Once More Regarding a “Special Status” for the Occupied Regions of the Donetsk and Luhansk Oblasts

Once More Regarding a “Special Status” for the Occupied Regions of the Donetsk and Luhansk Oblasts

July 6 saw the expiration of the so-called “Putin ultimatum” which demanded that Ukraine present a plan for introducing changes to its Constitution granting special status for the occupied territories of Donbas. Since practically every key Ukrainian government official has already rejected such a scenario it makes no sense, despite the Ukrainian media’s heightened interest, to focus on this particular aspect of the problem of temporarily occupied Donbas. However, the nature of any de-occupation strategy for these territories and what they should look like in the future in view of the Minsk Accords and Ukraine’s national interests is an altogether different matter.

Although Ukrainians generally support the view that there should be no special status for the occupied territories and that they should be ordinary oblasts, such a position, or simple solution, is not altogether realistic or desirable given the security, socio-economic, legal and other aspects. In this regard, Transnistria, which was granted special status by Moldova - including the right to secede fully under certain circumstances – should serve as a cautionary example. How events unfolded reveals just how unsuitable a similar solution would be for Ukraine.  Indeed, they should serve as a warning on what not to do.  (For more details see http://eesri.org/wp-content/uploads/2020/02/2020-02_Transnistria_Lessons_for_Ukraine_CP-ENG.pdf).

A positive example is provided by the 3-D Strategy developed some time ago by Moldovan civil society regarding the preconditions that need to be met for the effective reintegration of Transnistria (http://old.ad-astra.ro/library/papers/moldova_3d_strategy.pdf). 3-D deciphers as Democratization, Decriminalization, and Demilitarization.  And while all of these processes are relevant for occupied Donbas, any Ukrainian strategy should prioritize demilitarization and de-Russification (relating to Russian citizenship and currency, informational space, education, etc.) as well as a “de-Sovietization” aimed at changing the region’s post-Soviet mentality.

The fact that neither the Minsk agreements nor the Steinmeier Formula stipulate specific conditions for any “special status” for the Donbas allows for a broad range of interpretations – even re-interpretation – of this term that goes against Moscow’s obvious desire to narrow it down if not quite to the federalization of Ukraine than at least to giving the currently occupied territories of the Luhansk and Donetsk oblasts de facto autonomy within a unitary state.

The existence of autonomous territories within a unitary state is not paradoxical.  They can be found, for example, in Denmark, Finland and Spain. Italy has South Tyrol while Moldova has its autonomous Gagauz region of Gagauz Yeri, or Gagauzia. However, the defining characteristic of these creations within non-federated states – whether monarchies or republics – is the existence of separate communities differentiated from the majority population by ethnicity, language, religion, culture and historical traditions. All of these characteristics are absent in both Transnistria and the Donbas where the population consists of the same majority and national minority groupings found in the rest of the country.

As an acknowledged indigenous people of Crimean Ukraine, the Crimean Tatar nation represents a completely different case.  According to international law, this nation – as opposed to a national minority – has the right to self-determination within its historical homeland, including the forming of its own national-territorial autonomy within Crimea as a means of realizing this right. That is why any strategy for the de-occupation of Crimea not only should but must envision the transformation of the so-called administrative-territorial autonomy (as described in Section 10 of the Ukrainian Constitution that deals with Crimea) into a Crimean Tatar national-territorial autonomy. In contrast to Crimea, no similar legal entity with a right to self-determination exists within the Donbas. Any talk of the area’s “autonomous status” is therefore completely unfounded.

More broadly, the problem of the de-occupation and reintegration of the Donbas might be viewed on the basis of the concept of transitional justice. This concept provides a means and mechanisms for emerging from armed conflict, dealing with the consequences, establishing peace and avoiding a renewal of conflict. It also helps investigate the biggest crimes perpetrated during the fighting and offers a way to protect human rights. It consists of the following elements:

  • Measures for compensating victims of armed conflict;
  • Bringing to account individuals guilty of perpetrating war crimes;
  • Ensuring the right to establish the truth about events that occurred during the conflict;
  • Institutional reforms as a guarantee for preventing a repetition of armed conflict.

Ukrainian presidential decree № 758/201914 from October 17, 2019, (https://www.president.gov.ua/documents/7582019-29977), gave the responsibility for the creation of a proposal for a concept of transitional justice to the president’s representation in  the Autonomous Republic of Crimea. This and other important aspects of the de-occupation of Crimea are addressed in a document called “Relevant Guidelines for a State Policy with Regard to the Temporary Occupation of the Autonomous Republic of Crimea and the City of Sevastopol” drafted by the presidential representative in Crimea together with the Ministry for the Re-integration of the Temporarily Occupied Territories, and the parliamentary committee on human rights and the de-occupation and re-integration of temporarily occupied territories. This document was presented in Kyiv on July 2 (https://www.ukrinform.ua/rubric-crimea/3056271-uradovci-prezentuvali-edinij-derzavnij-pidhid-sodo-deokupacii-krimu.html).

It would be completely logical to draft a similar concept for occupied Donbas – thus interpreting the position on its “special status” in a manner fully consistent with Ukrainian national interests, especially, even principally, in the key area of national security.

Natalya Belitser

Natalya Belitser is Senior Researcher at The Pylyp Orlyk Institute for Democracy, Kyiv, a partner organization of the US-Ukraine Foundation.

The original Ukrainian version of this article is available here.