Super Law

Minsk Agreements

Rachit Garg

This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive analysis of the significant Minsk Agreements from a neutral viewpoint.

It has been published by Rachit Garg.

Introduction

The outbreak of the unfortunate war between the Ukrainian Government and the Russian/separatist forces on 24th February 2022, after roughly 7 years of punctuated peace, has once again brought the Minsk Agreement to the limelight of the world. The roots of this major deadly conflict, drenched in the blood of thousands of human casualties and enveloped with the dire possibility of a nuclear (world) war can be traced back to 2014 and 2015 when the Minsk Agreements I and II were respectively signed before going gradually further into the time when the cold war ended and the USSR broke up. A study of these roots/factors that culminated in the Russo-Ukrainian conflicts from 2014 to 2022 and a deeper analysis of the geo-political aspirations of this hotbed through an unbiased historical lens as far as practicable cannot be left out while attempting to comprehend and appreciate the full canvas of the Minsk Agreements. The short-term and long-term outcomes of the current Russo-Ukrainian war are still unknown and gravely feared (here is an interactive map of the Russian invasion of Ukraine), but a big lobby indeed believes that it is the Minsk Agreement’s proper implementation that can tend to peace in these boiling zones of war and conflict. Another big lobby firmly believes that the Minsk Agreements have progressively lost their practical value as they believe that the war was not started and fought to gain the special status of the conflicted areas as granted by the Minsk Agreements. Though it is commonly said that history is written by the winners of wars, this article will still aspire to portray the complete dimensions of the Minsk Agreements from a neutral standpoint.

Brief background of the Minsk Agreements : historical and political perspective

The Minsk Agreements cannot be studied in isolation from the historical and political perspectives that envelope and perhaps steer them. It was not in 2014 but in August of 2008 when Europe witnessed the first war of the twenty-first century. On August 8, 2008, the Russian forces started a brief war in Caucasus (Georgia) and the muted international reaction to this war perhaps encouraged Russia to become more daring in dealing with the Russia and NATO confrontations. Yes, if a correct but oversimplified statement can be said to be the propellant behind the background of the Russia-Ukraine crisis, it is this- Russia and the North Atlantic Treaty Organization (NATO)’s a confrontation with each other is behind this. Is it just like the cold war of the previous century? Now, that answer is a no, but then again, that’s a prima facie answer. At the core of any struggle or war, just like the cold war of the last century, this crisis is indeed the same though. It all boils down to a power struggle in the unfortunate but still seemingly bipolar world of international politics, a (cold) battle for dominance between the West and Russia.

After the breakdown of the USSR in 1991, the West was vigilant and determined to orchestrate the flow of international politics in a manner that would ensure that the USSR was never revived in the post-Soviet era in any format whatsoever. So, Russia’s integration efforts via the creation of the Commonwealth of Independent States (CIS), the Eurasian Economic Union (EEU/EEAU) etc. were countered inter alia by the European Union’s (EU) Eastern Partnership (EaP). Now, Ukraine is a part of both the CIS of Russia and the EaP of the EU as is clear from their members’ lists. Naturally, Ukraine became the object of power rivalry between the EU and Russia, as both wanted to be the ones influencing Ukraine. It will not be too wrong to say that in the power tussle between the West and Russia, Ukraine, instead of becoming the peaceful and protected buffer zone, became the unfortunate war zone, sandwiched between their historic and political rivalries.

So, this tug-of-war of influencing Ukraine centred around the proposed Association Agreement (AA) of Ukraine with the European Union and its Russian counterpart- the EEU/EEAU. The AA was supposed to gradually help Ukraine become a full-fledged member of the EU. But Russia was very unhappy and worried about the growing influence of the EU in eastern Europe. It is imperative to mention here that a lot of Russians living in Ukraine back then considered themselves to be culturally and historically part of Russia. So, in 2013, the then Ukrainian-President, Viktor Yanukovich, chose not to sign the AA with the EU. But this led to the pro-European ‘Euromaidan’ protests in Ukraine and led to the impeachment of Viktor Yanukovich in February 2014. Thereafter, the interim Ukraine Prime Minister Arseniy Yatsenyuk signed the political part of the AA with the EU. All these made Russia worried and angry and made her carry out the annexation of Crimea in March 2014.

The war that broke out after that between Ukraine and Russian-backed separatists (mainly from Donetsk and Luhansk regions) came to a momentary pause on the 5th of September, 2014, when in the Belarusian capital Minsk, a 12-point ceasefire agreement was signed between Ukraine, Russia, the Organisation for Security and Cooperation in Europe (OSCE) and the pro-Russia leaders from Donetsk and Luhansk regions. This agreement is also referred to as the Minsk Agreement I or the “Protocol on the results of consultations of the Trilateral Contact Group”.

Unfortunately, the Minsk Agreement I was not sufficient to keep peace and the ceasefire broke. Fighting continued once again and the Normandy Four (Russia, Ukraine, France, and Germany) met at a summit in Minsk on 12th February 2015 and agreed on a new 13-point ceasefire agreement consisting of a package of measures to implement the Minsk Agreement I. This new agreement is referred to as the Minsk Agreement II or the “Package of Measures for the Implementation of the Minsk Agreements”.

