mardi 9 décembre 2014

the Minsk Memorandum is back: it corrects the Minsk Protocol

Written end of September, this note was not intended for publication but for internal OSCE use. The renewed interest for the Minsk process, and the possible beginning of implementation after this announced "day of silence", brings the opportunity to clearly expose the reason why Kiev didn't respect the Memorandum: it was totally reversing the Protocol. This note sticks to the texts as they were published (only in Russian) since the author didn't have access to the meetings and discussions, and his opinion ("prospects") is clearly separated from the analysis.

On September 5, 2014, the trilateral contact group on Ukraine (OSCE, Russia and Ukraine) signed a Protocol to "implement president Poroshenko's peace plan and president Putin's initiative"; then on September 19 the same contact group signed a memorandum to precise its practical application. Both documents were also presented for signature to two top leaders of Donetsk and Lugansk de facto republics, who signed it in no official capacity. This note intends to clarify the origin and content of the Protocol, to present how the Memorandum completes and corrects it, and to draw some practical conclusions.

A- The Minsk Protocol was essentially Poroshenko's peace plan

On June 20 Ukrainian president Poroshenko had published a 15-points "peace plan", assorted with a one-week ceasefire for the insurgents to leave the country (Lavrov read it as an ultimatum), which he announced again end of August. On September 3 Russian president Putin drafted a 7-points proposal for a cease-fire. Ukrainian regular and paramilitary forces having recently been defeated, their rulers agreed to submit Putin's proposal to the contact group, but the Protocol signed two days later appeared to be rather inspired by Poroshenko's plan (that the contact group had discussed for two months) than by Putin's proposal. The 12 points of the Protocol are commented hereafter.

1. Ensure the immediate bilateral cessation of the use of weapons.

This point was not included in Poroshenko's initial plan, although that one was accompanied by the announcement of a one-week ceasefire. It does not either correspond to the first point of Putin's proposal, referring specifically to the cessation of offensive operations. Already on September 5 and 6 the question arose of what would the self-defense militias do in the event that the Kiev forces resumed offensive operations. As noted by the OSCE after weeks of seriously reduced hostilities, each time the government forces open fire, the militias restrain to counter-battery when the governmental shelling touches populated areas.

2. Ensure monitoring and verification by the OSCE of the regime of non-use of weapons.

This point was not in Poroshenko's plan, since he didn't consider the remaining of a confrontation line but the expatriation of all insurgents. But it doesn't correspond either to Putin's proposal third point which was requesting an international monitoring "in the security zone created by the ceasefire", meaning the buffer zone created by the withdrawal of Kiev forces beyond the range of their artillery. The OSCE published on September 5 a vacancy posting for 250 monitors, and the de facto republics prepared their deployment in five areas with fixed posts and mobile patrols.

3. Implement decentralization of power, enacting the Law on temporary local self-government in certain areas of the Donetsk and the Lugansk regions.

This is the eleventh point of Poroshenko's plan, but reduced to only a portion of the two provinces (Poroshenko's plan could be read as decentralisation system in the whole country) and omitting the question of Russian language that his eleventh point planned to protect.

4. Ensure OSCE permanent monitoring of the Ukrainian-Russian border and creation of a security area in the border regions of Ukraine and the Russian Federation.

This is the fourth point of Poroshenko's plan, except that in that plan its width was specified (10 km) and that it was just mentionned "on the border", without assuming that Russia would accept to demilitarise a fringe of its own territory as presented in this point of the Protocol.

5. Immediately release all hostages and illegally detained persons.

This is the third point of Poroshenko's plan. The fifth point of Putin's proposal was asking for the reciprocal and unconditional release of all "prisoners", a term that could acknowledge the existence of a war and therefore the applicability of the Geneva conventions. Adding to Poroshenko's term "hostages" the one of "illegally detained" persons, the Protocol, which recognises "Ukrainian authorities" but doesn't grant any legal capacity to the de facto republics, is basically asking the insurgents to release the combatants they captured, while not requesting any governmental reciprocity.

6. Enact a law against prosecution and punishment of persons connected to the events in certain areas of the Donetsk and Lugansk regions.

This is the second point of Poroshenko's plan, although that plan didn't limit it regionally. This point was not in Putin's proposal, which was more based on international law than on domestic order, and didn't seem to consider that the jurisdiction of the new Ukrainian regime would be extended to the insurrected areas.

7. Conduct an inclusive national dialogue.

This point was neither in Poroshenko's plan, not intended to be in any way interactive and considering the insurgents as non-citizens, nor in Putin's proposal obviously thought in international terms (as to settle an international dispute).

