Posts Tagged ‘UN’

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Normandy Four – 19th October

October 12, 2016

Having not mentioned the “Minsk document” for some time, and on the last occasion being/remaining somewhat dismissive, the Normandy Four will meet in Berlin on 19th October.

That the meeting occurs when President Putin was originally due to be in Paris (opening a new Russian Orthodox Church among other things) boils down to the fact that France accused the Kremlin of war crimes in Syria and wanted the bilateral agenda to focus accordingly – an agenda which President Putin was not going to accept.  Thus the Paris trip was called off and the 19th October witnesses a gathering of the Normandy Four to discuss The Kremlin’s denied war in eastern Ukraine.

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That said it seems unlikely that President Putin would head to Berlin and a Normandy Four meeting without something to talk about – and The Kremlin will only talk if it believes that its agenda upon its terms will be furthered.

The options for his attending may be one of PR for domestic (and certain foreign) audiences turning out to be nothing more than a photo op to belie the impression of isolation and/or complete belligerence but that seems less likely than there being something to talk about (on Kremlin terms).

It may also be that the Kremlin thinking is that it is overdue another round of “make it, break it, counter-accuse” negotiation made in bad faith.

Kremlin momentum is currently behind forcing Ukraine to adopt an election law for the occupied territories prior to Ukraine regaining control over its borders.  Both Germany and France whose diplomats have hardly gained any concessions from The Kremlin in more than 2 years of talks seem to have decided that when faced with a belligerent Kremlin it is far easier to press Ukraine to therefore meet Kremlin terms with regard to Minsk event scheduling.

A reader may perceive this (rightly) to be a reflection of the problem of handing policy to diplomats who instinctively want to talk (and prize contacts highly) whilst simultaneously displaying an unwavering and almost principled refusal to learn from experience when it comes to interaction with the current Kremlin.

The out-going US Administration with only 2 months left in office also seems to suffer the same western diplomatic stubbornness when it comes to refusing to accept that the only terms acceptable to The Kremlin are its own – particularly in what it still firmly believes to be its rightful and indisputable sphere of influence.

It is also a US Administration that would like to leave office with something of a foreign policy gain to hand on to those that will follow.

As such this twilight US Administration is going to be tempted to also quietly push Ukraine toward the Kremlin terms regarding the adoption of an election law for the occupied Donbas – even if the US political class more broadly is far more unlikely to agree with such maneuvering in accordance with Kremlin terms.  After all, officially the US is not involved in the “Minsk document” or associated negotiations, so the ability to blame Paris, Berlin, Moscow or Kyiv for any failures to solutions it may quietly push exists and may blunt wider US political unease at such a strategy.

Ukraine for its part has actually managed to defend its current diplomatic position for more than a year when it comes to a ceasefire actually commencing and in which the fire actually ceases, the verified removal of Kremlin personnel and weaponry, and the regaining of control over its borders occur before passing election laws and establishing the conditions of holding free and fair elections.

At no point during the past two years has The Kremlin actually bothered to progress “Minsk” issues over which it has control.  To be entirely blunt, the immediate future and beyond also provides little reason for the Kremlin to seriously pursue doing so either.

Further, The Kremlin’s “conversation” with the current US Administration is over – unless that conversation relates to unilateral US concessions, either directly (Syria) or by influence over third parties (Ukraine), to Kremlin interests.  Both existing and new levers will currently be being prepared for use upon the in-coming US Administration in the New Year.  Kremlin contempt for the current US Administration is crystal clear.

A reader may therefore ponder the content of any on-going Surkov-Nuland diplomacy with regard to Ukraine.  It seems unlikely that they would be unambiguously to the benefit of the Ukrainian State if any negotiating ground is to be given to The Kremlin that forces the order of “Minsk” implementation per a Kremlin list of priorities.

The 19th October therefore may be a severe test of the Ukrainian position if “progress at any cost” tops the German, French, Russian and behind the curtain US agenda – for “any cost” will be borne by President Poroshenko who is eyeing ever-poor popularity figures while already positioning for a run at a second term.

If the assumptions described above are even halfway accurate and Ukraine is forced to cede to a Kremlin led Minsk implementation timetable (which The Kremlin probably wouldn’t fulfill on its part), what wiggle room is available to the Ukrainians regarding any proposed law that would stand even the remotest chance of getting through a Verkhovna Rada vote?

