unlikely that the personal psychological qualities of a parliamentarian, his or her individual experience, intellect, and also geographical link with a certain region will be used here. One can even say that in this case we are looking at the restoration of «democratic centralism» – the universal principle of most Soviet constitutions.

It looks as though the constitutional reform will transform parliament from a place of open public discussion into an arena for battles of factional gladiators. This is to be regretted, since in the context of constitutional changes, one cannot so far speak of the renewal of the stimuli of political action which Vaclav Havel believes to be: moral instinct, sense of taste, ancient political wisdom, and analytic delicacy of feelings.

On the contrary, one can observe that as far as the renewal of the status of national deputies is concerned, the constitutional reform has applied philosophical reduction, legal-logic simplification, and the denigration of constitutional material to the requirements of crude legislative tactics.

It should be noted that combining the vote for constitutional reform with the introduction of amendments to current electoral legislation was also, from whatever vantage point, unethical. When «Our Ukraine» demanded the resignation of the government and the Central Election Commission, and also the immediate amendment to the Law on Presidential elections, this was not a question of gaining political or legal benefits for the opposition, but about the restoration of the innate right of the Ukrainian people to vote for the fulfillment of their sovereign will. This will was not subordinate to, but above the participants in any negotiation process.

It is well-known that the political right to the right to vote and to be elected are prior to all forms of power, their branches and divisions, and also all State bodies and political institutions – from parliament to the President, the Cabinet of Ministers and CEC inclusive. It is precisely for this reason that electoral rights, their scope and the procedure for exercising them must not become a subject for opportunistic deals, haggling or other political speculation. Electoral procedure must not be artificially improved or worsened as suits the regime. In a democratic, law-based State they always have (should have) only one vector – increase in their own effectiveness, guarantees, and, as a result, – political effect.

This means that no participant in the Ukrainian political system has the right to promise any improvement in electoral legislation on security of voting or not voting for constitutional reform, or for any other kind of parliamentary voting at all. The will of the people in the material and procedural understanding must not be the object of compromise, that is be dependent on the whim of participants in the negotiation process. Such will is a priori sovereign, naturally above all actual and potential participants in the negotiations, and above the political elite of the country altogether.

We would once again remind you that a decision whether to make the seond round of presidential elections «more» or «less» fair and transparent – cannot and should not depend on any corporate deals. After all, the values which are directly affected are infinitely higher than the interests of party leaders, parliamentary factions, presidential candidates, the Prime Minister or the CEC.

On the other hand, in itself the issue of constitutional reform is much too important and fundamental to be «pushed through» in the midst of the political crisis which has developed. After all, the Constitution is the highest strategy regulator of the domestic life and foreign policy of Ukraine. In this capacity it cannot be held hostage to or be used for political tactical maneuvers. The Constitution is far higher than any political tactics, higher than any parliamentary or presidential maneuvering, and therefore must not be modified or altered in emergency conditions, so to speak, «along the way».

According to the constitutional reform voted for, the real politics of the country have virtually become the prerogative of Parliament – a political institution which, in contrast to the people, one can nonetheless corrupt. It is well-known that democracy of the masses is important partly because it is physically impossible to corrupt the entire nation. This well-known position of Thomas Jefferson has already found confirmation in very different spheres. Therefore the dependence of the authority and efficacy of the post of President on the direct expression of the will of the people in Ukraine’s circumstances is not subject to doubt.

The strength of the post of the President is also an important counterbalance to possible foreign economic pressure on Ukraine. This argument is strengthened by the fact that Ukraine is at the level of development where its financial-econo­mic strength and public policy are virtually inseparable. Under these conditions, a special role in the political system of Ukraine can be played by a nationally elected leader who is well equipped with legal instruments. It is obvious that here we are talking about much more than the mere optimization of relations between the executive and legislative branches of State power.

Therefore, in view of the requirements mentioned, the subject of constitutional reform could be not so much the weakening, but rather the strengthening of presidential executive powers, making the Cabinet of Ministers of Ukraine subordinate to the President, while at the same time imposing direct political and legal responsibility for the actions and politics of the Government.

The reduction of the status of the President to purely representative international functions, as introduced by this reform, is, in our opinion, poorly motivated and unjustified, and jeopardizes the ensuring of the interests of State independence and national sovereignty. As one can already see today, corporatism in Ukraine’s political system will rise sharply. The influence on parliament of powerful financial and economic groups will take on a systematic character.

Ukrainian moderate federalism is quite another matter which could, in terms of reform, be sensibly discussed. After all, the idea of decentralization has been recognized in Ukraine since Dragomanov’s day. As is well-known, the Ukrainian narodniki, in particular, M. Hrushevsky, S. Shelukhin and R. Lash­chenko were supporters of broad decentralization. In general, constitutional reform of such a kind for all that it is mentioned by ideological opponents of the Orange Revolution could really become the theme of anti-crisis reform.

One needs to stress that the main lobbyist for constitutional reform were political supporters of Leonid Kuchma, leaders of the Social Democratic Party of Ukraine (o), representatives of parliamentary factions which at the elections gained no more than 5-6 percent of the votes of the electorate. It is against political logic that these reforms should have to be introduced by those who had expressed the most reservations about them.

It seems unjustified that the constitutional ideas of the political outsider O. Moroz should have to be introduced by V. Yushchenko who, in terms of electoral support, was eight times more successful. One could say and write a lot on this subject, however in the wish and attempt to implement the reform at the expense of «Our Ukraine», we see a situation where «the beaten is leading the unbeaten».

Yet again we would draw the attention of political leaders to the fact that introducing constitutional reform with a radical alteration in the powers of the President between the first and second rounds of a presidential election is absurd and unconstitutional. Neither from the point of view of the canons of law, nor from that of honest politics should the situation arise where citizens of Ukraine in the first round of voting voted for a President with one status, while in the second – for a President with a manifestly different status.

It is difficult not to agree that hundreds of thousands of people on Independence Square in Kyiv stood in December’s freezing conditions not in order to elect a figure who «reigns, but does not rule». People were clearly standing up for a strong leader. Consciously and subconsciously they were counting on the constitutional force of the presidential post. It would be unwise for clear-minded politicians to forget this.

In general it would seem that the strength of spirit and of mind of people of the Square were infinitely higher than the ideological tonality and moral potential of the constitutional reform. A permanent political rally over several weeks stood not for a change in formal institutions, but for a change in a path­ologically corrupt, clearly ‘live’ and not abstract regime. People protested not against legal coating, but against the specific people they covered, against individuals, and not against badly written constitutional principles and norms

Vaclav Havel, commenting on the events of the Ukrainian Orange Movement, within a broad European context was clearly right: what happened on the Square in Kyiv was evidence of the funeral of the relics of Ukrainian postcommunism. The passing-bell which rang for half a month on the capital’s square was ringing over that demise. On that square people freed themselves of their fear, and with it, their sense of dependence and slavery.

Therefore, in drawing conclusions, we must acknowledge an obvious paradox. The Orange Revolution was politically and ideologically directed against the majority of those who, as a compromise, introduced the current Ukrainian constitutional reform. Many Deputy-reformist, as is well-known, linked their electoral hopes with the white and blue V. Yanukovych.

Thus the situation does not seem entirely traditional. As Bulgakov’s character Woland says (in The Master and Margarita): «We speak both for technology and for its exposure.» This metaphor for the reform is clearly postmodern, because it is precisely contemporaries who often act in extremely contradictory ways.

In Kyiv it is Winter and the blue color in nature seems at this moment in place. However constitutional logic will hardly be as easy to reconcile as seasonal changes in color.

15 December 2004

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