Forecasts of international political events
Monthly Archives: February 2014
Yanukovych was corrupt, thuggish, and possibly a murderer. I can’t imagine him being welcomed back into Ukraine except to face trial. However, it’s very clear that in removing him, the Ukrainian parliament failed to follow constitutionally mandated procedure. At the time, the Polish foreign minister Radislaw Sikorski declared his removal “legal” and the term legal has been used by other commentators. On 21 February, I pointed out that the removal was actually unconstitutional. A post on reddit the same day made the same point. An article on the Radio Free Europe website pointed out the legal problems with the removal on 22 February. And the Wikipedia article “President of Ukraine” has been amended to raise the same issue.
At the time the parliament voted to remove Yanukovych, it had also recently voted to revert from the 1996 constitution to the 2004 constitution, but Yanukovych had not yet signed the act into law. This may leave some question about which constitution was in effect at the time of Yanukovych’s removal, but in this case it doesn’t matter. The two constitutions prescribe identical impeachment procedures.
Article 108 gives the ways in which a president can be removed from power.
Article 108. The President of Ukraine shall exercise his powers until the assumption of office by the newly elected President of Ukraine.
The authority of the President of Ukraine shall be subject to an early termination in cases of:
2) inability to exercise presidential authority for health reasons;
3) removal from office by the procedure of impeachment;
4) his/her death.
Yanukovych didn’t resign, he wasn’t ill, and he didn’t die. That leaves only impeachment. Here’s the article giving the procedure for impeachment.
Article 111. The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.
The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.
The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.
The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.
On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.
The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.
He can only be removed for “treason or other crime.” The reason given by parliament for removing him was that he was “constitutionally unable to carry out his duties.” To the best of my knowledge, being constitutionally unable to carry out your duties as president is not listed anywhere in the Ukrainian penal code as a crime. It’s not really clear what the phrase means, except perhaps that the drafters of the removal act were in a hurry and hadn’t given much thought to their legal justifications.
The first step of the impeachment procedure is for a majority of parliament to initiate the impeachment. I think it’s fair to say that a majority of parliament initiated an impeachment, but that’s the only part of the procedure that was carried out.
The second step is to create an investigation commission with a prosecutor and investigators. This was not done.
The third step is to present the conclusions and proposals of the commission to the parliament, at which point two thirds of parliament must vote to bring charges against the president. This was not done.
In the fourth step, the Supreme Court must vet the charges and determine that the acts he’s being charged with are in fact treasonous or criminal. The Constitutional Court also reviews the impeachment procedure and ensures that it complies with the constitution. This was not done.
The fifth step is the actual vote to remove the president. Removal requires that at least three fourths of parliament’s “constitutional membership” to vote in favor of removal. “Constitutional membership” is defined in Article 76 of the constitution.
The constitutional membership of the Verkhovna Rada of Ukraine shall comprise 450 people’s deputies…
Three fourths of 450 is 337.5. If you have one half of a people’s deputy, the other half must be near at hand, so that’s 338 votes needed to remove a president. 328 members of parliament voted for removal, ten votes shy of the three fourths super-majority needed to remove a president. Constitutionally speaking, the vote to remove him failed.
Again, I can’t see any way Yanukovych could be restored to power, and I don’t think it would be desirable. But the way he was removed was clearly unconstitutional. That gives Yanukovych grounds for claiming his removal was illegal and creates legitimacy problem for the government that follows him.
Update: I originally had the Constitutional Court doing the Supreme Court’s job. I edited the post on 9/3/14 to say that the Supreme Court rules on whether or not the charges against the president constitute a crime.
Speculation about China seizing Pag-asa Island (called Zhongye Island by the Chinese) from the Philippines this year started in January with a post in the English-language China Daily Mail claiming that the Chinese were, in fact, planning to take the island. Pag-asa Island is part of the Spratly Island group, located in an area where the seabed is believed to cover large gas and oil deposits. Control of the Spratlys would give China control of the deposits.
In addition, the Spratlys are part of the “first island chain”, the chain of islands off China’s Pacific coast that China seeks to control. Control of the first island chain would make it much easier for China to defend against the US and make it easier to launch a pre-emptive strike. Control of Pag-asa Island would effectively give China military control over not only the Spratlys but also a large part of the South China Sea.
There doesn’t seem to be any doubt that China could seize Pag-asa Island if it chose to. The title of an article in the New York Times summed up the conflict between China and the Philippines over their competing claims to the Spratlys as “A Game of Shark And Minnow.” Nor is there any doubt about China’s ultimate goal of controlling the Spratlys. But I doubt that it would be worthwhile for China to gain control of Pag-asa Island at this time and in this way.
