leidenlawblog

Between a rock and a hard place: Going back to the Minsk II system is not an option for an independent Ukraine.

Between a rock and a hard place: Going back to the Minsk II system is not an option for an independent Ukraine.

The war in Ukraine is costing the lives of innocent civilians on a daily basis and a quick end to the war via negotiations or a peace deal would be a saving grace for the millions of Ukrainians.

However, the negotiations and peace deal cannot revert to the old Minsk system or another similar pro–Russian deal that would threaten the sovereignty of Ukraine, therefore making the peace in the region fragile.

In the aftermath of the initial combat operations (2014-2021 period) in Eastern Ukraine between the Ukrainian government and Russian proxy forces and separatist forces from the breakaway regions of Lugansk and Donetsk, the Minsk agreements were drafted and signed between Ukraine and Russia with mediation from the OSCE, France and Germany in both agreements. However, the Minsk agreements have been plagued with issues since their inception and have yielded a piecemeal ceasefire in the Donbas region. Through realpolitik machinations and a full-scale invasion of Ukraine, peace in the region has become a distant Visage.

Minsk I

The first Minsk protocol was signed during the height of the Ukrainian conflict in late 2014 creating a pseudo–ceasefire on the front between the Ukrainian government and Russian-backed separatists in Donbas. For Ukraine, this meant that further loss of territory was averted. For Russia and its “statelets” this meant they would solidify their gains by establishing local leaders in separatist areas and replacing Russian units with more organised local militias in Eastern Ukraine. This would be a thorn in Ukraine’s side, preventing it from ascending into NATO because Article 6 on the purposes and principles of enlargement of NATO states that: for an invitation to the alliance to be possible; a state must resolve its ethnic and territorial disputes according to the OSCE principles. [1] Therefore, as LNR and DNR (separatist authorities in Donbas) were also signatories present in the Minsk I protocol, this proves that Ukraine now has a territorial dispute to resolve.

Furthermore, what is interesting is that the heads of state of Russia and Ukraine were not signatories to the protocol. Ukraine was represented by former President Leonid Kuchma and Russia was represented by its ambassador to Ukraine, as well as the presence of the separatist region representatives. This made it clear that Russia did not want to be bound by such an agreement and even more that this was not an equal agreement, but an agreement with terms laid out/dictated by Russia against Ukraine.

Minsk II

However, the Minsk I protocol was not enough to curb the fighting and the ceasefire was violated during the battle of Debaltseve (early 2015). To stop the battle and prevent any escalations (namely involvement of more Russian combat troops aka “the little green men” and further loss of Ukrainian territory) an emergency meeting was held in Minsk again with arbitration from the leaders of Germany and France, leading to the Minsk II protocol.

The Minsk II protocol was drafted in a relatively hasty fashion causing ambiguity and contradictions in its provisions as it sets to reconcile the mutually exclusive positions of Ukraine and Russia on the conflict. Furthermore, unlike the first Minsk Protocol, this protocol does not explicitly mention Russia in it, even though the Russian ambassador to Ukraine signed the protocol, thus giving a strategic loophole to Russia in case it would violate the terms of the agreement or the agreement itself.

The skeletal structure of the Minsk II protocol is as follows:

“Articles 1-3: Provisions on a ceasefire and the reduction of heavy weaponry from the frontline.

Article 4: Elections in separatist regions

Article 5: Amnesty for participants in the conflict

Article 6: Exchange of hostages and prisoners

Article 7: Humanitarian Assistance

Article 8: Full restoration of Social and cultural links between Ukraine and the separatist regions

Article 9: Restoration of Ukrainian government control of its borders with Russia in the conflict zone.

Article 10: Removal of all foreign troops and equipment from Ukraine (with OSCE supervision) and disarmament of illegal groups.

Article 11: Constitutional reform in Ukraine with the aim of Decentralization

Article 12: Elections in DNR and LNR regions based on the “temporary law on special status adopted in 2014.

Article 13: Increasing the work of the Trilateral contact group and the establishment of working groups to oversee the implementation of the Minsk Protocols.”

