Former Constitutional Court judge discerned the eight steps for establishing peace in Ukraine Russian military aggression de-facto supports the current autocratic regime in Ukraine

Victor SHYSHKIN 28.01.2016

Still being under a protracted crisis by itself, Russia initiated military aggression against Ukraine. Its purpose is to continue the imperial policy towards Ukraine using alternative leverages. The Kremlin endeavors for getting several strategic advantages aimed to such policy further implementation.

First: the Russian military aggression de-facto supports the current autocratic regime in Ukraine, to forestall with those autocrats’ own hands and avert the reforms required for the Ukrainian national state building.

Second: the war, and as its sequential result, the negotiations’ formats controlled by Moscow, serve to destroy the legitimacy of Ukrainian state governmental bodies with the Ukrainian authorities’ hands.

Two examples that opine to the truth of those statements:

The first one: Bankova street bounces the Constitutional Court of Ukraine into desistance from recognizing the hostilities objectively proven with military actions and the Crimea annexation; that targets onto obtaining a formal permission to initiate the constitutional changes, dictated by Moscow and technically delivered by the President of Ukraine. The second benchmark: Bankova street forces the Parliament for immediate amendments to the Verkhovna Rada Rules, that will allow ignoring the rules exposed at Art.155 of the Constitution of Ukraine.

Further embodiment stages are critical: at the first stage not only Bankova street, affording to exercise control over the Constitutional Court judges (in countries where the democratic governance model dominates, an undue pressure on judges makes a sufficient cause for the impeachment procedure), loses its constitutional legitimacy, but the Constitutional Court, whose judges took of 30 July 2015 a knowingly unjust decision on the power decentralization, also becomes.

At the second stage the legitimacy will be lost by the Ukrainian parliament, in virtue of its existence and function intended to ensure the legitimacy of all executive authorities.

Assisted with the Ukrainian authorities’ leverage, Moscow destroys the institutional capacity of Ukrainian society to exercise the power, since the only sovereign in the country is its nation. Namely the nation carries power through public authority bodies elected for that function and thus controlled. The elections to the state authorities and democratic control over their activities do embody the sovereignty implementation mechanism. But the governmental agencies’ legitimacy lost, the society loses its sovereignty, i.e., the state in and of itself ceases to exist.

In a state, democratic not only formally, but actually, all functions are performed on legal grounds, all governmental activities being in clear harmonization focused onto respective law principles.

A prerequisite for winning this war, initiated by Russia against Ukraine, is to make all and every public authorities turning back into the comprehensive and unconditional legitimacy mainstream.

Therefore, the Ukrainian parliament must urgently implement the steps below laying down the victory foundation. The Parliament should begin the process of restoring in full scope the Ukraine people’s rights to sovereignty, to the Ukrainian national state, that shall be brought a constitutional law-governed democratic social welfare European one.

Eight steps to victory and equitable peace on the Ukrainian nation comprehensive sovereignty basis:

1. The Parliament shall determine the legal status of military conflict in the East and South territories of Ukraine departing from the objective state of affairs and events’ diachrony.

The definition identifying that status should be given based on the constitutionalism principles and rules exposed by the Constitution of Ukraine and relevant laws, in particular, the Law of Ukraine "On national defence".

The process of determining the legal status of military conflict in the East and South territories of Ukraine shall include these hostilities definition and assessment as contained at UN Charter, the UN Convention relative to the Protection of civilian persons in time of war, the Convention for the Amelioration of the condition of the wounded, sick and shipwrecked members of Armed Forces at sea, the Geneva Convention relative to the Treatment of prisoners of war and the aggression definition contained at the UN General Assembly Resolution 3314 (XXIX) of 14 December 1974.

To facilitate the process of determining the legal status of military conflict in the East and South territories of Ukraine, the Parliament must urgently create the international expert committee engaging the international law experts bearing the proper accreditation behind one of the six UN principal bodies: the International Court of Justice and the International Criminal Court.

2. The Parliament should immediately and unconditionally ratify the Rome Statute of the International Criminal Court.

3. The Parliament should create a parliamentary committee engaging the international law experts, accredited/recognized at the International Court of Justice, to determine the legal status of the so-called Minsk agreements, their implementation impact and legitimacy.

4. Considering the tragic experience of authority abuse, particularly the violent suppression of peaceful protests, the Parliament should immediately take an appropriate decision, imposing a moratorium against use of force to suppress peaceful protests in Ukraine, whichever form thet would be organized, when such demonstrations are intended to bring the political demands of society known to public authorities.

The resolution on a moratorium as to the use of force must contain a clear and unambiguous reference to the constitutional duty entrusted to Parliament concerning the parliamentary and democratic (i.e. ensuring the government legitimacy) control over activities of all governmental agencies, including the power-enforcement bodies and executive authorities.

This resolution should specify the inadmissibility and illegality of any instructions or orders issued by the President of Ukraine or the presidential administration, government departments, state agencies or services to the executive and power-enforcement bodies without the Parliament’s ratification and not legalized through appropriate procedures for the exercise of the Parliament ‘democratic control constitutional function.

