June 2014
Ukrainian Crisis: the impact on
Human Rights under the European
Perspective
Natasa Asimakopoulou
Academic Supervisor: Dr. Constantinos Filis
Mary Stratigou
Chloe Thanopoulou
Copyright ©Center of Russia, Eurasia & Southeastern Europe 2014
Maria Yiannakis
1
Table of Contents
1.INTRODUCTION .................................................... Error! Bookmark not defined.
Human Rights’ Situation before Yanukovych Presidency......................................... 3
Changes in Governance: the downfall of former President Yanukovych and the
issue of democratic deficit........................................ Error! Bookmark not defined.
2. HUMAN RIGHTS AFTER 22ND OF FEBRUARY Error! Bookmark not defined.
3. THE REFERENDA IN EAST UKRAINE .............. Error! Bookmark not defined.
Crimea ...................................................................... Error! Bookmark not defined.
Luhansk and Donetsk ............................................... Error! Bookmark not defined.
Legality and Legitimacy………………..………………………………………….18
4. REFORMING THE UKRAINIAN CONSTITUTION .......... Error! Bookmark not
defined.
5. HUMAN RIGHTS’ EVOLUTION IN FUTURE .... Error! Bookmark not defined.
APPENDICES ............................................................. Error! Bookmark not defined.
REFERENCES .….…………………………………………………...…………...…30
2
1. INTRODUCTION
Human Rights’ Situation before Yanukovych Presidency
Ukraine, as a part of the former Soviet republics, is deeply affected by the soviet
mentality and although it is now an independent country, the effects of its past are
evident on the government’s human rights policy. Until recently, according to some
organizations such as Freedom House, Ukraine had been labeled as “free” and its
human rights’ status was better in comparison to other former Soviet republics.
However, a significant deterioration of human rights was observed in 2011.
At this point, it would be very useful to mention that Ukraine has ratified and, as a
consequence, has become a party of International and European human rights treaties.
Among other International Treaties, we could name the International Covenant on
Civil and Political Rights (ICCPR) and its first Optional Protocol, International
Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of
all Forms of Discrimination against Women (CEDAW) and its Optional Protocol,
Convention on the Rights of the Child (CRC) and its Optional Protocol concerning
the involvement of children in armed conflict, International Convention on the
Elimination of all Forms of Racial Discrimination, Convention relating to the Status
of Refugees (1951) and the Protocol relating to the Status of Refugees (1967),
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment and the Optional Protocol to the Convention against Torture. As far as the
European treaties, Ukraine is a party of European Convention for the Protection of
Human Rights and Fundamental Freedoms (1950)1 and of the Framework Convention
on the Protection of National Minorities. However, the Rome Statute of the
International Criminal Court has not been ratified yet2.
In 2009, some reports stated that “Ukraine has one of the most vibrant civil
societies in the region. Citizens are increasingly taking issues into their own hands,
protesting against construction and exposing corruption. There were no limits seen
on NGO activities. Trade unions function, but strikes and workers protests were
infrequently observed, even though dissatisfaction with the state of economic affairs
was pervasive in the fall of 2008. Factory owners were seen as still able to pressure
their workers to vote according to their owners’ preferences”3. What is more,
according to the Council of Europe, the function of civil society in Ukraine is
1
It has also ratified the Protocol no. 6 to the ECHR concerning the abolition of the death penalty in
times of peace (1983), the Protocol no. 12 concerning the general prohibition of discrimination (2000),
and Protocol no. 13 concerning the abolition of the death penalty in all circumstances (2002).
Wikipedia,
Human
Rights
in
Ukraine
available
at:
http://en.wikipedia.org/wiki/Human_rights_in_Ukraine, [Retrieved: 19/05/2014].
2
Ibid, [Retrieved: 19/05/2014].
3
Ibid, [Retrieved: 19/05/2014].
3
satisfactory and since it is considered as a democratic state, it secures the rights of
national minorities and generally human rights as a national policy4.
However, since the election of President Victor Yanukovych in 2010, many
international organizations started to be concerned about the evolution and defense of
human rights in Ukraine. The government became less democratic and tolerant, which
deeply affected basic freedoms of assembly and speech. For instance, a selective
prosecution of opposition figures and a worrisome intrusiveness by the Security
Service were evident in the society. Organizations, such as Freedom House which had
labeled Ukraine as “free”, downgraded the country to “Partly Free”5. It should be
noticed that 2010 was the landmark year when an increasing number of allegations of
torture, restrictions on the freedom of speech and assembly and mass manifestations
of xenophobia appeared6. Allegations of torture in police, pretrial detention centers
and prisons contributed in the deterioration of fundamental human rights’ situation7,
while the International Federation for Human Rights stated that “Ukraine is one of the
countries seeing the most serious violations against human rights activists”8. In
addition to that, on January 17, 2013 Ukraine lost all of its 211 cases at the European
Court of Human Rights9.
More specifically, amendments to the judicial system of the country affected the
right to fair trial and led to the failure to execute court rulings, non-observance of the
presumption of innocence and high level of corruption. The process became less
independent and transparent. As far as the media freedom and the freedom of
conscience and expression, since the election of Victor Yanukovych as President of
Ukraine, there have been observed many complaints about the deterioration of press
freedom. During demonstrations, protestors were impeded to attend, while many
rallies and marches have been banned because they are considered not to satisfy the
government’s interests10 11. The system concerning the conditions in detention,
migrants and refugees barely functions, too. Nevertheless, human trafficking is quite
alarming in Ukraine. The end of communism led to an increase of this phenomenon
4
Kyivpost, Experts of Council of Europe have no remarks to Ukraine concerning rights and freedom
of citizens (October 20, 2009) available at: http://www.kyivpost.com/nation/51015, [Retrieved:
19/05/2014].
5
Freedom House, Annual Report 2010: Ukraine (April 2011), available at:
http://freedomhouse.org/uploads/special_report/98.pdf, [Retrieved: 19/05/2014].
6
KyivPost, Radio Liberty: Amnesty International notes worsening of human rights situation in Ukraine
(13 May 2011) available at: http://www.kyivpost.com/content/ukraine/radio-liberty-amnestyinternational-notes-worsenin-104315.html, [Retrieved: 19/05/2014].
7
Ibid, [Retrieved: 19/05/2014].
8
Wikipedia, Human Rights in Ukraine available at:
http://en.wikipedia.org/wiki/Human_rights_in_Ukraine, [Retrieved: 19/05/2014].
9
Ukrainian,
Ukraine
lost
11
million
per
day
available
at:
http://www.pravda.com.ua/news/2013/01/17/6981673/, [Retrieved: 23/05/2014].
10
Kyiv Post, Opposition deputies accuse authorities of preventing Rise Up, Ukraine! Participants from
travelling to Kyiv available at: http://www.kyivpost.com/content/politics/opposition-deputies-accuseauthorities-of-preventing-rise-up-ukraine-rally-participants-from-traveling-to-kyiv-324490.html,
[Retrieved: 23/05/2014].
