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Yo-Yo Elite Employment – Ukraine

May 5, 2016

Many western readers can identify with “revolving door” employment, whereby senior legislators and/or civil servants leave the public sector to take up senior appointments in the private sector, or vice versa.  Whilst occasionally industry specific – former energy ministers to energy companies or finance ministers to banks etc, , clearly the industry that “lobbying” has become has the widest scope to facilitate such career moves and corporate strategies.

Ukraine suffers from Yo-Yo employment – whereby it is seemingly almost impossible to sack senior officials, be they politicians, judiciary, military, those of the lofty entrenched ranks within the prosecutors office, the civil service or State Owned Enterprises.

yo

Of course if the Ukrainian State would actually jail senior officials rather than sack them to simply see them returned by various methods, it would perhaps be a little harder for these people to “Yo-out” before being allowed to “Yo-back in”.

Indeed it could be argued by the cynical, that the entire system is deliberately set up to insure sacking senior people is exceptionally difficult – regardless of sins committ

For example, a long standing, corrupt to the core, connect politician can be sure of reelection by engineering a place high enough on any party list via the proportional representation vote should they consider their chances slim by way of first past the post/single mandate election.

Senior police officers deemed unworthy of the police service have been sacked, simply to see the corrupt courts state their sacking unlawful and rule for their reappointment.  As stated a month or so ago – “Take the on-going saga of police reform as an example.  Thousands of police officers have been sacked either for questionable and unconvincingly explained wealth, professional inability, or simply criminality.

Many of those sacked have appealed to the corrupt courts of Ukraine that have stated they have been wrongly sacked and must be allowed to return to their previous positions.  This had led to Khatia Dekanoidze the Chief of the National Police of Ukraine to state she will sack these people again.  When she does, a reader can guess how the courts will rule – again.

And so it goes on”

“And so it goes on” indeed – Chairman of the District Administrative Court of Kiev, Pavel Vovk, has called for the National Police Chief Khatia Dekanoidze to be called to criminal account for her criticism of the courts and judges.  Her response to the “learned” Judge thus –“Judge Vovk calls for bringing me to criminal responsibility.  An appeal to remove me from office, and to prosecute because of the criticism..

I am not going to enter into polemics with the person to whom the Ukrainian society has already issued its verdict.

“I’m more worried about revenge of the old system than statements reputationally bankrupt bureaucrats.”

It should be noted that one of the senior police officers fired by Ms Dekanoidze whose reinstatement was ruled in favour by the courts is indeed a friend of Judge Vovk.

Vovk

Indeed Judge Vovk is something of a Yo-Yo himself, and Ms Dekanoidze is not far off the mark regarding society’s verdict about him.  The Higher Qualification Committee of Judges has apparently suspended Judge Vovk no less than six times thus far, yet continue to avoid making any decisions to dismiss him, nor impose any other form of discipline.

A cynical reader may ponder just what Judge Vovk has on others regarding “kompromat”, or alternatively just whom is keen upon Judge Vovk remaining their puppet Judge.

It will be interesting to see what happens if/when Yuri Lutsenko becomes Prosecutor General (possibly within the next 2 weeks) – for it was Judge Vovk that jailed him for 4 years under the Yanukovych regime.  There are old scores to settle.

Indeed, how people such as Roman Nasirov remain head of the State Fiscal Service may also perplex a reader (though a cynical reader may believe that he remains in place as part of a grubby political deal to insure sufficient votes for the new Cabinet from otherwise hostile political positions).

As the top SOE management are often associated with facilitating the requirements of the vested interests and/or oligarchy that placed them in their roles, or bought their souls when they reached such dizzy management heights, every effort will be made for them to keep their jobs, and if they can’t be kept, then to insert them into another SOE to serve nefarious interests there.

As the Odessa Regional Prosecutor drama surrounding Nikolai Stoyanov ably displayed, lustrated does not necessarily mean lustrated – unless it is enforced by public protest, the Ministry of Justice and presidential intervention eventually in order to win the day.

In short, sacked it appears, often does not mean sacked.  To be fired is often a temporary thing.

Indeed, it is not only national management that has trouble sacking people permanently.  It appears that even Presidential Decree is not enough to remove somebody from their post.  On 15th April 2016, Commander of the Naval Forces of Ukraine Vice-Admiral Sergei Haiduk was sacked by Presidential Decree – the Decree stating thus “Considering the position of volunteers and the public and system deficiencies in the performance of official duties, as well as low credibility among office staff, decided to dismiss Sergei Haiduk from office of the commander of naval forces.”  

A new Commander has been appointed, but it is an open secret in Odessa that Sergei Haiduk still goes to his office, has not removed any of his possessions from that office, and intends to hang around wanting to take part in the 9th May Victory Day commemorations at the very least.

In short for almost one month, even when dismissed by Presidential Decree, former Commander of the Naval Forces of Ukraine Vice-Admiral Sergei Haiduk still “has not left the building”.

(Despite the diplomatic wording for his dismissal within the Presidential Decree, the reasoning is more specifically a known pro-Russian leaning, deliberate reform obstruction, and nepotism – as became public knowledge in January 2016 when a public petition to sack him for these very reasons began to gather momentum.)

