Euromaidan Press looked into what the Minsk Agreements are and what their potential is for establishing peace in Ukraine.
What are the Minsk Agreements?
The Minsk Protocol (later known as Minsk-1) with the Minsk Memorandum of September 2014 and the Package of Measures for the Implementation of the Minsk Agreements (Minsk-2) are agreements between Ukraine and Russia to resolve the conflict in eastern Ukraine.
On 5 September 2014, the representatives of the Trilateral Contact Group on Ukraine (TCG – Russia, Ukraine, and the OSCE), Russia and Ukraine, signed the Minsk Protocol later known as Minsk-1 under the auspices of the OSCE in the Belarusian capital, Minsk. Representatives of the so-called Donetsk and Luhansk People’s Republics (“DNR,” “LNR”) signed the agreement too. The Minsk Protocol was an agreement to halt the war in the eastern Ukrainian region of Donbas. The details of the Minsk Protocol largely resembled Ukrainian President Petro Poroshenko’s 20 June 2014 “fifteen-point peace plan.” The Protocol was followed up on 19 September 2014 by an additional Memorandum, which detailed the conditions of a ceasefire. The agreement failed to stop fighting, however, it significantly reduced fighting in the conflict zone for months until it collapsed in December 2014 – January 2015.
On 11 February 2015, the second Minsk agreement (“Package of measures for the Implementation of the Minsk agreements,” Minsk-2) was signed by the TCG, the representatives of “LNR/DNR” signed it again too. The signing was preceded by the summit of leaders of Ukraine, Russia, France, and Germany who agreed to a package of measures to alleviate the war in the Donbas. The Minsk-2 was intended to revive Minsk-1.
The full texts of both agreements are available on Wikipedia or on the UN website:
Who came up with these Agreements?
The Minsk Agreements were first negotiated in the Normandy Format, between representatives of Ukraine, Russia, Germany, and France. Later the Trilateral Contact Group, Ukraine, Russia, and the OSCE, drafted and signed them.
The Normandy Format is the format for a full-fledged diplomatic dialog on Donbas issues between the leaders of four states, Ukraine, Russia, Germany, France, or between the foreign ministers of the countries.
Decisions reached in the Normandy Format are later discussed and agreed in the Trilateral Contact Group.
The Trilateral Contact Group has no official status in both Russia and Ukraine. Initially, Russia was represented in the TCG by its Ambassador to Ukraine, Mikhail Zurabov, who signed both Minsk agreements. Later he was replaced by Boris Gryzlov, a permanent member of the Security Council of the Russian Federation. Ukraine’s envoy to the TCG is former President of Ukraine Leonid Kuchma.
Who are the sides of the Minsk Agreements?
There are only two parties to the accords, Ukraine and Russia. France, Germany, and the OSCE oversee the negotiations.
The Trilateral Contact Group, which negotiated both Minsk agreements in Belarus, consists of the representatives of Ukraine, Russia, and the OSCE. The OSCE oversaw the talks, Belarus just hosted them. Minsk-1 was signed by the representatives of the TCG:
- Swiss diplomat Heidi Tagliavini (OSCE representative);
- Former president of Ukraine Leonid Kuchma (Ukrainian representative);
- Russian Ambassador to Ukraine Mikhail Zurabov (Russian representative);
- The signatures of Aleksandr Zakharchenko and Igor Plotnitsky, “DNR and LNR leaders,” follow the TCG signatories in a separate block. Just their names are mentioned, without any positions.
Minsk-2 was signed by the same signatories.
As political commentator Paul Niland notes, “The reason for this two-tier structure of negotiation and signatories is that any direct negotiation with the people who nominally lead the so-called ‘DNR’ and ‘LNR’ would confer upon them undeserved legitimacy.”
The “DNR” and “LNR” are not recognized by any real country as independent states, not even by Russia, which created and controls them. The Minsk agreements use the term “certain areas of Donetsk and Luhansk Oblasts” (or “particular districts…”, the ORDLO for short) to designate the territories uncontrolled by the Ukrainian government. Ukrainian official papers use the same ORDLO term to designate the territories in both Donbas oblasts, or separate terms ORLO for Luhansk and ORDO for Donetsk referring to the areas of particular provinces. The so-called “Donbas reintegration bill” Ukraine adopted in January 2018 designates them as occupied territories.
What do the sides have to do?
The commitments are supposed to resolve the conflict. Both sides should observe a ceasefire, withdraw troops and military equipment. Ukraine should pardon participants of the conflict, carry out local elections, and recognize the autonomy of the region in the Constitution. Russia should return its equipment and mercenaries to Russia, unarm its local military formations, give Ukraine control over its border with Russia.