11
Refworld, U.S. Department of state country report on human rights practices 2002, Ukraine
available at: http://www.refworld.org/country,,,,UKR,,3e918c460,0.html, [Retrieved: 23/05/2014].
4
and the majority of victims are women who are forced into prostitution12. Although
the government of Ukraine has pledged to combat trafficking, it has still remained a
country of transit and destination for a large number of people.
Changes in Governance: the downfall of former President
Yanukovych and the issue of democratic deficit
Poroshenko-Yatsenyuk
Source: Eurasian News Fairway
In November of last year, the President Victor Yanukovych (who had been in
office since the 2010 elections) caused civil unrest by turning down a long negotiated
Association Agreement with the EU, opting to support a closer relationship with
Russia. It was a political decision of great importance for a recently independent
country that still has strong cultural ties to Russia (e.g. the powerful Russian speaking
minority in Eastern Ukraine) – not to mention the fact that its economy is largely
dependent on this wealthy, gas-providing neighbor. Therefore, the decision of signing
the EU Association Agreement or not turned quickly into a full blown dilemma,
questioning the very nature of Ukraine’s future: does the country want to go west and
maintain a European mindset or east and treasure its Russian background? As it was,
Yanukovych’s “pro-Russian” choice naturally alienated the west-oriented half of the
country, which lead to the occupation of the Independence Square in Kiev by
protesters demanding the signing of the Agreement and eventually calling for his
resignation13.
BBC
News,
A
modern
slave’s
brutal
odyssey
available
at:
http://news.bbc.co.uk/2/hi/europe/3979725.stm, [Retrieved: 23/05/2014].
13
BBC, Why is Ukraine in turmoil? available at: http://www.bbc.com/news/world-europe-25182823,
[Retrieved 27/05/2014].
12
5
However, the peaceful protests lasted for weeks and then, turned into a wave of
riotous episodes that mesmerized the media on a worldwide scale granting it a
reluctant comparison to the events of the Orange Revolution. The turning point came
on January 16 when the Ukrainian government approved the Bondarenko-Oliynyk
laws. The Anti-Protest laws, (as they came to be known), immediately deemed antidemocratic by international observers, were seen as dictatorial and considered as one
more proof of Yanukovych’s unsuitability. Most importantly, these laws breeched a
lot of norms. For instance, their approval was the result of an unconventional vote by
show of hands in a loosely attended parliament session14. While typically within the
rules, this procedure offers an exploitable excuse when trying to delegitimize
Yanukovych’s last initiatives as president. Mimicking Russia’s NGOs as “foreign
agents” laws and foreseeing, among others, a prison sentence for mass violation of
public order, these laws defied recognized human rights, including the right to
assembly and the freedom of speech.
The occupation of public buildings and the set up of barricades intensified the
situation, which soon turned violent resulting in dozens of deaths, thousands of
injuries and, at least, a hundred of people missing. With the protests spreading to the
east of the country – to regions that had previously supported Yanukovych – it was
obvious that it was no longer a question of changing a decision; what the protesters
wanted was a change in the governance15. As he was obliged to deal with the
powerful front of the opposition, President Yanukovych tried to offer an olive branch
by guaranteeing negotiations with the leaders of the protest movement and promising
to change the formation of the government, giving the prime ministerial post to
Arseniy Yatsenyuk (a comrade of Tymoshenko’s) and naming Vitali Klitschko
Deputy Prime Minister16 but his efforts proved to no avail. On February 22, the
Ukrainian parliament finally voted to remove Victor Yanukovych from office and
announced the snap presidential elections that took place in late May. Consequently,
Yanukovych fled the country claiming he feared for his life while a parliament vote
ordered his arrest17. Afterwards, Yulia Tymoshenko, the leader of the opposition, was
immediately released18.
The apparent fulfillment of the protesters’ wishes, Yanukovych’s exit from the
country, raises a number of issues. Even if his actions as President of Ukraine were
14
TRANSPARENCY INTERNATIONAL UKRAINE, Summary of Laws Adopted by the Ukrainian
Parliament on 16 January 2014 available at: http://ti-ukraine.org/news/4269.html, [Retrieved
28/05/2014].
15
BLOOMBERG BUSINESSWEEK, Ukraine Clashes Resume in Kiev as Foreign Mediation Urged
available at: http://www.businessweek.com/news/2014-01-24/ukraine-warned-of-civil-war-by-eu-asunrest-spreads-to-regions, [Retrieved 27/05/2014].
16
THE GUARDIAN, Ukraine threatens state of emergency after protesters occupy justice ministry
available
at:
http://www.theguardian.com/world/2014/jan/27/ukraine-protesters-occupy-justiceministry-state-emergency, [Retrieved 27/05/2014].
17
EUROPEAN VOICE, Ukraine sets date for presidential election available at:
http://www.europeanvoice.com/article/ukraine-sets-date-for-presidential-election/,
[Retrieved
28/05/2014].
18
BBC, Ukraine: Speaker Oleksandr Turchynov named interim president available at:
http://www.bbc.com/news/world-europe-26312008, [Retrieved 28/05/2014].
6
against popular opinion, was his pursuit off power really compliant with democratic
values? After all, his actions, decisions and choices – whether they were popular or
unpopular, “right” or “wrong” (notions hugely subjective when it comes to politics) –
were the political decisions of an elected official. While the last year of
Yanukovych’s presidency was evidently disapproved of by the masses, it was those
same masses who had voted for him in 2010 and it was up to them not to vote for him
in the next elections. Did the missed EU Agreement, the event that triggered the
crisis, provide enough justification for the urgency of the proceedings? It all comes
down to this: when does an elected leader lose his legitimacy? And what happens
when it is lost? The question of legitimacy is really hard to answer. Theoretically, an
elected representative of the people within a democratic system has guaranteed
legitimacy by the fact that he has been voted to that position by the majority of the
people. In today’s society, however, the majority of the votes is hardly ever big
enough to allow just one elected representative (or party) freedom of political
movement. And the support of this – already fragile – majority is put to the test when
hard decisions have to be made19. Yanukovych’s choice not to sign the Association
Agreement (whatever the reasons for it may have been) was objectively a very hard
decision, one that resulted in a deficit of legitimacy.
The Yanukovych presidency was already crippled in that regard. The 2010 elections
that landed Victor Yanukovych in office had given him a very slight edge on his
opposition, Yulia Tymoshenko20. It was a tiny advantage that made all the difference,
but it had practically left half the voting population disappointed. People were
politically divided in two parts (less than a decade since the Orange Revolution
nonetheless) that had to deal with the leader of the opposition being imprisoned under
the charges of embezzlement; an unjust, politically motivated, basically antidemocratic imprisonment according to the global outrage that followed. By February
2014, Yanukovych had very little popular support. However, the fact remains that he
was still an elected representative, ousted through rather speedy procedures. It would
seem that by denouncing the former President, the Ukrainian parliament tried
simultaneously to correct the errors of his past. For instance, freeing Tymoshenko by
the apparently instant decriminalization of the actions for which she was
imprisoned21. While haste was definitely a factor in these decisions, they were most
likely inevitable given the state of unrest the country was in at the time.