A change of President may see him return to a senior naval role once more – as would be expected by decades of Yo-Yo employment precedent.

It may be Ms Dekanoidze will win the day over sacked really meaning sacked within the National Police, particularly with the probable appointment of Yuri Lutsenko as Prosecutor General – Judge Vovk may finally receive the official verdict that public opinion long since ruled.  Anything resembling a genuine lustration of the judiciary would have seen Judge Vovk go long ago – rather than being subject to half a dozen suspensions.

Open party lists may yet grace the proportional part of the electoral system, thus removing the “safe” reelection route for the worst of the worst of the political class.

Perhaps former Commander of the Naval Forces of Ukraine Vice-Admiral Sergei Haiduk will eventually leave the building as demanded a month ago by Presidential Decree.

Maybe those “owned” within SOEs will one day be forced out and remain forced out of such companies.

It could be that pigs may eventually fly and senior officials actually be jailed for significant lengths of time.

In the meantime a reader is left to marvel (or perhaps convulse) at the Yo-Yo employment of the most senior, most odious and most corrupt in Ukraine.

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Borovik resigns as Odessa Deputy Governor – as required by law

May 5, 2016

The 1st May saw the new statute on the Ukrainian civil service come to life.

It is a law that although not perfect is a significant step in the right direction and which has thus far managed to avoid “tinkering” via legislative amendment to make it impotent.

It now remains to be seen if it will be effectively implemented.

As a result of the law coming into force, Sasha Borovik who holds German and Ukrainian citizenship, could apparently no longer lawfully hold the office of Odessa Deputy Governor, for the law seemingly provides that those solely possessing Ukrainian citizenship may hold civil service positions if the cited reasons for his resignation be correct.

resignation

Mr Borovik thus resigned as the seemingly law required – explaining that the new law was the reason for doing so.  Quite rightly too, on both counts if correct.

It would be self-defeating to be perceived to champion reform and the rule of law yet deliberately break it once the civil service law came into force.  Credibility would take an unnecessary blow – particularly when still holding an elected seat (thus not a civil service appointment) in the City Council.

Whether or not Maria Gaidar will similarly resign as Deputy Governor – or not – may indicate whether she still retains Russian citizenship whilst also holding that of Ukrainian.  She too however, even if resigning as Deputy Governor, would continue within the Oblast Administration having been voted into the role no differently that Mr Borovik to City Hall.

There are others within the Governor’s team that would seemingly face the same dilemma that hold (senior regional) civil service posts.

Whatever the case, Mr Borovik is seemingly adhering to the rule of law, and the Oblast Administration has duly accepted his resignation as Deputy Governor.  Mr Borovik will continue to advise the Odessa Governor in a “freelance” role over investment policy as well as continue to be a thorn in the side of vested interests in City Hall.

There is of course the constitutional issue of dual nationality:

Constitution of Ukraine Article 4. There is unique citizenship in Ukraine. The grounds of acquisition and stopping of citizenship of Ukraine are determined by a law.

That arguably prevents dual citizenship, however it could be argued that it is the only citizenship recognised in Ukraine by those holding more than one citizenship – “If a citizen of Ukraine acquires citizenship (nationality) of another state or states, in legal relations with Ukraine, the person is recognized as a citizen of Ukraine only. If a foreigner acquires the citizenship of Ukraine, then in legal relations with Ukraine, the person is recognized as a citizen of Ukraine only”.  Article 2 Law on Citizenship of Ukraine

That may be read in such a way that in any legal interaction with the Ukrainian State, only Ukrainian citizenship is recognised by those holding more than one – and perhaps therefore understood to comply with Article 4 of the Constitution in so much as Ukrainian is a “unique citizenship“.

Something for the legal profession to deliberate over, and no doubt a deliberately created grey legal issue by those with influence that indeed hold dual nationality when the law was written.

There certainly appears to be no current statute that provides for stripping Ukrainian citizenship for any reason, neither does it currently appear to be a criminal offence if discovered holding two or more nationalities.  What effectively can therefore be done?

In Odessa alone there are of thousands of Ukrainian citizens that also hold citizenship for Bulgaria, or Romania, or Hungary, or Israel, or Greece, or Russia, or Cyprus, or the UK, or the USA or Canada – and clearly Germany too, as in the case of Mr Borovik.  This blog knows personally Ukrainians that hold each of the aforementioned passports as well as that of Ukraine.

Should Odessa City Hall be subjected to a purge of those People’s Deputies holding more than a Ukrainian international passport (ie. citizenship), anywhere between one or two dozen would be ousted.  Perhaps fortunately for these People’s Deputies, such a purge seems unlikely – there is an unmistakable lack of will to pursue such matters where Mayor Trukhanov is under the microscope for allegedly holding a Russian passport.

Indeed Mr Borovik would survive any such purge, as having been granted Ukrainian citizenship in 2015, he legally has 2 years in which to surrender his German citizenship and can therefore serve as a People’s Deputy quite legally during that time.  It is the text of the new law on Civil Service that seemingly contains reasons for his exit from a civil service position.