8. Adopt measures to improve the humanitarian situation in Donbass.

The fifteenth point of Poroshenko's plan mentionned the reconstruction of social infrastructure, but didn't really recognise the humanitarian desaster. The sixth point of Putin's proposal was more concrete and, taking into account the bombing of refugee convoys and the withholding of humanitarian help, was specifically asking for the opening of corridors for refugees and humanitarian help.

9. Holding local elections in accordance with the Law on Special Status.

This is the thirteenth point of Poroshenko's plan. Putin's proposal aimed simply at putting an end to the armed conflict and did not interfere with internal politics of either warring party, or contain any political recommendation, but the Protocol explicitely inserts the governing system of Donbass into the new Ukranian constitution.

10. Remove illegal military formations, military hardware, militants and mercenaries from the territory of Ukraine.

The fifth point of Poroshenko's plan was announcing the opening of a corridor for the departure of "Russian and Ukrainian mercenaries" (towards Russia). The Protocol as well calls for the expulsion of militants rather than for the dissolution of the militias.

11. Adopt a program for the recovery and revival of Donbass economic activity.

This is the fourteenth point of Poroshenko's plan, which was even a little more precise (employment program), and the fifteenth point (reconstruction of industrial infrastructure).

12. Guarantee personal security of the participants to the consultations.

This was the first point of Poroshenko's plan, usually obvious and not even mentioned in any other meeting of this type.

Despite the omission of the question of the Russian language, the decentralisation of the police and a few circumstantial details concerning occupied administrative buildings, roadblocks and Kiev television or radio broadcasting, most provisions in the Protocol appear to have simply be taken from Poroshenko's plan of June 20 (reactivated end of August). And although the press largely praised Putin's project of September 3 as the basis of the ceasefire, it appears that six out of its seven recommendations were ignored, namely the withdrawal of Ukrainian armed forces to a distance prohibiting the use of artillery against populated areas, the monitoring of the ceasefire in the security zone created by it, the forbidding of the use of aircraft against civilians and populated areas, the opening of humanitarian corridors for refugees and cargoes, the exchange of all prisoners, and the rebuilding of life-supporting infrastructure before the winter.

For the OSCE monitoring mission the Protocol could be seen as based on a misunderstanding, and therefore the monitoring of its implementation could appear as impossible and anyway useless. Putin's international proposal aimed at ceasing military hostilities between Ukraine and the de facto republics, and called for the deployment of OSCE monitors between the Ukrainian artillery and the Donbass cities (on the real confrontation line). Poroshenko's national plan aimed at reintegrating Donbass into Ukraine, and called for the deployment of OSCE monitors between Donbass and Russia (on a supposed supply line). After having withheld for weeks the authorisation for OSCE to use UAVs, the Ukrainian government signed this authorisation only once assured that they would be used on the border with Russia (where OSCE observers always said that no weapons were passing) and not on the front line in Ukraine, and continued shelling OSCE teams away from the MH17 wreckage site (repeatedly on September 14 for example). Under these conditions, the Protocol was giving the OSCE monitors an ambiguous mission, asking them to sit on the Russo-Ukrainian border and monitor the cessation of the use of weapons on the front line, 50 to 150 kilometers away.

B- The Minsk Memorandum corrected the Protocol

Although the Memorandum introduces itself as the modalities of implementation of the Protocol, it actually distorts it since it was inapplicable, and replaces it with a practicable truce agreement.

1. Ceasefire considered as binding by both sides.

Either this is a rhetoric reinforcement, or it was necessary to write down the reciprocity.

2. Immobilisation of all units and military formations at the line of contact as of September 19.

This clause, common to most ceasefires, recognises the existence of a front line and prohibits even fireless maneuvers.

3. Prohibition of the use of any type of weapons and the conduct of offensive operations.

This clause was the first point of Putin's proposal, and is more realistic and likely to be applied on the field since it singles out offensive operations, puts the blame on the offender and doesn't appear to condemn the defender as much.

4. Withdrawal of weapons above caliber 100 mm to their maximum range from any locality (...).

This clause was the second point of Putin's proposal, the most important to really ensure a ceasefire, and the most needed for the civilian population.

5. Demilitarisation of the Komsomolskoye - Kumachevo - Novoazovsk - Sakhanka area, monitored ty the OSCE.

This clause, circumstantial to the situation beginning of September and therefore not mentionned by neither Poroshenko's plan nor Putin's proposal, aims at freezing the situation around Mariupol.

6. Prohibition, and removal, of landmine barriers in the security area.

This clause aims not only at permitting free circulation of people, but also at preventing the entrenchment of a real permanent border.

7. Prohibition of combat aircraft and UAVs, other than the ones of the OSCE, on a width of 30 km along the contact line.

This clause is an adaptation of the fourth point of Putin's proposal.

