Commentary

        On May 21, newly-appointed Ukrainian Presidential Administration head Andriy Bohdan stirred up controversy with Ukrainian political commentators when he announced the intentions of Ukraine’s new authorities to conduct a referendum on a peace deal with Russia regarding Donbas, the region in eastern Ukraine broken off from government control with the help of Russian financial and military support.

        “So it wouldn’t be some politician making a decision breaking apart society, but so the people, society itself would make this decision, whether our deal suits them,”  Bohdan said, adding that the team of newly-elected President Volodymyr Zelenskyi is forced to search for a compromise with Russia.“The only thing is, Volodymyr Zelenskyi said that we don’t trade our territories and our people,” Bohdan noted, referring to Zelenskyi’s statement in one of his rare appearances at a political talk show.

        Following Bohdan’s statement, a protest erupted near the President’s Administration. Portraits of Ukrainian soldiers who were killed in Donbas were set up at the stairs. Widows of soldiers stood in solitary pickets. One of them, Yulya Kirillova held a sign saying “On 11 August 2014, my husband was killed during an artillery strike on Stepanivka village by the 17th and 18th separate motorized rifle brigades from Russian territory. Do you plan to negotiate with killers?”

        Responding to the protest, Zelenskyi clarified that it won’t be a legal referendum but an information one, to find out what people think, “a normal conversation with people” and stressed that he aims for openness in discussing issues important for the country.

        It’s unclear how this “information referendum” is different from a regular opinion poll, but it is extremely likely that Zelenskyi’s team will indeed hold some kind of plebiscite on matters of national security during his term in power. “Direct democracy through a referendum” was a central position of Zelenskyi’s campaign and adopting a law on referendums – “a major direction for our activities,” according to Bohdan.

        Although it’s definitely a good idea for politicians to take into account the opinions of their citizens, the idea of a referendum for deciding how to solve the conflict in Donbas is fatally flawed.

The Importance of Donbas

        Russia’s undeclared war against Ukraine has entered its sixth year. The Minsk agreements on a peaceful resolution of the de-facto war between Ukrainian government forces and Russian-led separatists are in a dead end. They have succeeded in extinguishing the most active warfare of 2014, but the quasi-states of the “Donetsk People’s Republic” and “Luhansk People’s Republic” have, with Russia’s guidance and support, turned into a frozen conflict zone.

        From Russia’s behavior in the Minsk agreement stalemate, it is reasonable to assume that its ultimate goal is to return the “quasi-states” to Ukraine on its own conditions, creating enclaves semi-controlled by Kyiv while informally directing the processes within them by ensuring that people loyal to Russia have real power.

        These enclaves would help Russia meet many goals: to ensure that the Ukrainian Constitution is changed to federalize Ukraine, which would give Russia leverage to permanently disrupt Ukraine’s course towards the EU and NATO; to lessen the West’s sanctions against Russia and decrease its expenditures for the war, for maintaining the enclaves, and restoring war-torn Donbas.

        Russia’s military power is daunting, which makes the scenario of Ukraine regaining the Donbas by force unattainable.

        Western support for Ukraine and condemnation of Russian aggression gets bleaker with every passing day, as the urge to “get back to business as usual” makes each prolongation of EU sanctions against Russia a formidable ordeal.

        Meanwhile, the de-facto war drags on, taking nearly one life of a Ukrainian soldier each day. The more time passes, the harder it is to recall that Russia occupied Crimea and started the war in Donbas because of Ukraine’s desire to sign the Association Agreement with the EU, thereby exiting Russia’s sphere of influence and dealing a blow for the nuclear power’s plans to resurrect the Soviet Union. And the harder it becomes for Ukraine to fight for this dream of independence. An independence which, as it seems, is inconvenient for the West, which would rather see its problems disappear while Ukraine is sucked back in by its violent resurgent imperialist neighbor.

        The only thing preventing that scenario is Ukraine’s will to fight while waiting out Russia’s ability to continue the war in Donbas.

        Under these circumstances, one must understand that in any negotiations of a peace deal, Russia will pursue all possible avenues to gain control over Ukraine under the mask of peace and protection of “Russian speakers” in the country – ornewly-minted Russian citizens of Donbas.

Zelenskyi had previously made statements suggesting he was ready to make significant concessions to Russia over the frozen conflict zone in eastern Ukraine.

        In a rare interview about his political views with Dmytro Hordon, he said that he was ready “to deal even with the devil so that nobody dies. We need to make the first step – to stop the shooting and to develop our country.” He said that it was necessary to negotiate on peace with Russia, so that “a group of people from Ukraine met with a group of people from the Kremlin.” Both sides would state their demands, “and we would meet somewhere in the middle.” Zelenskyi proposed to determine what exactly Ukraine could give away to Russia on a referendum, an online-poll, or TV.

        However, it’s unlikely that Russia will accept any concessions that don’t involve Ukraine’s territorial losses or massive economic dependence. Which makes the idea of negotiations a likely failure from the start – as the previous five years of attempts at negotiations have shown.

Legal Problems with a Referendum

        According to the Ukrainian Constitution, a referendum can be appointed by the Parliament (on matters on changing the territory of Ukraine), or president of Ukraine (on matters of changing the Constitution, its general matters, or matters of elections). The president can also announce the conduction of a referendum if it initiated by Ukrainian citizens. For this to happen, there must be no less than three million signatures of Ukrainian citizens gathered in at least than 2/3 of the oblasts, with no less than 100,000 signatures in each Oblast.

        Questions about changing the territory of Ukraine are decided exclusively through a referendum. Questions about taxes, the budget, or amnesty cannot be solved through a referendum.