An article by Carl Thayer in The Diplomat lays out the problems a military seizure of Pag-asa Island would create for China. China is a member of the Association of Southeast Asian Nations (ASEAN), a number of whom also have claims to parts of the Spratlys. The other members of ASEAN would immediately unite in opposition to China, something China has worked successfully to prevent so far. It would become an issue at the UN, although China would veto discussion by the Security Council. There would be a Spratly Islands arms race as surrounding countries beefed up their military facilities and increased their naval patrols. The level of military armament would increase to possibly include cruise missiles. On the whole, it would make international relations more complicated and increase military risks in the Spratlys.
China might be tempted to use military force in the Spratlys in spite of the problems it would cause if it had no other way of gaining control. China has used its military to gain territory in the recent past. China gained control of all of the Paracel Islands in 1974 after a naval battle with South Vietnam. In 1988, a conflict with Vietnam near the Johnson South Reef in the Spratlys resulted in China occupying six reefs and atolls.
But China is currently using a strategy of squeezing out the competition while staying under the threshold of force that would cause a reaction that harmed its interests. The Philippines has maintained a presence on Ayungin Shoal for the past fifteen years by running a naval vessel aground and stationing marines on the vessel. The Chinese have responded by keeping two Coast Guard cutters on permanent patrol at the shoal, effectively preventing the Philippines from carrying out normal resupply. The Chinese allow fishing boats through, and the Philippines takes advantage of that to sneak in occasional luxuries like donuts, but the marines survive by catching their own fish. The boat is rusting and deteriorating, and eventually will no longer be safe. The Chinese can wait.
According to the New York Times, the Philippines has built crude shelter on stilts over shallow water or sandbars at Rizal Reef, Patag and Panata. The troops stationed there have very little room to move inside their shelters and have nothing to do except fish. When there was bad weather at Riza Reef, the troops used to tie themselves to oil drums at night so they would float if the shelter collapsed. In 1994, a typhoon chased the usual Filipino naval patrols away from Mischief reef and the Chinese took advantage of their absence to build their own stilted shelter. They’ve gradually upgraded it to a more permanent structure. China would almost certainly do something similar if bad weather collapsed the Filipino structures at the reefs and sandbars they control.
China has opened bidding for oil exploration in areas that were already leased by Vietnam for exploration and development. It has chased a Philippine survey ship away from the Reed Bank, well within the Philippine’s Exclusive Economic Zone. It has sent fishing boats to Scarborough Shoal, also inside the Philippines EEZ.
China’s strategy has been referred to as “salami-slicing.” This is defined as “the slow accumulation of small actions, none of which is a casus belli, but which add up over time to a major strategic change.” So far it’s working. China has slowly accumulated more and more control over the islands of the South China Sea, and done so without uniting the other countries with claims in the South China Sea against it, or threatening its other important international interests. There may come a time when China has gotten all it can get by “salami-slicing” and reverts to military force. But not this year.
I’m going to start with an easy one. Egyptian General Sisi has been promoted to Field Marshal, an empty title given to Egyptian generals who are about to retire. The Supreme Council of the military has given its permission for Sisi to run for president. The recent cabinet reshuffle seems to have left him with fewer job titles, making it easier for him to resign from the interim government. And sources close to Sisi say that he is just waiting for the election law to be finalized before announcing. So I’m forecasting he will officially announce his candidacy before 1 May.
Turkey will not open new chapters of the aquis (the procedure for joining the EU) before 1 May. Cyprus is blocking the two chapters than Turkey wants to open, due to conflict between Cyprus (the government) and Turkey over the partition of Cyprus (the island). Talks between Turkish and Greek Cypriots are underway and could resolve the differences with Turkey, but not before 1 May.
There will be no breakthrough in the TPP talks before 1 May. Domestic politics in the US and Japan will ensure that neither will give ground on Japan’s agricultural tariffs in the immediate future.
Iran will install no new centrifuges before the end of the current agreement with the P5+1. With the exception of a few extreme hardliners and the people associated with Ahmadinejad, most of the hardliners in Tehran support pursuing negotiations.
On the other hand, Iran will not let the IAEA inspect the Parchin military base during the term of the current agreement. In fact, I don’t expect the IEAE to get access in Parchin at all unless it’s negotiated at the political level, i.e. as part of the P5+1 negotiations. Iran considers this to be outside the scope of the IEAE’s charter and won’t negotiate it during the technical negotiations with the IAEA. They’ve given the IAEA access before, the IAEA found no evidence of nuclear weapons research or testing, and Iran considers this to be more of a political issue than a compliance issue. The widely held view that the head of the IAEA is biased towards the US doesn’t improve the odds of an inspection.
Iran will not test a ballistic missile with a range of 2,500 kilometers or greater in the next six months. Iran has missiles that can reach its primary military targets, but there’s a low chance that they would actually strike their targets. Iran’s primary focus right now is developing missiles with reasonable accuracy and the ability to evade missile defenses. It is close to developing 2,500 km missiles , but that’s not a top priority right now.
