Occupation of Donbas: What has PACE actually recognized
After the adoption by the Parliamentary Assembly of the Council of Europe of a resolution of April 24, there was some confusion with terms. In Ukraine, for the most part, the media claimed that the PACE had officially recognized the occupation of Donbas by Russia. However, in the document, certain areas of Donetsk and Luhansk regions are referred to as "territories under effective control of the Russian authorities." However, this is not the same concept.
The notion of "territories under effective control" implies that these particular territories are under the protection of or under control of another state or organization. Occupation is a quite different term. "Under control" means that a certain agreement between the parties can be reached or that a voluntary transfer of the territory under the control of a third State or the United Nations may occur, and that the management over the territory in question will not be carried out by the State to which the territory belongs. For example, at one time this was the case with Kosovo.
Occupation implies fundamentally different situation and legal norms. First of all, this means that the territory is illegally occupied by foreign troops. For example, Turkey occupied Northern Cyprus. This is an international crime and a violation of international law. Accordingly, when Ukraine recognized certain areas of Donbas as an occupied territory, it meant that the occupier was responsible for the human rights situation in this territory. Also, the occupier shall not violate political rights, including the right of the population to remain citizens of Ukraine. The occupier shall not force the population of the occupied territory to perform military service, that is, the local population cannot be drafted to the armed forces of the occupying country, because it is also a violation of international law, for which responsibility arises.
That is, the population of the occupied territory is a servile population that is under the authority of the occupier. Therefore, the occupying country is responsible for the livelihood of this population. At the same time, the occupying country can establish its administration, which, as a rule, is a military administration.
If we recognize certain areas of Donbas an occupied territory, this means that Ukraine at any time has the right to return this territory and liberate it from the occupier. Thus, if we define these territories as occupied, and not as "under effective control," this means that we can regain them.
If we introduce a peacekeeping mission to Donbas, elections will take place there, and a "legitimate" power will be established in those territories (it is clear that the "legitimate power" in these territories will be Russian). And if in Ukraine another president comes to power - not a peacekeeper, but a warmonger, he can do the same as Russian has once done with Chechnya, when they prepared their armed forces and, two years later, launched an offensive on Chechnya, setting up their authorities there. Maybe we will have such a president who will plan to regain this territory or liberate it from occupation. At the same time, we will have full right to return these territories if they are recognized as occupied.
But if it is recognized that the territory is "under effective control," we lose such right.
However, the fact that PACE changed the status of Donbas from the "territory beyond Ukraine's control" to the "territory under the effective control of Russia" is a big advantage for Ukraine anyway.
Remember how long the Ukrainian authorities were not willing to officially recognize Russia as an aggressor state. And only four years into the war, in the so-called "law on the reintegration of Donbas," Russia was named an aggressor. But it has purely been named, without defining what responsibility it carries for its aggression. There are no signs of aggression in the law, which calls into question the definition of these events. Therefore, the West has been asking Ukraine to prove that there are Russian troops in Donbas. Although what are we to prove here? But our western partners are still asking for this because it was not legally laid down in the Ukrainian legislation.
Only when the International Court of Justice acknowledged that there was Russia's armed aggression against Ukraine did we dare legislate the act of aggression on the part of Russia. Besides, this wasn't done immediately.
Therefore, this PACE decision is a very positive one for the Ukrainian authorities: our current leaders must be forced to recognize reality because they seem to not be very interested in it. They seem to have agreed that this territory might be controlled by Russia; they'll be saying that they will liberate them politically and diplomatically, that the OSCE will fulfill the functions of the Armed Forces of Ukraine and restore control over the border, and then hand the territory to Ukraine. It's just that the Ukrainian authorities don't really want to do this.
If the occupation of Donbas is truly recognized, then the decision will open to us international law - the right to wage war. And then, in spite of the Minsk agreements, we will have the right to use the armed forces. Minsk agreements are a model for resolving an internal conflict. But if we are talking about the occupied territories, then this is a recognition that we have no internal conflict, but an interstate one, that is, a Russian-Ukrainian war. And here the Minsk agreements stop working.
Recognition in Ukraine of the occupation of certain areas of Donbas will lead to a rethinking of the entire situation in Donbas by the international community
Such Recognition in Ukraine of the occupation of certain areas of Donbas will lead to a rethinking by the international community of the entire situation in Donbas and Russian-Ukrainian relations, to the realization of the real state of affairs. In particular, of the fact that there is an ongoing war, that it is necessary to change the instruments of influence on Russia as an aggressor, instead of perceiving it as an intermediary in the process of resolving the conflict. Today, sanctions against the Russian Federation have been introduced for helping separatists. But in the international community has no legal reason to admit that there are no separatists or terrorists in Donbas. Ukraine has itself muddied the water for the international community, insisting for several years that there are terrorists in Donbas.
In fact, there are Russian troops there: 1st and 2nd Army Corps, shelling positions of the Armed Forces of Ukraine and being part of the Russian troops.
If the occupation of the Donbas is truly recognized, there will be a completely different context for resolving the conflict. Then Russia will be recognized as an aggressor that is occupying part of the territory of Ukraine, and, therefore, the international community should perceive it as an aggressor, not as an intermediary in the settlement of this conflict.
Hryhoriy Perepelytsya is a Professor at the Kyiv's Taras Shevchenko National University, an expert on international politics, PhD in Political Sciences