Currently, the Trilateral Contact Group in Minsk is the platform for dialog between Ukraine and Russia with OSCE as a mediator. Source: DT.UA
The main idea of this decision of the TCG is to create the so-called Consultation Council in the political subgroup of the TCG, which would include 10 representatives of Ukraine, 10 representatives of the LDNR, and one representative with only an advisory vote from each of the OSCE, France, Germany, and Russia.
According to the text, “the main task of the council is to carry out dialogue, consultations and develop proposals of draft political and legal solutions for the settlement of the conflict.“
So what’s wrong with this document, what are its key problems?
Problem №1. De facto change of the negotiation format
Although it is not completed, the weight of this step shouldn’t be underestimated.
Now the negotiations in Minsk are a dialogue between Ukraine and Russia through the mediation of the OSCE. People from the occupation administrations are present in the talks but they speak with Russia in one voice. They are not formal participants in the negotiations.
Once the Consultation Council is established, negotiations and work on “drafting political and legal solutions” will be conducted between Ukraine and Russia’s proxies (who call themselves “DNR” and “LNR”). Instead, the Russian Federation becomes not a participant (and indeed even an initiator!) of the conflict but an alleged observer, or a mediator. And this is exactly what Russia wants.
Until now, the Minsk process did not allow the direct participation of the ORDLO [“the certain areas of Donetsk and Luhansk oblasts” – the official designation of the occupied territories – Ed.] or the so-called DNR/LNR – now they are getting this status. This is abnormal and unacceptable for Ukraine.
And the fact that these changes concern only the new body, and in the TCG itself the same participants remain, does not remove the problem. Russia needs a precedent. It needs a body “consecrated” by the Ukrainian state, where the heads of occupation administrations will participate.
Important detail: even the “official recognition” of proxy republics by Ukraine is not required to cross the Rubicon. The mere fact of negotiations with them is enough. International law includes a concept of “de facto recognition”, according to which such actions of Ukraine can be interpreted as recognizing the representatives of the so-called LNR/DNR as the only proper representatives of the occupied territories.
There is no doubt that Russia will do its best to use this opportunity if Ukraine gives it. Especially taking into account that the document approved on 11 March is already with the signatures of Russian-controlled leaders as allegedly “authorized representatives of the ORDLO.”
It is worth remembering that Russia is a direct participant in the international military conflict. The notorious “they-are-not-there” [mematic Putin’s initial denial of his troops invading Crimea in 2014 – Ed.] has been refuted in numerous reports by international organizations. For example, four consecutive reports of the Office of the Prosecutor of the International Criminal Court issued in 2016-2019 say that no later than 14 July 2014 an international military conflict is taking place in eastern Ukraine, in parallel with a non-international one (par. 266 of the 2019 Report).
But Ukraine’s agreement to negotiate not with a proven party in the conflict (Russia), but only with participants of the non-international conflict (de jure citizens of Ukraine who have betrayed the Motherland and are now fighting against it) will de facto mean that we renounce our claims to Russia.
Problem №2. The destruction of Ukraine’s legal position in international courts and withdrawal from claims for compensation
Such a decision to create the Consultation Council not only contradicts the legislation of Ukraine but also significantly weakens Ukraine’s position in the international arena.
At present, the United Nations International Court of Justice (ICJ) and the European Court of Human Rights (ECHR) are considering cases against Russia. We claim that Russia is responsible for what is happening in the Donbas. At the ICJ (see Memorandum of Ukraine, in particular, par. 653), we ask, inter alia, to recognize that Russia has not taken measures to prevent financing of terrorism in Ukraine, particularly in the East, thus violating the international law.
Two cases regarding Donbas are in the ECHR. Ukraine is suing Russia for human rights violations in the territories of eastern Ukraine occupied by Russia.
The signing of the TCG document that will give Russia an opportunity and the legal grounds to assert its alleged non-involvement in the Donbas conflict would destroy Ukraine’s six-year work to hold Russia accountable. The TCG document will also prevent any future lawsuits.
Ultimately, this step would kill hopes of those Ukrainians who seek justice in international courts, those victims of Russian aggression who are trying to receive compensation from the Russian Federation for its actions in the Donbas.
Problem №3. The threat of Ukraine’s defeat on international platforms and the possibility of lifting sanctions against Russia.
From the very beginning of the Russian aggression, Ukraine has had a clear and consistent position – the so-called LNR and DNR are terrorist organizations, puppets created and fully controlled by the Russian special services. Under any circumstances, they are not legitimate representatives of the population of eastern Ukraine. This is supported by a huge body of evidence.
Despite Russia’s propaganda and disinformation campaign, Ukraine has succeeded in defending the truth, and this bears specific consequences. Thus, the Parliamentary Assembly of the Council of Europe, in Resolution 2198, explicitly referred to the “ongoing Russian war against Ukraine, which is taking place in certain areas of the Donetsk and Luhansk regions.” It also called these territories “occupied”. Similar recognition and/or condemnation of Russian aggression was also heard from other international, interparliamentary and non-governmental organizations (EU, NATO, OSCE, Amnesty International, etc.).
And it’s not only about political support. Ukraine was able to receive financial and military assistance from the West, and Russia has received numerous sanctions. Together with the heroism of the Ukrainian soldiers, this did not allow the Russian aggression to spread beyond the east of Ukraine.
The change of Ukraine’s position will destroy the long-standing work on countering the aggressor on the diplomatic front. It will give reasons for weakening sanctions against Russia.
And as a result, it will release the Kremlin’s hands for a devastating blow against Ukraine.
Problem №4. Destruction of Ukraine’s achievements in the fight for the truth about Russia’s aggression
During the past six years, Ukrainian diplomacy and civil society have made great efforts to tell the world the cruel truth about Russia’s military and repressive machine. About Russian troops and equipment in eastern Ukraine. About the abduction, torture, and murder of Ukrainian patriots – civilians and military. About the MH17 passenger flight downed by Russia and also about the plundered Ukrainian enterprises and the ruined Ukrainian culture in the occupied territories.
The latest news from Minsk carries the risk that this huge work will be nullified. The apologists of fakes and post-truth of Russian propaganda would be very happy. And this is definitely not the result that Ukraine needs; this is not what President Zelenskyy wants.
What to do?
Fortunately, the decision of the TCG regarding the creation of the Consultation Council has not yet been signed finally by Ukraine but only “pre-agreed”. This means that official Kyiv has a chance to bypass the Russian trap, and our high officials will avoid a huge mistake.
In my and not only my opinion, this decision won’t bring peace in the East. This decision will not strengthen Ukraine’s position in the world. This decision will not strengthen the president’s rating. This decision does not unite Ukrainian society. Unfortunately.
I want to believe that such documents are solitary errors that can still be corrected. I also hope that further strategic steps towards peace in the Donbas will be discussed with the team before their approval. Only a strategy agreed in advance can strengthen the position of both the president and the state.
Yelyzaveta Yasko, people’s deputy from the Servant of the People party, head of Ukrainian delegation to the Parliamentary Assembly of the Council of Europe.