Yanukovych will eventually be tried before the International Criminal Court, as Ukraine’s parliament has requested. Ukraine’s constitution spells out an impeachment process that involves the Constitutional Court, with is packed with Yanukovych’s people. If the new government replaces the judges, the new judges will be perceived as biased against Yanukovych. The ICC is the best bet for an impartial trial, something any new government will need to compensate for the fact that Yanukovych’s removal from office was unconstitutional. Yanukovych is being accused of mass murder, which is something the ICC handles. The surprisingly orderly nature of the revolution in Kiev means that a lot of evidence has been preserved.
The loan agreement between Russia and Ukraine is dead. Russia won’t be buying any more Ukrainian government bonds. The loan agreement was always a means to pull Ukraine into Putin’s proposed customs union. The new government is determined to pursue closer ties with the EU. Russia still has more leverage over Ukraine than any other country, due to trade ties and gas supplies. Ukraine desperately needs the money, but Putin gains no leverage by making the loans and loses no leverage if he doesn’t make them.
I’m still expecting the Thai government to renew the State of Emergency, but I’m less sure of it. The Thai courts have placed restrictions on the powers that the government can exercise under an SoE, which makes it less useful for the government. The government’s primary goal is to carry out by-elections in order to elect enough parliament members to make a quorum and form a new government. Even with the current SoE, the government hasn’t been able to do that, and the Election Commission has delayed new elections, possible beyond the limit of a renewed SoE. Still, the situation certainly justifies a SoE, and I think the government will want whatever powers the courts will allow it to exercise, and will renew the SoE.
If the corruption case against the Thai prime minister causes her to be removed from power, the UDD/red shirts will view it as a coup and will hit the streets in enough numbers to raise the level of crisis considerably, which would increase the odds of a renewed SoE.
If Yanukovych wanted to have any chance of staying on as president, he would have had to follow Friday’s agreement by shoring up his support in parliament and ensuring that he had the government security forces behind him. He would have had to maintain communication with the opposition leaders to ensure that they remained committed to the agreement and to show that he was following through on his commitments. There’s no guarantee that he would have succeeded in these things, but they were necessary for him to have a chance at continuing.
Instead he left Kiev and went to Kharkiv, Ukraine’s second city and a center of support for his presidency. In his absence, there have been enough defections from his party in parliament that the opposition is effectively in control. Parliament has freed Tymoshenko from prison, allowing her to replace Yatseniuk, a capable but less charismatic politician, as the direct leader of her party, the largest party in the opposition. With Yanukovych absent and without a prime minister, the effective head of government is the speaker of the parliament. Parliament has just replaced the pro-Yanukovych speaker with an ally of Tymoshenko.
Yanukovych can’t maintain power without the support of the security forces. The anti-riot police are exhausted after their unsuccessful attempts to seize Independence Square from the Maidan protesters. Their failure and Yanukovych’s absence has probably left them demoralized. Their top commander has gone before parliament and announced that they will not oppose the “people”, meaning the protesters. The Interior Minister, who controls the anti-riot police, has been replaced with an opposition figure. The police in general have disappeared from Kiev. Parliament is being guarded by Maidan self-defense groups, who are also guarding the presidential offices and residence to prevent looting. In other words, civil order is now being guaranteed by the protesters rather than the police, and the protesters seem to be well disciplined and effective. (A BBC producer tweeted that a protester guarding the president’s residence warned him not to step on the grass. The Maidan self-defense forces are on the job!)
If Yanukovych is to recover power at this point, it would have to be through a military counter-coup. But the head of the paratroopers and the head of military intelligence have both joined the head of the anti-riot police in pledging not to oppose the “people”, and the willingness of the military to act against the protesters was always in doubt anyway.
Yanukovych needed the the opposition leaders who signed the agreement with him to remain committed to the agreement and to sell it to the protesters. But Yanukovych’s inaction has lead Yatseniuk to call for his resignation and Klitschko to call for elections by May 25. As the opposition gains power, the agreement that gave Yanukovych whatever chance he had of hanging on to power a little longer has been discarded.
Opposition to the Maidan protesters is strongest in the east and south of Ukraine, where the protesters are viewed as “fascists”, among other things. But in Kharkiv, where pro-Yanukovych politicians are gathering to support the president, news reports have anti-government protesters gathering in the thousands, with pro-government protesters numbering in the hundreds. The police, who recently were beating anti-government protesters, are now protecting them from the pro-government protesters. Even the Crimea, essentially a Russian enclave within Ukraine, is divided between pro-Maidan Tartars and separatist pro-Russian groups.
As I was writing this, BBC reported that “Ukraine’s parliament has voted to dismiss President Viktor Yanukovych and set elections for 25 May.” The Ukrainian constitution requires a presidential impeachment process that starts with parliament creating an ad hoc commission to investigate charges. The commissions recommendations have to be accepted by two thirds of the parliament and reviewed by the Constitutional Court. Then and only then can the president be removed by a three-fourths majority in the parliament. Since this procedure hasn’t been followed, Yanudovych’s removal is unconstitutional.