It is doubtful all those elected within the Oblast Administration would survive such a purge either.

A reader may suppose that some within the Verkhovna Rada would not be especially keen too.

Indeed both Ms Gaidar and Mr Borovik ran on the President’s party ticket for their elected offices.  It therefore seems unlikely raising a scandal would be deemed appropriate within the Presidential Administration.  Those appointed to civil service positions without a democratic mandate to fall back upon however, may face an entirely different outcome (Messrs Zhmak, Lortkipanidze, maybe Misha himself.  What future prospects for Sakvarelidze?).

The reasoning behind the civil service being legislatively unambiguous about solitary Ukrainian citizenship is presumably part of a wider effort to cleanse, or provide an avenue for simple dismissal/cleansing, relating to external, hostile infiltration of the policy implementation nervous system of the nation.

If that be the case, then fair enough.  The law is meant to be blind and its sword is double-edged.  Where fall Mr Borovik voluntarily today (and perhaps others in due course),  may fall those of hostile intent involuntarily tomorrow.  There remains the roles of “freelance adviser” or “advisory panel member” for those that can contribute positively.  It is not necessarily about the position officially held, but about the “shadow rank” and associated influence upon policy that goes with it.

Nevertheless, a reader may ponder whether a reformed Ukrainian civil service entirely staffed by “Ukraine only” citizenship holders will be (hopefully) diligently and effectively implementing national, regional or local policy created by politicians holding elected office that clearly aren’t as limited in the passports and citizenship they hold.

Perhaps yet worse, a “Ukraine national only” civil service implementing State policy  by those behind the curtain that hold multiple nationalities and who control entire political parties and national parliamentarians across all party lines.

Whatever, in this case, Mr Borovik has seemingly done the right thing in resigning, and the rule of law insofar as the newly effective Civil Service Law has been upheld entirely voluntarily in his case.  It is somewhat doubtful however, that the implementation of this law will be accomplished nationally with such integrity.

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When is cyberwar an act of war? Is NATO getting close to answers?

May 3, 2016

Just over a month ago, an entry appeared raising some issues that to be quite blunt, remain somewhat perplexing.  The entry was inspired by a chat with an Oxford University boffin at the Odessa Security Forum.  Answers, it has to be said despite over a month of pondering, are still difficult to reach.

“Whether it be something approaching a temporary national convulsion as experienced by Estonia in 2007, with banks, the parliament, and broadcasters being downed, or the disruption of technical operations in conventional warfare experienced by Georgia in 2008, or the physical infrastructure damage such as that caused by the Stuxnet worm in 2011, or system wide computer malfunctions experienced by Sony in 2014, or the 2016 hack of the Ukrainian power grid, there would appear to be an empirical trend of escalation – or “pushing the envelope” to use the Tom Wolfe idiom.  (It is perhaps a blessing that so old and ignored is Ukrainian infrastructure since independence that manual systems still exist to rectify matters swiftly.)

Directly or indirectly lives may have been lost through such acts, perhaps deliberately so on the battlefield, and perhaps as a consequence of downing power grid (or other) infrastructure.

The above incidents are employed to simply display a perception of escalation – there are numerous public domain incidents that could have been cited, and undoubtedly even more incidents remaining without the public domain that could have been used that may have already led to the loss of life.

All of which leads to the especially difficult question regarding what, exactly, will be the threshold for a cyber act that is deemed an act of war?  Particularly so when such acts can be far more easily and deniably outsourced to non-State entities by the State?

Clearly those attacking any system have the advantage over those trying to defend it.  There is no such thing as 100% security – on line or off line.  Where there is a will there is a way with sufficient skill, determination, time, or money – or a combination thereof.

How do those on the receiving end recognise the difference between espionage (which all States engage in) and what is an attack (which perhaps not all States currently have the capability for) that will leave behind something nasty and that in the months ahead bring down critical defences and/or infrastructure?

Yet further, how easy would it be to misinterpret intent or miscalculate effects?  How to judge the proportionate response – at least in a timely manner?

……..there is an empirical convergence of cyberspace and terrorism.  There is an empirical convergence of cyberspace and organised crime – indeed with some States it is not always easy (if at all possible) to separate the State from organised crime, or organsised crime from the State.  There is an empirical convergence of cyberspace and geopolitics.  All of which leads to the empirical convergence of the space between war and peace – and ultimately what will be deemed and act of war – or not?

There will never be an international law that bans espionage – because every State engages in it.  Domestic statute will predominantly deal with those caught engaging in espionage against the domestic interest, but will not ban the practice against others.”

cyber

These are all particularly difficult and thorny issues.

When does cyberwar become an act of war?

NATO Secretary-General Jens Stoltenberg recently told a key alliance planning summit that “cyber is now a central part of virtually all crisis and conflicts, NATO has made clear that cyber attacks can potentially trigger an Article 5 response.”  Quite rightly too.

