The recent developments in the Donbas, in particular, the escalation of the conflict by the terrorists, are another proof that Russia and the terrorists it supports are not going to respect the Minsk accords. This is how Lithuania’s Foreign Minister Linas Linkevicius described the situation in his tweet: “Imminent escalation by pro-#Russian ‘separatists’ in #Ukraine: tank assault, burned OSCE vehicles. Clear signals to all opponents of sanctions.”
The Ukrainian side also condemned the terrorists. However, officials in Kyiv still have not answered the question what should be further done with Russia and the separatists it backs, who totally despise the Minsk accords, claiming at the same time that it is Ukraine that violates them.
In connection to the developments in the Donbas, Ukraine’s Foreign Minister Pavlo Klimkin announced about an arrangement made with fellow foreign ministers of Germany and France, Frank-Walter Steinmeier and Laurent Fabius, to hold consultation with the Russian Federation about the aggravation of the situation in the Donbas. What else could be discussed with Russia’s minister? Obviously, it is time to look for other ways of settling the problem in the Donbas (Russia’s invasion in eastern Ukraine) and reintegrating Russia-annexed Crimea to Ukraine.
In this respect, a rather interesting alternative has been suggested by Adrian Karatnycky, senior fellow at the Atlantic Council, and Alan Riley, lawyer and fellow of the British political think-tank ResPublica, co-authors of the article titled “If Minsk Fails, Let Moscow Pay,” published on August 10.
In particular, the authors suggest the following: “It is time for Ukraine to consider declaring Russia as the occupying power, making them financially accountable for the occupation. Under Article 69 of the fourth protocol of the Geneva Convention an occupier is responsible for the needs of the population. Currently it is the Ukrainian government that is paying the pensions, supplying some of the energy consumed on occupied territory. But these costs should be borne exclusively by Russia, whose broad legal liability for the costs of occupation stems from the respect for territorial integrity contained in Article 2(4) of the UN Charter and from a range of provisions under the European Convention of Human Rights.
“Ukraine can start accounting for losses suffered to the state, companies, and people. Legal processes can be initiated before the European Court of Human Rights as well as in a range of other international forums. As the Yukos case indicates, international litigation may take years but can eventually deliver result. However, in Ukraine’s case, accounting for the losses of occupation could potentially provide a quicker resolution. First, the Russian state will face reputational damage as international tribunals rule that Russia is indeed the occupier. Second, Russia will have to dodge seizure of foreign-held assets. Third, as the scale of Russia’s international liabilities becomes clear, those liabilities will affect the creditworthiness of the Russian state. These three factors can force the Russian state in the direction of settlement.
“Every effort must be made to give the current peace process a chance. But with the odds heavily stacked against Minsk, it is essential for Ukraine and its friends in the West to explore alternative options. Even this first step, which would ratchet up the economic costs to Russia far beyond current sanctions, may bring Putin and Russia’s elite to their senses.”
The Day asked experts to comment on the initiative of the Western analysts to declare Russia an occupying power in Ukraine.
Andreas UMLAND, German political scientist (Kyiv):
“I have read Karatnycky and Riley’s article. In my view, it would be worthwhile considering this matter in the framework of international legislation. There must have been some reasons which have hindered it hitherto. Or maybe, it was difficult to pass such a decision in Ukraine. But if it is possible, Russia must be declared an occupying power.
“What else could the West do to force Russia and Russian-backed separatists to fully fulfill the Minsk accords? I think today the feasible way is to go on with the sanctions and, possibly, toughening economic sanctions on the part of the West as a whole. This could be coordinated in the EU, and all EU countries could agree to such measures.
“On the other hand, supplying Ukraine with weapons could be done on bilateral basis between individual EU countries and Ukraine.
“The sanctions could be extended by imposing an embargo on buying Russian oil. But it would need great political efforts within the EU to ensure that all the member states agree to such an embargo. I think it will become possible in case of a large-scale escalation of the conflict in the east of Ukraine, when EU countries become prepared to toughen the sanctions in such a way.
“Now, concerning the effectiveness of another consultation with the RF, announced by Ukraine’s foreign minister and aimed at preventing the negative situation in the Donbas following yet another intensive bombing of the ATO forces by Russia-backed terrorists. Such consultations, even if ineffective, illustrate Russia’s political standpoint. This could be seen in the vote on the setting up of the MH17 tribunal in the UN Security Council, when Russia vetoed the resolution and ended up in isolation.”
Hanna HOPKO, chair of the Verkhovna Rada Committee for Foreign Affairs (Kyiv):
“Ukraine has initiated legal proceedings at the European Court of Human Rights (ECtHR), demanding to acknowledge Russia as an occupier. Now we are waiting for a decision concerning Ukraine’s lawsuits at the ECtHR as an international legal institution: Ukraine vs. Russia, i, ii, and iii, and relevant interim measures in accordance with Rule 39 of the Rules of ECtHR. The first one directly concerns the violation of the rights, guaranteed by the Convention, due to Russia’s military occupation of Crimea and its armed aggression in the Donbas. On November 25, 2014 the cases Ukraine vs. Russia i and ii were communicated to the Russian party. Besides, the Court has agreed to consider Ukraine and Russia as co-defendants in 160 lawsuits concerning human rights violation in Crimea and 140 lawsuits concerning human rights violation in the Donbas, thus acknowledging the fact that Russia, being an occupying power, exercises effective control over Crimea and is directly involved in the armed conflict in the east of Ukraine. Of course, such cases take a lot of time (two to four years for personal cases, and six to seven years for disputes between states). Yet it is expected that the consideration of the case will find Russia’s actions wrongful and a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.
“The result of our committee hearings must considerably improve our work.
“In particular, the president of Ukraine shall: charge the Council of National Security and Defense with the task of forming a comprehensive strategy of defense of Ukraine’s national interests in what concerns countering acts of aggression, temporary occupation of the Autonomous Republic of Crimea, and other crimes perpetrated by the Russian Federation against Ukraine; sign and send to the Secretary of the International Criminal Court (ICC) a statement of Ukraine’s acknowledgement of the ICC’s jurisdiction concerning the commitment of crimes against humanity and war crimes by high officials of the Russian Federation and leaders of the terrorist organizations known as DNR and LNR, resulting in particularly serious consequences and mass killings of Ukrainian citizens. The Cabinet of Ministers of Ukraine shall: consider the possibility of setting up the Foundation for Reintegration of Crimea; intensify the work of the State Service of Ukraine for the Autonomous Republic of Crimea under the Cabinet of Ministers of Ukraine; set up or relocate to continental Ukraine the state bodies and structural subdivisions of law-enforcement agencies from the temporarily occupied territory of the Autonomous Republic of Crimea; define, under current legislation, an exhaustive list and contents of losses to be assessed, in particular, the identification of the losses, with a view to defining the material losses suffered by Ukraine as a result of Russia’s aggression, occupation of the Autonomous Republic of Crimea, and other crimes against Ukraine, as well as prepare initial data with information, necessary for such an assessment; intensify the activity on defining the ways, mechanisms, and methods of repairing the losses suffered due to temporary occupation of a part of Ukrainian territory, as well as promote the coordinated action of executive authorities in what concerns repairing of the losses caused by temporary occupation of a part of Ukrainian territory.”
