The U.S. Embassy in Berlin sponsored a Foreign Policy Tour, administered by Meridian International Center, for visiting German journalists. The American Center for a European Ukraine was invited to participate on a panel discussing current US-Ukraine relations and its work advocating for Ukraine. From left to right: Lorenz Hemicker, Maegen Smith, ACEU Executive Director Alexa Chopivsky, Mykola Hryckowian, Nicole Boelhoff, Nadia McConnell, Jutta Kramm, Florian Meesmann, Antonia Schafer, and Claudia Kramer-Santel.
Ukraine's greatest latest challenge
The center was on a brief summer hiatus the month of August.
While we were away two important things happened and one didn’t. The Finance Ministry negotiated an agreement with the bulk of Ukraine’s private sector creditors. The Rada passed a bill on the constitution that would devolve more powers to the regions: specifically to Donetsk and Luhansk. Those are the things that happened. What didn’t happen, despite concerns that it might, was another upsurge in the fighting in the East of the country.
The PSI, or private sector initiative, was welcome if long overdue. It was not easily achieved and there is considerable criticism among financial experts that it was too generous to the bond holders and is therefore unsustainable over time. That said, it was welcomed by the IMF and Ukraine’s western supporters, including especially the U.S., and has had a positive effect on the country’s economy, which may have finally bottomed out. The deal has to be accepted by the Rada, which will vote on it this week, but there seems little question that it will be accepted.
The proposed changes to the constitution, on the other hand, generated considerable controversy, including a violent demonstration in front of the Rada by those opposed to granting any concessions to eastern “separatists,” in which a grenade was thrown at the police and two officers lost their lives and dozens of others were injured. (It feels wrong to call them separatists without quotations since they are by and large Russian proxies).
Right-wing groups, such as Pravy Sektor, were blamed -- though in Ukraine, with its history of provocations by both sides, nothing is ever that simple. And there have been, of course, no arrests as yet.
What the demonstration and its violent denouement demonstrated – regardless of who threw the grenade and why -- is that despite western pressure, there is significant opposition to the proposed changes such that they are unlikely to go forward. Although the bill goes too far for many Ukrainians it goes nowhere near far enough for Putin, who wants a Swiss-style federal system that gives the eastern provinces a veto over Ukraine’s foreign and security policies. In fact, the bill passed with a bare majority and as it will have to garner a two-thirds vote, or the support of 300 MPs, its chance for passage seem slight.
That would seem to mean is that constitutional change is not likely to bring peace to the East. Rather, what appears to have brought if not peace then a diminution of the fighting in the East is that Putin and Russia may have realized they have bitten off more than they can chew. The Russians have the ability to exert negative influence, as is so often the case with Russian foreign policy. They can keep the pot boiling and try to destabilize Ukraine and its government. But they cannot win this war by force. Despite lukewarm western support, Ukraine’s military has improved, raising the costs for the Russians should they escalate and attack again. Meanwhile the sanctions, combined with the fall in oil prices, are undermining the Russian economy which is in turn chipping away at Putin’s popularity, which would certainly suffer still more if the body bags began coming back to Russia again from Ukraine. Which leads us to the one other thing didn’t happen in Ukraine over the summer: there still has not been a major prosecution of anyone for corruption. What there has been is a bout of finger-pointing about who is to blame for that situation. Former Georgian President Saakashvili (and perhaps more importantly former law school buddy of President Poroshenko) blamed PM Yatesenyuk and his government, amid rumors that Saakashvili might replace Yatsenyuk.
Saakashvili ramped up his criticism at this weekend’s Yalta European Strategy YES) when he claimed that Ukraine was run by a “shadow” oligarchic government. Ironically, YES is of course funded by the oligarch Viktor Pinchuk. And Yatsenyuk was then confronted by a British journalist who asked the PM to name “one big fish” that had been prosecuted for corruption. Yatsenyuk’s rather lame response was that he can’t really do much about corruption as he doesn’t control law enforcement organs.
Lame it might have been, but there is an element of truth to the PM’s response all the same. Yatsenyuk heads a coalition government and he reports to his principal coalition partner, President Poroshenko. Poroshenko certainly deserves his fair share of the blame for the government’s failure to tackle corruption.
Who chose Roman Nasirov to head the State Fiscal Service for instance? With his murky history of deals at Ukrnafta is it any wonder that Nasirov is already in the news accused of corruption by his own Deputy, Konstyantyn Likarchuk?