When sparing with Chairman of Russia’s Federation Council Committee on International Affairs Konstantin Kosachev over whether NATO would bomb a nation suspected of cyber attacks, the NATO Secretary General stated “We will do what’s necessary to do to protect all allies, but I’m not going to tell you exactly how I’m going to do that … that’s the main message.”  The return of ambiguity in an very ambiguous theatre perhaps – or perhaps such a strategy and protocols remain work in progress, thus ambiguity masks developing strategy.  Perhaps a little of both.

Having previously stated – “How do those on the receiving end recognise the difference between espionage (which all States engage in) and what is an attack (which perhaps not all States currently have the capability for) that will leave behind something nasty and that in the months ahead bring down critical defences and/or infrastructure?

Yet further, how easy would it be to misinterpret intent or miscalculate effects?  How to judge the proportionate response – at least in a timely manner?”, the NATO Secretary General half-answered this issue raised with a statement that would infer, perhaps deliberately misleadingly (perhaps not) that policy is seemingly still under development when he said NATO should “sharpen our early warning and situational awareness … so we know when an attack is an attack.

That statement does perhaps also infer that what constitutes an attack (that crosses certain thresholds) has at least been defined – as has what doesn’t constitute an attack (which doesn’t meet the parameters, whatever they are defined as).

Perhaps NATO is getting closer, or has indeed answered for itself, the issues raised by the blog last month.  If so, bravo, for certainly the convergences mentioned above continue placing time constraints upon clever thinking.

Perhaps it will only be when policy triggers are pulled when as yet unknown red lines are crossed – and those red lines may not all be particularly obvious to those “pushing the envelope”.  What then to do if those lines are crossed by deniable outsourced entities with no clear links to a State?

It’s a policy realm that’s enough to make your head hurt – but it is one faced by all the protagonists (for better or for worse)!  It is also a theatre of war in which Ukraine can theoretically hold its own.

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Looking forward – to sanctions renewal

May 2, 2016

With all eyes upon events in Odessa during the 2nd – 9th May period, and numerous entries of late being very Odessa-centric, it is perhaps worthy of looking ahead following on from the last entry relating to the Stability * Democracy Act/STAND Act submitted to the US Congress, and such matters.

Before doing so however, a few lines of appreciation to the people that share the same city as this blog, and the tolerance displayed (at the time of writing).  That there have been (thus far) so few arrests, so few weapons seized/discoveries made, and no lynching of the odious politicians that either turned up at Odessa Airport to be turned away (which will naturally be spun as police impotence to uphold the law by Opposition Block adherents),

or of those that both pro-Ukrainian and pro-Russian consider to have more than a hand in the tragedy 2 years ago,

is a credit to the society with whom the blog lives within.  Grateful words also to the police and national guard who whilst undoubtedly annoying/upsetting some people, kept order and upheld the rule of law (again at the time of writing).

May such tolerance from all concerned see every soul in Odessa past the 9th May that holds the same potential for grievous stupidity.

Onward – The last entry having concentrated upon the STAND Act and the conditionality it seeks to place into statute with regard a US President removing sanctions upon The Kremlin, a reader may also turn a watchful eye toward EU sanctions renewal in June.

As ineffectual as the recent vote in the French National Assembly is upon the French position today – and more to the point in June when EU sanctions vis a vis Russia are due for renewal – a reader may ponder how many more renewals there will be when the EU requires consensus to continue.

Ergo, sanctions will be renewed in June, but whether they will can be maintained indefinitely,  or even throughout 2017, is far less certain – particularly with significant elections in France and Germany in 2017.

That said, such things are event driven, and a fumble within The Kremlin that manifests with awful consequences within the occupied Donbas (or elsewhere, for although there may be no prima facie links to events elsewhere, that in no way means they will not be linked in the minds of policymakers or public) would probably see an immediate rediscovery of European backbone – at least for a while longer.

herdingcats

In short, whomever a reader believes is responsible for herding the European cats toward maintaining sanctions unity – be they believe it is Berlin or Washington – or both – that capital will really begin to have their work cut out for them from 2017.

Naturally nobody expects The Kremlin to re-position itself or make any concessions.  The Kremlin is entrenched.  Any deal is a deal on Kremlin terms – or no deal.  The attitude is one of no matter how much pain you can inflict (whilst inflicting some upon yourselves in the process), we can take it – and more, on top of that we can inflict our own pain on ourselves as well – and take it too.

Indeed, discounting Peter the Great’s victory over a weakening Swedish kingdom, that of Alexander I over an significantly overreaching Napoleon, and Stalin’s efforts with the alliance defeating Hitler, there are too few other military outcomes that can be plausibly trumpeted as worthy of the self-perception of an international or indeed regional power.  Crimea 2014 is a military highlight that cannot therefore be undone (for a generation or two at least).

Thus Crimean sanctions will stay for a long time – both US and EU imposed.  That they will not be relaxed is not in question, it is those sanctions imposed over the occupied Donbas that are the issue at hand.

With a clearly identifiable policy of not wanting to be like “the West”, having no intention of being like “the West” and only having any interest in “western clubs” if afforded a veto or being “more equal” than other equals, The Kremlin reinforces its “only deals on our terms” position.