The Minsk-1 Protocol consists of 13 articles which can be can be split into three groups with the following main requirements:
- Cessation of hostilities
– A bilateral ceasefire;
– The withdrawal of heavy weapons from the line of contact;
– Enabling the monitoring of the ceasefire by the OSCE;
– The exchange of hostages and prisoners;
- Political regulation of the conflict
– Decentralization of power in Ukraine, particularly – through the adoption of a law on the special status of ORDLO;
– Holding local elections in these regions by the new law;
– Measures to improve the humanitarian and economic situation on the territory of the conflict;
- Security in the conflict zone
– Enabling the monitoring of the border between Russia and Ukraine by the OSCE;
– The withdrawal of foreign armed formations and military equipment, disarmament of illegal groups;
– An amnesty for participants of the conflict.
Notably, the article on the withdrawal of foreign armed formations clearly refers to Russian armed forces and other Russian citizens, as well as Russian military equipment,
Although Minsk-1 and Minsk-2 are essentially the same, Minsk-2 gave more details about the needed steps to achieve peace and provided a specific timeframe for their implementation. For example, the exchange of prisoners should have taken place in five days after weapons were withdrawn, the Ukrainian Parliament should adopt a resolution of the Parliament of Ukraine specifying the area enjoying the special regime in 30 days, that Ukraine should restore control over its state border starting on day 1 after the local elections, that Ukraine should carry out a constitutional reform in Ukraine by the end of 2015, providing for decentralization as a key element and with reference to the ORDLO. This document also specified what a “special status” means: amnesty for the participants of the de-facto war, linguistic self-determination, the right for the local ORDLO authorities to appoint prosecutors and judges, to form “people’s police units,” to have “cross-border cooperation with districts of the Russian Federation,” all with Ukrainian state social and economic support for the ORDLO.
Are they doing it?
Not a single provision of the Minsk Accords has been implemented 100%. The most important provision, the ceasefire, is being violated every day.
The main disagreements between Ukraine and Russia concern the sequence of events in which the Minsk Agreements have to be fulfilled.
Immediately after Minsk-1 was signed, Russia started insisting Ukraine fulfill the political part of the agreements before security measures are implemented, i.e. that Ukraine passes amendments to its Constitution and holds elections in ORDLO before it regains control of its border and before a ceasefire is established. Ukraine insisted security comes first. As Minsk-1 did not contain any clear sequence of events, arguments continued amid active warfare.
During the period between Minsk-1 and Minsk-2, Russia continued an assault on the Donetsk airport, attacked the Debaltseve railway hub, and used all the heavy artillery it had, including “Tulip” 240-mm self-propelled mortars and “Buratino” heavy jet flamethrowers, which many consider to be the most powerful non-nuclear weapon on the planet. After Minsk-2, the Russian-separatist forces continued the assault on Debaltseve, led intense battles for Shyrokyne, and attempted an unsuccessful blitzkrieg under Mariinka. Both sides advanced into the grey areas.
Regarding the ceasefire, it is being violated each day, with each side accusing the other of being the first to start. An analysis of OSCE data by the German newspaper FAZ in August 2016 showed that both sides are guilty of violations, but the violations of the Russian-separatist forces “predominate”; a follow-up analysis in October 2016 showed the Ukrainian side violated the ceasefire more often. Heavy weapons have not been withdrawn. As well, OSCE observers who should monitor them are regularly being hampered in movement; more restrictions are carried out by the Russian-separatist forces. Russian-separatist forces have also been shooting down or jamming the OSCE’s drones. The OSCE monitors are allowed to monitor only 2 out of 11 checkpoints on the Russian-Ukrainian border, allowing the inflow of weapons and personnel from Russia to continue freely.
Minsk-2, which specified that Ukraine regains control over its border on the day after elections are held in ORDLO, limited the Ukrainian side in diplomatic maneuvers. However, Ukraine found reasons to refuse to organize and recognize elections in the conflicted territories. Ukraine’s leadership says it’s necessary first to stop hostilities, proclaim a full ceasefire, withdraw military equipment and free Donbas from the Russian military. Russia claims that it doesn’t have its military in Donbas, and the ones who are there are volunteers and are part of the local “mi units” which were OK’d by the Agreements.
Despite the active military offensives by the Russian-separatist forces after Minsk-2, Ukraine did adopt some political provisions required by the Minsk Accords, partly because of western pressure. Hot on the heels of Minsk-1, on 16 September 2014 Ukraine’s parliament passed the bill “On the special order of local governance in certain counties of Donetsk and Luhansk regions.” It outlined the amnesty, an extended status of the Russian language, cross-border cooperation with Russian regions, and “local militia units” created by local councils in the ORDLO. In March 2015, after Minsk-2, this law was amended to the effect that most of its provisions would come into force only after local elections under Ukrainian law and monitored by international observers would take place. The law’s expiry date, three years, is almost over, but elections are not nearly on the horizon.