(A reader will note that this is a statutory law requiring 226 majority rather than any Constitution changing vote that will simply not see the required 300+ votes no matter how much money or coercion was offered to vote “the right way” to amend the basic law of the land.)

Firstly the Ukrainian State and any “special” statutory electoral legislation has to try to avoid stating a definitive date around which circumstances can and will be manipulated.  Rather, it may be prudent to consider a definitive set of circumstances that automatically trigger the election date.

A definitive set of circumstances may include a consolidating and verifiable time period based upon an absolute and verified ceasefire.  For example 100 days (or whatever) from a complete and strictly observed ceasefire becomes election day.  Any breach of ceasefire resets that clock.

During the electioneering Ukrainian and international media has full and free access to the occupied Donbas.  Should that freedom be curtailed, the 100 day clock is reset.

International election observers have unconditional access during the electioneering period, on election day, and during vote counts – which in turn demands a security environment that facilitates such freedoms.  Any failure resets the election day clock.

Who can actually vote needs to be unambiguously stated.  Perhaps only those voters registered in the occupied territories on 1st January 2014 in order to avoid “constituency stuffing”.  IDPs wherever their location, if registered as a genuine resident upon any specified historical registered voter date will need to be afforded the maximum opportunity to vote – be they displaced within Ukraine or have left for other nations (including Russia).

In short it could be possible to write an election law that may possibly be forced, coerced and bought through the Verkhovna Rada and that possess enough “snap-back clauses” to prevent a volatile reaction among the more militant of Ukrainians, and which would also avoid the most serious of political damage within the majority of the Ukrainian constituency.

Naturally the Kremlin would not be keen on such a law, but it may be enough to appease the “friends of Ukraine” all of whom have domestic political reasons to push the Minsk timetable and proclaim “successes” no matter how small, and yet avoid being perceived to cave into the Kremlin.

(For the sake of sarcasm – Alternatively, following the experience of the Budapest Memorandum, perhaps Ukraine should agree to a Kremlin timetable only and exclusively under the explicit guarantee (not assurances or other woolly terminology) from Berlin, Paris and Washington that should the Kremlin fail to abide, a very specific set of actions would occur.  Naturally none would agree to providing such guarantees when there is no trust in the current Kremlin – so why should Ukraine be any more trusting?)

As 19th October is unlikely to be a PR exercise for President Putin, and neither is any pretense at being constructive likely to seriously influence western capitals regarding sanctions or increased top level interaction, there is probably something else that brings President Putin to the Normandy Four gathering.  Thus questions as to what degree of further concessions and/or appeasement does he expect, what if any will be given with regard to and/or by Ukraine, and what is the substance of any Surkov-Nuland deals behind the curtain?

Will there be another Normandy Four meeting before the year end?

If so will there be yet another official rolling over of “Minsk” as there was last year?  Will somebody within the EU see any wisdom in loosening the rhetoric that ties sanctions to “Minsk” if its rolling over is not to occur but it is instead finally pronounced dead?  Do such sanctions die if “Minsk” to which they are consistently rhetorically tied dies?

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Human Rights Commissioner unveils 2016-17 Strategic Plan – Ukraine

February 24, 2016

Ms. Valeriya Lutkovska, the oft forgotten (due to insufficient powers) yet very capable Human Rights Commissioner of Ukraine, the UNDP, and the Government of Denmark have conspired to produce an updated Human Rights Strategy for Ukraine for the period 2016 – 2017.  Not before time, for the last human rights national strategy your author can recall was published in 2012 in what was a very different time and very different circumstance.  Albeit the main core concerns of 2012 continue to feature heavily within the 2016-17 strategy, current and recent events have pushed forward human rights issues that were clearly unforeseeable in 2012.

As all policy and strategy can only remain good policy and strategy if reviewed and “tweaked” (lest it become ineffective or counterproductive) on a sensible and timely basis, clearly the new strategy document is long overdue.

Valeriya Lutkovska

Valeriya Lutkovska

Naturally the new strategy reads like a sensible “to do” list.  Naturally, like all lists, they are far easier to compile than to actually achieve and implement – particularly when achieving and implementing them is in part dependent upon a Verkhovna Rada crafting and passing legislation, the State budget for necessary financing, and institutional support and compliance from the institutions of State that will often fall foul of the Human Rights Commissioner opinions.