(Unfortunately for The Kremlin it is not an “equal” to the US, nor China, nor the EU outside of hard power in some, but not all, cases – and in these globalised days it takes far more than hard power to be “a power”.  It’s made even more difficult particularly when the hard power you have is limited by projection ability, technology, strategic depth, and it’s use is not based upon determinable strategy but tactical opportunity.)

Of course this all retards Russian development (again) as investment and technology transfer declines and then takes some convincing to return to pre-existing levels.  Years, indeed decades can be lost.

However the inevitable sanctions fatigue will feature before The Kremlin’s self-harming reaches a point whereby it needs to send out rapprochement signals for fear of a self-inflicted terminal injury – this fatigue of course if there is no unforeseen events to renew European resolve in 2017.

It was always the issue with sanctions – particularly when sanctions are part of a policy tool kit, and not policy in and of themselves which they appear to be (unless anybody can actually identify a tangible policy in dealing with the current Kremlin that goes beyond them).  Those that urged caution in their implementation in lieu of policy (this blog included) will take no solace from their eventual collapse due to a lack of maintained unity.

That said, aside from a quick PR victory for The Kremlin, sanctions removal will do very little to turn around the internal economic or societal situation that faces The Kremlin within its own borders.  It may help in justifying the presidential election results, although that result was always beyond doubt.  It was beyond doubt in 2012, for Mr Putin was not returning as president for a single term.

In summary, whilst political and diplomatic discourse continues with the policy necrophilia known as Minsk (which will not be fully implemented), the tying of sanctions to them is now clearly problematic (as many stated it would be) looking forward.  Sanctions fatigue in 2017  is increasingly likely to gather momentum whilst Minsk will remain unfulfilled.

The chances of tying sanctions relief to other conditionalities are small – for what other conditionalities are there relating to the reasons they were officially imposed – the territorial integrity of Ukraine?  Sanctions after all are not a punishment but a tool to alter another’s course.  That course will not be altering.

The justifications for retaining them are naturally being seen to do something when so many international treaties have been sacrificed by The Kremlin within Ukraine, and that “sanctions take time and should remain” – even if the outcomes are limited.  Yet fatigue demands swift results or acquiesce, and sanctions fatigue is upon the 2017 horizon unless either specific new events drive them onward, or new reserves of consensus stamina are found from within – somewhere.

For how long can the US herd the 28 EU cats, or if that be the purview of Berlin, how long can it herd the other 27 EU cats (assuming the UK remains) whilst simultaneously dealing with its own coalition friction over the matter?  (Admittedly recent Kremlin meddling within German internal affairs has hardened the view of many of the German elite – but even so.)   Next month almost assuredly EU sanctions will be extended, but renewals in 2017 seems far less certain.

A reader may ponder how much forethought policymakers have given this horizon.

The message to Ukraine from all of this is to stop talking and start walking reform in 2016 so that the Europeans can successfully frame the sanctions as accomplishing something progressive – directly or otherwise – for there will be no change of course from The Kremlin.

Alternatively, once the sanctions fail to be renewed, perhaps then Minsk to will quietly shuffle from the discourse.

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Stability and Democracy for Ukraine Act/STAND for Ukraine Act

April 30, 2016

In the US Congress, Bill 5094 has been submitted, entitled Stability and Democracy for Ukraine – or STAND for Ukraine Act as a reader may prefer.  It has cross-party support, the charge through Congress to be headed by Messrs Engel (Democrat) and Kinzinger (Republican).

The core of the proposed legislation seeks to reaffirm several issues – clarifying existing U.S. policy toward Ukraine and unambiguously acknowledging the Ukrainian right to self-defense.  It seeks to robustly link sanctions relief for Russia to timely, complete, and verifiable implementation of the Minsk framework.  It ergo addresses the occupied Donbas issue.

It further cements U.S. Crimean policy in the same foundation as the doctrine of non-recognition set by the US for the duration of the USSR’s 50 year occupation of Estonia, Latvia, and Lithuania.

It seeks to further tighten existing US sanctions on Russia by creating a seemingly stricter sanctions-evasion framework and demands a regular report on foreign financial institutions that are illicitly controlling Ukraine state-owned assets in Crimea.

Of particular importance is the imposition of an Arms Export Control Act founded upon a presumption of denial standard upon any NATO member that transfers certain defense equipment or services containing US technology and/or components to Russia while Russia is forcibly occupying the territory of Ukraine (or any NATO member – read Baltic reassurances).  A reader may ponder just how much of NATO allies defence equipment and/or services employ absolutely zero US technology – even if it contains no US components.

The Bill seeks to extend the reach of the Magnitsky Act to any and all territories occupied or otherwise controlled by Russia – presumably Abkhazia, Crimea, South Ossetia, and Transnistria where Russian military are physically present, rather than those areas that Russia de facto controls by other means.

Interestingly, the Bill also directs the US Administration to liaise with Kyiv in order to create an international consortium to drive private investment in Ukraine by minimizing and pooling political risk to would-be private investors.  An oblique reference to some form of international insurance scheme backed by States to guarantee entry into Ukraine for international corporations perhaps?