It is still expected to be proved whether the reinstallation of a democratic rule is
authentic or not. Unfortunately, though, the prolonged state of crisis due to the warlike conditions in the eastern provinces is not very optimistic as far as the chances of a
19
FOREIGN
AFFAIRS,
Lost
Legitimacy,
available
at:
http://www.foreignaffairs.com/articles/140274/ian-bremmer/lost-legitimacy, [Retrieved 28/05/2014].
20
Yanukovych managed to get 48,95% of the votes compared to Tymoshenko’s 45,47%. BBC,
Ukraine
election:
Yanukovych
urges
Tymoshenko
to
quit
available
at:
http://news.bbc.co.uk/2/hi/europe/8508276.stm, [Retrieved 28/05/2014].
21
VOICE OF AMERICA, Ukraine’s Tymoshenko Declares Presidential Candidacy, available at:
http://www.voanews.com/content/ukraines-tymoshenko-declares-presidential-candidacy/1880823.html,
[Retrieved 28/05/2014].
7
fully democratic system in the short term are concerned. The traumatizing uncertainty
of such conditions leads to the possible insurgence of a variety of counter-democratic
factors such as the rise of extreme nationalism (and its consequent acts of
discrimination) and the prevalence of efficacy over transparency and just treatment.
Demonstrators gathered in downtown Kiev on December 1st
Source: CNN
8
2. HUMAN RIGHTS AFTER 22ND OF FEBRUARY
After February 22nd 2014, when the Ukrainian parliament voted to dismiss President
Victor Yanucovych, the human rights situation in the country -as it is mentioned
above- has worsened. Human rights organizations have been closely following the
developments in Ukraine and have expressed their concerns regarding the human
rights abuses. The following examples, which cover the period March-May 2014,
constitute violation of human rights and Ukraine’s non-compliance with the
international and European human rights treaties that has ratified.
To start with, the economic and social rights have been deeply affected due to the
corruption, which has intensified inequalities, eroded public trust in state institutions
including the justice system, led to impunity and undermined the rule of law. It has
negatively influenced all people in the country and prevented them from the
enjoyment of social and economic rights, including the right to health services 22. In
eastern Ukraine, the presence of armed groups and their particular control of towns
are resulting in the disruption of many aspects of daily life, such as the closure of
shops and the termination of operations of several major banks due to the numerous
incidents of attacks at their offices23. However, the economic and social rights are
protected in the International Covenant on Economic, Social and Cultural Rights
(CESCR), and especially the right to health is enshrined in article 12 of the CESCR24.
Furthermore, the right to freedom of expression has been restricted 25, as well as the
right to free access to information. On 6th of March, analogue broadcasts Ukrainian
television channels (Ukraine’s First National Channel, Inter, Channel Five etc.) were
shut off in Crimea, and the vacated frequencies started broadcasting Russian TV
channels. In another case, on 18th of March 2014, members of the political party
Svoboda arrived to the National Television Company of Ukraine, intimidated and
22
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine,
15
April
2014,
available
at:
http://www.ohchr.org/EN/countries/ENACARegion/Pages/UAIndex.aspx, [Retrieved: 27/05/2014].
23
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine,
15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
27/05/2014].
24
Office of the United Nations High Commissioner for Human Rights, International Covenant on
Economic,
Social
and
Cultural
Rights,
available
at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx, [Retrieved: 28/05/2014].
25
On 13 March, the Pechorski District Court of Kiev placed Mr. Hennady Kernes, Mayor of Kharkiv,
under house arrest under three articles of the Criminal Code. According to Mr. Kharkiv, he was a
victim of selective justice due to his political beliefs.
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine,
15
April
2014,
available
at:
http://www.ohchr.org/EN/countries/ENACARegion/Pages/UAIndex.aspx, [Retrieved: 27/05/2014].
9
assaulted its Head, forcing him to sign a resignation letter26. Moreover, in the eastern
Ukraine the freedom of expression is facing significant challenges, as journalists are
being intimidated, threatened, attacked and in some cases deported, while TV station
“Center” in Horlivka stopped broadcasting its programs and local newspaper
“Province” in Konstantinovka was burnt down due to a Molotov cocktail attack. They
were both located in the Donetsk region27. Article 19 of the International Covenant on
Civil and Political Rights (CCPR)28 provides the freedom of opinion and expression,
and consequently the freedom to hold opinions without any interference. The right to
free access to information is also enshrined in article 19 of the CCPR.
As far as the minority rights, the need for their protection has increased, especially
since the annexation of Crimea by Russia. The Crimean Tatars face discrimination,
violence and intimidation by armed groups. Their right to peaceful assembly has been
restricted and they face pressure to give up their Ukrainian citizenship for a Russian
one or to acquire a “resident permit”, becoming in this way foreigners in their own
land29. There are concerns about the Russian-speaking minority in eastern Ukraine,
because of the numerous reports stating that the “Right Sector”, a right wing group
that expresses paramilitary ambitions, has used violence against political opponents,
representatives of the former ruling party and their elected officials 30. In addition, the
violation of the rights of the Roma and LGBT communities is of great concern, as
there are credible reports of stigmatization and discrimination, as well as reports of
hate speech, harassment, and hate-motivated attacks respectively31. Discrimination on
grounds of sex, race, color, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status is
prohibited by article 14 of the European Convention on Human Rights (ECHR)32 and
26
Ibid, [Retrieved: 27/05/2014].
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
27/05/2014].
28
Office of the United Nations High Commissioner for Human Rights, International Covenant on Civil
and Political Rights, available at: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx,
[Retrieved: 28/05/2014]
29
Amnesty International, Harassment and violence against Crimean Tatars by State and non-State
actors, available at: http://www.amnesty.org/en/library/asset/EUR50/023/2014/en/e13e9f87-f185-4fc991df-c39a320f70d2/eur500232014en.pdf, [Retrieved: 27/05/2014].
27
30
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
April
2014,
available
at:
http://www.ohchr.org/EN/countries/ENACARegion/Pages/UAIndex.aspx, [Retrieved: 27/05/2014].
31
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
27/05/2014].
32
European Court of Human Rights, European Convention on Human Rights, available at:
http://www.echr.coe.int/Documents/Convention_ENG.pdf, [Retrieved: 28/05/2014].
10
the article 2 of the CCPR and CESCR. The minority rights are protected in the
Framework Convention for the Protection of National Minorities33.