The new strategy document however, does what it should by way of planting a peg in the floor as to where Ukraine is currently, where it is expected to be by the end of 2017, and the issues (almost in the traditional SWAT and PEST analysis format) that will affect achieving the goals outlined within the specified time frame – or not.

Generally the strategy seems to strike a reasonable balance between prevention and due process, constituency accessibility and education, a striving for best practice and an honest self-assessment of current shortcomings.

Perhaps more worthy of note however, is the clear desire to confront, cajole, and cooperate with the political class in a far more public manner than has previously been the case.

If that be so, then a reader can only hope that both Government of Denmark and the UNDP (and others) will have Ms. Lutkovska’s back, for the more she and her office intercede in the crafting of legislation, any public naming and shaming where appropriate, the robust advocacy for dealing with truly systemic human rights problems within Ukraine, and the significant easing of accessibility to the Human Rights office for the citizenry, the greater the temptation will be for the political class to politicise the office of Human Rights Commissioner.

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Ukraine, UNSC 2016 – 2017 (Interpreting Support)

October 16, 2015

Today saw the (unopposed) election of Ukraine to the United Nations Security Council  (UNSC) for a two year period 2016 and 2017.

A total of 177 nations voted for Ukraine to assume that position, with 14 abstentions and a single spoiled ballot.

Overwhelming support – far beyond the 118 votes in favour that were required.

UNSC

Naturally media attention will be drawn to a prickly diplomatic engagement between Ukraine and Russia during this time.

From a Ukrainian point of view, it will serve to keep the issues in the Donbas and the illegal annexation of Crimea upon the international agenda – ably assisted by the anticipated Dutch Prosecutor’s MH17 report due in February 2016.

However, the Ukrainian authorities would be wise to consider this as support for international law and therefore support for the integrity of the nation’s internationally recognised borders – and no more.

It should on no account be interpreted by the Ukrainian authorities as unconditional support for anything more than that.

There seems to be an increasingly complacent attitude, perhaps even of entitlement, being projected by the Ukrainian authorities and amongst a large number of parliamentarians, relating to international support far beyond that rightfully given for its territorial integrity.  There is almost an arrogant expectancy of external political, economic and diplomatic support regardless of the lack of not only much needed and domestically demanded reform, but also ratified obligations within the EU Association Agreement to do so.

If domestic opinions polls and extremely active civil society input are failing to spur the necessary momentum within the leadership and legislature, most would think that some extremely blunt and continuous diplomatic messages being consistently delivered would have some impact – particularly so when it has been made exceptionally clear that funding is entirely much of the desired funding is subject to strict conditionality to reform.  This notwithstanding the nation’s ratified international obligations to do so.

As has been written here before, the next “Maidan” is not likely to be one that manifests as the previously.  Huge crowds in the streets are improbable.  The next Maidan is likely to occur within the Verkhovna Rada itself in a clear and prolonged standoff between the reformers and the obstructionists.

Despite mathematically the parliament being unlikely to drop below a 250 MP majority that could and should be able to progress the reform agenda on anything that does not require a constitution changing 300+ votes, there are serious questions to be asked about the political will amongst some within that 250 MP number.  As was written here almost immediately after the October 2014 oath taking of the current parliamentarians, and many times since, an early election for the Verkhovna Rada is a very real prospect.  If so then let it be hoped that new laws upon party funding are passed prior to that event to at least mitigate some of the cancerous oligarchical influence.

Should Batkivshchyna do well, or even reasonable well, in the local elections 10 days hence, Ms Tymoshenko will be very tempted to leave the coalition – although as stated above this would not derail the majority still being able to pass simple majority legislation.

However, there may also be something of an “external Maidan” gathering momentum amongst the nations, institutions and suprastructures that the current leadership and legislature are seemingly listening to, without actually hearing them.  It seems only a matter of time before the external loan guarantees, loans and grants are reduced to little more than life support, with any additional significant development funding, not to mention political and diplomatic energy, being all but frozen.  The growing frustration amongst the diplomats your author mingles with is clear when it comes to the speed and quality of reform.

It is to be hoped that the convincing UN vote that placed Ukraine upon the UNSC for the next two years is not interpreted by the Ukrainian leadership and parliamentarians as unconditional and open ended support for anything more than Ukraine’s territorial integrity and the rule of international law – for that is all it is.  Any other expectations of constant support would be entirely misplaced – all other support comes with both strict conditionality and limited patience.

