The Minsk-2 agreement
As fighting raged at Debaltseve, emergency negotiations, brokered by Chancellor Angela Merkel of Germany and President François Hollande of France, took place in Minsk. These produced a ‘package of measures for the implementation of the Minsk agreements’ (‘Minsk-2’). This document, signed on 12 February 2015 by representatives from the OSCE, Russia, Ukraine, the DNR and LNR, has been the framework for subsequent attempts to end the war.
Minsk-2 is not an easy document to grasp. The product of hasty drafting, it tries valiantly to paper over yawning differences between the Ukrainian and Russian positions. As a result, it contains contradictory provisions and sets out a convoluted sequence of actions. It also has a gaping hole: although signed by Russia’s ambassador to Ukraine, Mikhail Zurabov, the agreement does not mention Russia – an omission that Russia has used to shirk responsibility for implementation and maintain the fiction that it is a disinterested arbiter.
Nine of the agreement’s 13 points cover conflict management: a ceasefire and the pullback of heavy weaponry from the contact line (articles 1 to 3); an amnesty for those involved in the fighting (article 5); an exchange of hostages and unlawfully detained persons (article 6); humanitarian assistance (article 7); the resumption of socio-economic links between Ukraine and occupied Donbas (article 8); the withdrawal of ‘all foreign armed formations, military equipment and also mercenaries’ from Ukraine, and the disarmament of ‘all illegal groups’ (article 10); and the activities of the TCG (article 13).
Four other sections address political matters:
- Article 4: elections in Donbas. The day after the pullback of heavy weaponry from the contact line, a dialogue on local elections will start in accordance with Ukrainian law and the temporary law on special status adopted in September 2014. No later than 30 days after the signing of the Minsk-2 agreement (i.e. by 14 March), Ukraine’s parliament will adopt a resolution defining the area in which the temporary law on special status will apply (to be based on the delineation line in the memorandum of 19 September 2014).
- Article 9: the process of re-establishing ‘full control’ over the Ukraine/Russia border by the Ukrainian authorities. There is now no reference to Poroshenko’s buffer zone or an OSCE-monitored security zone. Instead, the process of returning the border to Ukraine’s control begins the day after local elections have been held and concludes ‘after’ the ‘comprehensive political settlement’ (i.e. local elections plus constitutional reform providing for decentralization) due by the end of 2015 – but ‘on condition’ that article 11 (next bullet) has been implemented ‘in consultation with and upon agreement by’ the DNR/LNR.
- Article 11: constitutional reform. A new Ukrainian constitution will enter into force by the end of 2015. Its ‘key element’ will be ‘decentralization’, which will take account of the ‘peculiarities’ of occupied Donbas, as agreed with the DNR/LNR representatives. Ukraine will also adopt ‘permanent legislation’ on special status before the end of 2015. This law will include: an amnesty; ‘the right of linguistic self-determination’; the involvement of the local authorities in the appointment of prosecutors and courts; agreements between Ukraine’s central authorities and the local authorities covering ‘economic, social and cultural development’; state support for the socio-economic development of Donetsk and Luhansk oblasts; assistance from the central authorities to support ‘transnational cooperation’ between the occupied regions and regions of the Russian Federation; rights for local parliaments to create ‘people’s militia units’; and no early termination of the powers of local parliaments and elected officials.
- Article 12: elections in Donbas. Election-related questions will be dealt with on the basis of the temporary law on special status adopted in September 2014 and agreed with the DNR/LNR. Elections will be held in accordance with the relevant standards of the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR).
The political sections of Minsk-2 are weighted heavily in Russia’s favour. In particular, the provisions on special status go way beyond the brief reference in Minsk-1. Exceptionally far-reaching in scope, they would be enshrined in a permanent law and an amended constitution. Putin homed in on this point at a press conference in Budapest on 17 February:
Perhaps not everyone has yet noticed, but this is extremely important – the Ukrainian side, the authorities in Kyiv, in fact, have agreed to implement a deep constitutional reform so as to satisfy requests for the self-dependence [samostoyaltelnost] – however it’s called: decentralization, autonomization, federalization – of certain regions of their country. This is the essential, deeper meaning of the decision taken by the authorities.
Russia was not finished. Surkov coordinated the drafting of extra demands (published on 13 May as proposals from the DNR/LNR). These would give the occupied regions even greater powers: responsibility for legal regulation of the Ukraine/Russia border; the right to conclude agreements with foreign states; their own charters (which would, for example, prevent the president of Ukraine from dismissing local executive organs); their own budgets to ensure ‘financial autonomy’; and rights to introduce states of emergency and hold elections and referendums. Lastly, Ukraine would write a neutrality clause into its constitution.
Implementation of these measures would in effect destroy Ukraine as a sovereign country. The DNR and LNR would be reincorporated into Ukraine but as distinct political, economic and legal entities tied to Russia – thus introducing a constitutional Trojan Horse that would give the Kremlin a lasting presence in Ukraine’s political system and prevent the authorities in Kyiv from running the country as an integrated whole. Indeed, radical devolution to Donbas might well prompt other regions to press for similar powers, causing central authority to unravel and effectively balkanizing Ukraine.