Of course, Yatesnyuk is not blameless in this regard either. What the British journalist might usefully have asked the PM as a follow up question would have been to address the rumors swirling around his old school pal Andriy Ivanchuk and his activities.
The reality, as one Ukrainian businessmen put it to us recently, is that compared to Yanukovych and his regime, the current government is a decided improvement with respect to corruption. However, they are not clean and the fact that the same old schemes are a foot a year after Maidan and after months of fighting in the East of the country is profoundly disappointing.
In the long-run the inability of the Ukrainian governing elite to reform itself and to create a modern, transparent economy – minus oligarchs -- may prove as much of a threat to the future of the country as Russia’s continuing imperial ambitions.
The Minsk Trap
The Ukrainian parliamentary debate on constitutional reform to promote decentralization has occurred under enormous pressure from the West for Kyiv to uphold its end of the Minsk Agreements, negotiated in September 2014 and February 2015 to secure a ceasefire in the Russo-Ukrainian War. The fatal clashes outside the Ukrainian Rada on August 31, as well as the alarming fissures appearing in the ruling coalition, underscore the extreme fragility of the Ukrainian domestic situation, which ought to prompt a serious reexamination of the Western approach to the peace process in Ukraine.
This reassessment should begin with a sober recognition of the glaring shortcomings of the Minsk Agreements. First and foremost, they have not really ended the fighting. While neither side has fully upheld the ceasefire, the most blatant violations have clearly been on the Russian side, which launched offensives to seize the Donetsk Airport in September and the town of Debaltseve in February before the ink was even dry on the two agreements. These land grabs were not merely conducted with total impunity; worse still, the Kremlin was allowed to impose even more disadvantageous terms on Kyiv in Minsk II than in Minsk I. The rewarding of Moscow for violating the ceasefire has created a horrendous precedent that can only encourage further Russian depredations.
There are several seemingly minor differences between Minsk I and II with far-reaching, ominous consequences for Ukraine. First, Minsk I called upon Kyiv to enact a temporary law on special status for "certain districts of Donetsk and Luhansk Oblasts," under which local elections are supposed to be conducted. Minsk II, however, specified a number of required elements in that law, including 1) state support for the "socio-economic development" of the separatist regions; 2) facilitation of "cross-border cooperation" between the them and Russia; and 3) freedom to create "people's militia units" in the separatist regions. In other words, Kyiv would be saddled with the burden of financially supporting the separatist entities, which would nevertheless be authorized to solidify their ties with Russia and maintain their own security forces.
Moreover, Minsk II added a further requirement for Ukrainian constitutional reform by the end of 2015 to decentralize governance, a process that must be "agreed with representatives" of the separatist entities. This new stipulation commits the grievous error of granting Moscow, via its Donbas proxies, entrée into the process of Ukrainian constitutional reform. The separatists may cheerfully reject even far-reaching concessions by Kyiv as inadequate, while Moscow joins the Donbas in denouncing Kyiv for supposedly failing to implement the Minsk Agreements - a blame game that has already begun in earnest. Minsk II also placed severe time pressure on Kyiv to act by the end of 2015, while there are no deadlines whatsoever on the Russian side.
Finally, Minsk II dropped the earlier requirement for "constant, active monitoring" of the Ukrainian-Russian state border (a provision that had, in any event, been poorly implemented), substituting a call for restoration of Ukrainian control over the entire state border in the conflict area - but only after the conduct of local elections following agreement on new constitutional provisions, which the separatists are free to block on any pretext. Russia can put off indefinitely the restoration of Ukrainian control over the border, all the while blaming Kyiv's "intransigence."
In addition to the ill-considered provisions of the Minsk Agreements themselves, Western governments, as they contemplate next steps with Kyiv, need to keep in mind the larger picture. We already have a track record of Russian behavior in negotiations about post-Soviet separatist conflicts, and it is a cautionary tale.
With Abkhazia and South Ossetia, Moscow used negotiations as a platform for political pressure against Georgia, maintaining a steady stream of largely unfounded accusations against Tbilisi while ignoring even the most egregious separatist violations. Moscow, on whom the separatists were existentially dependent in virtually every respect, never brought the slightest pressure to bear on them to compromise or work toward restoration of Georgia's territorial integrity. Indeed, Russian "peacekeepers" were collaborating hand-in-glove with the separatists, training, equipping and even commanding separatist forces.