What is more, armed groups in Ukraine have committed human rights abuses such
as abductions, unlawful detentions, enforced disappearances, killings, torture and illtreatment, which has led to violation of the right to life, liberty and security34. In this
case, Articles 9 and 10 of the CCPR, where the basic right to liberty and protection
against arbitrary detention are being developed, have been violated as well as Article
5 of the ECHR. Article 7 of the CCPR and article 1of the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 35 forbid
torture, cruel, inhuman or degrading treatment or punishment and medical and
scientific experiments against one’s will and also, determine what constitutes cruel or
unusual treatment.
With a view to the Ukrainian elections, which were held on May 25th, the candidates
and the Ukrainian citizens were prevented from or restricted in exercising their
political rights. Women’s rights is also an issue that should be taken into account
since there is very little participation and inclusion of women in efforts to resolve the
current crisis in Ukraine. Their more active inclusion in such activities is thought to
be critical to the success of possible steps to secure good governance, respect of
human rights and the rule of law36. Indeed, the Article 25 of the CCPR states that
every citizen has the right without unreasonable restrictions to take part in the conduct
of public affairs, to vote and to be elected at genuine periodic elections. As far as the
women’s rights is concerned, the Article 7 of the Convention on the Elimination of all
forms of Discrimination against Women (CEDAW) guarantees their right to
participation in the political and public life of a country on equal terms with men37.
33
Council of Europe, Framework Convention for the Protection of National Minorities, available at:
http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm, [Retrieved: 28/05/2014].
34
There is an increased number of cases of abductions and unlawful detentions of journalists, activists,
local politicians, representatives of international organizations and members of the military in the
eastern regions, such as the case of a police officer in Kramatorsk who was abducted by an armed
group on 21 April. Intimidation, harassment and killings have also augmented.
Office of United Nations High Commissioner for Human Rights, Report on the human rights situation
in
Ukraine
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
27/05/2014].
35
Office of the United Nations High Commissioner for Human Rights, Convention against Torture and
other
Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment,
available
at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx, [Retrieved: 28/05/2014].
36
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
28/05/2014].
37
United Nations-WomenWatch, Convention on the Elimination of all forms of Discrimination against
Women, available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm, [Retrieved:
29/05/2014].
11
Finally, it has been noted that rallies of opposing groups are being held
simultaneously and they often lead to violent confrontations and clashes, such as the
Odessa events which resulted in the death of 46 people. The Article 64 of the
Ukrainian Constitution provides for the freedom of peaceful assembly, but there is no
law that regulates the conduct of such assemblies. Thus, this gap in the legislative
framework creates confusion, irregularities and an ad hoc approach to policies and
practices that regularize and manage peaceful assemblies. It is important to mention
that, in some cases the local authorities turn to administrative courts to decide on the
prohibition of assemblies, due to the police’s inability to ensure the safety of the
participants and the lack of police staff. These practices constitute violation of the
right to peaceful assembly38, whereas the Article 21 of the CCPR and article 11 of the
ECHR establish the necessity to the freedom of peaceful assembly.
As the crisis in Ukraine was evolving, the international community decided for the
first time in months to establish a framework for the ease of internal tensions in the
country. The Geneva Agreement is the result of the intense negotiations between the
representatives of Ukraine, USA, EU and the Russian Federation (despite earlier
threats by the latter not to participate in the talks). During the Geneva talks on the 17th
of April 2014, which lasted more than six hours, the above states agreed on a series of
concrete steps to de-escalate tensions and restore security for all people. The deal calls
on all sides in Ukraine to refrain from violence or provocative behavior and to reject
expressions “of extremism, racism and religious intolerance, including antiSemitism”. Furthermore, according to the agreement “all illegal armed groups must
be disarmed; all illegally seized buildings must be returned; all illegally occupied
streets and other public places in Ukrainian cities and towns must be vacated” and
“amnesty will be granted to the protestors and to those who have left buildings and
other public places and surrendered weapons, with the exception of those found guilty
of capital crimes”. The deal also states that the Organization for Security and
Cooperation in Europe (OSCE) will play a leading role in helping the authorities to
implement the agreement, and the constitutional reform will be inclusive, transparent
and accountable carried out through a broad national dialogue. Finally, the
participants underlined the importance of economic and financial stability in Ukraine
and expressed their willingness to discuss additional support as the above steps are
implemented39.
The Ukrainian crisis gave rise to the worst confrontation between Russia and the
West since the Cold War and the Geneva Agreement was designed to resolve this
crisis through a peaceful political settlement. Although many hoped that the
agreement would lower the internal and international tensions around Ukraine, from
the beginning it did not seem capable of achieving it, as several key aspects of the
38
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine-15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
27/05/2014].
39
European Union, Joint Statement- Geneva Statement on Ukraine, available at:
http://eeas.europa.eu/statements/docs/2014/140417_01_en.pdf, [Retrieved: 29/05/2104].
12
crisis are absent from the declaration. To start with, the joint statement does not
mention the Russian annexation of Crimea. This absence was seen by Russia as an
effective acknowledgement of its rule over the peninsula, and was merely done
because Ukraine and the West intended to facilitate the talks40. No reference,
however, has been made to Ukraine’s sovereignty and territorial integrity41.
Another aspect that was excluded from the declaration is the presence of Russian
troops across Ukraine’s borders, which perpetuates Moscow’s military intimidation of
Kiev and the threat of war. Although Russia has managed to stay away from direct
military intervention in the neighboring country, the threat of war still exists as long
as its troops remain in the Ukrainian territory. Particularly, the joint statement does
not require Russia to remove the approximately 40,000 troops from Ukraine’s border,
something that could help de-escalate the crisis in Ukraine. Until May 30, the Russian
troops remained in Ukraine, but later Russia withdrew most of them 42. What is more,
the deal does not involve Russia’s commitment to hold direct talks with the interim
Ukrainian government43.
Furthermore, the presidential elections of May 25th are not mentioned in the joint
statement, putting into question their legitimacy by Russia. The elections could be
seen as a crucial element of any political solution to the crisis44. Since the interim
government of Arseniy Yatsenyuk was viewed as illegitimate by many pro-Russians
of the eastern Ukraine, the new democratically elected President Petro Poroshenko,
the forthcoming parliamentary elections and the new constitution will manage to
restore the trust of the Ukrainian people to the government. In other words, the proper
conduct of the Ukrainian elections marked the end of the first phase of the crisis,
notwithstanding the situation in the country is far from being stable45. Finally, the
agreement did not set a timeline during which its terms should be implemented. The
40
CNN, Joerg Forbrig, Opinion: Why Geneva accord on Ukraine is tactical victory for Russia,
available
at:
http://edition.cnn.com/2014/04/20/opinion/opinion-ukraine-forbrig/,
[Retrieved:
29/05/2014].
41
Freedom House, Ukraine: Countering Russian Intervention and Supporting a Democratic State,
available at: http://freedomhouse.org/article/ukraine-countering-russian-intervention-and-supportingdemocratic-state#.U4d8hCjUjKu, [Retrieved: 29/05/2014].
42
Kyiv Post, New York Times: US officials say most Russian troops have left Ukraine border, available
at:
http://www.kyivpost.com/content/ukraine-abroad/new-york-times-us-officials-say-most-russiantroops-have-left-ukraine-border-350082.html, [Retrieved: 01/06/2014].