Regarding the wider Ukrainian neighbourhood, the Bill requires the Secretary of State to develop and implement a strategy to respond to the Kremlin disinformation and propaganda efforts aimed at the Russian-speaking areas in countries bordering Russia.  This is perhaps a somewhat narrow view, for Kremlin disinformation, agitprop and propaganda is aimed at a far broader audience than its diaspora and ethnic Russians in its immediate neighbourhood.  Much of it is aimed at the being fly-paper for the swivel-eyed in nations beyond its immediate boarders.

All important considerations.

However, perhaps the most important of all with a new US President upon the immediate electoral horizon, is that from a legislative stance the Bill places into statute the existing Executive Order sanctions imposed on Russia for the forcible and illegal occupation of Crimea.  It is easier for a sitting US President to cancel a pre-existing Executive Order than it is to repeal existing legislation passed by Congress and the Senate.

statute

The Bill would require that a US President, prior to lifting Ukraine-related sanctions, submit official certification to Congress that Ukraine has restored its sovereignty over Crimea, or that alternatively the peninsula’s status has been resolved to the satisfaction of a sitting and democratically elected government in Kyiv.

In short, Crimean sanctions, via this Bill, will stay in place for a very long time – as they should if the reasons they were imposed are to be honoured (namely a tome of international instruments and agreements completely disregarded by The Kremlin).

There is perhaps one concern, albeit currently certainly not an issue regarding Crimea now.

As there is no way The Kremlin will leave Crimea whilst Mr Putin is alive, and there is no reason to believe any successor will undo the annexation either (living President’s/former President’s legacies etc), a reader may ponder just how many years it will be before certain western capitals would begin to pressure Kyiv to reach that “alternatively the peninsula’s status has been resolved to the satisfaction of….” status.

A reader may imagine in a truly wild flight of fancy, that Minsk is actually implemented, (which it will not be, and those that “negotiated” Ukraine into Minsk should perhaps if unable to “negotiate” it out, then at the very least be “negotiating” its continued stalling), how many years would it be before the sanctions on Crimea became simply irksome to them and sustained pressure was then put upon Kyiv to “accept reality” and strike a deal to “its” satisfaction (or more to the point, its dissatisfaction)?

After all, this Bill, is part of a policy toolkit no differently than sanctions are – but neither are actual policy.  Perhaps, “the West” will actually arrive at a policy – but to do that, it must first decide what it wants in the face of a protagonist that has for many years unambiguously stated it does not want to be like, nor part of, “the West”.

Nevertheless, the most important issue here and now, on the presumption it becomes law, is perhaps the transferring of an existing Executive Order into the US statue book prior to US presidential electoral outcomes.

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A “negotiable rule of law” – Odessa & Ukraine

April 29, 2016

It has for many years been said, here at this blog and across the entirety of right-thinking people, that the rule of law will be the only foundation from whence something approaching a functioning State will emerge as far as Ukraine is concerned.

Rule of law with a functioning and professional civil service and State institutions to deliver it, monitor it (together with independent entities), and ultimately enforce it in a predictable and unbiased way would catapult the nation forward.

Sadly, the rule of law in Ukraine is anything but predictable or unbiased, rarely allowed to work without the meddling of external parties, and is unpredictable and often biased if and when applied.  Even then there are questions over the enforcement of judicial rulings should matters get that far.

It is not only the big or headline cases that make the national news suffer from meddling.  Local and regional rule of law suffers similarly at the hands of the local and regional elites.

Nor is such meddling confined to any specific area of law.  Criminal, economic, family law etc – none are free of meddling at any stage of proceedings.

Accepting that the Homo Sovieticus system and mentality of “Here is my offender – now go find me a suitable crime” – or alternatively “He is my man – there was no crime, forget about it”, still exists and thus represents direct perversion and manipulation of the rule of law, the institutions and all personally involved, there is also the matter of “negotiated law” enforcement.

As an example of just how easy it is for the public to be deprived their lawful remedy via “negotiable rule of law”, the on-going issue of illegal construction in Odessa city centre is a useful guide.

46 Pushkinskaya, a building registered as an architectural monument of local importance, has seen its tenants locked in a battle with a construction company called Hephaestus that is building a multistory complex at Pushkinskaya 48.  City Ordnance prohibits construction of more than 5 stories in the historical centre of which Pushkinskaya is clearly and unambiguously a part.

The planning permission documents held by Hephaestus provide for a 3 story building with attic – therefore falling within the rules.

PP

Hephaestus however, have currently completed the 6th story and have begun to construct the seventh – in complete disregard for City Ordnance and the documented planning permissions that they hold.  Hephaestus are building for an end client called Atlant, who also have not produced documentation that legitimises the current construction.

The residents/tenants of 46 Pushkinskaya officially appealed to City Hall for help, and People’s Deputy Eduardo Stas, who is a fairly decent man, took up their cause as a People’s Deputy should.  He created a commission to look at the illegal construction in the heart of the city – for the issues raised at Pushkinskaya 48 are sadly not unique.