Moreover, Moscow was masterful at playing on the fears and illusions of the Western powers involved in the negotiations. The Russians would shrug and roll their eyes at the antics of the separatists, acknowledging that the latter were certainly very difficult interlocutors, but nevertheless people whose "legitimate" interests had to be satisfied. Moscow would do what it could to get the separatists to behave, the Russians assured, but it was incumbent upon the Western powers to put the squeeze on Tbilisi, lest the separatists walk out of the negotiations and the process collapse completely.
Imagining that the process had to be preserved at all cost, Western capitals spent more time fretting about handling Tbilisi than about separatist - or Russian - misconduct. All the while the Russians were egging on the separatists rather than reining them in. Having accomplished its goal by spinning the negotiations out fruitlessly over the years, Moscow shut them down unceremoniously once it declared that an independent Abkhazia and South Ossetia were "new realities" with which the world would simply have to reconcile itself.
With Moldova and Transnistria, Russia has sought to create a confederation that would essentially preserve Transnistria as an independent entity only nominally under Moldovan jurisdiction, and having the ability to veto any major decision in Chisinau. Moreover, Moscow bills Chisinau for Russian gas delivered to Transnistria, for which Moldova receives no payment whatsoever from the separatists. Moscow has already shown a keen interest in taking the same approach in the Donbas, as seen by the wording of Minsk II that seeks to secure the de facto independence of the Donbas while getting Kyiv to subsidize the region.
Russia's tactic of using negotiating formats to undermine its neighbors and promote separatism in the post-Soviet space dovetails nicely with Moscow's war aims in Ukraine. Russia's goal is not to secure some finite guarantees for Russians and Russian-speakers in the Donbas, but to ensure the failure of Ukrainian statehood and the Ukrainian national project, with as much of the country as possible brought under direct or indirect Russian control. The Minsk Agreements give the Kremlin excellent cover for destabilizing Ukraine politically under the guise of promoting a settlement, with the added pretense that Russia is not a combatant, but an interested party and even one of the negotiators. If Moscow can keep the West fixating on preserving "the process," then Western governments can even lend a hand in destabilizing Ukraine by stepping up political pressure on Kyiv every time the Donbas, with carefully choreographed histrionics, threatens to walk out of negotiations.
The irony is that there is no real "process" to preserve. As we have seen, the Minsk Agreements have not secured a ceasefire, which Moscow has felt free to violate at will. The restraint on further Russian military action is not the Kremlin's pious devotion to a peaceful settlement, but the prospect of dogged Ukrainian resistance, Russian casualties that can no longer be minimized or concealed, and additional, potentially crippling economic sanctions. As for the Ukrainian side, the ceasefire gives Kyiv breathing space to consolidate national institutions and rebuild the economy and national budget plundered by the Yanukovych family, while letting Russia suffer the full consequences of its ill-considered occupation of the Donbas. It is this dynamic, rather than two scraps of paper signed in Minsk, that keeps armed conflict relatively in check.
If recent Western pressure on Ukraine amounts to getting Kyiv to make a reasonable, good-faith offer on local self-government for the Donbas, then this pressure will be harmless. It would be quite a different matter if Western negotiators, intent on preserving "the process" at all cost, frantically ratchet up pressure on Kyiv every time Moscow and the separatists cry wolf. Then the Minsk Agreements would be not simply useless, but downright pernicious.
If the Minsk Agreements are to have any utility whatsoever, the West needs to focus its efforts on the key tenth provision of Minsk II - the pullout of foreign military formations and equipment. The Western approach to implementation of the Minsk Agreements should not be predicated on the erroneous notion that a settlement between Kyiv and the Donbas would facilitate the withdrawal of Russian troops. In fact, the causality needs to be in reverse - it is the withdrawal of Russian troops that would facilitate a settlement between Kyiv and the Donbas. It is absolutely proper and necessary for the inhabitants of the Donbas to have a say in Ukrainian constitutional reform and the decentralization of the country's governance. However, they should do so in the same manner as other Ukrainians - by sending their representatives, duly elected under Ukrainian law, to participate in the Rada debates on the same footing as the representatives of other regions of Ukraine. Continued foreign occupation of the Donbas precludes any such peaceful outcome.
Recently a curious Western analysis has appeared that accurately assesses the frustration of Russian war aims in Ukraine, but rather than looking for ways to consolidate this favorable turn of events, it proposes to compel Kyiv to implement completely the most onerous terms of the Minsk Agreements without, however, expecting Moscow to uphold its end of the bargain. This line of argumentation is based on the by-now familiar pseudo-realist logic that Russia can reignite the military conflict at will and seize whatever it wants; hence, in the interest of saving Ukrainian lives, the West must do the Ukrainians a favor by forcing Kyiv to capitulate.