ICTV has broadcast a message from Yanukovych calling events in Kiev “vandalism, banditry and a coup.” There have been no reports of vandalism or banditry, but a democratically elected president is being removed without following constitutionally mandated procedures. That probably counts as a coup. During the three months of the crisis, I don’t recall any opinion surveys that showed a majority in favor of removing Yanukovych. A large part of the population will view his removal with horror. In spite of their rhetoric, the Maidan protesters are not “the people”. The Ukrainian people are badly divided and the new government will have its work cut out for it establishing its legitimacy and persuading the population that it represents all of Ukraine and not just an anti-Yanukovych faction that has seized control of the capital.
Will either the EU or the US impose more sanctions on members of Ukraine’s government before 10 May?
The forces opposed to each other in Ukraine are about evenly matched, and neither side can win. The Maidan protesters seem to be unwilling to give up their demand that Yanukovych step down, and Yanukovych is willing to talk about new elections, but seems unwilling to commit himself to them. There doesn’t seem to be much possibility of an agreement that would end the crisis.
Over the course of roughly three months, Yanukovych has displayed a pattern of alternating half-hearted attempts to negotiate with half-hearted attempts to suppress the protests with force. The negotiation attempts have failed, and the unsuccessful suppression attempts have gained the protesters new supporters, made them more intransigent, and prolonged the crisis.
The actual leaders of the protesters are more operational organizers than strategic planners. They’ve organized self-protection groups, food supplies, medical care, and the other things necessary for the protests to continue day to day. But their strategy is to continue the protests until Yanukovych steps down. The politicians who are capable of forming alliances with other parts of Ukrainian society and understanding what compromises have to be made to reach their goals are not in control. The Maidan acts and the leaders of the political opposition have to make the best of it, effectively undercutting any strategic behavior on their part.
Unless Yanukovych suddenly develops the ability to make painful commitments and carry them out, or the Maidan protesters suddenly acquire a leadership capable of strategic thinking and making compromises, the crisis is going to continue for a while. There will be new episodes of violence and the EU and/or the US will impose more sanctions.
While I was writing this, the New York Times reported that Yanukovych and the political opposition leaders have reached an agreement that includes a return to the 2004 constitution and early elections in December. A council representing the Maidan protesters voted 34-2 in favor of the agreement. Yanukovych may follow through with the agreement if he believes that he can rebuild his support by December and win an election. Reversion to the 2004 constitution reverses the changes made during Yanukovych’s presidency that gave him more power. Having acquired the extra power during the course of one presidency, he may believe that he can re-acquire the power during a second presidency.
On the other hand, the members of the Maidan council that voted for the agreement, along with the opposition leaders, are going to have to persuade the protesters to accept the agreement. That’s going to be difficult. Furthermore, Russia has refused to sign off on the agreement and appears to be opposed to it. Ukraine desperately needs a multi-billion dollar loan and Yanukovych is unwilling to meet the IMF’s terms, which leaves Russia as the only possible lender. That gives Putin a lot of leverage if he wants to undermine the agreement.
Until both sides have fully committed themselves to the agreement, I’m expecting the crisis to continue and forecasting more sanctions. But I’m happy to say that I’m making that forecast with less confidence.
I see three ways Yanukovych could vacate the presidency before 10 May:
1) He could lose a snap election
2) The oligarchs (big business owners) could pressure him into resigning.
3) He could lose his support base in the south and east.
Yanukovych still retains enough power that there isn’t going to be an election before 10 May unless he agrees to it. If he did agree to a snap presidential election, he would probably lose. According to a recent survey, he would get roughly 30% of the vote in the first round of voting. That’s more than any of the candidates of the splintered opposition, but not enough to win. In the second round of voting, he would be facing only one opponent. The survey shows him losing by a large margin, regardless of who his opponent was. Against any of the major opposition figures, he would get 36%-46% of the vote, while the survey shows possible opponents getting 54%-64%. The survey was conducted between 24 Jan and 1 Feb, and the results released around 7 Feb. Up until roughly 4 Feb, the president and members of his party were talking about holding early presidential elections, but on 3 Feb they started rejecting the idea, and after around 7 Feb I can’t find any news reports of the president or his party considering early elections. Within the last week, the EU has publicly called for early presidential elections, but Yanukovych hasn’t responded.
After Yanukovych defeated Yulia Tymoshenko in the 2010 presidential elections, his government brought criminal charges against her that are widely viewed as politically motivated. Having established the principle that you imprison your opponent after defeating them in an election, and having resisted strong international pressure to release her, he’s not eager to lose an election himself, particularly when the biggest opposition party is still the party founded and lead by Tymoshenko. Tymoshenko herself is known to hold a grudge and to use the power of office to settle scores.
A further reason for avoiding an election that would likely be won by the opposition is the fact that people who are likely to defeat him are in favor of joining the EU. In order to join, Ukraine would have to make its courts independent of the government. Croatia reformed its courts when it joined the EU, and one of the results of this is that the prime minister largely responsible for bringing Croatia into the EU was later convicted of corruption and sentenced to prison. In Ukraine, Yanukovych is thought to be afraid of being arrested if he vacates the presidency.
