war crimes in Ukraine

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Ukraine’s Systemic Error

02.08.2011    source:
Olga Shumylo-Tapiola
Both publicly and privately, high-level EU and U.S. officials have characterized the trials of Tymoshenko and her former associates as cases of “selective prosecution.” The only reasonable outcome for the West will be for Ukraine to end prosecution on political grounds


The prosecution of Yulia Tymoshenko, Ukraine’s former prime minister and runner-up in last year’s presidential elections, and her associates on criminal charges is seriously weakening the opposition movement’s position. Already, the opposition faces numerous challenges; it has not yet recovered from its losses in the presidential and local elections, it lacks unity on important issues, and it is beset by infighting over who should assume its leadership. A conviction of Tymoshenko and others could change Ukraine’s political landscape for good. Ultimately, though, what is most important is that this situation reveals the fragility of Ukraine’s democracy and the weakness of rule of law in the country.

Some external observers have compared the situation in Ukraine with that of Belarus, or even Russia, where opposition figures are imprisoned or otherwise excluded from the political process in ways the West finds unacceptable. These comparisons, however, are questionable. Ukraine has been following its own path over the past twenty years. To understand how the situation in Ukraine may evolve, it is worth examining recent developments and their potential impact on the country’s development and foreign affairs.

For Tymoshenko, losing the presidential elections last year marked the beginning of the end of her political career. Unwilling to accept the results, she proved ineffective in opposition. She and her allies failed to stop an overhaul of the country’s constitution or the opposition’s loss of rights in parliament. They also proved incapable of contesting the government’s actions in several policy areas, notably failing to prevent the extension of Russia’s lease on its Black Sea fleet base in Crimea. In short, Tymoshenko was heading for early political retirement.

But the current leadership had a different plan: They brought Tymoshenko and her political associates back to political life by filing criminal charges against them. Of the four charges facing Tymoshenko, she is accused of misappropriating carbon emission credit revenues that Kyiv received under the Kyoto Protocol, as well as illicitly profiting from a deal to purchase transport vehicles and assorted medical equipment for Ukraine’s rural population, both while she was prime minister. The final two charges relate to the very sensitive issue of gas deals with Russia.

The prosecutor has become increasingly desperate to convict the former prime minister, who remains the opposition’s most visible politician. When the first two sets of charges against her did not stick, he turned his attention to the gas deals. In addition, representatives of Tymoshenko’s government are facing a variety of corruption charges. Some officials were put in pre-trial detention; a few have been in prison for almost a year without trial.

Many Western observers, and unsurprisingly Ukrainians themselves, have deemed this to be a case of selective prosecution. It is, after all, difficult to believe that Tymoshenko and her associates are the only bad apples in Ukrainian politics. The current administration’s “anti-corruption” campaign, however, is about neither Tymoshenko nor her associates. It is the result of a systemic error in Ukraine.

The prosecution of allegedly corrupt politicians is certainly not a phenomenon unique to Ukraine. For many outside observers, however, the prosecution of prominent opposition figures—who could pose a threat to the governing party in the next elections—is alarming, to say the least. Moreover, it is rather unusual for former politicians to be prosecuted, as Tymoshenko and her allies are, in criminal courts for their political decisions.

Kyiv’s official line is that the defendants committed serious crimes that resulted in significant financial losses for the country. The administration claims it has nothing to do with these cases and that it cannot prevent Ukraine’s independent judiciary from carrying out its work.

But one need look only as far as recent articles in the Ukrainian press to find widespread speculation about the prosecution’s real motives. They seem to range from political revenge, to revenge over gas deal conflicts that the former prime minister had with associates of the current president, Viktor Yanukovych, as well as attempts to prevent Tymoshenko and former interior minister Yuri Lutsenko from participating in the upcoming elections. There is even speculation that the current administration may be using one of the cases as leverage to renegotiate gas prices with Russia by threatening to repeal an agreement reached by then-prime minister Tymoshenko and Russian Prime Minister Vladimir Putin in 2009.

Whatever led to the allegations against Tymoshenko and her associates, the process was not well thought-out. These charges were supposed to have eradicated Tymoshenko and her entourage from the political scene in a blitzkrieg. However, the process has turned into a long, draining battle, which improved Tymoshenko’s image both domestically and internationally, while Yanukovych received heavy criticism. It would seem that the president was either set up by his own entourage or was, quite simply, hoist by his own petard. No matter, Yanukovych and his associates will want to extricate themselves from the situation quickly, without losing face. But it may be too late to do so.

The impact of the current situation on Ukraine’s opposition will be short. Tymoshenko’s faction is busy fighting the prosecutor-general and the Pechersk district court, which is responsible for most of the cases against the opposition. Tymoshenko’s financiers have either switched allegiances, joining the Party of Regions, or are being harassed by the Security Services. Companies belonging to Ukraine’s youngest millionaire, and Tymoshenko financier, Konstantin Zhevago, were, for example, targeted by the Security Services and had criminal charges brought against them.

The rest of the opposition remains divided. Some factions claim allegiance to Tymoshenko, while others try to build alternative strategies to ensure their political survival. It is unlikely, however, that any of the current opposition leaders not facing prosecution will be able to replace Tymoshenko in terms of political weight, public support, or charisma. 