As well, on 31 August 2015, the Ukrainian parliament adopted constitutional amendments for decentralization required by the Minsk Accords, which included a reference to the “specifics of executing local governance in certain counties of the Donetsk and Luhansk” which would be defined by a separate law. The vote, done in the presence of US Special Envoy to Ukraine Viktoria Nuland, was seen by many Ukrainians as unacceptable foreign pressure on Ukraine. Outside the building of parliament, nationalists clashed with the police, culminating with 1 dead and 100 wounded. However, the amendments require a second vote to become law – a step which the Ukrainian authorities will hardly risk in the visible future.
One requirement of the Minsk Protocol has seen more progress than the others – the exchange of hostages. Despite the hostages, prisoners, and “illegally held persons” still not being exchanged between the sides on the agreed “all for all” basis, several exchanges have taken place, the last of them being on 27 December 2017, when 74 Ukrainians returned from ORDLO captivity. Nevertheless, more than 100 remain imprisoned in occupied Donbas, as do at least 66 de facto political prisoners in occupied Crimea and Russia who have become hostages of the conflict, being accused of false crimes and used for propaganda purposes. Despite the overtly political nature of their trials, Russia insists that they are not covered by the Minsk Accords and not eligible for such exchanges.
If there was a Minsk-1, why was Minsk-2 needed?
The Minsk Protocol (Minsk-1) failed. Four months later Minsk-2 was signed to revive the peace efforts featured by Minsk-1. Minsk-2 is basically a more detailed Minsk-1 agreement. Minsk-2 didn’t replace the first agreement, but it was intended to revive the Minsk-1 after its collapse. However, it’s not working very well either.
The Minsk Protocol later known as Minsk-1 didn’t work. Adopted as a compromise decision between the interests of the sides and containing “special” positions for the pro-Russian forces, it was signed in a hassle and contained little concrete details. The additional Memorandum from 19 September 2014 detailed the process of establishing a ceasefire: established the 30-km demilitarization zone, banned offensives, the use of military aviation, and new mine zones, as well as outlined the scope of an OSCE mission, but did not touch upon the wider political questions, such as when elections in Donbas should be held – before or after Ukraine regains control of its border. It did not provide a timeframe or sequence for the implementation of measures. Russia started insisting Ukraine implement the political part of the agreements before the security measures were in place.
As political analyst Kostiantyn Zadyraka notes, ultimately, Minsk-1 did not satisfy either of the sides: Russia and the separatists weren’t sure their interests would be satisfied if weapons and troops were withdrawn, and Ukraine’s leadership wasn’t sure they would be able to stay in power if the political provisions would be implemented, dealing a blow to their ratings. Although Ukraine adopted the law “On the special status,” and processes of eliminating players who refused to comply with the Protocol started in the ORDLO, parties opposed to the Minsk Protocol emerged in both Ukraine and occupied Donbas.
The Russian-hybrid forces resumed hostilities months after Minsk-1 was signed, apparently attempting to force Ukraine into carrying out the political provisions, but the confrontation did not reveal any clear victor. The separatist forces managed to take Donetsk airport but suffered losses under Pisky and Spartak. They captured the crucial Debaltseve railway hub in a battle that resembled the Ilovaisk cauldron but suffered severe losses in the process.
As battles in Debaltseve were ongoing, direct negotiations between Ukrainian and Russian presidents, Poroshenko and Putin, took place in Minsk. The presidential 16-hour marathon talks were moderated by German Chancellor Merkel and French President Hollande. The negotiations resulted in the Minsk-2 agreement titled “Package of measures for the Implementation of the Minsk agreements.” The presidents didn’t sign either of them, although they did issue a joint statement in full support of the “Package.” Minsk-2 was signed by the same signatories as Minsk-1. The “Package of measures” mainly repeated the main points of the “Protocol,” attempting to once again solve problems which prevented its implementation, but provided more details.
As political commentator Paul Niland points out, “The only reason Minsk II was necessary is that Russia refused to abide by the commitments of Minsk I. Point 1 of both agreements is the same, an immediate ceasefire. This hasn’t been respected.”
However, the main problem of the Minsk Agreements were not the formulations, but the interests of the sides of the conflict.
Why did the sides sign the agreement in the first place?
The basic intention of Ukraine is to de-occupy the uncontrolled territories and regain full control of them while Russia needs either another frozen post-Soviet conflict or for Ukraine to absorb the occupied regions on Russia’s terms.
Ukrainian political scientist Kostiantyn Zadyraka outlined the following interests of the sides involved in Minsk.
Ukraine signed Minsk-1 amid active hostilities and after a military defeat. After several months of a successful Ukrainian offensive against Russian-separatist militants in Donbas, a direct invasion of the Russian army turned the tide. Ukraine suffered a devastating defeat at Ilovaisk in August 2014 and the area uncontrolled by the Ukrainian government expanded rapidly. Thus, Ukraine entered the peace talks after a military defeat and under the threat of a hidden or open Russian intervention.