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“People’s Republics” elections

September 22, 2015

The Contact Group today meets in Minsk once more, this time the priority will be the “elections” scheduled within the “People’s Republics” in Luhansk and Dontesk, which according to the Minsk Agreements are supposed to be held in accordance with Ukrainian law – which naturally the scheduled “elections” won’t.

NATO General Secretary Jens Soltenberg yesterday made it very clear that the currently scheduled “elections” within the “Republics” will simply not be recognised if they go ahead – “any elections which take place in eastern Ukraine, and which don’t meet Ukrainian legislation, will constitute nothing else but a violation of the Minsk agreements, they will be considered fake, and not a single NATO member state will accept them.”

To be entirely blunt, even if they did go ahead within Ukrainian legislation, it will be a significant stretch to state they will be either free or fair, and if Ukraine invites the OSCE to monitor sanctioned elections?  (Only the Government of Ukraine can invite the OSCE to monitor the elections, as neither “Republic” is recognised and is therefore incapable of legitimately inviting the OSCE to do so.)

The credibility of the OSCE will be very much on the line unless the Ukrainian political parties take part, (should they decide to do so, and could the Opposition Block resist trying in its old stronghold, or the other parties refuse without being cast as abandoning The Donbas) on an equal footing with the several “parties” within the “republics”, with the Ukrainian election commission overseeing the process, and with the Ukrainian media crawling all over the occupied territories during pre-election and on election day.

As stated previously“The Minsk II agreement if implemented will insure a Kremlin loyal political class within The Donbas, with minor political runners and major political riders being at the very least FSB cleared to assume a minor political role, and given the approving Kremlin nod for a significant political role. Such is the dire state of the “People’s Republics” administration, armies of military “volunteers” are being augmented by Russian bureaucrats attempting to create a functioning political and administrative structure. Minsk II also paves the way to institutionalise the swivel-eyed and distinctly criminal into the rule of law Donbas institutions.

Undoubtedly those deemed to loony for the “rule of law” institutions of the “People’s Republics” will end up in the “security companies” that will inevitably spring up (as in the 1990’s) under the guidance of the Donbas Dons such as “Koss” Lyashko and “Little George” Ivanyuschenko who are uncomfortably close to Rinat Akhmetov. Deals will be need to be cut with either Surkov or Volodin in Moscow, depending upon whose puppets in The Donbas eventually take control.”

Indeed the amnesty written into the Minsk Agreements goes directly against the recent UN trend to shun amnesties, as the grim comments of the  UNHR Special Rapporteur on extra-judicial, summary or arbitrary executions, Christof Heyns make clear “I note that among the package of measures agreed in the Minsk Agreements is a proposal that there be a general amnesty by way of legislation forbidding prosecution or punishment of persons in relation to events that have taken place in the eastern Donbas region.  While supportive of measures aimed at deescalating tensions, I am concerned that such legislation could amount to fostering impunity for grave violations of human rights by all parties.  Any amnesty devised should be interpreted in such a way as not to include immunity for at least international crimes, such as war crimes and crimes against humanity.”

The Kremlin’s (currently) chosen/tolerated man for Donetsk, Oleksandr Zakharchenko, Mr Heyns unambiguously states has committed a war crime – “In January 2015, following the shelling of a bus station in which several people were killed, Oleksandr Zakharchenko, leader of the self-proclaimed Donetsk people’s republic, made a statement on television announcing that his troops would give no quarter, and take no soldiers of the Ukrainian forces as prisoner.  Making such a statement is a war crime.  However, available evidence does not seem to indicate that this statement was implemented.”

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Thus when “elected” is it politically possible to grant amnesty to Alexander Zakharchenko now a UNHR  Special Rapporteur has stated clearly that he committed a war crime (regardless of whether the statement was actually implemented)?  It certainly hasn’t been made any easier to include him in any amnesty.

Perhaps Denis Pushilin would be a wiser puppet to install at the top of the occupied Donetsk tree for The Kremlin?

Naturally there will be all manner or war crimes, crimes against humanity and serious crimes that will come to light in the months and years ahead committed by both sides, the majority of which will probably have occurred prior to the shooting down of MH17 when Ukraine was struggling to arm, let alone control volunteer battalions on its side of the line, and only after MH17 did the Kremlin decide to create the 12th (Reserve) Command to provide command and control over its proxies, mercenaries, “volunteers” and military.