The odds of the oligarchs pressuring Yanukovych into resigning are low. Yanukovych is still powerful and individuals who oppose him risk retaliation, even among the oligarchs. His family is corrupt and has made enemies by forcing the sale of businesses at below market prices, but the victims have been less wealthy than the oligarchs who command political power. The victims are millionaires, not billionaires. In isolated cases, individual oligarchs have used the blocs of parliamentary delegates they control to oppose the government, but this happens when their business interests are threatened. In almost all cases, they use political power to support their businesses rather than to further ideological goals, and this usually means supporting the government.
Yanukovych is a Russian speaker who didn’t learn to speak Ukrainian until he was in his 50s. His political opponents occasionally made fun of the grammatical errors he made when he first started speaking Ukrainian. This makes him a sympathetic figure for many of his fellow Russian speakers. The protesters who want to remove him from power are politically diverse. What they all have in common is a desire for better, less corrupt government. This desire is shared by voters in the Russian speaking areas, but some of the more prominent groups among the protesters are right wing nationalists who use a lot of anti-Russian language. In terms of attracting voters, this is analogous to running for mayor in Boston by attacking the Irish. The anti-Russian component of the protest is repelling the voters who are Yanukovych’s support base and who might otherwise be inclined to support reform.
And finally, there’s the problem of fatigue. The people who are spending their days at the barricades are not earning a living. The small and medium-sized businesses that are providing the protesters with food and supplies are providing them for free. As the protests continue month after month, they become an increasing drain on the protesters’ resources. The longer Yanukovych can stave off political change, the more likely he is to survive. At the moment, he seems to be avoiding committing himself to any irrevocable choices and playing for time.
Some Russian analysts believe that many of the protesters are seasonal workers who will have to leave the protests in spring and summer in order to return to their jobs and earn a living. I don’t know how true that is, but if Yanukovych believes that it is true, it would certainly encourage him to delay making any changes as long as possible.
Yanukovych will not resign or call snap elections that he is likely to lose because either will put him in a much worse position, both politically and personally. Most oligarchs prefer a Yanukovych presidency that generally supports their business interests to the risk and uncertainty of an opposition, most of whose leading figures are less oligarch-friendly. A large number of Ukrainians who claim Russian heritage are not going to support an opposition that prominently includes people they view as anti-Russian bigots. And eventually, the outrage over Yanukovych’s U-turn on the EU and his attempts to suppress the protests, as well as the excitement of the barricades, will wear off and the protesters will want to return to a more normal life. Yanukovych appears to have settled on a strategy of out-waiting his opponents.
Will Ukraine officially declare a state of emergency before 10 May 2014?
A State of Emergency is declared by the president, and then must be confirmed by a majority of parliament within two days. It would essentially authorize the president of Ukraine to use more force in putting down the protests. He would be able to ban rallies, make it harder for the protesters to organize by cutting telephone and Internet access, enforce a curfew, and call in the military.
For the immediate future, the signs are that Yanukovych won’t declare a State of Emergency. The ruling Party of the Regions has discussed declaring a State of Emergency, but has apparently decided not to. A party member reports that in comments Yanukovych made to the party, he ruled out the use of force and committed himself to calling early elections, both for president and for parliament, if he cannot reach an agreement with the protesters. Another member who has previously been a speaker of parliament, said that he didn’t think there were enough votes to confirm a declaration.
The director of a Kiev-based think tank says that “Yanukovich is no [Russian President Vladimir] Putin, in the sense that he is terribly afraid of any bloodshed and he would rather call for changes in the constitution and early elections than order a full-scale combat operation…” Another expert says that “My forecast is that there will be no forcible clearance. There will be a silent war of terror, which, in fact, has already lasted a month…”, which is to say that he thinks force will be used, but it will be more subtle than a State of Emergency.
But the situation is fluid and this could change very quickly. The think tank director believes that there is still a possibility of declaring a State of Emergency, and he believes the president could find the votes to confirm it.
A study of the use of violence in elections states that “Leaders are more likely to crack down when they think an election might unseat them (or their party) from power and they face few constraints on their authority and so have reason to believe they can get away with violence.” and “When judiciaries become more independent of the executive office, or when other checks on government power develop, election violence becomes less likely even when a leader or party’s position in power is seriously threatened.” The Ukrainian protests are not an election, but they are a contest for power. As the study suggests, both sides are using as much violence as they think they can get away with. Being able to predict whether the government might declare a State of Emergency over a period longer than a week or two requires understanding the checks on the president’s ability to use force.
Ukrainian courts have been more independent in the past than they are now. For 2013, Freedom House gave Ukraine a score of 4 out of 7 for political rights, and a score of 3 for civil rights. It’s overall status was “Partly Free”. This is not the most oppressive society in the world, but the courts can’t be counted on as a check on government power. The criminal justice system has been rather forgiving to thugs who attacked journalists, and it sometimes requires special effort to prosecute criminals with ties to the ruling party.