Meanwhile, Russia’s participation in the Agreement can be explained by the desire to at least partially lift the economic sanctions which the EU, USA, and other countries introduced after the annexation of Crimea in March 2014 by demonstrating an interest in a peaceful solution. As well, Russia aimed to preserve its political influence over Ukraine. After the occupation of Crimea and Donbas, Russia lost the majority of its “soft power” instruments in Ukraine: the majority of Ukraine’s pro-Russian electorate ended up in the occupied territories, and the traditionally pro-Russian parties were banned or discredited. Therefore, Russia’s goals are either to create a frozen conflict or to return Donbas back to Ukraine with a “special status.” This “special status” stems from the good old idea of making Ukraine a federation, where strategic foreign policy decisions, like EU or NATO accession, would be impossible without the agreement of all its members. Russia wins from any compromise in the question of Donbas: the conflict has already played the role of a “smokescreen” for Crimea, and any weakening of the central power in Ukraine gives the Kremlin additional means of influencing the internal and external policies of its former “partner.”
The separatist leaders of the “LNR” and “DNR,” despite claiming on multiple occasions that they are representatives of independent countries, and their goal is independence, have shown a total dependency on Russia, as the Minsk agreements envision only some form of autonomy. Apparently, upon being nearly defeated by the Ukrainian forces prior to the Russian invasion, they have agreed to the minimum suggested to them: an amnesty, personal safety, and a chance to be elected.
Although they are not a side of the conflict, the EU and USA are yet another participant of the Minsk Agreements. Represented by an OSCE representative and taking an indirect part in the negotiations through contacts with the Kremlin and the Ukrainian government, their interests in the agreement are to normalize relations with Russia and keep Ukraine’s pro-western government in power. Probably, the former is more important for the EU and the latter – for the USA. This explains why the leaders of EU countries – Germany and France – are the main initiators of the Minsk Agreements, and why the position of the USA is more complicated. For the USA, strengthened Russian influence in Ukraine, which would be a direct outcome of the implementation of Minsk, is an unwanted consequence of the Agreements.
What is the international legal status of the Minsk Agreements?
From the legal point of view, the Minsk Agreements are null and void in Ukrainian legislature. However, Ukraine has no other peace agreements with Russia and considers the accords as legal and obligatory.
Nadiya Volkova, a lawyer of the Strategic Litigations Center of Ukrainian Helsinki Human Rights Union, told Euromaidan Press that the Minsk agreements have no international legal status, and they are not themselves part of Ukrainian legislature.
The agreements are rather political accords considered by the signatories to be legal, with a weak legitimacy – they were signed not by leaders of states, and not even the heads of Ministries of Foreign Affairs, but by the OSCE representative, Ambassador of Russia to Ukraine and a former President of Ukraine. None of the procedures envisaged by the Constitution or the Law on International Treaties has been followed. A private citizen isn’t authorized to make any obligations on behalf of the Ukrainian state.
The international legal expert Volodymyr Vasylenko believes that the Minsk Agreements appeared because the Ukrainian side attempted to stop the active phase of the war at all costs. According to him, the Agreements are not international treaties but political arrangements which were forced upon Ukraine. According to the 52nd article of the Vienna Convention of 1969, this makes the Minsk Agreements invalid.
For some reason, all sides consider the Agreements as legal and obligatory despite their dubious legal status.
The Ukrainian law “On Special Order of Local Government in Certain Districts of Donetsk and Luhansk Regions” was adopted in October 2014 to comply with the Minsk agreements. As well, a UN Security Council Resolution on Ukraine embodied the international community’s approval of the Minsk agreements. As well, the EU and USA have tied the duration of sanctions against Russia to the implementation of the Minsk agreements.
On the contrary, the so-called “Donbas reintegration law” adopted on 18 January 2018 makes no reference to the Minsk agreements. As Ivan Vynnyk, the secretary of the Committee on national security and defense explained, this was done because “the nature of the [Minsk] pact differs from the nature of a legislative normative act. We can’t implement diplomatic and political pacts, which have a tendency to change with time, into the Ukrainian legislature.”
So is the situation more or less calm now?
The Minsk agreements haven’t brought peace to the Donbas. The situation regularly escalates and the Ukrainian army incurs casualties, as well as civilians, suffer from both sides of the contact line. However, the Trilateral Contact Group regularly agrees on ceasefires and the number of hostilities decreases for some time as they come into force.
Barely was the ink dry on the agreement as Russian-hybrid forces resumed their heavy assaults on the key Donbas railway hub, the town of Debaltseve. They didn’t suspend their military activities in Luhansk and Mariupol sectors as well.
Since then, the Trilateral Contact Group regularly agrees on ceasefires several times a year. The most typical ones are during the Christmas holidays, Easter, beginning of the academic year at schools. No ceasefire was strictly observed, but they all significantly reduce hostilities for some time.
The latest ceasefire was the so-called Christmas ceasefire, which started on 23 December 2017. The number of truce violations has decreased, however, the Ukrainian army continues reporting violations and casualties.
During the first two weeks in 2018, five Ukrainian soldiers were killed in action, 24 more injured, according to the data of the ATO Headquarters.
