The diplomatic battle for Ukraine

Tension is rising again in east Ukraine. Shelling and shootings are becoming more frequent in the Donbas and there are reports that Russia is assembling troops for what may become a larger-scale offensive. It is not always easy to make sense of the news that comes out of the region, and reports often cannot be independently verified. Much of the shelling could well be coming from local sources, but Moscow’s military build-up at least must be based on some kind of plan. But what is Russia’s plan?

Why diplomacy

Many Western observers suggest that Russia is preparing to make further advances into Ukraine, possibly with the intention of occupying Mariupol or other areas around Donbas. If so, this would mean that Moscow’s strategy has drastically changed. A larger-scale offensive would make sense if Moscow has decided to make Donbas into a semi-viable statelet with a wider territory than the “republics” currently control. To achieve that, Russia would need to be ready for a proper, openly disclosed war with Ukraine. Such a war could easily expand beyond its intended limits. Russia would also have to be prepared to deal with broader Western sanctions.

This possibility cannot be excluded – but it still seems unlikely, and not only because Russia can ill afford either an acknowledged war or new sanctions. Paradoxically, stepping up military action would indicate that Moscow is scaling down, rather than broadening, its end goals: it would mean that Moscow has decided to give up its effort to gain leverage over Ukraine’s decision-making and has instead chosen only to treat itself to a chunk of Ukrainian territory. For now, this does not seem to be the case. Ever since the failure of last year’s attempt to instigate a pro-Russian rebellion in a wider area of east Ukraine, the Kremlin has consistently maintained that it sees Donbas as part of Ukraine. In other words, the Kremlin is not working on carving out an insulated separatist enclave in Donbas; instead, it is looking for ways to use Donbas to control Kyiv.

The second Minsk ceasefire agreement represented a remarkable success for Russia.

This being so, the second edition of the Minsk ceasefire agreements – officially a “package of measures for the implementation” of the (original) Minsk agreement – represented a remarkable success for Russia. Unlike the original document, Minsk II seeks to reintegrate Donbas into Ukraine pretty much on Russia’s terms. Therefore, Moscow will likely cling to that agreement and will try to impose its own interpretation of it on Kyiv and Europe. Russia may still also use military measures to create uncertainty and destabilise Ukraine, and thereby put pressure on Kyiv. However, as long as Moscow sees the Minsk agreements as a useful vehicle to achieve its ends, any such military activity can be expected to stay within limits that would allow mainstream world opinion to write off Russian action as marginal skirmishes, rather than perceiving it as a major assault that would imply the death of the Minsk agreement. At the same time, it is clearly premature to declare that the diplomatic solution has prevailed: it will be conducted by diplomatic means, but what lies ahead is a battle.  Europe needs to be prepared for that.

The battle of interpretations

Effectively, the second Minsk agreement is an attempt to identify and agree on some de-escalatory measures while ignoring  the drastic differences that remain between the actual aims of Moscow and of Kyiv (not to mention the limited, but not non-existent, independent agenda of the Donbas rebels.) Such an endeavour has the potential to be moderately successful in aspects where the steps agreed correspond to both (or all) sides’ current tactical interest, but things will get problematic as soon as they touch upon longer term strategic ambitions. In this context, the vague wordings of the document and the lack of reliable implementation or verification mechanisms open up a huge space for disagreements and different interpretations.

The beginning of this “battle of narratives” was already evident in mid-March, when the Ukrainian parliament passed a law that granted special status to the Donbas region – although the law is to take effect only after the region has conducted free and fair local elections under Ukrainian law. The passing of the law immediately met with sharp criticism from Moscow; the Kremlin accused Kyiv of “rewriting the agreements” and “grossly violating them”.

In fact, the agreement called for Ukraine to “adopt promptly, by no later than 30 days after the date of signing of this document a Resolution of the Parliament of Ukraine specifying the area enjoying a special regime” – that is to say, the very document that Ukraine adopted in mid-March, just a few days later than the agreement directed. But in addition to specifying the area, the law that Ukraine passed also included a reference to local elections. The agreement had only prescribed the launch of “a dialogue […] on modalities of local elections in accordance with Ukrainian legislation and the Law of Ukraine”. The adoption of the law on special status and the conduct of local elections were also foreseen in the first edition of the Minsk agreement. However, neither of the documents included instructions on the sequence in which these events should take place.

There is scope for many more such differences. How, for example, can free and fair elections according to Ukrainian law be conducted in the Donbas? A great number of Ukrainian parties and politicians are in no position to campaign in Donbas – it would simply not be safe for them. Moreover, what would the electorate look like? Donbas has lost more than half of its pre-war population: thousands of people have moved to uncontested Ukraine, and thousands more have sought refuge in Russia. At the same time, the current Donbas population probably includes a sizeable contingent of Russian volunteer fighters. Who would get to vote at the elections,  how would the electorate be determined and absentee voting conducted?