Freedom House rated the Ukrainian Internet as “Free”, which means that individuals could freely communicate and publish their own reporting and analysis. The press was rated as “Partly Free”. In spite of that, the press can’t be counted out. The riot police have apparently targeted reporters. The Institute of Mass Information reports that more than 40 journalists have been beaten, many of them while wearing visible identification, so the police knew that they were beating reporters. This suggests that the government sees their reporting as a threat. A lot of the Ukrainian media is owned by oligarchs who could once be counted on to ensure that the media supported the government. But since the protests started, some oligarch-owned TV channels have been giving air time to the opposition, and at least one oligarch-owned newspaper has been reprinting online articles that criticized the government.
Another constraint on the government’s ability to use violence is the willingness of the police and the military to follow orders. The government has been able to rely on the riot police, but there are reports of the regular police giving support to the protesters in the western parts of the country. The police in Kiev and other cities where protests are occurring are drawn from the same population as the protesters, and tend to have the same sympathies. Similarly, many military recruits come from the central and western parts of Ukraine where the main protests are occurring. Many of them are likely to refuse to follow orders if they are ordered to attack the protesters. There’s a good chance that declaring a State of Emergency would raise the level of violence without giving the government any more control over the country.
Ukraine is partly controlled by informal “clans” of businessmen and politicians, lead by the so-called oligarchs. The oligarchs have either gotten themselves elected to parliament, or have funded the campaigns of blocs of delegates whose votes the oligarchs control. Rinat Akhmetov controls a bloc of 50 delegates out of 450, slightly more than 10% of the parliament. He also owns his own TV channel. Dmitry Firtash controls another bloc, and owns Ukraine’s biggest TV network. In both cases, the TV reporting supports the owners business and political interests.
An article published in the Caucasus Analytical Digest sums up Yanukovych’s government this way:
Ukraine is now ruled by the so-called “Donetsk clan,” a group of individuals who made their careers in the Donbas, the industrial heartland of the Soviet Union. Like the clans of other industrially developed regions, the post-Soviet practice of securing and developing businesses through informal, and sometimes illicit, deals produced tightly-knit networks of politicians, entrepreneurs, and criminals in Donetsk. The Donetsk style of governance is based on authoritarianism and rent-seeking, described by van Zon, a researcher of Ukrainian politics, as “the merging of political and economic power with total suppression of dissent and unbrindled corruption.
The Constitutional Court issued a ruling in 2010 that transferred some power from the parliament to the president. That shift increased the power of the ruling Donetsk clan and correspondingly decreased the power of other oligarchs.
This sets up conflicts between Yanukovych’s Donetsk clan and the oligarchs of other areas as Yanukovych’s group attempts to gain control of local politics and business. In the city of Dnipropetrovsk, a conflict over the appointment of the provincial governor in 2010 led local oligarchs to support the anti-government protesters when the protests started in 2013. A newspaper owned by one local oligarch has been publishing articles critical of the government, while the TV channel owned by another has been supporting the protesters. An attempt by the Donetsk clan to force the sale of a factory at a third of its estimated value led two other businessmen to display a live feed of the Kiev protests on a large outdoor screen at an upscale shopping mall. The two businessmen have fled the country, but say they have no regrets. One of them said, “”We want to live in Europe, not in an outpost of the Russian empire,” exactly the sentiments of the protesters.
Regardless of whether the oligarchs are pro-Russian, pro-European, allied or opposed to the Donetsk clan, almost all feel threatened by concentration of political power in the presidency and the resulting loss of power by oligarch-controlled voting blocs and local clans. Viktor Medvedchuk, a pro-Russian oligarch, whose daughter is Vladimir Putin’s godchild, condemned government violence when the protests started. Akhmetov, a member of the Donetsk clan and a close ally of Yanukovych for decades, issued a condemnation of government violence on his company website in January and called for negotiations. He’s been negotiating with Arseniy Yatsenyuk, the opposition leader the US is pushing as a possible Prime Minister. He controls the electricity supply to the parts of Kiev controlled by the protesters, but hasn’t cut the power. His normally pro-government TV channel has given air time to opposition leaders. More than 70 parliamentary members of the government’s majority have stated that they are opposed to a violent crackdown and will vote against a State of Emergency.
Western banks are worried about the conflict and have started refusing to extend credit to some Ukrainian oligarchs. Problems with his Swiss bankers may have led Akhmetov to have his parliamentary bloc vote for the resignation of the Azarov cabinet and against the laws directed at suppressing protests. Some of the oligarchs’ families live in western and central European capitals, and their businesses depend on European capital markets. These things are threatened by possible targeted financial and visa sanctions. And regardless of how they earned their fortunes, whether through legal or corrupt means, the oligarchs can best defend themselves against the government through the rule of law and protection of property rights, along with returning power to the parliament and the oligarch-financed delegates.