As is always the case, when the law and rules are simply ignored and/or not enforced, fewer and fewer decide follow them as there becomes an inferred belief that tacit approval is given by the authorities.  (For the record, the unofficial stance of those at the top of City Hall regarding this particular construction is that nobody would build on this plot of land in the city centre if limited to 5 stories – so what can you do? – Unsurprisingly Mayor Turkhanov and his band displaying a complete disregard for the law and providing that tacit approval.)

After three meetings of the “Stas commission” held at 83 Kanatna, for the third time the representatives of the State Architectural Control body failed to attend – despite being based at 83 Kanatna, the same building in which the commission met.  Indeed Mr Stas rightly reached the end of his patience and went and found representatives of the SAC in the building, forcing their attendance.

Hephaestus, contrary to existing City Ordnance, continued to state they held all documentation for six stories – despite currently constructing a seventh – but failed to provide them.  Thus Mr Stas and commission found that the construction be unauthorised and therefore illegal.  The otherwise absent SAC then audited the construction.  A fine of UAH 1 million was imposed (although it is unknown if it has been paid).  UAH 1 million is not a lot of money, the land of 48 Pushkinskaya is worth considerably more than that, and with the illegal construction orders of magnitude more, measured in multiple millions of US$ rather than UAH.

Nevertheless work on the 7th story continues.

Hephaestus is attempting to negotiate a settlement with those of 46 Pushkinskaya that brought the matter to the attention of Mr Stas, but those tenants are not impressed and a settlement has not been reached.

Ms Stas and the commission have therefore arranged another meeting in mid-May.

None of this has played out in a courtroom.

Whilst it be the tenants of 46 Pushkinskaya that have brought the matter to the attention of the otherwise deliberately blind and tacitly approving City Hall, the real complainants are all the citizens of Odessa.  In short the complainants are “we the people” and not simply those living at 46 Pushkinskaya.

Whether or not Hephaestus and the tenants of 46 Pushkinskaya reach an agreement, the construction remains illegal.  Thus whatever deal is reached between them is somewhat irrelevant.

The institutions of due process and the rule of law are currently excluded from the workings whilst Mr Stas and commission are wrongfully trying to mediate a settlement between those living at 46 Pushkinskaya and those at building at 48.

The construction remains in breech of City Ordnance.  It remains without the planning documentation required.  It defaces the historic city centre.  The construction is about as aesthetically pleasing as finding a Damien Hirst formaldehyde corpse at a Monet exhibition.

An insignificant UAH 1 million fine (if ever paid) will do nothing to prevent others from ignoring the City Ordnance or sticking to parameters of the planning permissions they are given.

Once Mr Stas and commission arrived at the (rightful and obvious) conclusion that the construction was unauthorised and thus illegal, the matter should be passed to the courts.  It is not for Mr Stas and commission to mediate outcomes when the rule of law has been broken.  The rule of law is not “negotiated” by a City Deputy or his assembled commission.  The rule of law is the competency solely of those institutions charged with enforcement and due process – never more so than when the rightful complainant is “the people”.

“Negotiated/negotiable” rule of law by City Deputies in lieu of legal remedy will do nothing to insure compliance with the planning permission granted and/or City Ordnance in the future.  Official due process and enforced judicial rulings can be the only avenue.

The sad truth is that Mr Stas has actually done far more than most would have as a People’s Deputy.  Unfortunately he has now done too much and gone too far (as well meaning as he may be), and impinged upon the right of “the people” to legal remedy in a court of law by continuing to “mediate” rather than informing the court of his and the commission’s finding of unauthorised, and thus illegal construction.

This is but a single and seemingly unimportant case.  Yet it is an example of many thousands of similar cases across Ukraine where the rule of law is “negotiable” by those with no authority to “negotiate” it.

The end result of this particular case is already clear.  An illegal and undocumented construction (or belatedly documented some time hence) will remain.  An immovable Damien Hirst formaldehyde corpse will be a permanent feature at the Monet exhibition.

The construction company will not be forced to demolish all the illegally built floors and comply with the permissions granted.  “The people” will not get to opportunity for remedy by way of due process.  The rule of law will suffer another blow.  Others will follow in the footsteps of  Hephaestus and Atlant in the expectation of proceeding along the same “negotiated route” – and that route may be far less transparent than Mr Stas has been.  Nobody will be fired from within the SAC for failure to do their jobs.  Each and every step toward change in Odessa and Ukraine and the unchallenged ascendancy of rule of law will be an individual battle fought – won or lost – for a long time to come.

h1

Why Azov? Odessa

April 29, 2016

Having outlined over the course of several entries the escalatory and reckless politics of the local political class as the calendar moves ever-onward toward the second anniversary of the 2nd May tragedy in Odessa – entries that by no means mention every incident that has occurred – it appears Kyiv has finally stopped navel gazing and decided that assistance may be indeed wise, and has now offered such preparatory assistance.

“That said, 2015 did not see the local political class so openly manipulating events and forcefully pushing their own personal agendas in such a reckless manner – the tragic events of 2014 however, did.”