How can free and fair elections according to Ukrainian law be conducted in the Donbas?

Or, for example, take point 8 of the agreement: “Definition of modalities of full resumption of socio-economic ties, including social transfers such as pension payments and other payments (incomes and revenues, timely payments of all utility bills, reinstating taxation within the legal framework of Ukraine.)” It remains somewhat unclear what “definition of modalities” actually means, but it is quite clear that as long as Donbas is under rebel-led self-rule and de facto outside the reach of Ukraine’s law-enforcement agencies, any transfer of payments or collection of taxes will be very complicated. For now, Ukraine is paying pensions and other benefits to those residents of the Donbas who are able to collect the money on Ukrainian-controlled territory – because banking links have collapsed and the Ukrainian banks, quite understandably, refuse to send trucks full of money to the Donbas.

The points of the agreement that do not imply practical cooperation between Donbas and Kyiv are no easier to resolve. Take point 2 of the agreement, which includes clauses on the withdrawal of heavy weapons: the weapons are supposed to be removed by both sides by equal distances in order to create a security zone at least 50km wide, and the process is to be facilitated by the Organisation for Security and Cooperation in Europe (OSCE) and supported by the Trilateral Contact Group. Not only is this process far behind schedule – it was supposed to be completed within 14 days – but it is also nearly impossible to verify. In order to verify removal, the monitors would need to know where the weapons were in the first place. The limited OSCE contingent does not have this kind of overview, nor is it in a position to demand access to the places it would like to see.

Nearly every clause of the agreement raises some questions, but the hardest and most important ones relate to points 9 and 11. These points foresee “reinstatement of full control of the state border by the government of Ukraine throughout the conflict area” – but only after Ukraine has carried out constitutional reform that provides for decentralisation and includes a reference to the special status of Donbas, and these reform measures are to be agreed with the representatives of the disputed areas.

In other words: Ukraine will gain control of its border only once it has reformed its state in ways that satisfy the Donbas rebels and their Moscow backers. But border control is of course the only way that Ukraine can control the influx of fighters and weapons and so limit the spread of the conflict. This creates a catch-22 situation in which Kyiv is in an obviously disadvantaged position: effectively, Moscow can simply deny Kyiv control of the border, under the pretext of inadequate constitutional reform.

President Petro Poroshenko has taken a fairly straightforward approach in tackling the issue. When asked about the constitution at a recent meeting with an ECFR-led group of experts, he said: “no other country will have a say on Ukraine’s constitution”. But he implied that he was ready to discuss the constitution with freely elected power-holders from Donbas, and, if need be, to resolve the dilemmas through holding a referendum. It seems certain that any decentralisation that would hand east Ukraine de facto veto rights over Kyiv’s decision-making would be firmly rejected by the wider Ukrainian population. But the war of narratives and propaganda that would accompany a referendum campaign would still be very difficult to handle and could easily become dangerous.

What Europe needs to do

Europe must not succumb to the illusion that, now that a ceasefire has been signed and seems to be holding, peace is inevitably on its way. If anything good is to emerge from the Minsk agreements, Ukraine needs Europe’s help in the upcoming diplomatic battle.

If anything good is to emerge from the Minsk agreements, Ukraine needs Europe’s help in the upcoming diplomatic battle.

First, Europe needs to come up with its own interpretation of the Minsk agreement. Otherwise, its precious unity could collapse in the crossfire of different interpretations. Without a unified understanding on the document, it will be next to impossible even to try to shape the processes or to influence exchanges between Moscow and Kyiv.

Secondly, Europe needs to explore the options not only of stepping up the OSCE presence in the conflict area, but also of sending its own, properly manned monitoring mission to the line of delimitation. Such a mission would be an invaluable tool in providing information and would also increase the costs of breaking the ceasefire.

Finally, Europe needs to adapt the conditionality of its sanctions to the realities of the second Minsk agreement. It must state very clearly that lifting sanctions can only be discussed once the process has run its full course and Ukraine has regained control of its eastern border. Rolling back sanctions at any intermediary stage should be avoided.

Even so, it is still not clear whether the Minsk agreement can in the end become a political vehicle for resolving the conflict; the aims of Moscow and Kyiv remain too different. In the weeks to come, Moscow will probably use diplomatic as well as economic measures to try to influence Kyiv, and will add to those efforts some destabilisation through military means. But a day may arrive when Moscow finds that none of these measures has given it the sort of leverage over Kyiv that it has been seeking. If that happens, then it might consider opting for a frozen conflict in Donbas, and it might be tempted to expand its territory there. If, by then, Europe has invested in fulfilling the military part of the agreement and has fortified the delimitation line by, among other things, manning it with European observers, then there would be at least some hope that the transition to a frozen conflict scenario could take place without much loss of life.