Asking the ICC to look at all events from 22nd February 2014 onward is perhaps a very wise thing to do to avoid any notion of bias in (undoubtedly faulty) Ukrainian investigations.  (We will see if the ICC goes after MP Oleh Lyashko after all the self-incriminating evidence he placed on youtube in early 2014.)

That these elections have been scheduled outside of the Minsk Agreement is undoubtedly sanctioned by The Kremlin – for when The Kremlin decided it was really time for a ceasefire (1st September) after many deliberate falsehoods, a ceasefire there has been.  Thus controlling the timing of these “elections” is well within its ability.

Whether it is yet another instance of The Kremlin playing arsonist and then fireman if the “elections” are canceled in the immediate future in an effort to curry favour and/or try and eek out yet further concessions, or whether it is a Kremlin decision to retain a ceasefire but end the Minsk Agreement charade and freeze the conflict “as is” remains to be seen.  It clearly has little hope of the constitutional changes it expected within the Ukrainian constitution, nor of stopping the implementation of the EU-Ukraine DCFTA with effect from 1st January 2016, so freezing “as is” with a hole in the Ukrainian border, it may hope to derail Visa-free for Ukrainians within Schengen as a conciliation.

The fundamental territorial question remains the return of control of Ukrainian borders to Ukraine, and when or if The Kremlin will do so (for it spells the end and abandonment of the “republics” – rigged elections or otherwise, as they are simply economically inviable stand-alone).

The answer, at least in part, perhaps lies in the unknown and continuing financial costs to The Kremlin in subsidising the occupied territories as the occupying power, when other far cheaper political, economic and diplomatic ways to undermine Ukraine exist.

If Jens Soltenberg is to be believed, then very few, if any, meaningful concessions are there to be had for The Kremlin at the Contact Group meeting today – nevertheless it will be interesting to see what concessions are sought, which are rebuffed and which, if any, are given.  Indeed with President Putin due to address the UNGA imminently, and a Normandy Four meeting also scheduled on 2nd October, should there be any real expectations of any movement at the Contact Group meeting when bigger stages await potential “magnanimous” presidential acts regarding “elections”?

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A test too far for the EU CSDP? – Peacekeepers to the Donbas

March 20, 2015

“Over the past 4 months the EU Common Security and Defence Policy (CSDP) and/or Article 7 of the EU-Ukraine Association Agreement that directly relates to the CSDP, has been mentioned within entries no less than 14 times.  A somewhat recurring theme of late – and deliberately so, with the obvious and impending implications contained therein.

The last time the CSDP was mentioned here was only yesterday, when the Rada voted via 341 MPs, to request international peacekeepers in eastern Ukraine:

“That Russia will likely veto any UN request is expected. That the EU will not support an Eulex type mission in the absence of a UN mandate, despite the pleas of the host government, is a likely (though not definite) extension. To do so without a UN mandate would be seen by too many capitals as a “provocation” that The Kremlin would react to – similar to arming Ukraine when it requests it.”

As anticipated over the previous months (and numerous mentions here), Ukraine has now officially called upon the EU in respect of the CSDP, via the bilateral commitments made in Article 7 of the Association Agreement.  No surprise – Peacekeeping more often than not, has the effect of setting territorial facts on the ground.  It may well be that for Ukraine, currently buying time with ceded space/territory is a necessary (and perhaps preferred) outcome – for now.  But that may not always be the case, and for The Kremlin, territory/space is an irrelevance when one of the goals is to control Ukraine as a whole, and prevent its European integration.  Indeed serious practitioners would question the ability of the Russian military to control huge swathes of territory if it managed to take it.

As expected, following the Rada vote, Ukraine has officially delivered a letter to the Council of the European Union requesting peacekeepers within the framework of the CSDP.

“The Mission of Ukraine to the EU has officially handed a corresponding letter over to the heads of European institutions, requesting that the Council of the European Union properly consider this issue and enter into consultations regarding an EU (peacekeeping) operation in the framework of common security and defense policy.

Kostiantyn Yelisieiev, representative of Ukraine at the EU stating that EU peacekeepers would “contribute to the restoration of peace and stability in eastern Ukraine through the creation of proper political and security conditions for the successful implementation of the Minsk agreements and support of the OSCE Special Monitoring Mission.”