Since the protests started the EU and the US have started paying more attention to Ukraine. The EU and the IMF are offering aid, but the aid is conditional on political and economic reforms. Yanukovych wants to stay in power, wants a large loan to help tide Ukraine over its immediate financial problems, wants foreign investment, and wants access to European markets for the oligarch’s businesses. The political changes the EU and US want will weaken presidential power and will not make his hold on the presidency any more secure. The loans on offer are much smaller than Yanukavych wants and won’t help him stave off the sorts of economic problems that would cost him a second term as president. If Yanukovych accepts EU and US aid, he will have to give up any idea of declaring a State of Emergency.
Ukraine’s relationship with Russia since independence, and Yanukovych’s relationship with Vladimir Putin, has been very poor. The opinion of many knowledgeable Ukrainians is that Putin despises Yanukovych, and Yanukovych fears Putin. Putin’s goal is to force Ukraine into the Russian-dominated Eurasian Economic Union, blocking it from joining the EU. But Putin is offering a $15 billion loan, and isn’t trying to interfere with the way Yanukovych’s government rules Ukraine, so Russian aid doesn’t rule out a State of Emergency.
The protests in Kiev began as pro-Eu demonstrations, but have become anti-Yanukovych protests. The protesters’ goal is to remove Yanukovych from power. His two attempts to suppress the protests, once at the beginning and again in January, only made them stronger. Under a State of Emergency, the protests would be sure to grow and spread, and Yanukovych can’t be sure that the police or military would follow orders to suppress the protests. Most of the oligarchs continue to support him publicly, but are concerned about the spread of disorder and don’t seem to support declaring a State of Emergency. And the concentration of power in his own hands, along with the exploitation of state power by his Donetsk clan has cost him the support of individual oligarchs and made the remainder reluctant to see Yanukovych get more power. Whether or not he accepts EU and US aid, a State of Emergency would probably result in sanctions. So a State of Emergency seems unlikely.
But it can’t be ruled out. Yanukovych might still declare one as a last gasp effort to retain power, if the protesters seem to be on the verge of winning and he has nothing to lose. I’m forecasting a 25% chance of Yanukovych declaring a State of Emergency before 10 May.
The available information on Egyptian ex-president Morsi’s legal problems is a bit confusing, but as near as I can tell, he’s facing four trials and the trial relevant to this question involves espionage, a capital crime in Egypt. He’s also facing other trials involving capital crimes. Several news sources claim that the espionage trial also involves charges of terrorism, but it appears to me that he’s being charged under the espionage laws, not the terrorism laws.
An announcement titled “The Biggest Case of Espionage in the History of Egypt” from the office of Prosecutor General Hisham Barakat claimed that:
– Morsi opened “channels of communication with the West via Turkey and Qatar.”
– Morsi was involved in a plot with Hamas and Hezbollah.
– The Muslim Brotherhood was “the reason behind violence inside Egypt to create a state of ultimate chaos.”
– Members of the Muslim Brotherhood used secret tunnels to enter Gaza, where they received military and media training.
The regional director for Human Rights Watch has called the charges “pretty fantastical”. In a trial of Muslim Brotherhood leader Mohammed Badie and two aides involving related charges, three of the judges stepped down because “a feeling of embarrassment” over the case. Apparently, the prosecutors handling the Muslim Brotherhood trials are willing to push the law to the limits, even if it means losing the occasional judge.
In other trials, Morsi is facing charges of fraud, insulting the judiciary, the murder of anti-government protesters while he was president, and the murder of prison officers during a prison break in 2011.
The Muslim Brotherhood and the military each have strong support from different groups of Egyptians. Both inspire strong opposition. A poll taken in September indicated that Egypt was roughly evenly divided on whether Morsi’s overthrow was a good thing. Each group has a large, committed base, and is a threat to the other.
Sisi is obviously planning to run for president. The acting president has promoted him to Field Marshall, a title whose only significance seems to be that the holder is planning to retire soon. Shortly afterward, the supreme council of the armed forces gave their approval for Sisi’s candidacy. The media reports that people close to Sisi expect him to announce as soon as nominations officially open.
The charges appear to be designed to undercut the legitimacy of Morsi and Muslim Brotherhood. They conspired with non-Egyptians, they studied military and media tactics with non-Egyptions, they committed fraud, they insulted or murdered Egyptian officials, they murdered Egyptian protesters, and they created violence and chaos in Egypt. Sisi and the military are presenting themselves as the guardians of order and the protectors of Egypt.