According to the latest UN report, more than 10,220 Ukrainians have been killed from the start of the conflict. The UN Human Rights Committee estimates that 34,853 have suffered. Over 1.6 million have been forced to leave their homes.
Who is fighting, and on what territory?
The Ukrainian Armed Forces deployed 34,000 servicemen along the contact line. The Russian-hybrid armies are approximately 50,000 strong, including 11,000 Russian nationals and 3,000 regular Russian troops among them.
In October 2017, the size of the Ukrainian Armed Forces neared to the legal maximum of 250,000. In the Donbas, 34,000 Ukrainian soldiers participated in the Anti-Terrorist Operation as of June 2017, according to the Defense Minister Stepan Poltorak.
According to Ukrainian Minister of Interior Arsen Avakov, Russia had formed a 50,000-strong military group in the occupied territories of Luhansk and Donetsk oblasts. This group of the Russian-hybrid forces is commanded and controlled by the operative force command based upon the staff of the 8th Army of the South Military District of the Russian Federation, located in Novocherkassk, a city in Russia’s Rostov Oblast near the Ukrainian border.
The number of Russian nationals fighting alongside the local separatists in the Donbas now totals 11,000, including 3,000 regular combat troops, according to an assessment given in October 2017 by Ukraine’s chief military prosecutor, Anatoly Matios.
Russia continues to illegally occupy Ukraine’s regions:
- The Autonomous Republic of Crimea (26,081 km2) and the city of Sevastopol (864 km2),
- Certain areas of Donetsk and Luhansk oblasts (16,799 km2)?
In total 43,744 km2, or 7,2% of the territory of Ukraine, are not controlled by the government.
The Minsk agreements deal only with the occupied territories of Donetsk and Luhansk oblasts.
Where is the Line of Contact defined? What is the so-called “grey zone”?
The contact line was defined by the memorandum of 19 September 2014, which followed up signing of the Minsk Protocol (Minsk-1). The line of the contact recorded by the memorandum was based on the actual positions of the sides. The memorandum established the 30-km buffer zone between the sides by pulling heavy weaponry 15 kilometers back on each side of the line of contact. The buffer zone is also known as the “gray zone.”
What is the OSCE doing? Why can’t they secure peace?
The ceasefire is monitored by two bodies, the OSCE Special Monitoring Mission (SMM) and the Joint Center for Control and Coordination (JCCC). But they just monitor how well the sides are sticking to the ceasefire.
The OSCE SMM is an unarmed, civilian mission, observing and reporting on the situation in Ukraine. The JCCC is a bilateral Ukrainian-Russian group of military officers intended to monitor the ceasefire, but the Ukrainian and Russian parts of the JCCC don’t publish joint reports. The latter group has been mostly used to agree local truces for repair works or evacuations. However, on 18 December 2017, Russia announced it was withdrawing from the JCCC until a number of its demands were met.
The scope of the OSCE SMM is all of Ukraine. Initially, the Ukrainian government desired to request a mission that was limited in scope to a particular area of Ukraine, but Russia demanded deploying the mission “throughout Ukraine.”
However, the SMM doesn’t have access to the 409.3 km section of the Ukraine-Russia border in Donetsk and Luhansk oblasts, as well as the occupation authorities of providing the OSCE only with limited access to the rest of the occupied territory. The OSCE SMM has no access to the Russian-occupied peninsula of Crimea as well.
Why is there no UN or other international peacekeeping force on the ground?
The UN peacekeeping operation is currently being negotiated.
Since the beginning of the conflict, Russia has been resisting the attempts to deploy an armed OSCE or any peacekeeping mission. For example, in November 2016, Russian FM Sergey Lavrov said,
“The question is no longer relevant, there exists no such need. Today, no one spoke about it. No militarized missions neither that of the OSCE nor of any other structure, which is periodically discussed in Kyiv, no one is considering them.”
As an aggressor, Russia doesn’t need any force that would be able to control peace in the region. The only peacekeeping mission Russia could accept could be the Russian own mission as it happened before in three other Russian-controlled post-Soviet conflicts in Moldova’s Transnistria and in Georgia’s Abkhazia and South Ossetia. Because Russia creates conflicts in the neighboring states not for their further resolution, but for freezing them with Russian “peacekeepers” deployed.
In September 2017, Vladimir Putin floated the idea of deploying U.N. troops to eastern Ukraine, suggesting that the U.N. mission could protect observers from the international OSCE monitoring mission. Of course, the mission should be deployed only along the contact line from the its both sides, according to Putin. And he said that the deployment of the UN peacekeeping contingent is possible only under conditions of direct contact with the leadership of the “people’s republics.”
