February 28, 2015

Minsk 2 armistice rewards Russia’s aggression, mortgages Ukraine’s future


Part II

February 19

The capture of Debaltseve in Ukraine on February 18 (Interfax, February 18) by Russian and proxy troops, following prolonged bombardment by their heavy missile systems, is not simply a prima facie breach of the February 12 Minsk 2 armistice, which mandated a ceasefire as of midnight, February 15. This assault also breaches the September 2014 Minsk 1 agreements, which had left the Debaltseve area to the Ukrainian side of the demarcation line. Now, Russia’s proxies have seized the biggest railroad and highway junction in all Ukraine. They can henceforth impose their terms on the transportation of goods between this coal-mining and industrial basin and the rest of Ukraine.

The Minsk 2 armistice (Kremlin.ru, Osce.org, February 12) purports to aim at implementing Minsk 1, which Russia had torn apart since then. The capture of Debaltseve, however, confirms the conclusion that Moscow framed (with Berlin’s acceptance) Minsk 2 merely to ratify the breaches of Minsk 1 as faits accomplis. Ukraine becomes even more vulnerable, and the Russian side gains heavier military and political leverage, under the terms of Minsk 2. This becomes clearly apparent from the analysis of Articles 1 through 4, as well as Article 12, from the agreement signed on February 12 in Minsk (see Part I in Eurasia Daily Monitor, February 13).

Article 5 in the Minsk 2 agreement obligates Ukraine to promulgate a law guaranteeing amnesty and/or immunity from prosecution “in connection with the events that took place in certain areas of Ukraine’s Donetsk and Luhansk regions.” This is a protective blanket for the armed secessionist authorities and their rogue troops. Unexpectedly, German Chancellor Angela Merkel was questioned by Dutch Prime Minister Mark Rutte on this point during the debate on the Minsk 2 agreement at the European Union’s post-Minsk summit. The government and public of the Netherlands feel strongly about prosecuting those responsible for shooting down the Malaysia Airlines Flight 17 on July 17, 2014 (with a Russian missile system, from Russian and/or proxy-controlled territory), killing 298, including 193 Netherlands citizens.

The Dutch government insists that the amnesty or pardon must not cover the perpetrators of that crime. The Ukrainian government shares this position; and the non-promulgated Ukrainian law specifically excludes the MH17’s downing from the amnesty or pardon of crimes. But Article 5 of the new Minsk agreement does not provide for any exceptions. Ms. Merkel responded in Brussels that this article might be interpretable; and her spokesman Steffen Seibert followed up in Berlin, hoping that exceptions may be possible in individual cases such as MH17 (EurActiv, February 13; Bundeskanzlerin.de, February 13). However, Russia is in a commanding position to impose its own interpretations of the terms of Minsk 2, as it had done on Minsk 1, and proved again in Debaltseve, even before the ink had dried on the latest agreement.

Article 6 covers exchanges of prisoners and hostages. Article 7 mandates delivery and distribution of humanitarian aid, clearly implying Russian convoys across the Russian-controlled border into Ukraine’s secessionist territories. This has been going on until now de facto. Now, Ukraine is officially required to accept these violations of its sovereignty. To regularize this, some “international mechanism” of an unspecified kind shall be arranged in an unspecified timeframe. In any such mechanism, Russia would undoubtedly press to include the Donetsk and Luhansk “people’s republics” (DPR, LPR), so as to advance their international acceptance de facto.

Under Article 8, the Ukrainian government shall re-start the payment of pensions and other social benefits to the population of the “conflict-affected areas” (i.e., DPR-LPR), as a first step toward restoring socio-economic ties with those areas. The “modalities” and “mechanisms” are yet to be established “within Ukraine’s legal framework.” Any transfers from Ukraine’s budget, however, might ironically work out as indirect transfers from the Western assistance package to Ukraine.

Moscow’s recipe for Ukraine differs on this point from the Moldova-Transnistria paradigm, which the conflict in Ukraine’s east fits in many other ways. Moldova is not required to finance Transnistria’s social expenditures; Russia has long taken charge of that. The DPR-LPR is 10 times more populous than Transnistria, however. Ukraine is now supposed to subsidize DPR-LPR’s social budget.

On this issue, Moscow suddenly metamorphoses into a supporter of Ukraine’s “territorial integrity” and “legal field.” Russian officials from President Vladimir Putin and Foreign Affairs Minister Sergei Lavrov on down are even turning this issue into a test of Ukraine’s adherence to its own territorial integrity. If Ukraine is serious about this, they routinely argue, Ukraine should then re-start social payments to residents of that that territory – they are Ukraine’s citizens after all. Russia has not initiated, as yet, the distribution of Russian passports in that territory seized from Ukraine.

Part III

February 20

Unlike the Minsk 1 ceasefire agreements of September 2014, the Minsk 2 agreement of February 12, goes far beyond a military armistice. It is overloaded with political provisions which, if implemented, would mortgage Ukraine’s future as a viable and secure state (Articles 1 through 8 – see Parts I and II in EDM, February 13, 19).

In the same vein (Kremlin.ru, Osce.org, February 12), Article 9 imposes heavy political conditions for allowing Ukraine to restore control on the Ukrainian side of the Ukraine-Russia border in the conflict zone. Russia and the Donetsk-Luhansk authorities control a 400-kilometer stretch of that border on both sides, facilitating the cross-border flow of Russian arms and military personnel. Under Article 9, Ukraine could be allowed to restore border control by the end of 2015, or later, subject to the agreement of Donetsk-Luhansk, and “conditional on the fulfillment” (“pri uslovii vypolnenia”) of Article 11 in the same document. That article mandates a constitutional reform to establish a “special status” for Donetsk-Luhansk and “decentralize” Ukraine’s entire administrative-territorial system.