Indeed, the National Guard which sits within the Ministry of Interior structure, having first pooh-poohed the Governor’s call for assistance stating it did not get involved in such clearly reckless politically motivated and instigated nonsense, has now decided – or perhaps has been instructed – to send assistance.

As it would be a political disaster for President Poroshenko to watch any events in Odessa spiral out of control having ignored his own appointed Governor’s very public request, what choice did he have?

To be blunt neither the National Guard nor the police should get involved in reckless and politically instigated nonsense – unless the rule of law cannot be upheld in the resulting aftermath, at which point both, depending upon the perceived gravity of disorder have a duty to the State and society (and not necessarily the vested interests of the political class) to keep order within the parameters of the rule of law.

In an attempt to keep track of the law enforcement bodies that will be actively working in Odessa from 30th April, there seems to be approximately 1300 local police officers, 500 National Guard (most of which come from the Azov Regiment) and 1000 drafted in police officers from outside the region.

Azov_symbol

Naturally there is no such thing as 100% security, be it  3,000 or 30,000 charged with preventing an incident occurring in the city, they cannot be everywhere all the time.  The point is to prevent the most grievous of incidents if possible, and contain the most disorderly if they manifest.

It is to be expected that there will be a zero tolerance approach taken by the authorities deployed to any stupidity – or worse – that occurs.

A reader may rightly ponder whether such attention will be solely focused on the city of Odessa – for there are politicians in the south-west of the oblast recklessly, yet deliberately, stoking the fires of ethnicity for political blackmail purposes to advance their own personal ends (and hoping to be able to keep the genie in the bottle if they get what they want having rubbed it profusely).  That said, those manifestations appear to be manipulated more toward Victory Day on the 9th May.

Such obvious and reckless political stupidity aimed toward 9th May is perhaps a secondary consideration for those looking to prevent lawlessness (or worse) on 2nd May in the city.  A matter of focusing upon one deliberately and recklessly politically induced incendiary date at a time perhaps.  9th May however, is also a date that will have to be well policed in the city too.

The decision to send the Azov Regiment (or several hundred of them) to Odessa is interesting – so much so that having dealt with numerous telephone calls and emails from various embassies in Kyiv regarding the general situation in Odessa over the past week – and notwithstanding a light grilling face to face with Nordic Ambassadors last week too – there have now been specific questions seeking speculative answers as to why Azov.  Why not a different National Guard unit?

Indeed only speculative answers can be offered, for only those that make the decisions can answer what considerations were involved in any final decision.

That it would be Azov was forewarned before any official announcement of any National Guard deployment, or indeed the troops of Azov arriving in Odessa.

So why Azov?

Starting with the obvious, officially, Azov is now called the Special Operations Regiment.  Perhaps it is therefore simply fulfilling the role its name suggests.  Perhaps there are some unstated doubts about the abilities and/or will of the local police to cope – be such doubts misplaced or not.

Perhaps it is the easiest unit to deploy to Odessa?  Mariupol is not that far away, but far enough for a reader to ponder whether there were not closer National Guard units available.

It may be that as Azov being the only unit within the National Guard to have combat experience (not to mention being one of the first units to have key personnel (if not the unit en masse) receive US training (Op Fearless Guardian) when assimilating into the National Guard, having its own tanks and APCs, and being trained as light infantry specialising in tactical interdiction and reconnaissance).   Perhaps the extreme political recklessness of the Odessa political class prompted Kyiv to decide only a National Guard unit with experience of war would suffice.

Indeed it maybe that it was thought that the reputation of Azov would be an additional consideration for any of those tasked with creating disorder – or worse.

It may also be that Azov and its command are seen as the least likely to pay any attention to the whims and laments of the local political class that are responsible for the current situation.  Indeed the perceived ideology that enveloped a percentage of those within Azov when created is hardly attune to that of many of the local political class that have deliberately manipulated and escalated the current situation.

Perhaps the association with Ihor Kolomoisky, an oligarch with some reach into Odessa, was deemed appropriate.

It may also be, as the public tiff involving name calling and flying glasses of water between Interior Minister Arsen Avakov and Governor Saakashvili still remains in the memory, that Mr Avakov in sending Azov to the aid of Governor Saakashvili is to be seen as something akin to offering the proverbial olive branch.

Perhaps it sends an appropriate message to those with provocative self-serving political agendas that despite a clear unwillingness to support Governor Saakashvili is taking on the local vested interests (many of which see some of the cash flows head toward Kyiv), when push comes to shove Kyiv will back him – or perhaps not.

Whatever the case, the Governor has hardly been sent Dad’s Army.

There may be other reasons, or any or all of the above, or any combination thereof, that led to the decision to send Azov.

It rarely pays to speculate (publicly) but having been privately asked to speculate, why not share (some of) those speculations?

Would anybody care to speculate whether Azov will remain until after the 9th May Victory Day events, or whether they will disappear immediately after 2nd May has passed?  As already stated, 9th May may prove to be just as potentially problematic – particularly in the south-west of the oblast.

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