The implications for Ukrainian foreign policy would be far-reaching. A neutrality clause in the constitution would rule out NATO accession. Yet the DNR and LNR would be able to sign agreements with other countries (i.e. Russia), perhaps establishing Russian military bases on their territories. Fresh doubts would also surround EU integration. The adoption of Russia’s demands might so weaken the central authorities in Kyiv that implementation of the AA would be rendered impossible.
Tellingly, the word ‘sovereignty’ does not appear in Minsk-2. The German and French leaders seem to have been so keen for a ceasefire that they assented to political provisions at odds with Ukraine’s existence as a sovereign entity and, probably, its EU integration. This explains why the Kremlin used military power so demonstrably as talks were in session: to intimidate Western interlocutors who, it judged, lacked the stomach for confrontation – and who might be induced to get Ukraine to fold.
Yet despite Russia’s efforts, Minsk-2 was not just the product of intense pressure on Ukraine. It also marked the ignominious collapse of the Novorossiya project. Confounding predictions in Moscow in the spring of 2014, few Ukrainians threw in their lot with Russia. On the contrary, Ukrainians fought back en masse, probably killing several hundred Russian troops and irregulars and nearly overrunning the DNR/LNR until they were stopped by Russia’s army at Ilovaisk and, to a lesser extent, at Debaltseve. As they fought, they created a toxic problem for Russia, whose leaders still insist that it is not at war with its neighbour and that Russians and Ukrainians are ‘one people’. Russia could have had little doubt by early 2015 that even if it inflicted mass casualties on Ukraine, it would incur further heavy losses itself. This was a price that its leaders were unwilling to pay for sensitive domestic reasons – indicated by the harassment of Russian journalists and activists investigating this subject, and by the classification of data attesting to Russian casualties in peacetime ‘special operations’. Ukraine could not destroy Russia’s proxies, yet Russia was unwilling to sustain further high-intensity war with Ukraine; Ukraine was unable to prevail, but its readiness to fight to defend its sovereignty gave Russia pause.
It is precisely because Minsk-2 reflects this stalemate on the battlefield that it is an inherently contradictory document. As noted, the agreement makes the return of the border to Ukrainian control contingent on a political settlement agreeable to Russia and its proxies. However, it also includes provisions favouring the re-establishment of Ukrainian control over Donbas before a settlement has been finalized. Articles 1 and 2 envisage a lasting ceasefire and the pullback of heavy weaponry from the contact line before a dialogue on elections is held. Article 4 is ambiguous about whether the dialogue begins the day after the pullback has started or the day after it has finished; Ukraine can credibly argue that the pullback of heavy weaponry must be completed before election preparations begin. More important still, Russia has yet to withdraw its troops, equipment and irregulars from Ukraine, as article 10 in effect requires it to do without preconditions – thus relinquishing control over the border. Russia has meanwhile strengthened the DNR/LNR’s armed formations and tightened its control over them, such that they are now effectively appendages of its own military. Taken together, these circumstances make it impossible to hold elections in Donbas according to OSCE/ODIHR standards, as stipulated in article 12.
Furthermore, special status as set out in Minsk-2 – let alone the even more extreme demands made by Russia in May 2015 – is simply unworkable. It far exceeds what most Ukrainians consider an acceptable price for peace, as polls repeatedly show. Any Ukrainian leader who even appeared open to these ideas would probably commit political suicide. When, on 31 August 2015, Poroshenko put to the Rada a draft permanent law amending the constitution, rioting in Kyiv led to the deaths of four law enforcement officers; this despite the fact that the draft did not refer to special status. Poroshenko’s successor, President Volodymyr Zelenskyy, who made ending the war central to his election campaign in 2019, has also had to tread carefully. He proposes folding a reintegrated Donbas into the nationwide decentralization programme launched in 2014. Under the terms of a draft law on decentralization submitted to the Rada in December 2019, however, the DNR and LNR would not receive anything like the powers listed in Minsk-2; nor would they gain constitutional ‘special status’. This is unacceptable to Russia.
Minsk-2 can therefore be read in quite different ways. Ukraine’s version puts the re-establishment of control in the east before a political settlement. Russia would evacuate its troops and return the border to Ukraine. Elections would be held according to OSCE/ODIHR standards. Donbas would be reintegrated in line with the national decentralization programme (with some extra powers) and subordinated afresh to the authorities in Kyiv. As a result, Ukraine would be restored as a sovereign state. Russia’s version of Minsk-2 reverses key elements of this sequencing. A finalized political settlement would come before Ukraine retakes control of Donbas: elections would be held in the DNR and LNR; and Kyiv would agree a comprehensive devolution of power to these regimes. This would entrench Russian-controlled statelets, breaking the back of the Ukrainian state, preventing the central authorities from running the country as an integrated unit and torpedoing its westward integration. Only then would Ukraine regain control over the border, although whether Russia would allow that is moot. In short, Minsk-2 supports mutually exclusive views of sovereignty: either Ukraine is sovereign (Ukraine’s interpretation), or it is not (Russia’s interpretation) – this is the ‘Minsk conundrum’.