43
The New York Times, US and Russia Agree on Pact to Defuse Ukraine Crisis, available at:
http://www.nytimes.com/2014/04/18/world/europe/ukraine-diplomacy.html?_r=0,
[Retrieved:
29/05/2014].
44
CNN, Joerg Forbrig, Opinion: Why Geneva accord on Ukraine is tactical victory for Russia,
available
at:
http://edition.cnn.com/2014/04/20/opinion/opinion-ukraine-forbrig/,
[Retrieved:
29/05/2014].
45
The Carnegie Endowment for International Peace, Dmitri Trenin, Elections Mark the End of the
Ukraine Conflict’s First Stage, available at: http://carnegie.ru/eurasiaoutlook/?fa=55694, [Retrieved:
29/05/2014].
13
timeline would be useful to the Western governments to determine their own actions,
including sanctions46.
Regarding the implementation of the Geneva Agreement, most of its terms were
ignored. The pro-Russian forces, immediately after the accord had been signed,
declared that it did not apply to them. In particular, the self-declared leader of proRussian separatists in eastern Ukraine, Denis Pushilin, said his men are not bound by
an agreement between Russia and Ukraine requiring illegal groups to disarm and
vacate buildings, claiming that the Russian Foreign Minister Sergei Lavrov “did not
sign anything for us, he signed on behalf of the Russian Federation”. Meanwhile,
Ukraine announced a military-backed operation against pro-Russian separatists in the
eastern regions to regain control of towns held by the latter47.The subsequent clashes
between the Ukrainian government forces and the pro-Russian separatists in eastern
Ukraine resulted in the increase of violence and the death of several people from both
sides. The cities, which the pro-Russian forces are most active, are Slavyansk -which
serves as the “armed operations base” of the so-called “Slavyansk self-defense unit” -,
Donetsk, Luhansk and Kramatorsk. In Donetsk and Luhansk, following the example
of Crimea, self-rule referendums were conducted on 11th of May, asking for political
independence from Kiev and absorption into Russia. In both areas the majority of
voters supported self-rule, but the European Union and the United States did not
recognize the referendums, stating that they are illegal, illegitimate and inaccurate48.
Incitement to hatred and extremism continues to exist in Ukraine, especially in the
eastern regions, in contradiction to the terms of the Geneva Agreement. Russia has
been supporting and inciting nationalist extremists in South-Eastern Ukraine since the
1990s, but in recent years the support has been more active, especially after Victor
Yanucovych was elected President of Ukraine in 2010. Even now, Moscow supports
extreme-right parties and pro-Russian separatists, and uses them as proxies to
infiltrate the public discourse, weaken the democratic consensus and the political
institutions49, and also to promote regionalization and at times separatism. The proRussian rebels are increasingly well-trained, heavily armed and there are claims that
armed groups are coming from across the Ukrainian borders. On the other hand, the
Svoboda party within the Ukrainian government and the supporters of a united
Ukraine, among whom are extremists of the radical party “Right Sector”, are
responsible for inciting violence, racism and hatred against the Russian-speaking
46
CNN, Joerg Forbrig, Opinion: Why Geneva accord on Ukraine is tactical victory for Russia,
available
at:
http://edition.cnn.com/2014/04/20/opinion/opinion-ukraine-forbrig/,
[Retrieved:
29/05/2014].
47
Reuters, Pro-Russian separatist leader says not bound by Geneva deal, available at:
http://www.reuters.com/article/2014/04/18/us-ukraine-crisis-separatists-idUSBREA3H0B120140418,
[Retrieved: 29/05/2014].
48
Reuters, Rebels appeal to join Russia after east Ukraine referendum, available at:
http://www.reuters.com/article/2014/05/13/us-ukraine-crisis-idUSBREA400LI20140513, [Retrieved:
31/05/2014].
49
Open
Democracy,
Extremism
in
South-Eastern
Ukraine,
available
at:
http://www.opendemocracy.net/od-russia/anton-shekhovtsov/dangers-of-extremism-in-southeasternukraine-far-right-eurasianism-slavic-unity, [Retrieved: 31/05/2014].
14
population of Ukraine and national minority groups such as the Crimean Tatars and
the Roma. Therefore, extremism, hate speech and provocative actions continue to fuel
tensions in the country.
Concerning the return of illegally seized buildings to legitimate owners, many
government sites across several cities in Donetsk remained occupied after the
agreement was signed50. With the aim to ease tensions and resolve the crisis in the
country, five draft laws on ‘amnesty’ for the activists who have participated in the
protests after the 22nd of February were submitted to the Parliament. The draft laws,
which were submitted from 9 to 23 April, seek amnesty legislation that covers the
actions to overthrow legal government, the organization of riots and the seizure of
administrative and public buildings51. Also, Oleksandr Turchynov promised to
provide amnesty to all armed separatists who had not committed grave crimes and
agreed to surrender, after a military operation against the pro-Russian separatists of
Slavyansk on 2nd of May52.
The Order “On the organization of the discussion of amendments to the provisions
of the Constitution of Ukraine on the decentralization of State power”, which was
issued by the Cabinet of Ministers on April 17th and the public parliamentary hearings
that were held on amendments to the Ukrainian Constitution on April 29th, are actions
towards the constitutional reform in Ukraine53. While Ukraine54, the EU and the US
support the constitutional changes that will strengthen decentralization, regional and
local self-government as well as minority languages, Russia is in favor of the
federalization of Ukraine and the right of the regions to their own foreign and
economic relations. This different approach by the parties to the context of the
Geneva Agreement, as far as the constitutional amendment of Ukraine is concerned,
was another sign that the accord would had little chances of accomplishing its aim: to
defuse tensions in Ukraine55.
50
CNN, Ukraine crisis: Defiant pro-Russian activists seize more buildings, available at:
http://edition.cnn.com/2014/04/30/world/europe/ukraine-crisis/, [Retrieved: 31/05/2014].
51
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
31/05/2014].
52
The Guardian, Putin says Geneva agreement no longer viable after Ukrainian military action,
available at: http://www.theguardian.com/world/2014/may/02/putin-geneva-agreement-not-viableukraine-military-action, [Retrieved: 31/05/2014].
53
Office of the United Nations High Commissioner for Human Rights, Report on the human rights
situation
in
Ukraine15
May
2014,
available
at:
http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15May2014.pdf,
[Retrieved:
01/06/2014].
54
Fearing that the federalization of the country will lead to the separation of some regions from
Ukraine, the Ukrainian interim government supports decentralization.
United States Institute of Peace, The Constitutional Process in Ukraine, available at:
http://www.usip.org/publications/the-constitutional-process-in-ukraine, [Retrieved: 01/06/2014].