Not, perhaps, what those crafting the Association Agreement, nor those that subsequently signed and then ratified it, had in mind when enshrining “…..shall address in particular issues of conflict prevention and crisis management, regional stability…..” within the Article 7 text:

“Foreign and security policy
1. The Parties shall intensify their dialogue and cooperation and promote gradual convergence in the area of foreign and security policy, including the Common Security and Defence Policy (CSDP), and shall address in particular issues of conflict prevention and crisis management, regional stability, disarmament, non-proliferation, arms control and arms export control as well as enhanced mutually-beneficial dialogue in the field of space. Cooperation will be based on common values and mutual interests, and shall aim at increasing policy convergence and effectiveness, and promoting joint policy planning. To this end, the Parties shall make use of bilateral, international and regional fora.”

The CSDP – although it appears to mean many different things to many different EU Member States – in a nutshell, has both civilian and military pillars designed to facilitate the EU assuming its responsibilities in both conflict prevention and crisis management.  That said, one has to suspect it will be a very long time before anybody sees the (on paper) CSDP EU Battle Group deployed in any active role – anywhere.  Peacemaking (enforcing peace) still seems far beyond where many Member States will go – particularly without a UN mandate to do so (and hide behind), despite the willingness of any host government to accommodate such an EU force.

As the EU has no standing army, it follows there is not one at the disposal of any CSDP deployment.  It relies on forces put at the disposal of the EU for joint disarmament operations, humanitarian and rescue tasks, military advice and assistance, conflict prevention and peacekeeping, as well as tasks of combat forces in crisis management – including peacemaking and post-conflict stabilisation.

Importantly, the CSDP specifically mentions that all of these tasks may contribute to the fight against terrorism, including the supporting of third countries in combating terrorism in their territories.  Presumably there is an enhanced obligation to those nations (Ukraine) that have ratified bilateral cooperation within the CSDP framework – but will that extend to peacekeeping at the request of the Ukrainian authorities?

We are, perhaps, about to discover the limitations of the CSDP – or perhaps more accurately its members (which de facto amounts to the same thing) – with regard to on-going conflict (a ceasefire, there is not) within the European continent, and any form of armed intervention/deployment whatsoever.

Is there any more appetite to deploy armed EU peacekeepers in The Donbas, than there would be to deploy the EU Battle Group – anywhere?  It is, after all, quite difficult to keep the peace armed with nothing more than an EU Communique of “collective tutting” and an ID badge – although collective tutting, disapproving communiques and sanctions are all instruments within a CSDP (and more general diplomatic) toolbox.

The difference between unarmed EU peacekeepers and unarmed OSCE monitors would be very little when it comes to effective peacekeeping in the current and foreseeable climate – although perhaps the EU participants may see more clearly, and hear far better, than the OSCE appears to do when “monitoring”.

At its core, leaving aside issues of impartiality and consenting parties in peacekeeping, EU decision makers, Member State leaders, (and readers), must ask themselves if they are prepared to see their nationals (under any (unlikely) EU peacekeeping mandated mission) use sufficient force as is necessary – including lethal – both in self-defence, but also in the robust defence of their given mandate?  Especially so as there is the real possibility of a return serious fighting come mid-May.

Are the EU and its Member States prepared to deal with any escalatory Russian reaction should one or more of its “holidaying soldiers/GRU operatives” die at the hands of an EU peacekeeper?  If they are so prepared, and yet their peacekeepers begin to become casualties, how then to respond?  To then withdraw the mission would send entirely the wrong signal to The Kremlin.  To continue to take increasing casualties and/or fail to keep the peace also demands a response.

How many EU peacekeepers are sufficient for the task, without them being cast as a “NATO legion in disguise” by the Kremlin propaganda machine – thus, via said propaganda, turning peacekeepers into targets, no different to the Ukrainian military, for those fed upon propaganda?

Indeed physically putting armed EU peacekeepers in harms way is a very different matter to that of collective tutting, issuing of disapproving statements/communiques, and imposing of sanctions, in far away Brussels – and deploying peacekeepers brings with it perhaps very different escalatory – and also de-escalatory – implications.

The chances of an EU mandated EU peacekeeping mission?  Slim – but not impossible.

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Ukraine and The Rome Statute (Again)

February 24, 2015

Over the years, several entries have appeared here relating to Ukraine and The Rome Statuteprimarily dealing with the issues of why Ukraine has still to ratify this international instrument 15 years (and a few days) after signing up to it.

Indeed relevant ruminations from this blog have been published by the CICC website historically.