It seems very unlikely that Morsi will be acquitted. There are three factors that I think will determine his sentence. The first is how much of a threat Morsi and the Muslim Brotherhood are to military-backed rule and Sisi’s candidacy. The greater the threat, the more likely a death sentence. Given the force with which the military has put down demonstrations and the number of protesters killed, it’s pretty clear that the military thinks the threat is serious. Both Sisi and the military are currently popular. While turnout for the constitutional referendum was only 39%, 98% of those that voted, voted for the military backed constitution. But Sisi is likely to loose that support if he can’t find rapid solutions to Egypt’s problems, and the military seems to be aware that he’s not likely to find rapid solutions. One senior officer called the presidency “a poisoned chalice.” A large part of the military’s support could swing back to the Muslim Brotherhood. At the moment Morsi is the Brotherhood’s most important public figure. The question is whether, once Sisi’s government gets into trouble, an imprisoned Morsi is a bigger rallying point for the opposition than a martyred Morsi.
The second factor is what happens after the verdict. I don’t know what the new constitution says about criminal law. The point of the new constitution wasn’t to rewrite the criminal laws, so I’m assuming that they haven’t changed much. In the past, someone convicted of a crime had two levels of appeal. For a death sentence, the Mufti (the government appointed head Muslim cleric) gave an opinion on whether the sentence was appropriate. The opinion is non-binding, but it would be politically difficult to carry out a death sentence after the Mufti declared it inappropriate. The president had the power to pardon a convict or to commute a death sentence to imprisonment for life. I have one source that says the president could commute a death sentence to a fixed term of imprisonment and one that says he could not. For simplicity, I’ll ignore that possibility. In practice, pardons have been very rare, and in a political case like this it’s hard to imagine the government going through the trouble of convicting Morsi and then pardoning him, so I’ll ignore that possibility also. Should Morsi receive a death sentence, that leaves Sisi with the options of carrying out the execution or commuting it to life imprisonment.
It’s not clear what the Mufti’s role in this would be. In an ordinary criminal trial, the possibility of the Mufti declaring a death sentence inappropriate probably acts as a constraint on judges’ tendency to give death sentences. But the Mufti is a government appointee and this is a political trial. That is likely to act as a constraint on the Mufti. The Mufti’s effect on the probability of a death sentence is determined by the judges’ expectations concerning the opinion issued by the Mufti, post sentencing. In this case, I don’t think the judges expect the Mufti to issue an opinion against a death sentence, due to the Mufti’s position as a government appointee and the importance of the trial to the government.
The third factor is the other trials Morsi is facing and the sentences he receives there. If the government intends to execute Morsi, the courts may give him multiple death sentences in order to make commutation seem less reasonable. If they don’t intend to kill him, then one death sentence would be easier to commute. It’s also possible that the government is keeping its options open, in which case a smaller number of death sentences leaves the government less committed to an execution.
Obviously, I’m assuming that the government has a way of signaling the judiciary what the desired sentence is. In cases where the government has the judiciary in its pocket, some system of signaling usually exists.
My guess is that Sisi is going to be cautious. Killing a thousand pro-Brotherhood demonstrators didn’t cost the military a lot of support as long as it happened during a time of disorder. But Sisi is presenting himself as the candidate of order and doesn’t want his government to be associated with disorder. Although the military seems to have majority support right now, that support includes swing voters who once voted for the Muslim Brotherhood and could become supporters in the future. Sisi doesn’t want to create sympathy for Morsi among them by killing him. Condemning Morsi to death and then commuting the sentence would give Sisi a chance to look firm but compassionate. So I’m predicting that Morsi will receive one death sentence, followed by commutation to life imprisonment, and the remaining sentences will be imprisonment, either life or term.
Based on what I know of his charges and looking over a list of Egyptian capital crimes, he appears to have three trials involving capital charges: one trial involving the deaths of protesters in 2012, another involving the deaths of prison guards during the prison breakout in 2011, and a third trial involving espionage. Since I don’t have the knowledge that an Egyptian lawyer would have, and I don’t know the specifics of the charges, I’m going to assign equal probability to each of the three trials producing a death sentence. Allowing myself 10% for an outcome I’m not expecting, that leaves 30% for each of the three trials. However, there also a possibility that the three trials will produce more than one death sentence. So for the espionage trial, I’ll raise the probability of a death sentence to 40% and forecast a 25% chance of a life sentence, a 25% chance of a term sentence, with a 10% chance of something I’m not expecting.
Of the things that could cause my forecast to be wrong, these are the ones that seem to me to be most obvious.
Since I’m not an Egyptian lawyer, not only are there things I’m aware of that I don’t know about Egyptian justice, there’s a boatload of things I’m completely unaware of. The news reports on Morsi’s trials are vague on the details, so there could be more or less trials and more or less capital charges than I’m aware of. I’m glossing over all of that by assigning equal probabilities of a capital outcome to each trial.
My guess about Sisi’s caution is just a guess. Cautious people usually don’t overthrow governments. Even if he is cautious, he may be reading the political situation differently than I am, and he may have different ideas about caution. The judiciary may be more independent than I believe it is. Assuming that the number of death sentences Morsi will receive correlates with the government’s desire to actually execute him is a big assumption.
9. International Federation for Human Rights, The Death Penalty in Egypt, April 2005, n 415/2, available at: http://www.refworld.org/docid/46f1464d0.html [accessed 7 February 2014]