        Ukraine did have a law on an all-Ukrainian referendum which was adopted in the time of former President Viktor Yanukovych, who was deposed from power in the Euromaidan revolution. The law foresaw that a new version of the Constitution could be adopted at a referendum without the Parliament, and the decision did not require additional confirmation. But in 2018, the Constitutional Court recognized it as unconstitutional both in its content and form of adoption. As well, the law was criticized by the Venice Commission. The law was never used.

        Developing such a law is one of the priorities of Zelenskyi’s team. But until it is adopted, any announcements of a referendum are made in a legal vacuum. They are even more unclear given that, according to the Constitution, a referendum can be held to decide on changes to the territory of Ukraine. But, if Zelenskyi promised that Ukraine will not trade its territories, then why hold the referendum at all?

Shifting the Burden of Responsibility and Dangers of Populism

        Many critics of the referendum idea stressed that decisions of national security could not be left for ordinary citizens to decide, as the choices are fraught with geopolitical consequences which the citizens are not able to foresee.

        “Our world is complicated. In order to choose the scenario, one needs to clearly understand all possible consequences. Currently, UK citizens who voted to secede from the EU are proving this for themselves. It turns out that nobody explained the real consequences to the Brexit supporters. Like, the scale of economic losses for the British economy. Or the amount of the ‘buyout.’ Or the wave of violence in North Ireland. That very same violence which came to naught, including through both parties to the conflict ending up within the EU, with the border between them basically disappearing. Maybe these things were explained to them, but that doesn’t mean that they heard them. Or were ready to understand. After all, any idea can be placed in an attractive package and sold to the voter,”  writes RFE/RL journalist Pavlo Kazarin, stressing that people can make mistakes (the fact that people believe in a flat Earth does not mean this theory should be taught in schools) and that the aspiration to dissolve individual responsibility in the collective one does not have anything in similar with democracy.

        Meanwhile, Mariya Haidar, former consultant of the President of Ukraine, said that a referendum makes sense if it’s possible to implement the solution; however, asking them if they want something [like, to establish peace in the Donbas – Ed] when it’s not up to Ukraine to implement it is senseless. Haidar believes that the idea of this referendum will be used by Russia to attack Ukraine.

        Constitutional law expert Bohdan Bondarenko stressed that such referendums can be dangerous for democracy.

        “Consultative referendums are a dangerous thing. Under conditions when a leader has great support, he can use consultative referendums as a decision of the people of sorts and make them mandatory by his decrees. The post-Soviet space remembers such cases. Reduce the number of MPs from 300 to 120. First, there was a vote, and then the deputies to be slashed were selected manually. We can remember 1933, 1936, 1938 in Germany. There are no national referendums in Germany now!

        In order for a referendum not to become a way of usurping power, not to become a manipulative means for legitimizing any decision of any political groups, it must meet two very important criteria – there must be clear, understandable, and specific rules and procedures, and the country should have the practice of holding referenda. We have no criteria. A referendum can be both a threat and a panacea for a country in a transformational period.”

        Some, like rock musician Sviatoslav Vakarchuk, who just registered his political party “Holos,” say that holding a referendum under the conditions of a kinetic and information war against Ukraine is irresponsible.

        Vakarchuk calls to remember how the “referendums” in occupied Crimea and Donbas were conducted. In 2014, so-called “plebiscites” were held in territories uncontrolled by Ukraine, which appeared to show popular support for seceding from Ukraine. However, the referendums were held in breach of all standards, with no independent international observers present. In both Crimea and occupied Donbas, it is widely believed that the results were falsified in order to give plausible deniability to Russia’s landgrabs.

        Meanwhile, Heorhiy Tuka, Deputy Minister in issues of temporarily occupied territories, did not mince words when talking about Zelenskyi’s idea of a referendum.

        “My personal opinion about this idea: for instance, some kind of scarecrow breaks into my apartment, he’s huge, unshaven, and smells like a bar. He beats up my kids, kills my son, climbs on my bed, and rapes my wife. And I, as a man, as the leader of the family, start to say: ‘Dear family, let’s consult on what we’ll do with this rapist – maybe we’ll offer him coffee and cake, or give him a pillow to sit on.’ God fobid that Mr. Zelenskyi will have the desire to carry out this idea,” the Deputy Minister said.

Peace Referendums in History

        History provides ambiguous examples of peace referendums reaching their goal, writes Serhiy Solodkyi from the New Europe center.

        Referendums as an instrument or stage of regulating a conflict are a rare phenomenon. One must realize that without the will of the leaders of the opposing sides, without a clear-cut peace plan, the referendum itself is of little value,” Solodkyi says. “The approval of a plan by Ukrainians at a referendum doesn’t mean it will be implemented. In particular, because of the counteraction of the other party.”

        He provides examples of several peace referendums in international conflict situations.

        The one in North Ireland was a success – not least because there were two referendums, in North Ireland and in the Republic of Ireland. The Good Friday Agreement was agreed on by a majority of voters in both locations.

        But the referendum on a peace plan in North Cyprus failed: the Greek Cypriots voted against the plan.

        In both cases, however, there was a referendum from both parties of the conflict – an opportunity that Ukraine is unlikely to enjoy.

        Moreover, the referendum in East Timor conducted under the auspices of the UN in 1999 led to bloodshed. It is believed that it was conducted too early without the necessary safety precautions – and in result, thousands of East Timor citizens were killed, and 400,000 became refugees.

        What could be the solution to the war in Donbas then? Unfortunately, there is no easy one. But it would be prudent to continue viewing Russia as a permanent threat and an aggressor, to stop feeding the Russian economy, and build up Ukraine’s military potential and economy. And in the meantime, to continue searching for ways to make Russia’s expenses for occupying Crimea and Donbas outweigh the benefits it gets from its aggression.