“On 20th January 2000, Ukraine signed the Rome Statute and on 27th January 2007 it acceded to an agreement on the privileges and immunities of the ICC – however it has never ratified its signing of the Rome Statute in 2000 – prevented in doing so by a Ukrainian Constitutional Court ruling on 12th July 2001, that stated amendments to the Ukrainian Constitution would be required in order to do so.

The constitutional “issue” being the provision stating that “an International Criminal Court is complementary to national criminal jurisdictions” (paragraph 10 of the Preamble and Article 1 of the Rome Statute) as eloquently made very clear by Viktor Kryzhanivskyi on 2006, the then Ukrainian Charge D’Affaires to the UN.

That being the only issue within the Rome Statute preventing Ukrainian ratification (despite mention of the loosely worded “crimes of aggression” court competence – a competence which is likely to be in part responsible for US, Chinese and Russian non-ratification. 

Those few words in the Rome Statute preamble have, and currently still are, preventing Ukraine ratifying a statute it otherwise agrees with and supports.”

The RADA, in February 2014, requested ICC involvement in investigation of crimes of aggression committed against the protesters of EuroMaidan by the Yanukovych regime – an invitation for the ICC to head “out of Africa“, where it appears inextricably anchored.

Since then, of course, the situation has become far more bloody and littered with atrocities along the way that may very well fall within the ICC remit.

On 24th September 2014, Ukraine ratified the EU AA/DCFTA – which has ramifications for its recognition of the ICC.  Article 8 of the Association Agreement is short and to the point:

“ARTICLE 8
International Criminal Court
The Parties shall cooperate in promoting peace and international justice by ratifying and implementing the Rome Statute of the International Criminal Court (ICC) of 1998 and its related instruments.”

No elastic wording or ambiguity to be found in that text, less perhaps a time parameter in which compliance must occur.  Ukraine has thus obliged itself through the now ratified Association Agreement to ratify The Rome Statute.  Wiggle room, other than the question of timeliness, there is not.

As yet however, despite the abysmal situation in eastern Ukraine, the evidence mounting daily, both from official entities and across social media of events that may well fall within the ICC remit, amending the text to the Constitution to allow the ratifying the Rome Statute, is not topping the RADA agenda.  It’s not even close to the top, despite in doing so it provides Ukraine with an easy win amongst the international community.

It is perhaps no surprise, that almost 15 years to the day since signing up to The Rome Statute, and in the current circumstances in which Ukraine finds itself having already requested ICC investigations, Kirsten Meersschaert Duchens, friend of this blog and European Regional Coordinator for the Coalition for the International Criminal Court has mounted a(nother) campaign to push the amending of the Ukrainian Constitution and subsequent ratification of The Rome Statute, which Ukraine is now obliged to do, up the RADA agenda.

Letters to President Poroshenko, those within the Cabinet of Ministers, RADA, petitions etc., now circulating the political class, civil society, and social media, in an effort to force the issue.  Undoubtedly Kirsten will ultimately be successful – but as always, despite its obligations, it is not a question of Ukraine eventually fulfilling its (recent) obligations, but a question of timeliness as to when those obligations will be fulfilled.

CICC CGJ Feb-March 2015 Letter to Ukraine_FINAL

CICC CGJ Feb-March 2015 Letter to Ukraine_UA

CICC Ukraine CGJ_Feb2015_Press release_FINAL

CICC_Ukraine_CGJ_Feb2015_Press_release_RU

CICC_Ukraine_CGJ_Feb2015_Press_release_UA

Whilst there is currently a constitution changing majority in the RADA – and for how long that will last remains to be seen – pressure over such easy wins and achievable compliance with ratified obligations are rightly being applied now.

It is, after all, and for the sake of accuracy, 15 years, 1 months and 4 days since Ukraine signed The Rome Statute, 1 year (tomorrow) since Ukraine requested ICC investigations into EuroMaidan, and exactly 5 months to the day on since the Association Agreement was ratified, thereby obliging Ukraine to ratify The Rome Statute.

It is surely far beyond time to deal with the 10 words that have prevented ratification – and get it done.

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Poroshenko calls for EU Policing Mission

February 19, 2015

At a commencement of a meeting of the Ukrainian National Security and Defence Council, President Poroshenko opened with a call for a UN mandated peacekeeping force to be sent to eastern Ukraine.

We see the best format would be a police mission from the European Union. We are sure this would be the most effective and best guarantee for security“, going on to say “After the decision… we will start the official consultations which will help us achieve peace.”

