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Up Front

Ukraine at a Crossroads with Europe?

Steven Pifer

The Kyiv Security Forum, held in the Ukrainian capital on April 18-19, brought together Ukrainians, Europeans and Americans to discuss the current challenges facing Ukraine. Much of the discussion centered on Ukraine’s relationship with the European Union, in particular on whether Kyiv will make sufficient progress in meeting EU conditions to permit signature in November of an EU-Ukraine association agreement.

Several speakers asserted that Ukraine is at a crossroads with Europe. “Ukraine is at a crossroads” has been written or said so many times over the past 20 years that it has become something of a cliché. This time, however, it may be for real. The choices that Kyiv makes in the next weeks and months will determine whether Ukraine moves closer to Europe or whether the EU-Ukraine relationship gets stuck on hold.

EU and Ukrainian negotiators concluded the association agreement at the end of 2011. It would significantly deepen Ukraine’s links with the European Union. Among other things, it includes a deep and comprehensive free trade agreement that would open up large segments of the EU’s economy to Ukrainian exports. It is a big deal.

Although the association agreement was initialed in early 2012, it has since sat in limbo. The European Union has declined to sign given growing concerns over the past two years about negative developments regarding democracy within Ukraine.

EU officials have asked Kyiv to make progress on three conditions—implementation of its general reform agenda, reform of its electoral law, and an end to selective prosecution—in order to permit signature of the agreement at the EU Eastern Partnership summit in November. These conditions were reaffirmed at an EU-Ukraine summit in February, which called for “concrete progress” by May.

Many regard the third condition as the most critical. More than a dozen senior members of the opposition have been sent to jail since President Victor Yanukovych took office in 2010. Most attention focuses on the case of former prime minister Yuliya Tymoshenko. She was convicted in 2011 for signing a gas contract with Russia in a trial that received broad criticism in the West. The near unanimous view in European capitals and Washington holds that Tymoshenko is a victim of selective prosecution. On the day her conviction was announced, even Moscow joined in the barrage of condemnation of the verdict.

In the seven weeks since the EU-Ukraine summit, there has been good news and bad news. The good news: Yanukovych pardoned Yuriy Lutsenko, a leading opposition leader, along with one other opposition member.

The bad news: Serhiy Vlasenko, Tymoshenko’s lawyer, was stripped of his membership in the Rada (Ukraine’s parliament) on grounds that he could not hold his Rada seat and continue his legal work. Critics cite this as another selective application of the rules, as many Rada members, including in the pro-government Regions Party, hold outside jobs that would appear to contravene the rule. And more bad news: the Prosecutor General is pursing another case against Tymoshenko, alleging her involvement in the 1996 murder of businessman Yevhen Shcherban. Given the many questions about how the 2011 trial was conducted, few analysts have confidence that this legal process will be objective.

At the Kyiv Security Forum, several speakers made clear the key importance that Europe attaches to what happens to Tymoshenko. Jacek Saryusz-Wolski, Vice President of the European People’s Party—the European Parliamentary party with which Tymoshenko’s party is affiliated—took a stark position: Tymoshenko had to be released, or there would be no signature in November, and Ukraine would miss its window of opportunity with the European Union. EU Ambassador to Ukraine Jan Tombinski cautioned that Kyiv had to understand that the European Union only accepted democratic states that abided by the rule of law. European Parliament member Pawel Robert-Kowal warned that, even if the association agreement were signed, Ukraine had to demonstrate real progress, as the agreement would face the challenge of ratification by 27 individual EU member states.

During and on the margins of the conference, some Ukrainians expressed optimism that the Ukrainian government would take a positive step regarding Tymoshenko. Others doubted that Yanukovych would take any action on his archrival. Some expected the Ukrainian government to try to do the minimum necessary in order to argue that it had met the EU conditions and assert that freeing Lutsenko, but not Tymoshenko, should prove sufficient progress on the condition of selective prosecution.

Right now, EU member states appear to be split. Some, primarily in Central Europe and the Baltic region, do not want to delay signature of the association agreement over Tymoshenko. They fear that Ukraine might otherwise drift into Russia’s orbit.

Other EU member states, apparently now in the majority, believe Kyiv must do more to show its commitment to European democratic values. France and Germany lead this group. The fate of Tymoshenko has become a domestic issue in Germany, and Chancellor Angela Merkel said on April 17 that, “if the Yuliya Tymoshenko case is not settled, the association agreement cannot be signed.” Ukrainian diplomats understand that Berlin presents the toughest case to win over.

Although the European Union and Ukraine have agreed that concrete progress should be made by May, that might not prove a hard deadline for an EU decision on whether or not to sign the association agreement in November. Some in Kyiv believe a final EU decision could wait until later in the year, perhaps as late as October.

The question remains, regardless of when the European Union decides: will Ukraine do enough to secure signature? That may turn on Tymoshenko’s fate—and how badly Yanukovych wants the association agreement.

Neither Brussels nor Kyiv appear to have a Plan B in case the association agreement is not signed. In late March, Tombinski warned that, if the agreement were not signed in November, the press of other EU business in 2014 and the Ukrainian presidential election in 2015 would put Ukraine and the association agreement on the back-burner until late 2015. Another European diplomat recently suggested the delay would last until 2016.

Ukrainians do not want to think about what happens if the association agreement is not signed. But they expect a failure to sign to be warmly welcomed in Moscow, to be followed by a greater Russian push to draw Ukraine into the Customs Union that currently includes Russia, Belarus and Kazakhstan. Yanukovych thus far has resisted joining the Customs Union. Doing so would be incompatible with a free trade agreement with the European Union and would essentially kill the association agreement—which is almost certainly Moscow’s objective.

So, Ukraine may indeed be facing a critical crossroads. It is one where the key choices are as much about Yanukovych’s domestic policy—how democracy will develop and how the opposition is treated—as they are about foreign policy. If Yanukovych makes the right choices, he will take an important step in integrating Ukraine into Europe. If he makes the wrong choices, he risks miring the country in a gray zone between Europe and Russia and having to face Moscow’s pressure with a severely weakened hand.

Editor’s note: Steven Pifer, a senior fellow in the Center on the United States and Europe and a former ambassador to Ukraine, was in Ukraine April 18-20 to attend the Kyiv Security Forum.