Accepting Putin’s proposal would mean de-facto recognizing the Moscow-run puppet states, the so-called Luhansk and Donetsk people’s republics. Deploying the peacekeepers on the contact line would de facto shift the Russian borders deep inside Ukraine instead of returning the uncontrolled stretch of Ukraine-Russia border under Ukrainian control, as Paragraph 9 of the Minsk-2 agreement requires. Ukraine wants a UN peacekeeping mission deployed throughout the occupied territory, including the uncontrolled section of the border. The discussions on the peacekeepers continue.
Do the Minsk Agreements mention anything about prosecuting those guilty for shooting down MH-17?
No, both Minsk agreements don’t mention anything about the MH17 crash and its investigation.
Moreover, Paragraph 5 of the agreement demands:
“5. Ensure pardon and amnesty by enacting the law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and Luhansk Oblasts (ORDLO) of Ukraine”
Given the MH17 crash not specifically mentioned in the Minsk II and the paragraph on amnesty for participants of the “events in ORDLO”, Dutch parliamentarians were seeking clarification of the agreement’s text and assurance that it will be able to persecute the perpetrators.
Ukrainian officials insist that those who have committed serious crimes cannot be amnestied by Ukrainian laws, meanwhile, Russia demands unconditional amnesty for its Donbas fighters.
As Paul Niland highlights, as soon as MH17 was shot down Ukraine voluntarily gave up their right to conduct the investigation and an investigation team led by Holland have since been in charge of determining the cause of the crash (which they have) and then moving on to identifying the perpetrators of the atrocity in order to move to the criminal phase of the logical sequence of events.
What is the status of Donbas according to the Minsk Agreements – is it part of Ukraine?
The Donbas is a Ukrainian region according to the Minsk agreements. The implementation of the Minsk accords means returning the territories under Ukrainian control as an autonomy.
The Donbas region consists of two Ukrainian oblasts (regions), Luhansk and Donetsk. The Ukrainian government controls roughly two-thirds of each oblast.
The Minsk agreements don’t define the legal status of the region. The term “certain areas of Donetsk and Luhansk Oblasts” (or “particular districts…,” the ORDLO for short) was coined in the Minsk accords to designate the territories uncontrolled by the Ukrainian government. The term implies that the uncontrolled territories remain Ukrainian.
However, the Paragraph 11 of the Minsk-2 demands that Ukraine make changes to its Constitution to provide the “special status” for the ORDLO. This needs to be done before elections are held – and this seems to be the most controversial part of the Agreements.
Why are there so many arguments about holding the elections in Donbas?
As warfare is ongoing, elections are hardly possible. However, Ukraine doubts that fair elections are possible before it secures control of the border in the first place. Another point of contention concerns the amnesty for ORDLO participants of the conflict: Russia insists this happens before elections and before Ukraine regains control of the border, and Ukraine asserts that an amnesty can happen only after these events and after a public discussion. On the other side, the right to vote is the most fundamental of all democratic rights.
The Kremlin’s goal in Minsk is to ensure Ukraine re-absorbs the Donbas under conditions which will allow for Moscow’s meddling in Ukrainian affairs. Allowing the puppet leaders in Donbas to be elected into Ukraine’s Parliament will achieve just that.
Therefore, Russia wants full unconditional amnesty for all local residents who were members of the Russian military formations before the elections. Ukraine wants to pardon only those who didn’t commit any serious crimes. If the Russian position is accepted, the occupation authorities will stay in place, plus be legitimized by Ukrainian laws.
Another problem standing before the elections is the adoption of the Constitutional amendments which will provide a special status for Donbas, which is impossible in the current political situation in Ukraine. There are also calls to have a kind of “de-nazification” period to provide an alternative perspective to people who lived under 24/7 pro-Russian propaganda for several years
However, elections in the ORDLO do have to be held at some point in time if Ukraine wants to reintegrate the occupied Donbas. The question is how this can be achieved.
Paul Niland comments on this to Euromaidan Press:
“There cannot be elections in a war zone. When Ukraine’s partners call for ‘elections’ what they are actually calling for is for the conditions under which a free and fair election can take place to be created. This is why the present international dialogue on elections is essential. The ways in which an acceptable election, with the participation of all parties and with all parties being given a reasonable opportunity to campaign for votes in an environment of peace, is really what is being discussed.”
However, it is unclear how such conditions can be created if Ukraine does not regain control of its border first, which according to Minsk-2 should happen on the next day of the elections.
Why doesn’t Ukraine just give Donbas autonomy? It’s a usual thing in Europe.
Autonomy is what Russia wants to keep control of the region, no significant number of Donbas residents ever wanted an autonomy in independent Ukraine. Russia’s demand for the autonomy of Donbas, which got inscribed into the Minsk agreements, is part of its strategy to control Ukraine.
There was no any significant separatist movement in the Donbas, and no campaigning for autonomy, before the Russian intervention in 2014. Russia instigated the conflict under cover of separatism, and it continues to fuel it, having formed and fully equipped the military formations in Ukrainian territory, supplying and controlling them. An autonomy for the region, with the local power structures and self-proclaimed authorities currently controlled by Russia, would legitimize the Russian occupation and bring it into the Ukrainian political life, allowing Russia to destabilize the country from within.