An EU policing mission?

Similar to that of EULUX in Kosovo?  (UN mandated via Resolution 1244).  Perhaps similar to the EU mission in Bosnia, which followed on from a UN Mission?  Efforts such as Afghanistan or Libya and CSDP “policing guidance/advisory” missions?

The latter are clearly not what President Poroshenko has in mind when stating a police mission from the EU “would be the most effective and best guarantee for security.”  He is clearly thinking more along the lines of peacekeepers and not policing – and he is certainly inferring something better/more robust/forceful, than the OSCE efforts thus far.

Any thoughts along the lines of Kosovo which was deemed subject to international rule of law under the guise of UNMIK (United Nations Interim Administration Mission in Kosovo) can be forgotten.  That is clearly not going to be allowed to occur in eastern Ukraine.  The Kremlin would simply veto any such notion tabled at the UNSC.  The entire point of its deeds in eastern Ukraine is to control the region via its proxies within “people’s republics”, running them – or letting them run amok – as it sees fit.

The warlords and organised criminals that will undoubtedly start to rise to the top upon the bodies of their “wannabe” counterparts during any lasting ceasefire, are not going to want to be “policed” by anything other than themselves – even if, eventually, that policing comes via the veneer of a uniform worn by those they once shared the same bread with in one prison or another, or a sprinkling of Russian secret services types as well.

“Policing” by definition involves the requirement to enforce the law when it is being broken.  Anything less is a monitor, observer, or witness.  As the “people’s republics” are not going to abide by the diktats and laws governing the rest of Ukraine,  whose laws would any EU policing mission have to enforce when required?  Those of Ukraine, or those hurriedly scribbled on the back of a cigarette packet in a small office in occupied Donest or Luhansk, and subsequently decreed law?

If any EU policing mission is not to police, but is merely to observe no differently from the OSCE, what are the gains of having an EU policing mission, and why would it have any more effect, or be shown any more respect, than that of the OSCE by Donetsk and Luhansk leaderships?  What additional guarantee of security would it bring that President Poroshenko alludes to, and how?

If it is there to train and advise, there is no need for a UN mandate.

Would any EU mission be armed?  Rules of any engagement?

Which nations would send personnel for such a mission?  Poland?  The Baltic nations?  The Kremlin will simply not allow that to occur unless Russians were also included in an EU policing mission – despite not being an EU nation.

Would the Poles and the Baltic nations not be the first to meet (perhaps violent) objections on the ground from eastern Ukrainian warlords, Russian organised crime and Russian secret services?  Would that not be “escalation” or a “provocation”?

Perhaps Germany?  The UK?  Spain?  France?

As yet the EU has not quite rolled over enough to allow The Kremlin to nominate the EU countries that could make up any such mission – but so meek has it become, that it couldn’t be ruled out.  One need only look at what has been allowed to happen thus far.

The idea that the EU would create an EU policing mission for eastern Ukraine that actually polices without a UN mandate, is of course, somewhere between very unlikely and deluded – as is the idea that The Kremlin would currently seriously entertain the idea (if ever).  To be entirely blunt, the only peacekeepers or policing missions that the Kremlin would consider are its own – which would naturally meet with UN vetoes from the USA and UK, and not have Ukrainian consent etc.

However, despite the fact that The Kremlin would almost certainly be dismissive of the idea, thus no UN mandate, that does not mean The Kremlin will be seen to automatically dismiss the idea.  The Kremlin may very well soon begin something of a “charm offensive” to insure sufficient discord amongst the Europeans when it comes to sectoral sanctions being renewed or rolled back in June/July.  Hungary and Cyprus are already in The Kremlin sights and will be subjected to Mr Putin’s manipulations this month.  Others will likely follow in the weeks and months ahead.

If being seen to entertain the idea, no matter how superficially, Germany and France will remain in dialogue with The Kremlin – and the White House kept in abeyance, or kept in a cycle of further dithering, regarding lethal defensive arms to Ukraine, until sanctions fall away.  Once those sanctions fall away, the unity for reinstating them simply won’t happen.  Only those that relate specifically to Crimea have a better than average chance of remaining – and The Kremlin will accept that outcome.

Thus, although this EU policing mission idea could be talked about during what may well turn out to be a few far quieter months ahead militarily, its eventual realisation seems little more than fanciful at best.  It must be in some doubt that the Europeans would go for it – there is almost no doubt The Kremlin won’t.

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