8. Deployment of a OSCE monitoring mission in the ceasefire area.

This clause was the third one of Putin's proposal, and is more a complete correction of the fourth one of the Protocol than a mere precision for implementation.

9. Withdrawal of all foreign armed groups, military hardware, militants and mercenaries from the territory of Ukraine, under OSCE supervision.

This clause is a precision and correction of the tenth one of the Protocol. It corrects it by removing the term "illegal" and it precises it by adding the term "foreign". What are now supposed to leave from Ukraine are no more the groups considered as illegal by Kiev, but all and only the foreign groups. Additionally, it's easier for an OSCE monitor to control the nationality of a person or a group than its legal status.

The Memorandum doesn't mention any more the political provisions written in the Protocol, and focuses exclusively on military matters, going into enough details for the parties to know what they have to do and for the OSCE to be able to report the implementation or any violation.

C- Prospects

From a polemological point of view, the ceasefire arrived at the moment when it was not so crucial any more, the conflict evolving towards a more conventional confrontation between two constituted armed forces and the defendent one beginning to push the attacking one away from the urbanised areas; as in Bosnia when, after six months (and some exchanges of population), it was no more a civil war but a more static confrontation between regular armies obeying to constituted governments and mainly trying to hold some entrenched frontlines. Nevertheless, a ceasefire is always welcome and a lasting peace even more.

From a humanitarian point of view, if the governmental forces (who fired again two SS-21 on September 20 against the chemical factory in Donetsk close to where the Russian humanitarian aid was getting unloaded) do withdraw their artillery to the distances agreed upon in the Memorandum, it will allow the restauration of a normal civil life (water and electricity notably), and probably even the return of part of the million people expelled towards Russia by the shelling of residential areas. This withdrawal is not certain to happen, since it would mean the end of the governmental anti-cities strategy, but it would be the main achievement of the Memorandum.

From the political point of view, the immobilisation of the governmental army and the possible pulling back of its heavy artillery and missiles is already interpreted, by the most extremist sectors in Kiev, as an unacceptable defeat, and the government is already threatened of a new coup d'état (the "third Maïdan"), but on the other hand its European supporters may be now more prone to suggest a more presentable way of resolving domestic political issues. On the long term, this way could lead to a Herceg Bosna or Republika Sprska scenario (unitarian or federal reintegration) instead of a Transnistria one (lasting de facto separation) or an Abkhazia one (full independence).

From the international law point of view, the OSCE, following the Helsinki and CSCE principles, intended to resolve what appeared to be an international crisis, by first promoting a ceasefire on the confrontation line between both warring factions, a ceasefire being a contract between two (or more) parties equally capable to sign it (the Iraqi government signed a ceasefire in 1991, but no ceasefire could be signed in Iraq in 2003 because there was no state left), or a treaty between two (or more) subjects of international law. The ambiguity of the case is that Ukraine is a member of the OSCE, while the de facto republics are not; in order to have two parties the OSCE called its other member Russia, which (having recognised Poroshenko's election) declared that it was a domestic Ukrainian conflict, and sent its embassador in Kiev. So the challenge for the OSCE was to settle what looked like an international dispute, in a formally national framework. Perhaps the first agreement, the Protocol, was necessary in order to reassure the Ukrainian government, by accepting to monitor better the Russo-Ukrainian border and to affirm Kiev's authority over the Donbass. Nevertheless the second agreement, the Memorandum, did mention the real frontline between the two Ukrainian warring factions, and laid down the military measures necessary to establish a ceasefire responding (more or less) to international standards.

Although the OSCE found itself, after the withdrawal of some governmental paramilitary units, confronted end of September to the unexpected need of serious forensic (and legal) competencies, the number of monitors deployed in (or coming to) the security zone along the last front line should enable it to effectively observe the truce, stabilise the respective positions and, should its mandate be renewed well after March 31, help transform the truce into a lasting peace.

In conclusion, contrarily to the Protocol, the Memorandum is a pragmatic ceasefire agreement, necessary, implementable, verifiable, and that can lead to a more permanent truce.

Three months later, and out of the OSCE context for which this note was diplomatically written, a sincere comment can more freely be made: it's precisely because the Memorandum is a real truce agreement that it will not be implemented. Everybody knew that the part that started the war, or more precisely the merciless crackdown on a then-defenseless population, had not changed its intentions. It was not even coerced into keeping (let alone implementing) the esthetic laws announced in the Protocol. Maneuver is the combination of fire and movement: the only reason why Kiev accepted to freeze tactical movements is the exhaustion of its own mobility capacity (vehicles) and the emerging of an operative (theater-wide) coordination on the other side, but it widely demonstrated that it will not withdraw (or turn off) its artillery until the last ballistic missile ot MLRS rocket is fired. And it is currently being strongly rearmed for the more international next stage.

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