The Sine Qua Non Safeguards For Donetsk-Luhansk Elections

On October 27 in the Minsk Contact Group, the Ukrainian delegation presented a concept document to serve as a basis for the “law on local elections in the temporarily occupied areas” of Ukraine’s Donetsk and Luhansk provinces (see accompanying article). President Petro Poroshenko has personally authorized this concept and mandated Ukraine’s representative, Roman Bezsmertnyy, to present it to the Minsk working group on political affairs.

The Ukrainian government is widely publicizing this move in domestic media, so as to reassure public opinion, preempting accusations that the president and government are conceding too much. Concessions previously granted at Western insistence have triggered criticism of President Poroshenko in Ukraine’s political arena. German Chancellor Angela Merkel, who has serially demanded unilateral steps from Kyiv, recently acknowledged Kyiv’s predicament in such situations. Receiving Ukrainian Prime Minister Arseniy Yatsenyuk in Berlin, Merkel said at the joint press conference: “I should explicitly acknowledge the Ukrainian government’s constructive attitude. Sometimes we cannot even understand, here in Germany, how much is demanded [of Ukraine] and how much must be done [by Ukraine] when the parliament is asked to make far-reaching concessions, so as to amend the constitution as planned [by the Minsk armistice] and ensure the removal of weaponry from the conflict zone” (Bundeskanzlerin.de, October 23).

Ukraine’s concept, just presented to the Minsk Contact Group, in effect compensates for the overly technical nature of the existing document, known as “Pierre Morel’s Plan” on local elections in the Donetsk and Luhansk “people’s republics” (DPR, LPR) (see EDM, October 9, 13). That document deals with the nitty-gritty details of electoral procedures, largely overlooking the political context and military circumstances on the ground. The Minsk working group on political affairs—Russia, Ukraine, DPR, LPR, and the Organization for Security and Cooperation in Europe (OSCE), with Morel as moderator—is tasked to negotiate a special law on local elections in DPR-LPR, effectively hybridizing Ukraine’s electoral law and DPR-LPR proposals into Morel‘s draft-in-progress.

The Ukrainian proposal, however, seeks to ensure that international law and Ukraine’s constitutional guarantees apply to this territory during the proposed local elections. Otherwise, holding the elections would be illegitimate, and their outcome could not be recognized, the document argues implicitly and explicitly. Kyiv’s concept enumerates the security conditions, political prerequisites, constitutional guarantees, and legal safeguards that would be necessary for holding legitimate elections in this territory (Ukraiynska Pravda, October 27; Ukrinform, October 29; UNIAN, October 28, 30).

Security conditions proceed from the fact that elections cannot legitimately be held “at gunpoint.” This necessitates the withdrawal of “foreign” forces, disbandment of “unlawful armed units,” and Ukrainian or international control of the Ukraine-Russia border in this territory, as per the Minsk One and Minsk Two armistice documents. The safety of candidates and electioneering activities, protection of polling stations and the ballot counting, can only be ensured by the presence of Ukrainian law enforcement authorities (rather than “unlawful armed units”).

Political prerequisites, as listed, stipulate that any elections in this “temporarily occupied territory” would, by definition, be a part of Ukraine’s electoral system. Hence, only Ukraine’s parliament has the power to call elections and set dates for elections in this territory, as in any other territory of Ukraine, by a parliamentary decision. Ukraine’s Central Electoral Commission should be the highest authority to oversee elections in this territory and authorize the formation of local electoral commissions. Furthermore, it should clearly be stipulated that these are not DPR-LPR elections, but elections to local mayors and local councils.

Constitutional guarantees valid in Ukraine must also apply if elections are held in the “temporarily occupied territory,” specifically: restoration of Ukrainian political party organizations that existed in this territory prior to 2014 (this wording excludes far-right Ukrainian parties, such as Svoboda or Right Sector, from participating, allowing offshoots of the former regional party instead), as well as free operation of Ukraine’s mass media (“without Ukrainian parties and Ukrainian media. For, “without Ukrainian parties and Ukrainian media freely operating, these elections would no longer be elections of Ukraine.” Internally displaced persons, currently more than one million, who moved from the war zone to other parts of Ukraine, must be guaranteed their right to vote, so as to elect mayors and councils of their home localities.

Kyiv rules out a pre-election amnesty of war crimes—or, equally, immunity deals with such suspects—that would enable “terrorists” to become candidates and be elected. If and when elections are held and validated, however, amnesty of war crimes would be considered on a case-by-case basis. The DPR-LPR “central” authorities are not up for election in the proposed local elections. Those “central” authorities will be asked for a full disavowal of their November 2, 2014, “presidential and parliamentary elections.” Ukraine’s law on “special procedures for local self-government in certain districts of the Donetsk and Luhansk provinces” (adopted in September 2014, amended in March 2015) would only then be brought into force, conditional on the local elections meeting OSCE criteria for validation. This is the sequence of steps that the Ukrainian concept envisions.