55
CNN, Joerg Forbrig, Opinion: Why Geneva accord on Ukraine is tactical victory for Russia,
available
at:
http://edition.cnn.com/2014/04/20/opinion/opinion-ukraine-forbrig/,
[Retrieved:
01/06/2014].
15
Moreover, the OSCE observers in Ukraine helped to the conduct of the presidential
elections, which -according to them- were transparent and legitimate. They were held
in accordance with international commitments and provided adequate conditions for
free expression of will of the Ukrainian people on the election’s day. The OSCE
mission in Ukraine, apart from its assistance in the elections, confirmed its support to
the Ukrainian authorities in implementing the program of reforms56. The economic
assistance which is necessary to Ukraine will be provided by the European
Commission through the “State Building Contract” program57 and the International
Monetary Fund (IMF)58.
In conclusion, the Geneva Agreement is far from being implemented due to the
different interpretations the parties gave to its terms, the absence of many crucial
elements from the declaration, and the intransigence that the opposing sides inside
Ukraine have shown. It will be significant for the new government to cease the
military operation in the eastern regions, which has only worsened the situation in
Ukraine, and to conduct dialogue with the separatists.
Riot policemen stand guard as they are hit by fire caused by molotov cocktails hurled by antigovernment protesters during clashes in Kiev February 18, 2014.
Source: Reuters/ Stringer
56
Ministry of Foreign Affairs of Ukraine, Acting Foreign Minister of Ukraine Andrii Deshchytsia met
with Director of the OSCE Office for Democratic Institutions and Human Rights Janez Lenarcic,
available at: http://mfa.gov.ua/en/press-center/news/23512-vo-ministra-zakordonnih-sprav-ukrajiniandrij-deshhicya-zustrivsya-z-direktorom-byuro-demokratichnih-institutiv-i-prav-lyudini-obsejanezom-lenarchichem, [Retrieved: 01/06/2014].
57
European Union, European Commission’s support for Ukraine-update, available at:
http://europa.eu/rapid/press-release_MEMO-14-279_en.htm, [Retrieved: 01/06/2014].
58
International Monetary Fund, Ukraine Unveils Reform Program with IMF Support, available at:
http://www.imf.org/external/pubs/ft/survey/so/2014/new043014a.htm, [Retrieved: 01/06/2014].
16
3. THE REFERENDA IN EAST UKRAINE
Crimea
In February 27, some forces wearing military uniforms without emblems, formed by
local activists and, as many people claim, by Russian forces, took over government
institutions and the airport in the region of Crimea. The occupation was watched
silently by the Ukrainian forces stationed there, and was accompanied by the
awkwardness of the international community59. The 16th of March, those forces
organized a referendum on whether the peninsula of Crimea should be autonomous or
whether it should be annexed by Russia. The amazing issue that rises is that it was
given that the region would not remain a part of Ukraine. The voting was not
monitored by independent observers and there have been reports of violence and
threats posed by the separatists against the Ukrainians residing in the area. However,
the outcome was expected. Final results of the referendum in Crimea showed that
97% of voters had supported leaving Ukraine to join Russia. Indeed, on the 18th of
March, Putin signed the annexation of Crimea. Nevertheless, Europe and the West in
general stated clearly that this act was illegal according to Ukrainian and international
law and as a result, it would never be recognized60. In order to understand the
dynamics of the referendum, it should be viewed the background of the Russianspeaking population. Crimea was already 60% Russian-speaking when it became a
part of Ukraine in 1954, and currently this number has risen to more than 75%61. The
Russian-speaking population was assimilated into the Soviet culture via the Russian
language during the Soviet time.” The psychological and cultural connection with
Russia was seen as much stronger than with Ukraine by the majority of the population
and this has served as a practical basis that provided legitimacy of the referendum and
the following annexation of the region by Russia62.
Luhansk and Donetsk
In the beginning of April, the events of Crimea formed a pattern that started to
repeat itself. In various cities of eastern Ukraine, local forces were occupying
governmental buildings and soon they organized the conduct of referenda in the
regions of Donetsk and Luhansk. The question was the following: "Do you support
state autonomy for Donetsk / Luhansk People's Republic?”. The turnout was 96% in
the region of Luhansk and 89% in the region of Donetsk. The procedure was once
again organized by the local forces, without independent observers, while there was
no efficient control of the multiple-voting phenomenon. This case did not result to the
59
Freedman, Lawrence, Ukraine and the Art of Crisis Management, Survival:
Global Politics and Strategy, 56:3, 7-42, 2014.
60
Center of Strategic and International Studies, The Ukrainian time-line available at:
http://csis.org/ukraine/index.htm, [Retrieved: 30/05/2014].
61
International Crisis Group, Ukraine: Running out of Time, Europe Report N°231, 14 May 2014
62
Anne Jürgens, The Russian-Speaking Population in Estonia and Ukraine: Migration, Integration and
Historical Position on The Way from a Titular Nation to a Minority, Ideology and Politics, № 2(4),
2013.
17
annexation of the regions by Russia, even though the leaders of Donetsk appealed to
Russia for incorporation63 64.
A man and a woman cast their ballots at a polling station in the eastern Ukrainian town of Dobropillya.
Source: ABC News
Legality and Legitimacy
According to national law and the Ukrainian Constitution, the referenda and
subsequently the annexation of Crimea were illegal. The referenda violate Ukrainian
law on the basis of the Article 73 of the constitution, which clearly states that “Issues
of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian
referendum. It was conducted only in the area of Crimea, with no consent of the
government and under full control of the separatists“. As far as the annexation of
Crimea by the Russian Federation is concerned, Article 134 of Chapter X, concerning
the Autonomous Republic of Crimea, mentions that it “is an inseparable constituent
part of Ukraine and decides on the issues ascribed to its competence within the limits
of authority determined by the Constitution of Ukraine”. Moreover, Article 135 states
that “Normative legal acts of the Verkhovna Rada of the Autonomous Republic of
63
Center of Strategic and International Studies, The Ukrainian time-line available at:
http://csis.org/ukraine/index.htm, [Retrieved: 30/05/2014].
64
International Crisis Group, Ukraine: Running out of Time, Europe Report N°231, 14 May 2014.
18
Crimea and the decisions of the Council of Ministers of the Autonomous Republic of
Crimea shall not contradict the Constitution and the laws of Ukraine…”65.
The legality of the referenda, whose purpose was either independence or
annexation, viewed under the scope of international law, is much more complicated.
We have two basic principles which are both considered customary law and are, at a
first glance, contradictory. On the one hand, the principles of territorial integrity,
independence, sovereignty constitute this action illegal66. On the other hand, the right
of a people to self-determination could be viewed as a legal basis justifying the
particular referenda, and additionally, the annexation of Crimea. However, the term
“self-determination” does not mean independence per se. A minority can be selfdetermined within a state as long as its rights are secured by law and practice. The
issue of independence and secession rises in a very few occasions. “As the Canadian
Supreme Court decided, and the ICJ indicated, secession may in certain extreme
situations be allowed, and then perhaps, as a last resort, there could also be an
authority of other states to intervene for humanitarian reasons”67. In this case, such
extreme circumstances did not arise in order to provide Russia the right of annexation.