However, Russia faces enormous political, military and economic constraints on its behavior in Ukraine, and those constraints are only growing. War, like politics, makes for strange bedfellows, and Saudi Arabia's campaign to secure market share by driving down the price of oil has made it a key - if accidental - ally in sapping Russia's war-making capacity. Now with the apparent Russian military deployment to Syria, Ukraine finds itself with another unwitting Middle Eastern ally in ISIS. It is probably no accident that the Russians have finally begun to observe the ceasefire in the Donbas over the past few weeks, as Moscow geared up to intervene in Syria to save Assad. Potentially with two military interventions to deny, and two sets of casualties to cover up, Moscow now has even less leeway to expand its war against Ukraine. Under the circumstances, a frozen conflict in the Donbas is probably the best thing the Kremlin can manage, always with the hope that future years might hold out better prospects for undermining Ukraine.
A word of reproach is in order for Western analysts who have all along opposed sanctions against Russia and called for a rapid, unconditional return to business as usual with the Kremlin, and now pursue the same accommodationist line under the guise of sparing Ukraine further bloodshed. If these analysts believe they can make an intellectual case for why it is in the West's interest to throw Ukraine under the bus, I am prepared to listen respectfully. However, it is unseemly of them to peddle Realpolitik solutions using disingenuous, crocodile-tear humanitarian arguments. When "realists" feel compelled to resort to such tactics, one has to wonder whether they can muster any credible interest-based argumentation whatsoever for insisting that Moscow must simply be allowed to have its way in Ukraine.
If it mishandles the Minsk Agreements, the West risks stepping once again on the same rake as in other post-Soviet conflicts. As it is, the West needs to bring strong, steady pressure to bear on Ukraine to implement economic reform and root out corruption, and simply cannot afford to waste political capital compelling Kyiv to accept the latest unreasonable demands of the Kremlin issuing from the mouths of its agents in the Donbas. It would be counterproductive for the West to foment a domestic crisis in Ukraine, using Western hands to further Russia's goals.
Kirk Bennett is a former Foreign Service Officer who served in both Moscow and Kyiv. The opinions and characterizations in this piece are those of the author, and do not necessarily represent official positions of the United States Government.
Lustration is More Critical than “De-communization” in Ukraine
Last April, the Ukrainian parliament approved four bills intended to “de-communize” Ukraine. Among other things, the new laws outlaw communist and Soviet symbols. These new laws are the result of the Maidan revolution as well as of Ukrainian history and are clear reflection that Ukrainians want a new future -- one without the rule of another totalitarian regime.
In that spirit, “de-communization” is an important step towards Ukraine reckoning with its Soviet past.
However, we would argue that lustration is more crucial. How Ukraine will deal with officials who have been tainted by complicity with the prior Yanukovych government or the authoritarian regime in Moscow is essential to the country’s immediate future.
Should these officials be excluded or should they be incorporated into the new political system? If the former, should such a ban be permanent or should there be a transitional period and how should it be conducted?
First, let’s look at why is it important for Ukraine to go thru lustration. The creation by former Prime Minister Azarov of a so-called “National Salvation Committee” in Moscow last month makes clear the stakes. Although Azarov is rightfully a wanted man, there are too many politicians still active today in Ukraine who have never had to answer for their past behavior and whose loyalty to the new Ukraine is therefore suspect. Lustration removes abusive and corrupt officials from Ukrainian public life through due process and thereby promotes greater trust on the part of Ukrainian citizens in their political leaders. By making public institutions more transparent, lustration will empower citizens, increase public confidence and enhance the credibility of the new political institutions.
Moreover, the nature of lustration, especially if done through a truth and reconciliation committee, can also promote reconciliation. There can be no rehabilitation, no forgiveness, without some acknowledgment of wrong-doing. Those going thru lustration will have to be investigated and excluded from public office, for at least a time, for having committed crimes and for having collaborated with Yanukovych’s criminal regime, or with the Soviet Communist party, or the secret security service – and above all with the Putin regime. These latter are the fifth columnists who lack of loyalty to their own country, which is so dangerous to Ukraine’s future.
It is essential to draw a distinction between simply vetting individuals for past associations and excluding them automatically on the basis of such affiliations. For this reason, the new lustration law needs to carefully outline the extent and content of the policy.
The new Ukrainian law links lustration to prosecution. This is also something that needs to be carefully considered. It is one thing to ban someone from public life, quite another to convict them. That said, there may be many former Yanukovych officials, such as Azarov, whose degree of corruption and brutality must be punished in order to cleanse public life.