Meanwhile, the question of how and when the court cases will conclude is a complicated one. For the accused, the longer the trials last, the better. If the trials stretch until the next parliamentary elections, scheduled for October 2012, Tymoshenko and the other defendants who are out of pre-trial detention may well run for election and even win. Their election would give them the immunity that all Ukrainian members of parliament enjoy. However, it is highly unlikely that the trials will last until then. Rumors in Kyiv suggest a decision on Tymoshenko’s case, and some of the others, is likely by early fall.

Ultimately, however, the end date of the trials is not as important as their verdicts. Tymoshenko’s cases will be instructive for her co-defendants in this regard, as the majority of the accusations against them are built around the same three topics: the misuse of Kyoto funds, the purchase of Opel transport vehicles, and gas contracts. The former prime minister faces three potential outcomes: not guilty on all charges; conviction, with a sentence of seven to ten years; or guilty but “pardoned” by the president.

In any of these scenarios, Tymoshenko could undoubtedly gain electoral points. First and foremost, she is back in Ukrainian politics. Public opinion polls have not yet shown a significant rise in public support for her after the opening of the criminal cases. But 21 of 52 experts questioned by the Democratic Initiative Foundation, a Ukrainian think tank, believe that the trials may lead to increasing support for Tymoshenko’s “Batkivschyna” Party, in the run-up to the next parliamentary elections.1  

Tymoshenko’s lawyers have placed their faith in an application they filed to the European Court of Human Rights (ECHR). However, the application itself neither increased pressure on Kyiv, nor received a promise of quick handling from the ECHR. According to independent lawyers, cases not involving the threat of capital punishment or other serious outcomes usually take years to be examined. However, if she is found not guilty, Tymoshenko will likely use the fact of being falsely accused to win more votes during the 2012 campaign.

Were Tymoshenko, on the other hand, to be found guilty—even if she were subsequently pardoned by the president—she would be out of politics for at least ten years. Ukrainian laws on the election of members of parliament and of the president both clearly stipulate that a convicted criminal cannot run for office. Still, her party would not disappear from the race; a line of young promising party members appears eager to take Tymoshenko’s place. However, nobody even approaches Tymoshenko’s caliber as a politician. Her possible absence from the party list, as well as in the parliament, will change Ukraine’s political landscape.

For Yanukovych, any of these scenarios would have negative consequences, both at home and abroad. If Tymoshenko is found not guilty, the public’s perception that her trial and those of her associates were politically motivated would only increase. If she is found guilty, however, Yanukovych may face dangerous domestic repercussions.

The majority of Ukrainians are either struggling to survive or are generally disillusioned with domestic politics. A guilty verdict for Tymoshenko or Lutsenko is therefore unlikely to result in street protests. But it could seriously influence the results of the next parliamentary elections. While it is too early to accurately predict results, it is reasonable to surmise that, with the right inducements, Ukrainians may award more votes to the “victims of the regime.” If, however, Ukraine changes its electoral system—by bringing back a mixed system of closed party lists and single-mandate constituencies—Tymoshenko may lose any possible gains from this sympathy vote.

Moreover, a conviction—even if it resulted in a short prison sentence or an executive pardon—would not be seen favorably by the West. It would be taken as a sign that the president and his government no longer aspire to European integration and ultimately membership in the European Union (EU). The EU and the United States are not seriously discussing post-trial steps, hoping that Kyiv will fall into line. It is clear, however, that unless Tymoshenko is found innocent, the president and his team will not receive a warm reception at the Eastern Partnership summit scheduled in Warsaw for September, and may even face a frosty reception at this December’s EU-Ukraine summit.

Both publicly and privately, high-level EU and U.S. officials have characterized these trials as cases of “selective prosecution.” The only reasonable outcome for the West will be for Ukraine to end prosecution on political grounds. Drawing parallels with Belarus after the 2011 presidential elections, the West expects Ukraine to “release and rehabilitate” the defendants and allow them to participate in the next parliamentary and presidential elections.

Having constructed their narrative on the premise that Tymoshenko and her associates are corrupt and guilty, the prosecution and judiciary are independent, and the president has nothing to do with the cases, the government now faces a real conundrum in extricating itself from this situation while facing conflicting foreign and domestic pressure.

So far, it seems that little can be done to stop Ukraine from falling into this trap. Tymoshenko’s trial may significantly overshadow the current administration’s good deeds. The prosecution and judiciary will find it difficult to roll back the proceedings against Tymoshenko. Even if it wanted to, Kyiv may not have the means of stopping it, a situation the West can do little to influence. As a result, it feels that Ukraine may never be the same again.

By creating a precedent to prosecute his predecessors and rivals, Yanukovych has opened Pandora’s box. He may well have set an example that will be emulated by his successors, and the possibility of protecting oneself against prosecution on political grounds may remain elusive. The trials against the opposition—especially if they result in convictions and sentences—will change the political landscape of Ukraine by wiping out the few key political players of the last decade.

Last but not least, this episode has revealed serious miscalculations in Western perceptions of Ukraine and the painful truth about the country: free and fair elections, even three times in a row, do not guarantee democracy and the rule of law. The EU has a lot at stake in its relations with Ukraine, particularly the near-complete talks on an Association Agreement. More generally, the Union also needs at least one success story within the Eastern Partnership initiative. While trying to keep Ukraine’s opposition afloat, the EU should lock the country into this new agreement. Ultimately, however, the West will need to help Ukraine fix its systemic error by focusing on daily democracy and helping to strengthen the rule of law between elections.

 1 DIF Expert Opinion Poll: “The Case of Yulia Tymoshenko: Assessment and Consequences, ” July 13, 2011.

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