of the settlement of the crisis in southeastern Ukraine by means of the step-by-step creation of conditions for implementation of the Minsk agreements of February 12, 2015
The opinion polls conducted by various research centers demonstrate that the settlement of the crisis in southeastern Ukraine invariably ranks first in the list of the most pressing issues that require priority attention and resolution. Moreover, most people are worried about the ongoing hostilities in the South-East, as a result of which Ukrainian citizens on both sides of the line of contact are being killed and / or injured. This is stated in almost all studies by more than 2/3 of respondents. At the same time, there is a consensus in the Ukrainian society that resolving the crisis by military means is highly undesirable and virtually impossible.
It is obvious that the stalemate in which the Minsk process has found itself is largely due to the lack of political will of the parties to the conflict to seek and find compromise solutions, as well as the atmosphere of information warfare, which has been particularly active in the recent times.
It is also unequivocal that the end to the impasse of the settlement process is impossible without taking into account the opinion of the citizens of Ukraine living on both sides of the line of contact.
According to the sociological research of the Center for Social Monitoring and the Ukrainian Institute for Social Research named after A. Yaremenko held in June 2019, 38.5% of the population of Ukraine as a whole supports the option for granting these territories a special status, involving autonomy within Ukraine and return to the state.
In the case of the question to read: "If a peaceful settlement of the conflict in Donbass required the granting of autonomy within Ukraine to the uncontrolled territories of Donetsk and Luhansk regions (DNR and LNR), would you support such a proposal?" - 49.8% would support such a decision (are confident to support and would rather support).
Below is the Concept of a phased resolution of the crisis, the ultimate goal of which is the peaceful reintegration of the territories being now controlled by the ORDLO authorities. The main point is that the Concept takes into account, on the one hand, the desire of Ukrainian citizens to resolve the crisis peacefully, on the other hand – the interests of those Ukrainian citizens who live in the territories being not controlled by Kyiv and prefer that Donbass gains independence from Kyiv (definitely, they will not be fully satisfied, instead of independence, they will be offered the autonomy of the territories), as well as those who are focused on obtaining a special status within Ukraine.
The concept of a step-by-step settlement provides for involvement at various stages of the UN Security Council, the heads of state of the Normandy Four, the Verkhovna Rada of Ukraine, the National Security and Defense Council of Ukraine, the Cabinet of Ministers, ministries and departments of Ukraine, the Trilateral Contact Group. This Concept is approved by the heads of the Normandy Four states and is subject to approval by the UN Security Council.
Stages of settlement
Stage I (legislative)
It involves the adoption by the Ukrainian side of a number of legislative measures aimed at “unfreezing” the Minsk process. And these legislative decisions should be such ones to cause the minimum disagreement at each of the parties to the conflict.
The Verkhovna Rada of Ukraine passes the laws that would remove the existing barriers between Ukraine and its temporarily uncontrolled territories. These are barriers of a political, ideological, economic, financial, social and military nature. The National Security and Defense Council revokes all the decisions establishing a regime of blockade and other economic and financial restrictions on economic entities in the territories being not controlled by Kyiv. It is necessary to adopt the laws (put into effect the adopted ones) provided by the “Complex of measures for the implementation of the Minsk agreements”:
1.1. Amendments to the Constitution of Ukraine
The Article 133 of Section IX “Territorial Organization of Ukraine” of the Constitution of Ukraine introduces an amendment on the Autonomous Region of Donbass (hereinafter – ARD).
A number of amendments and additions are made to Section X “Autonomous Republic of Crimea” of the Constitution of Ukraine.
The Section changes the name in which the addition about the Autonomous Region of Donbass is introduced. The reference to the Autonomous Region of Donbass (ARD) in articles 134 and 135 is added, and also articles 136-1, 137-1, 138-1 and 139-1 which consider specifics (features) of the autonomous status of Donbass are added to correspond to item 11 of the “Complex of measures for the implementation of the Minsk agreements”- see also paragraph 3.3. of this document.
1.2. Introduction of the previously adopted Law of Ukraine “On the special procedure of local self-governance in certain areas of Donetsk and Luhansk regions” (hereinafter – the “Law on Special Status”)
At present, the possibility of enforcement of the previously adopted Law on the special status of ORDLO is excluded. It is necessary to make changes in the law, canceling its term of validity, and also to exclude preconditions for the start of effectiveness of this law.