Supportive of this opinion is the principle of non-intervention.
Another legal basis proving the illegality of the annexation is found in the 1994
Budapest Memorandum, where Russia reaffirmed her commitment to respect the
independence, sovereignty and the existing borders of Ukraine68. On the allegations
that by annexing Crimea, Russia violated this Memorandum, the Foreign Affairs
Minister of Russia stated that “Ukraine’s loss of its territorial integrity was a result of
complicated internal processes, with which neither Russia nor its obligations under
the Budapest Memorandum have anything to do”. Consequently, it could be
concluded that, even though this theoretical and practical question on the right selfdetermination cannot be fully answered in the context of this study, the referenda and
their results consist a violation of international law.
Nevertheless, it is worthwhile analyzing the Russian Law concerning the case of
Crimea. The issue of annexing land and creating a new subject in the Russian
Federation was determined by the Law No. 6-FKZ, according to which the consent of
the sovereign state and an international treaty signed by this state and the Russian
Federation, was obligatory. The 28th of February, however, the Russian Duma voted
for an amendment of this law. According to the opinion 763/2014 of the Venice
Committee, “this Draft Law (No. 462741-6) removed the requirement of the consent
by the territorial state with the cession of a territory under its sovereignty to the
Russian Federation. In case when it is not possible to conclude an international treaty
because of the absence of efficient sovereign state government in the foreign state
65
Constitution of Ukraine,
As amended by the Law of Ukraine of 8 December 2004 №
2222-IV.
66
Charter of the United Nations, Article 2
European commission for democracy through law, Venice Commission, Opinion No. 763/2014
68
Budapest Memorandums on Security Assurances, 1994, 5 December, available at:
http://www.cfr.org/arms-control-disarmament-and-nonproliferation/budapest-memorandums-securityassurances-1994/p32484, [Retrieved: 29/5/2014].
67
19
(Draft Article 4 (2.1), a part of the territory of another state may be admitted to the
Russian Federation on the basis of a referendum conducted in accordance with the
legislation of the foreign state, or on the basis of request of state authorities of the
said part of the foreign state”69. If this very convenient amendment is combined with
the statement of the Russian government mentioning that the political upheaval in
Ukraine that forced out President Viktor Yanukovych ended the Kiev government's
constitutional authority70, the result is “absence of efficient sovereign state
government”. This provides the Russian Federation the “right” to annex this territory,
based on the humanitarian need of the protection of the Russian-speaking population.
The legality of this draft law, in terms of basic principles of international law, is of
course highly doubted. It is also remarkable that Russia has started to use the term
“legitimacy” instead of “legality”, which is an attempt to underline the will of the
people and the demographics that support the Russian position, unlike the “legality
card”71.
Map of eastern regions of Ukraine
Source: BBC News
69
European commission for democracy through law, Venice Commission, Opinion No. 763/2014
Cohen, Tom, Legal or not, Crimean referendum will shape Ukraine crisis, CNN 15/3/2014,
available at: http://edition.cnn.com/2014/03/13/politics/crimea-referendum-explainer/, [Retrieved:
29/5/2014].
71
Rein Müllerson, Ukraine: Victim of Geopolitics, Chinese Journal of International Law (2014), 133–
145.
70
20
4. REFORMING THE UKRAINIAN CONSTITUTION
Facing the derailment of events in the east provinces, the interim government, led
by Prime Minister Arseniy Yatsenyuk and acting President Oleksandr Turchynov,
announced in April 18th of this year its plans for constitutional reforms72. The
proposed reforms will attempt to cover the needs and delinquencies which are
considered to be the main causes for the civil unrest so far, and they are already
openly supported by foreign officials including Russian Foreign Minister Sergei
Lavrov and US Secretary of State John Kerry73. According to the interim government,
the constitutional amendments will move towards two main goals: the
decentralization of power and the protection of the Russian language.
In regard to the decentralization effort, the changes proposed bring to mind the
reinstated 2004 amendments which were deemed unconstitutional at the time of
Yanukovych’s rise to power in 201074. Taking power away from the President and the
central government, the role of regional posts and local councils will be enhanced. By
giving more responsibilities to local authorities, the Ukrainian constitution will grant
greater independence to the regions, appeasing in this way the farthest areas of this
large country that had issues getting through to Kiev or dealing with the governors
who were up till now appointed by the President of Ukraine. Reinstating the balance
of power, locally elected officials will be given greater freedom of movement. They
will also be given new responsibilities concerning taxation and the financial situation
of their region75. These changes will ensure that the voice of the population of every
region of the country will be equally heard. The average of Ukrainian citizens will
have the chance to be related to the political situation in his region and raise their
concerns far more easily. This will also be beneficial as it can contribute to the greater
respect of the minorities who would be better represented under the new conditions.
A central government concerned with presenting a united front and combining the
viewpoints of drastically different regions, may tend to repress the voices and neglect
the needs of smaller parts of the population that seem far away to residents of the
capital. Regional authorities, on the contrary, comprised by conscious people, are
closer to the everyday reality of minority issues.
Meanwhile, protecting the Russian language will also help making amendments to
the eastern parts of the country. Recognizing the special status of the language in
Ukrainian life will make the huge number of Russian speaking Ukrainian citizens feel
Radio Free Europe, Ukraine’s Prime Minister Outlines Plans for Constitutional Reforms available
at:
http://www.rferl.org/content/ukraine-yatsenyuk-turchynov-constitutional-reform/25354791.html,
[Retrieved 29/05/2014].
73
Reuters, Lavrov, Kerry agree to work on constitutional reform in Ukraine: Russian ministry
available
at:
http://www.reuters.com/article/2014/03/16/us-ukraine-crisis-lavrov-kerryidUSBREA2F05Y20140316, [Retrieved 29/05/2014].
74
Interfax Ukraine, Ukrainian parliament reinstates 2004 constitution available at:
http://en.interfax.com.ua/news/general/191727.html, [Retrieved 29/05/2014].
75
Xinhua
Net,
Ukraine
gov’t
mulls
constitutional
reform
available
at:
http://news.xinhuanet.com/english/world/2014-04/19/c_133274048.htm, [Retrieved 29/05/2014].
72
21
respected and included76. It will guarantee that they are fully accepted without
sacrificing their cultural identity. A show of good will, smoothing things over by
fostering and allowing greater independence to every region and the ultimate aim of
the revised constitution will be to ensure that no one is left out of the decision making
and therefore to prevent separatist movements.
An excellent initiative on paper, the amendment of the constitution is going to be
put to the test once the time of its ratification comes. An important cause for worries
constitutes of the fact that these reforms were announced by the interim government
which is now headed by a newly elected President. Even disregarding, the question of
the legitimacy of the elections’ recent history77 (the outcome of which has, in any
case, been approved by the EU and the USA78) shows that constitutional revisions are
politically motivated and likely to get sidetracked depending on the person in charge.
