Publication

Model for a New Arrangement for Negotiations and Use of Legal Mechanisms for Armed Conflict Resolution between Ukraine and Russian Federation and Return of the Occupied Territories

A concept by Ukrainian Helsinki Human Rights Union, Kharkiv Human Rights Group and Media Initiative for Human Rights

The main drawback of the “Minsk Format” is a mixture of political and humanitarian issues in one document by the Russian Federation while accompanied by the Ukrainian as well as the states- guarantors’ position of silence on this point. Such position leads to negative outcome in that matters of humanitarian nature, for instance, prisoners’ of war fate rests upon politically motivated decisions. Such an approach cannot be regarded as anything else but hostage taking which according to the international humanitarian law (IHL) is a war crime. Therefore, everybody who partakes in an existing venture and guarantees execution of this agreement could be regarded as a candidate for the prosecution by the International Criminal Court (the ICC).

The proposed format envisages an absolute separation of political and humanitarian issues and must exclude the use of humanitarian issues for political purposes and, therefore, the platforms for negotiating humanitarian and political issues must also be separated which also implies that different organisations and different people must be involved and any attempts explicitly or implicitly mix the two must be treminated.

Second important drawback of the existing format is the absence of the negotiation platform for the matters related to the occupied territory of Crimea and Sevastopol city. Unwillingness of the Russian Federation to discuss Crimea cannot be a reason for failure to initiate them. Negotiation platforms for Crimea and the East of Ukraine must also be separated due to unmitigated differences in political and humanitarian situations and due to a different legal status of the conflict in Crimea and self-proclaimed republics of “L/DPR” under total RF’s control.

The new format must be based on the following principles:

  • The rule of law;
  • Total separation of political from humanitarian issues;
  • Involvement of the sates – partners of Ukraine;
  • Involvement of the “moral” world leaders;
  • Separation of the matters related to the occupied Crimea and armed conflict in the East of Ukraine;
  • Use of transitional justice mechanisms for a conflict resolution, deoccupation, reintegration and peaceful settlement.

The priorities of the new format must be: human rights, justice, fairness, benevolence, honesty, non-involvement of unqualified persons into the negotiations process, impartiality of the persons involved into negotiations process, non-aggravation of the victims conditions, willingness of the prisoners to be exchanged in the matters related to the prisoner swaps, extradition or internment.

Process of negotiations must be conducted on two grounds:

  1. Legal, which is based on the principles of

IHL and IHRL

  1. Political

Humanitarian mechanism must include the following:

  1. Prisoner “swaps” – based on Geneva Convention provisions as regards prisoners of war protection and protection of civilians; release of hostages held on the occupied territories and Ukrainian nationals who are held as prisoners of conscience in Crimea and Russian Federation;
  2. Armed conflict:
  • The ICC upon its preliminary qualification determined the conflict in Crimea as an international armed conflict (IAC). Both Ukraine and RF are obliged to act in accordance with IHL as regards IAC. Ukraine is tasked with documenting war crimes and crimes against humanity on the occupied territory as well as politically motivated persecutions and human rights violations as well as the application of various domestic and international legal mechanisms.
  • The East. The ICC’s preliminary qualification is that conflict contains elements of both international and non-international conflict and it established that RF has partial effective control on the temporarily occupied territories of the East of Ukraine.

Ukraine and the RF, as parties to the conflict must fulfill its obligations according to IHL and IAC. Ukraine must be tasked with documenting war crimes and crimes against humanity on the territory of the conflict as well as the violations of human rights, documenting incidents of aggression at every stage of the conflict and proving of total effective control RF on the occupied territories of Donetsk and Lughansk in order for the ICC to qualify the conflict as IAC.

In case of a failure in fulfilling its obligations Ukraine must endeavor to bring to responsibility the aggressor state.

Furthermore, the status of the conflict must be changed on the national level. Tasks for every state authority must be clearly defined in every process and appropriate actions must be taken by the state of Ukraine in order to carry out its duties to the highest possible standard. Ukraine must document in detail incidents of aggression against it, initiate international investigations and research, initiate a development of new international legal mechanisms as for the capability to resist in hybrid war because the existing international legal mechanisms have turned out to be obsolete, take an inexcusably long time to get to the results and are not very effective.

Representatives of international organisations, national IHL and IHRL NGOs must be involved in negotiating legal and humanitarian matters. Presently they are involved in negotiations process as campaigners on different international arenas, however, they are completely excluded from within the negotiations process itself.

Political Mechanism must include the following:

  1. Involvement of state-partners into negotiations process: selection of the state- partners must be based on the principles of those who support Ukraine and wish to cut Russia’s impure intentions in a non-conflict way (for instance such states may be Australia, the UK, Georgia, Estonia, Canada, Lithuania, Germany, the US, Japan). Ukraine must focus on building its strength and power from within acting within an international legal framework (please refer to legal humanitarian mechanism above) thereby becoming a state that other countries will want to support and/or whose interests will have to be counted with. As for negotiating deoccupation of Crimea, such state partners may be state – parties to Budapest Memorandum. This document contains the US’, the UK’s and the RF’s guarantees as regards Ukrainian sovereignty and state integrity, however, it does not contain any mechanism for the fulfillment of these guarantees. Such mechanism could become a road map for the deoccupation of the peninsular.
  2. Involvement of the “moral” world leaders (Nobel Prize nominees, former state, international organisations leaders and diplomats), whose participation may become an additional influencing factor for the RF’s government and other international organisations or states, conflict settlement, protection of the victims of the conflict or strengthening of the sanctions against the aggressor state.

photo – www.slovoidilo.ua

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