1.3. Amnesty law
The law should be comprehensive with minimal exceptions and be similar to the Law of 21.02.2014 “On the prevention of persecution and punishment of persons in connection with the events that took place during peaceful assemblies, and the repeal of some laws of Ukraine”. According to this law, the persons who participated in mass protests that began on November 21, 2013 on the day the law came into force have been released from criminal liability.
According to the Additional Protocol to the Geneva Conventions of August 12, 1949 related to the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (Protocol II), in the event of a cessation of hostilities, the authorities seek to grant broadest amnesty possible to those involved in the armed conflict and to persons deprived of their liberty for the reasons related to the armed conflict, regardless of whether they have been interned or detained.
The demand for a broad amnesty is growing in an environment where the country needs to achieve the most effective national reconciliation possible, demonstrating the will to coexist adherents of different views and a joint peaceful settlement of the consequences of the military-political conflict.
For example, in Colombia, the 2017 amnesty did not affect only those accused of crimes against humanity, including crimes such as mass killings, in concluding a 2017 peace agreement with the Revolutionary Armed Forces (RAF) insurgent group led by Commander Tymoshenko (Rodrigo Echeverri). At the same time, persons guilty of committing crimes against humanity, but who confessed to the crime, were subject to imprisonment for a term of 8 years, and those who did not confessed – for a term of 25 years. At the same time, 10 seats in the parliament were reserved for the RAF, while the state funded their election campaign.
In 2002, the Macedonian parliament passed a law granting amnesty to local Albanian militants, except for war criminals. According to the Law on the Promotion of National Unity and Reconciliation of South Africa № 34 of 1995, as known, ample opportunities were provided for the amnesty of representatives of both sides of the conflict. The local legal system, represented by the Constitutional Court, was based on the premise that “if it were not for the amnesty, the “historic bridge” [agreement on the transition to democracy] might not even have been built.” Amnesty in Bosnia and Herzegovina was also carried out based on a broad approach: exceptions were made only for serious violations of international humanitarian law. The amnesty in Afghanistan was particularly broad following the 2017 peace agreement between the government and Hekmatyar’s Hezbe-Islami group, which provides for tolerance even for crimes for which other broad amnesties have maintained sanctions.
1.4. Adoption of a special Law on Elections in ORDLO
After the dialogue on the modalities of local elections, as provided for in paragraph 4 of the “Complex of Measures”, to adopt the Law on Elections in ORDLO in accordance with Ukrainian legislation and the Law on Special Status, as well as elections to the Verkhovna Rada of the ARD in accordance with the amendments introduced into the Constitution of Ukraine.
1.5. Law on Free (Special) Economic Zone in ORDLO with a special legal regime.
In order to implement the paragraph 8 of the “Complex of measures to implement the Minsk agreements” of 12.02.2015, this law should be aimed, inter alia, at preserving the traditional economic and external relations of ORDLO.
FEZ with a special regime is created for a period of 10 years.
To manage a free economic zone with a special regime, it is planned to establish the Authority of Territorial Administration of the FEZ, the head of which is appointed and dismissed on the recommendation of the Chairman of the Council of Ministers of the ARD by the President of Ukraine. Among other functions, the authority of the administration may be entrusted with concluding agreements on border and cross-border cooperation in the economic sphere with economic entities of other countries and agreements on obtaining external assistance for infrastructure rehabilitation and development of the region.
A special legal regime of free economic activity should be established on the territory of the FEZ, introducing special regulation of legal relations in the socio-economic and humanitarian fields. The zone creation aims to restore the economic potential of the region, attract investments, create jobs, create new and modernize existing production, rebuild infrastructure, ensure the viability of energy and energy supply complexes, gas and heat supply facilities.
Preferential tax, customs and currency-financial conditions of activity of national and foreign business entities are supposed to be introduced on the territory of the FEZ.
Stage II (administrative)
Assumes (as a goal) the formation within the framework of Ukrainian legislation and recognized by the international community of authorities and administration bodies in some areas of Donetsk and Luhansk regions (ORDLO).