Moreover, there is extensive evidence that apart from the demand of autonomy for Donbas, Russia is trying to revive the good old idea of making Ukraine a federation, where strategic foreign policy decisions, like EU or NATO accession, would be impossible without the agreement of all its members, to meddle in Ukrainian affairs.
Nevertheless, the demand for autonomy became part of the Minsk agreements. To do this, Ukraine needs to change its Constitution, as the country is a unitary state. Before the war, only one Ukrainian region had autonomy – the Autonomous Republic of Crimea. The law on changing the Constitution was adopted in the first reading, but it is unlikely that it will pass the necessary second reading any time soon, as Donbas autonomy idea meets resistance in Ukrainian society.
The resistance is reflected in sociology. According to a June 2017 poll by IRI, only 10% of Ukrainians (excluding occupied Crimea and Donbas) supported the idea of a special status (autonomy) for the “LNR” and “DNR”; 15% believed they should have wider authorities as part of the decentralization reform, and 55% answered that they should be part of Ukraine as before. In the government-controlled parts of the Donetsk and Luhansk oblasts, 11% supported a special status, 17% supported decentralization, and 45% answered things should stay as before. Regarding separatist sentiments, only 2% of the residents of government-controlled Donbas wanted the entire region to become part of Russia, and 1% wanted it to be a separate country.
Interestingly, in March 2014, those sentiments were much higher: 26.8% of Donetsk and Luhansk oblast residents wanted to join Russia, a poll by the Ilko Kucheriv Democratic Initiatives Foundation found. Its director Iryna Bekeshkina says that Donbas residents who initially supported the Russian occupation of the Donbas now want again to be part of Ukraine after experiencing what the occupation means first-hand.
Inside the “LNR” and “DNR,” 35% supported a “special autonomy withing Ukraine” and 20.6% wanted things to be as before; 44.5% wanted to be part of Russia in one way or another, a December 2016 poll by ZOiS found. This divergence may be influenced media consumption of residents in the uncontrolled territories: media freedom is nonexistant, Ukrainian TV channels are scarce, and trust in Russian media is high, meaning that most people believe Russia had no part in starting the war in Donbas.
Are sanctions the EU and USA adopted against Russia tied to the Minsk agreements?
The international sanctions were not primarily tied to the Minsk agreements. However, the US and European leaders mention the possibility of lifting the sanctions already in place if the Minsk accords are implemented.
The United States and the European Union imposed the first and the second rounds of sanctions on Russia in March-April 2014 as a response to the Russian military intervention in Crimea (late February 2014). Non-EU European countries later joined the sanctions as well as Canada, Australia, New Zealand, and Japan.
The third round of the restrictive measures was a response to the escalating War in the Donbas in summer 2014 and later.
The second Minsk agreement was signed later, in February 2015.
Despite the fact that the international sanctions were not tied to the Minsk peace deal, the American and European leaders endorsed the idea of easing or lifting sanctions if Russia fulfills the agreement.
Then Austria’s foreign minister Sebastian Kurz who later became the Chancellor of Austria, said in May 2016, “I believe that we should gradually come to a modus in which for every implementation of the Minsk Protocol, for every single step, sanctions will gradually be lifted in return.”
Then US President Barack Obama wrote in his op-ed for Financial Times in July 2016, “We should agree that sanctions on Russia must remain in place until Moscow fully implements its obligations under the Minsk agreements.”
In May 2017 at her joint press conference with Russian President Vladimir Putin in Sochi, German Chancellor Angela Merkel said that the European Union will lift sanctions against Russia once all sides in Ukraine commit to the ceasefire agreed in the Minsk accords.She said, “For me, the aim is to reach the point in the implementation of the Minsk accords where we can lift the European Union’s sanctions against Russia.”
Generally, does the Ukrainian population support the Minsk process?
The Minsk Agreements have never been considered as positive for Ukraine by most of Ukrainians because the Minsk accords are mostly viewed as a compromise.
According to the surveys conducted by the Razumkov Centre in 2015, a month after the signing of the Minsk II, 36% of Ukrainians supported the agreements (22,2% assessed them negatively). Later, the approval rating fell to 16,1% in November 2015 (with 32,5% disapproving).
A year later, in November 2016, according to the same pollster, only 9,2% of Ukrainians considered the outcome of the Minsk agreements as positive with 30,2% as negative.
In June 2017, 60% of Ukrainians supported the UN peacekeeping mission in the Donbas. 52% of the respondents believed that it was worth agreeing to compromises but not to all for the sake of peace, while only 18% supported establishing of peace by force, other 18% were for peace at any cost.
What are the weaknesses of the Minsk Agreements?