Let’s look at some successful examples from elsewhere. How was lustration done after the collapse of the communist regimes across Central Europe in the early 90s? The vetting of public officials was tackled most systematically in the Czech Republic, Hungary and Poland. In the 90s these three early democracies struggled with creating strong and democratic systems. One of the issues, which surfaced early, was how to approach the process of dealing with the communist past and collaboration with the Soviet occupiers. Many of these new aspiring leaders and politicians were under suspicion of having been involved with the former regime in some way, as informers, or even of spying for foreign secret services.
Lustration legislation was most widely executed in Czechoslovakia in 1991, Hungary in 1994 and Poland in 1997.
The new Czechoslovak government tackled lustration early and implemented a sweeping version of it. The 1991 Czechoslovak lustration law was the most methodical example of combined components of both vetting and exclusion from certain public offices for secret service officials and Communist party members. The Czechoslovak law was also the most severe. It excluded collaborators automatically from the specified offices in government and public administration, the military, state enterprises, senior academic posts, the security services and the judiciary.
The Hungarian method instituted in 1994, rested on public disclosure with pressure on individuals to resign if any evidence was found that they were foreign agents or collaborated with the secret service. If they refused, their names were exposed in the national media.
The Polish model represented a transitional illustration – somewhere between the Czech and Hungarian laws. All high level elected officials were required to submit an affidavit announcing whether or not they had worked for or collaborated with the secret police. The new Polish government passed further legislation obliging 700,000 Poles in key positions to declare publicly whether they had collaborated with the secret police. This new law included a vast number of professions: judges, lawyers, tax advisors, certified accountants, court enforcement officers, journalists, diplomats, municipal officials, university teachers, heads of public and private educational institutions and heads of state controlled companies.
The focus was made on the confession itself rather than on any sanctions applicable for those collaborating with the communist regime. Nonetheless, the social consequences of having been associated with the past regime could be quite serious. The law was intended to focus on reckoning with the past and to draw a “thick line” between the communist past and the new democratic future.
As a consequence of lustration, these new democracies were able to concentrate on solidifying European values and on achieving economic prosperity -- without having to worry that their officials were secretly plotting to undermine them.
It is worth mentioning that none of these three Central European countries assumed criminal prosecution for collaboration with the previous regimes and did not recognize that collaboration as a crime at the time.
One of the most challenging issues with conducting lustration in Central European countries was the lack of resources to handle the archives. In order for the archives and sensitive files to be completely open, each file had to be reviewed, assessed and have sensitive data removed. And even if the resources were available, it was challenging to have a state bureaucrat responsible for deciding what information should or should not be revealed to the public -- a single individual made decisions effecting people’s right and professional future.
In all three countries there was lack of control over security service files. Thousands of secret documents were leaked, destroyed or stolen. Some files became an instrument to destroy the government’s political rivals or were used for personal gains and blackmail.
However, in contrast, in Russia there has been no process of de-communization or lustration since a feeble, unsuccessful attempt in 1991. As a result, we would argue, Russia is moving increasingly toward authoritarianism again; driven by officials like Putin and his “siloviki” cronies who have never had to answer or acknowledge their pasts and who have instead continued the same behavior in the “new Russia,” which is not so new of course. Every day we see the rehabilitation of the Soviet past rather than the embrace of democracy and economic progress.
Like all emerging democracies Ukraine needs to face this act of purification or suffer as a result. The question of how to deal with the previous regime’s defectors and collaborators has been a source of political division. However, since lustration was one of the demands of the Euromaidan-protestors, Ukraine must in good conscience retire tainted officials and agents from positions of public influence so the country can begin to heal.
Lustration is also vital to eradicating participation in politicized justice and to rooting out political corruption, which has always infested Ukrainian governments and is without doubt one of the greatest threats to the new Ukraine and its efforts to reform, to democratize, and to modernize.
Lustration is also central to efforts to defend the country from Russian aggression. The country simply cannot afford to have security or military officials with ties and loyalties to Russia.
Ukraine has attempted various forms of de-communization over the past 20 years -- without much success. Lustration provides a better way and, frankly, should be set as one of the top priorities of President Poroshenko’s government.
It’s time for this new, post Euromaidan nation to be ruled by new, post-Soviet (and post-Sovak) individuals -- clean, untainted reformers.
Klaudia Schultz is the Founder, Editor and Social Media Director of the American Center for a European Ukraine.
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