2.1. Establishment of a Coordination Center (CC)
The CC performs a coordinating function at all stages of the settlement process – up to the formation of authorities and administration in these territories on the basis of amendments to the Constitution of Ukraine and the restoration of full control of Ukraine over the border with Russia.
The CC is a technical body, not a political one. Its function is to promote the security of residents, restore normal economic conditions, and fulfill social obligations, together with the OSCE and other international organizations to provide the necessary support for democratic elections to local authorities and the Verkhovna Rada of the Autonomous Region of Donbass in the Autonomous Region of Donbass. The function of the CC does not include the solution of conceptual political issues.
The establishment of the Coordination Center should be the result of a political agreement on the principles of settlement of the conflict with the assistance of the heads of the Normandy Four states. The CC includes representatives of Ukraine, Russia, the OSCE and ORDLO.
The draft regulations on the CC and proposals on the composition and management of the CC are prepared by the Trilateral Contact Group together with the representatives of the ORDLO. The regulations on the management and composition of the CC are subject to approval in the “Normandy format”. The meeting of the Normandy Four also approves a draft resolution of the UN Security Council, which sets out the concept of a phased settlement of the crisis in south-eastern Ukraine.
An example of the effectiveness of the settlement is the Erdut Agreement on the Status of Eastern Slavonia, Baranja and Western Srem, signed by representatives of Croatia and the Serbian authorities in the region. As a result, the war was stopped and the regions were reintegrated into Croatia. The agreement was approved by a decision of the UN Security Council, which established the United Nations Transitional Authority for Eastern Slavonia, Baranja and Western Srem.
The activity of the CC ends after the election of the authorities and administration bodies of the Autonomous Region of Donbass in accordance with the amendments to the Constitution of Ukraine regulating the special status of the Donetsk region in accordance with the paragraph 11 of the “Complex of Measures”.
The procedure for implementing the Concept provides for a sequence of the following steps:
3.1. Approval of the Concept of Crisis Settlement in the South-East of Ukraine by means of the step-by-step creation of conditions for implementation of the Minsk agreements of 12.02.2015.
3.2. Establishment of the Coordination Center.
3.3. Amendments to the Constitution of Ukraine by the Verkhovna Rada. The changes provide for the creation of the Autonomous Region of Donbass (ARD) within Ukraine.
3.4. Bringing the legislation of Ukraine in line with the new version of the Basic Law. In particular, making changes and additions to the budget, tax and customs legislation, the adoption of an internal agreement on the delimitation of the powers of the ARD and the center.
3.5. Adoption of the Law on Amnesty, the special Law on Elections in the ARD, the Law on Free (Special) Economic Zone and the implementation of the previously adopted Law on the Special Status of the ARD, taking into account the amendments to the Constitution of Ukraine concerning the ARD.
3.6. The legal status of the Autonomous Region of Donbass as a part of Ukraine is fixed in the new edition of the Constitution and laws of Ukraine and assumes the following basic principles:
Laws and the Constitution of Ukraine apply on the territory of ARD.
The Autonomous Region of Donbass is an integral part of Ukraine, endowed with a special legal status with the right to self-government through territorial communities (their associations), to form representative and executive bodies to ensure economic development of the region and meet the needs of the population in humanitarian, educational and cultural issues, religion, language and identity.
The institutional act of the ARD is the Constitution of the ARD, which is adopted by the Verkhovna Rada of the ARD and enters into force after its approval by the law of Ukraine adopted by the Verkhovna Rada of Ukraine.
At the constitutional level, the ARD establishes the highest representative body of power – the Verkhovna Rada of the Autonomous Region of Donbass and the highest state position – the Chairman of the Council of Ministers of the ARD.
The Verkhovna Rada is a collegial representative body of territorial communities (their associations) – residents inhabiting the relevant territory of the ARD, and the highest authority of the ARD. The Verkhovna Rada is authorized to approve the composition of the ARD Council of Ministers, the ARD budget, to call elections of deputies to the ARD Verkhovna Rada, to organize and hold local referendums, to approve the structure and number of municipal police, the judiciary, to coordinate the appointment and dismissal of prosecutors, to carry out religious, cultural and linguistic rights, to resolve other issues that fall within its competence in accordance with the Constitution and laws of Ukraine.