5. The Parliament, instrumented with the appropriate Verkhovna Rada resolution, shall formally address to the President of Ukraine, whose powers and duties are defined by the Constitution, requiring from both the President and his administration staff a strict observance to provisions of Art. 19 of the Ukrainian Constitution on the commitments of acting only on the basis, within the powers and in the manner envisaged by the Constitution and Laws of Ukraine; also that appeal should point out the inadmissibility of Constitutional regulations transgression.

By that resolution the Parliament should return to due consideration and adoption process all laws passed by Parliament during the 2014-2016 years, published and signed by the president, which final texts are different from those discussed at Parliamentary sessions. In particular this applies to laws on elections, on budget, on the amendments to the Constitution of Ukraine.

The President must withdraw all legislative drafts concerning amendments to the Constitution, and never initiate new ones until definite and final conclusions stated in international law terms on the nature and character of military operations in the Eastern and Southern Ukraine as well as on the so-called Minsk agreements’ legitimacy.

In case of failure to withdraw forthwith all legislative drafts concerning the Constitution amendments and Minsk agreements implementation, moreover the President hindering appropriate legal procedures, international ones inclusive, for an objective assessment of the state of war with Russia and to determine in international law terms the Minsk agreements status, the Parliament shall, according to Art. 111 of the Constitution immediately initiate the impeachment.

6. Relying upon the principles of constitutionalism and constitutional norms, the Parliament acknowledges that the parliamentary system represents the government’s legitimacy basis. This constitutional duty of Parliament requires deciding onto the government majority necessary to ensure the government legitimacy. To this end, the Parliament should, current session running, declare and hold a constructive vote of no confidence procedure, roll-call voted by all deputies elected to VIII convocation Parliament.

The government has to confirm the government majority presence in Parliament (as the constitutionalism principles and constitutional norms imply to continue its work and legitimacy), either to form a new government majority.

At that such governmental majority formation and legitimation procedure should be based solely on the constitutionalism principles and constitutional norms, whereas only members of Parliament mandated upon October 2014 elections’ result shall join the government. The government coalition can be formed only excluding non-affiliated parliamentaries as Art. 83 of the Constitution prescribes.

7. Recognising the fact that because of constitutionalism principles and constitutional norms and laws systematic transgression by the President, government and parliament of Ukraine, the legitimacy of parliamentary democratic procedures in Ukraine is almost marginalized and the judicial constitutional review is destroyed in principle, the Parliament should adopt a resolution containing a voluntary moratorium on any legislative initiative of parliamentaries, thus it shall examine in accordance with appropriate and legitimate procedures only law drafts submitted by the government, having confirmed its legitimacy through appropriately constructive vote of (no-)confidence.

8. Proceeding from the parliament’s powers to define the foreign policy principles (Art. 85 of the Constitution), Verkhovna Rada, prior to definite and final conclusions in international law terms on the character of military conflict with Russia as well as on the international legitimacy of so-called Minsk agreements and their issues’ implementation, should adopt a resolution for the immediate and unconditional withdrawal of Ukrainian delegation and the so-called contact group members of the talks in Minsk.

The Parliament should adopt a resolution on the need for bringing the negotiations on the military conflict with Russia at the level of the international peace conference to be held in Geneva or Hague and governed with the international law principles including the UN Charter, the Budapest Memorandum on Security Assurances relating to the Ukraine's accession to the Treaty on the non-proliferation of nuclear weapons of December 5, 1994, the Rome statute of the International criminal court.

First Parties convening such a conference on the side of Ukraine should be the Budapest Memorandum 1994 signatory States thereby confirming their intention for adhering to their obligations arising from that international law Act.

One of that conference expected results should consist in establishing an international court/tribunal to review the Soviet Union and Russia war crimes and acts of aggression, or, when the court recognizes Russia as the Soviet Union’ legal successor, only Russia’s crimes and aggression, by analogy with the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the UN Security Council of May 25, 1993.

In this regard, the Parliament must urgently create a committee engaging the international law experts properly accredited behind one of the six UN principal bodies: the International Court of Justice. That committee task shall be to provide an appropriate international legal assessment of all agreements concluded by Ukraine, and all documents signed on the country’s behalf by its government or president after the Soviet Union collapse, in particular the Agreement establishing the Commonwealth of Independent States of 8 December 1991, the Strategic Arms Reduction Treaty, START-1 of 1991, signed by Ukraine on 25 May 1992.

That committee work should result in elaborating the text of formal claim to the International Court of Justice on defining the legal status of the country, called since December 25, 1993 the Russian Federation, taking into account the fact that on June 12, 1990 the RSFR People's Deputies Congress adopted the Declaration of that republic’ state sovereignty.

The expert committee activity outcomes considered, the Parliament must forthwith adopt a resolution on initiating the claim behind the International Court of Justice to determine the international legal status of Russia, the legality of its membership to UN and UN bodies, including the UN Security Council, and the expediency for an unconditional and comprehensive renewal of the procedure of UN membership as the UN Charter exposes, that implies a need to confirm Russia's UN membership according to the general rule under the UN Charter.

Victor Shyshkin

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