Ukraine entered the Minsk agreements to suspend the further Russian invasion – both Minsk deals were signed amid direct invasions of the Russian regular military forces. As a result, it agreed to Russian demands in the agreements which intended to bring the occupied regions back into Ukraine with the Russian control of the regions. There are reasons to believe both sides saw the Agreements as a temorary solution. Now, the Agreements contain paragraphs that cannot be fulfilled by Russia and Ukraine.
The main issue of the Minsk-2 is that it includes paragraphs that cannot be fulfilled by Russia and Ukraine.
Max Bader, lecturer on Russia and Eurasia at the University of Leiden, notes:
“The separatist leaders in eastern Ukraine and their Russian backers never intended to implement points 4 [local elections under Ukrainian legislation in the occupied territories] and 9 [the full restoration of Ukrainian state control over the country’s borders]… Moscow will not contribute to the full implementation of Minsk II unless it has a radical change of mind.
The Ukrainian government, meanwhile, is in a tough spot because it cannot fulfill one of the points of the agreement even if it wanted to. Point 11 states that Ukraine needs to change its constitution to assign the separatist territories a special status. The constitutional changes have been drafted, but they require a two-thirds majority in the Ukrainian parliament, which will not materialize anytime soon.”
Ian Bond, director of foreign policy at the Centre for European Reform, says that both Minsk agreements “were always doomed to failure,” and points out such issues:
“First of all, Russia, the real aggressor, continued to pretend that it was a mediator (like France and Germany) rather than a party to the fighting. Second, the parties disagreed on the meaning of a number of ambiguous points in the agreements; as a result, they failed to implement parts of the accords. Third, the Minsk II agreement effectively left it to Russia to decide whether Ukraine had changed its constitution to Russia’s satisfaction, and then hand back control of Ukraine’s eastern border. Not surprisingly, Russia has yet to do this.”
Ukrainian political expert Petro Oleshchuk believes that both Russia and Ukraine saw the Agreements as a temporary solution: Russia expected that a weakened Ukraine will give in to its demands, and Ukraine thought that sanctions will eventually make Russia review its position. As a result, the process is in a dead end, but the official position for both sides is that the Minsk agreements can’t be refused.
As President Poroshenko stated in May 2015:
“We believe that there is no alternative to the Minsk agreements. As President of Ukraine, I stand for peaceful settlement of the situation.“
So repeated he in May 2017:
“We don’t see any alternative to the Minsk agreements and we insist on their full implementation.”
Can the Minsk Agreements settle the conflict in the Donbas?
Generally speaking, the Minsk Agreements are simply better than nothing, because Ukraine has no other peace agreements with Russia. Formally, there are only two alternatives to the Minsk accords, abandoning the Donbas region by Ukraine or the full-scale war to liberate the occupied territories.
Prof. Olexiy Haran highlights:
Minsk-2 is contradictory, with an unclear sequence of steps and therefore viewed by many experts as non-implementable. The easiest steps to implement (if there is political will) are ceasefire (clause 1), withdrawal of weapons (clause 2-3), and exchange of ‘hostages’ on the principle ‘all for all’ (clause 6). There was a clear timetable for these clauses. However, they were not implemented. The OSCE monitoring mission was helpless to contain hostilities or report on growing Russian military interference.
Former US Ambassador to Ukraine (1998-2000) Steven Pifer wrote:
“The fighting has not definitively stopped. Unfortunately, there is little evidence to suggest improved future prospects for Minsk II’s implementation, primarily because the Kremlin does not seem to want peace.”
Joerg Forbih, a senior transatlantic fellow for Central and Eastern Europe at the Marshall Fund, has said that the Minsk Agreements were doomed from the moment they were signed because Russia was not interested in implementing them, instead wanting to freeze the conflict like in other post-Soviet countries in order to permanently destabilize the host state.
Therefore, it is unclear how the Minsk Agreements will be implemented next.
As to what can stop the conflict in Ukraine, political analyst Alexander Khara believes this can happen if:
1) the aggressor exhausts its resources for continuing it;
2) the conditions change and there will be no point in continuing the war;
3) the price of meeting the goals of the aggression becomes too high.
The first option can be met if the sanctions regime is intensified, and numbers 2 and 3 – if Ukraine will integrate into western economic and security structures, which will remove the main cause of the war – the possibility to return Ukraine into the sphere of Russia’s influence and control, and strengthen its defensive capabilities.
Despite all the issues, the Minsk process reduced the violence in the Donbas, though never to zero.
According to Joerg Forbih, it had other positive outcomes as well: hostages from both sides of the conflict were exchanged. As well, the Agreements became the main reference point for Western sanctions imposed on Russia, an aggressor country, which is an important shield against those in the EU and USA who would like to quickly lift them. And finally, the agreements, together with sanctions, had probably stopped the spreading of the war from Donbas further along Ukrainian territory: neither Russia’s “Novorossiya” project nor the land bridge to Crimea became a reality.
Text: Yuri Zoria, Alya Shandra. We would like to thank Paul Niland for his help on an earlier version of this document, and Nadiya Volkova, for their valuable inputs.