This will prove to be a challenge for the Ukrainian government and the first bet for
President Poroshenko. A chance for them to respond to the will of the people,
demonstrate their democratic nature and prove those who question their legitimacy
wrong.
Ria novosti, Ukraine’s Party of Regions Urges Constitutional Reform available at:
http://en.ria.ru/world/20140424/189345559/Ukraines-Party-of-Regions-Urges-ConstitutionalReform.html, [Retrieved 29/05/2014].
77
This means that the amendments of 2004, which were deemed unconstitutional and were replaced in
2010 only to be brought back into force four years later, each time coincide with a change of President.
78
The Telegraph, Ukraine’s chocolate billionaire claims victory in election, available at:
http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10856139/Ukraines-chocolate-billionaireclaims-victory-in-election.html, [Retrieved 29/05/2014].
76
22
5. HUMAN RIGHTS’ EVOLUTION IN FUTURE
Since the outbreak of Ukrainian crisis, a vicious circle has opened causing a
significant concern to Europe and international community regarding human rights’
evolution. The peaceful demonstrations against President Yanukovych led to mass
violations of basic human rights, the country was divided in two parts (separatists and
pro-Ukrainian forces) and, since then attacks have become a daily phenomenon in
many regions of Ukraine. The annexation of Crimea to Russia was the first step and
then, the referenda in eastern provinces of the country gave the opportunity to Russia
for taking on a more active role.
However, basic freedoms and rights of people are constantly being undermined by
armed groups and the rising number of killings, abductions and detentions of
journalists, activists and politicians causes not only Europe’s but also the United
Nations’ concern. The hatred and propaganda have contributed to the escalation of the
crisis in Ukraine, while the danger of spiraling out of control is obvious 79. It is a fact
that impunity and toleration enjoyed by armed forces are factors that contribute to
significant deterioration of human rights’ situation. Indeed, 127 people have been
killed, whereas 112 cases of unlawful detentions have been documented80. The
increasing prevalence of hate speech and the harassment of journalists not only
threaten the right on freedom of speech and deepen divisions between the two parts of
the country, but also indicate the breakdown in law and order. Consequently, these
factors lead to more violence and exacerbate the tensions between the two
communities.
As far as Russia’s response, it has repeatedly been blamed for intensifying
instability in eastern Ukraine, but Russia continues condemning and ignoring every
report concerning “the crudest violations of human rights by the self-proclaimed Kiev
authorities”81 82. The invocation of the need to protect the Russian speaking people
and their rights was an excuse which permitted a more intense role in the Ukrainian
territory. However, although western governments have suggested economical
sanctions against Moscow and threatened for more severe measures, Russia
encourages separatism in the eastern regions by ignoring every invitation to dialogue.
79
The New York Times, U.N. Finds Rising Human Rights Violations in Ukraine available at:
http://www.nytimes.com/2014/05/17/world/europe/united-nations-human-rights-ukraine.html?_r=0,
[Retrieved: 29/05/2014].
80
Ibid, [Retrieved: 29/05/2014].
81
BBC News, Ukraine crisis: UN sounds alarm on human rights in east available at:
http://www.bbc.com/news/world-europe-27438422, [Retrieved: 29/05/2014].
82
Ministry of Foreign Affairs of the Russian Federation, Comment by Russian MFA Spokesman A.K.
Lukashevicha in connection with the publication of the second report of the UN High Commissioner for
Human Rights on the situation of human rights in Ukraine
available at:
http://www.mid.ru/brp_4.nsf/newsline/54EF036184B9A73344257CDA0030C5BE,
[Retrieved:
29/05/2014].
23
Nevertheless, violations of basic human rights are motivated by important factors
such as racism, xenophobia and ethnic intolerance. These factors should be
confronted and prevented through united efforts of both the international community
and the Ukrainian government. Otherwise, the consequences for stability, peace and
democratic development in Europe would be devastating83. The need for judicial and
security-sector reform, the importance of addressing corruption and ensuring equal
access are essential in order to protect human rights and prove accountability84. The
Ukrainian people in collaboration with European countries should investigate
allegations and bring perpetrators to justice, as the international community is faced
with the risk of ramifications for international peace and security caused by a
potential escalation of the Ukrainian crisis.
Despite the widespread violation of human rights in Ukraine, some recent
developments indicate that there are chances for improvement of the human rights’
situation in the country. The constitutional reform, which includes both the
decentralization of power and the protection of the Russian language, and the reform
of the judiciary will attribute greater independence to the regions. The respect of the
ethnic diversity of the country will restore confidence in the judiciary, as the latter has
committed gross violations of professional and ethical standards and finally, will
reinforce the rule of law. However, the reinforcement of the legislative framework for
torture prevention is considered necessary according to international norms and
standards.
Regarding the presidential elections, since the election proceeded normally in most
regions of the country, there are hopes that the crisis in Ukraine will eventually be
resolved. The biggest achievement of the new government so far, is that it emerged
through a democratic election process, unlike the acting government whose power
was considered illegitimate, especially by the eastern regions of Ukraine. Therefore, it
is possible that the relations between Kyiv and the eastern part of the country will be
restored. The actions of the new President towards the pro-Russian separatists and the
continuation of the constitutional reform will determine the future of Ukraine.
In conclusion, it could be stated that Ukrainian government and separatists,
respectively, violate human rights in order to achieve the effectiveness in the field of
their own interests. Politic tactics and the satisfaction of each of the two parts’
demands tend to replace legitimacy, and consequently, the protection of basic human
freedoms. It is true that the lack of democracy and the atmosphere of civil war in
Ukraine will not improve without strong efforts for dialogue. However, hopes are
disappearing as any attempt for negotiations, including the Geneva Agreement, has
failed. Russian Federation and Ukraine remain neighbors with complex but close ties
and positive relations between the two nations directly affect Europe and international
RT, Moscow releases «White Book” on human rights abuses in crisis- torn Ukraine available at:
http://rt.com/news/156840-ukraine-human-right-abuses/, [Retrieved: 29/05/2014].
84
United Nations Security Council, United Nations Human Rights Monitoring mission Deployed to
Crimea
amid
Crisis,
19
March
2014,
available
at:
http://www.un.org/News/Press/docs/2014/sc11328.doc.htm, [Retrieved: 29/05/2014].
83
24
community in general85. It is, therefore, Moscow and Kiev that should discuss
diplomatic solutions for restraint and de-escalation in the current crisis, taking always
into consideration the respect of the victims and the protection of human rights.
85
United Nations Security Council, United Nations Human Rights Monitoring mission Deployed to
Crimea
amid
Crisis,
19
March
2014,
available
at:
http://www.un.org/News/Press/docs/2014/sc11328.doc.htm, [Retrieved: 29/05/2014].
25
APPENDICES
Photographs
26
27
Source: ABC Net
28
Source: International Crisis Group
29
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36
37