This turns Ukraine into a country with limited and conditional prerogatives of sovereignty. The military winner, Russia, requires Ukraine to change its Constitution and political system, in line with Russia’s own objectives. Ukraine, furthermore, loses sovereign control over a long stretch of its border. Article 9 obligates Kyiv to negotiate any border arrangements with the Donetsk and Luhansk authorities, giving them blocking powers de facto. And even this limited sovereignty is further conditioned on Ukraine enacting a Constitution satisfactory to Moscow and Donetsk-Luhansk, a pre-condition unlikely to be fulfilled any time soon, if at all.

Article 10 stipulates the “withdrawal of all foreign armed formations, military hardware and mercenaries [sic] from Ukrainian territory,” and the “disarmament of all illegal groups.” This wording is almost identical with the unimplemented Article 10 of the September 5, 2014, Minsk ceasefire agreement.

It looks even more unimplementable now. First, it stops short of identifying Russia as the source of those anonymous “foreign” armed formations and their military hardware. Second, its vague wording has already enabled Moscow to eschew the issue, claiming that Western armed formations and “mercenaries” are involved on the Ukrainian side. Russia totally denies its military presence in this part of Ukraine, while Western leaders are unwilling to release the intelligence material that would convincingly expose Russia’s military presence there. Finally, Moscow is now building up the Donetsk and Luhansk “people’s republics” complete with “legitimate,” rather than “illegal,” military forces. Every further step to legitimize the DPR-LPR politically (a process already under way) will lead to acceptance de facto of their existing military forces.

Article 11 requires Ukraine to enact a new Constitution and bring it into effect by the end of 2015. Its two “key elements” shall be a “decentralization” of Ukraine over all, and a “special status” for the Donetsk-Luhansk territory. That special status, and the geographic extent of that territory, are to be negotiated between Kyiv and Donestsk-Luhansk leaders (the latter have, in the meantime, seized additional territory, and claim more).

Interpreting the meaning of “decentralization,” President Putin declared on February 17 that this term could potentially involve Ukraine’s “federalization” as well as the “samostoyatelnost” of certain parts of Ukraine such as Donetsk and Luhansk (Interfax, February 18). “Samostoyatelnost” implies substantially more than federal status or autonomy, though slightly short of full independence.

Under an addendum note (primechanie), the “special status” shall empower Donetsk-Luhansk authorities to create their own “people’s police.” No mention is made of Ukrainian police or other law enforcement bodies, nor of any role by the central government of Ukraine. In this regard, the agreement allows an outright secession of Donetsk-Luhansk from the rest of Ukraine. The “special status” shall also authorize Donetsk-Luhansk in their own right to conduct “cross-border cooperation with regions of the Russian Federation.” The Ukrainian government shall even “assist” (“sodeystvovat” – aid and abet) that activity. Such assistance can hardly be expected; this point is symbolic, merely aiming to elicit the victim’s consent.

Article 12 requires Kyiv to negotiate with the Donetsk-Luhansk authorities about creating conditions for holding municipal-level and district-level elections there, in conjunction with the same document’s Article 4 (see EDM, February 13). Those “elections shall be held in compliance with OSCE [Organization for Security and Cooperation in Europe] standards and monitored by the OSCE [the organization is a co-signatory to this document].” This can open the door to recognizing those elections as legitimate. The OSCE had refused to monitor and legitimize the November 2, 2014, “republic”-level elections in Donetsk-Luhansk, but is now apparently considering doing so for the next set of elections there.

Under Article 13, the Contact Group (Ukraine, Russia, OSCE, Donetsk, Luhansk) shall “establish working groups to fulfil the various aspects of the Minsk agreements.” The operational intent of this article is to shift the discussion of specific issues from international formats (e.g., “Normandy,” made up of the leaders of Ukraine, Russia, Germany and France) into the Contact Group, where the notional West is not represented. This, in turn, reflects the stated intentions of Germany and France to begin downgrading their participation in the “Normandy” format, from the state level to the level of ministerial representatives.

That intention is stated in the political declaration accompanying the Minsk 2 agreement. Signed by German Chancellor Angela Merkel and Presidents Francois Hollande of France, Vladimir Putin of Russia and Petro Poroshenko of Ukraine (Interfax, Bundeskanzlerin.de, February 13), that declaration indicates a policy reappraisal in Berlin (there is no reappraisal in Paris, and the French signature matters far less). This declaration proposes to invite Russia into negotiations about implementing the European Union’s free trade agreement with Ukraine (hitherto a bilateral EU-Ukraine matter).

It also refloats the idea of creating a common economic space of Europe with Russia (“from the Atlantic to the [Russian] Pacific”), an idea that Germany had temporarily shelved in response to Russia’s aggression in Ukraine. Apparently, Berlin has tired of the Ukraine “problem.” In this respect, the quadripartite declaration accompanying Minsk 2 (and, to some extent, the Minsk 2 accord itself) can be seen as products of the beginning of a German rapprochement with Russia. This requires freezing the Russia-Ukraine conflict on terms in Russia’s favor.

The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.