Divide and Conquer

A brief analysis is enough to ascertain that the articles of the Minsk II protocol favour Russia whilst limiting the control of the central government of Ukraine over its territory. This is most evident by the perquisites (set by Russia) for the implementation of Article 9 which stipulate that Articles 11 and 12 must be completed beforehand for Article 9 (Ukrainian control over all of its territory) to be applied. This would mean that the elections would be conducted without the involvement of the Ukrainian government, enabling Russia to influence the elections and further a proxy leader close to the Kremlin.

Furthermore, Article 11 would be limiting Ukraine’s sovereignty as the separatist regions would be nominally incorporated into Ukraine and would remain financially and politically “independent” or more likely dependant on Russia, with powers to create its own military units called the “people’s militia”. Furthermore, the banning of “early termination” of local officials and councils by the central government would further loosen central government control over the Donbas region. Article 11 would allow Russia to retain influence and indirect control (through proxy leaders) of Donbas and thus, over Ukraine generally by limiting its capability to control all of its territory. The evidence of such influence by Russia is evident by the phrase in Article 11 “assistance from central authorities to support transnational cooperation between occupied regions and regions of the Russian Federation”. At face value, this seems to be only an economic or aid link between the Russian and Donbas regions. However, read within the context of Russia’s actions in the region, it would imply that the Donbas regions would be incorporated closer, via economic and political links, into the Russian federation.

Moreover, the DNR and LNR representatives published a set of further demands which included provisions blatantly attempting to regulate the internal and foreign policy/powers of Ukraine. The main demands were the right of separatist regions to sign agreements with foreign governments, “financial autonomy” of separatist regions, and most importantly a neutrality clause added to the Ukrainian Constitution. These demands were in line with Russian policy at the time, where increased autonomy was the main goal for the Donbas regions, for it then could “voluntarily and independently” secede and officially join the Russian federation going above and beyond the Article 11 prerequisites. Moving on, the Neutrality clause would permanently close the doors for NATO in Ukraine and any other type of Western involvement. The neutrality clause makes it seem that it also applies to Russia. However, as Russia would be retaining influence and control of part of the territory of Ukraine through the control of separatist regions combined with a weakened central government, the neutrality clause would solely prevent all but Russia from exercising influence in the region.

The death of the Minsk Protocols

“Yes, the Minsk agreements are no more” – Vladimir Putin (22 February 2022). On 22 February 2022, the Russian Federation officially recognised the LNR and DNR “republics” under the orders of Putin. Prompting the cessation of the Minsk Protocols as a way forward for a full-scale invasion of Ukraine only two days later. The Russian invasion has been going on for more than a month. Cities of Ukraine have been bombed, shelled and attacked constantly by the Russian military, who after a failed lightning war have begun a campaign of indiscriminate bombing as an attempt to break the will of the government and the people of Ukraine. However, this strategy even though it has caused massive Ukrainian casualties (mainly civilian), has not translated into tactical and strategic success.

Simultaneously, peace talks are ongoing between Russia and Ukraine, with no success as Russian demands are not reasonable for the Ukrainian government to even consider. However, the failed "lightning war" and continued losses of both personnel and equipment may force Russia to take a more compromising stance. This possibility is not far-fetched as, since the beginning of the invasion, the Kremlin's objectives for Ukraine have shifted – from a total regime change via conquest and occupation, to demands of neutrality and demilitarisation of Ukraine on the negotiation table, with the status of Crimea and Donbas likely to be determined in subsequent agreements. Thus, would it be wise for the parties to the conflict to go back to the Minsk system? Ukraine is stuck between a rock and a hard place. Going back to the Minsk agreements means losing sovereignty and foreign occupation. On the other hand, without it (and without any other diplomatic redress) it risks the continuation of the war with one of the strongest militaries in the world, which is causing constant loss of life and strain on the already destroyed economy and infrastructure. However, capitulation or forced compromise in the form of the Minsk agreement or any other agreement is not an option for Ukraine.

The only way forward for an independent Ukraine is to resist the Russian invasion if there is a chance for Ukraine to launch counteroffensives to retake territory and force the Russian government to the negotiation table. Such endeavour requires extensive military support (SAM systems and MIG-29 fighters from Poland) and increased pressure (crippling economic sanctions) on Russia. Therefore, the critical factor for future negotiations is whether the Russian economy will fall first or the Ukrainian defences? For now, the latter is holding strong.

0 Comments