Clauses of the Minsk Agreements

After understanding the events that led to the signing of the Minsk Agreements, it is time to see the clauses of the agreements. They are discussed as follows:

Minsk Agreement I

The Minsk Agreement I is often referred to as the “Protocol on the results of consultations of the Trilateral Contact Group”. Herein, the ‘Trilateral Contact Group’ consisted of Russia, Ukraine and the OSCE. The clauses of the Minsk Agreement I (5th September 2014) that aimed to cease the war are portrayed in a simple manner as below:

  1. To ensure the immediate bilateral ceasefire by immediate cessation of the use of weapons.
  2. To have an effective ceasefire, OSCE is to verify and monitor the non-use of weapons.
  3. To implement decentralization of power and grant the interim status of local self-government to the eastern Ukraine regions of Donbass (Donetsk and Luhansk) by enacting a ‘special status’ law under Ukrainian law.
  4. To ensure permanent monitoring of the Russian-Ukrainian border and which is to be verified by the OSCE and setting up of security areas in the border areas of the two countries.
  5. To ensure the immediate release of all hostages and illegally detained persons by both countries.
  6. To ensure that a law is enacted that prevents the prosecution and punishment of people with regard to certain events in the Donetsk and Luhansk regions.
  7. To ensure the continuity of inclusive national dialogue.
  8. To ensure the adoption of measures that improve the human rights situations in the Donbass region.
  9. To ensure the holding of early local elections or snap local elections in the Donetsk and Luhansk regions by virtue of the special status law enacted under Ukrainian law.
  10. To ensure the removal of all illegal military units, military hardware, fighters, and mercenaries from Ukrainian soil.
  11. To ensure the adoption of a program that resurrects the economic and other vital activities of the Donbass region.
  12. To ensure the provision of personal security guarantees for the participants of the consultations. The participants and signatories were Heidi Tagliavini (Ambassador, OSCE), L.D. Kuchma (the second President of Ukraine),  M. Y. Zurabov (Ambassador of Russia to Ukraine),  A.W. Zakharchenko (separatist leader of Donetsk) and I.W. Plotnitski  (separatist leader of Luhansk).

In order to implement the Minsk Agreement I steps were taken and two weeks later, on 19th September 2014, a “Memorandum on the Implementation of the Provisions of the Protocol on the Outcome of Consultations of the Trilateral Contact Group on Joint Steps Aimed at the Implementation of the Peace Plan” was formulated. This memorandum consisted of nine measures to strengthen the bilateral ceasefire agreement. The participants and signatories were the same as in Minsk Agreement I.

But unfortunately, ceasefire and peace failed to rise from the horizons of the Minsk Agreement I  and the fighting continued.

Minsk Agreement II

After the failed attempts of the Trilateral Contact Group to maintain a ceasefire and usher in peace, the Normandy Four (Russia, Ukraine, France, and Germany) came into the picture and helped in the devising of a new 13-point package of measures to implement the Minsk Agreement I on 12th February 2015. This new package of measures that was formulated is the Minsk Agreement II, and it has the same signatories as the Minsk Agreement I. Its clauses are discussed in a simple manner as follows:

  1. Starting from 00.00 AM (Kiev Time) on 15th February 2015, an immediate and comprehensive ceasefire should be strictly implemented in the Donetsk and Luhansk regions of eastern Ukraine.
  2. OSCE should facilitate while being supported by the Trilateral Contact Group, the withdrawal of heavy weaponry by both sides on equal distances and this withdrawal should be started within a maximum of 2 days of the ceasefire and be finished by 14 days at the latest. The agreement specifically laid down the equal distances to be maintained for the withdrawal along with the respective heavy weaponry. They are as follows: 

Also, the point from where the equal distances should start was marked clearly. They are:

  1. With the aid of all possible technical pieces of equipment like drones, radar, satellites etc., the OSCE should ensure effective monitoring and verification of the ceasefire regime and withdrawal of heavy weaponry from the very first day of weapons withdrawal.
  2. On the very first day of the withdrawal of the heavy weaponry, dialogues should be started regarding the modalities of local elections to form interim local self-governments and their future regimes in the Donetsk and Luhansk regions under the ambit of Ukrainian laws. To this end, within a maximum of 30 days of the signing of the Minsk Agreement II, a resolution should be passed by the Ukrainian Parliament specifying the areas that should enjoy the special status regime of local self-governments in accordance with the Minsk Memorandum of September 19, 2014.
  3. Laws should be enacted to ensure that prosecution and punishment of persons in connection with the events in certain areas of the Donetsk and Luhansk regions are pardoned officially.
  4. By the fifth day of withdrawal of heavy weaponry, all hostages and the people illegally detained should be released and exchanged based on the principle of “all for all”.
  5. As per international mechanisms, safe access, delivery, storage, and distribution of humanitarian assistance to the needy should be ensured.
  6. Modalities should be clearly laid down that ensure the revival of socio-economic ties including social transfers (such as a pension), payments, revenue, utility bills, taxation etc. within the Ukrainian legal framework and if required international mechanisms to facilitate such transfers might be used. For this purpose, the banking segment’s control in the conflicted areas is to be reinstated by Ukraine.
  7. Beginning from day 1 after the local elections and by the end of 2015 when the comprehensive political settlement (by local elections and constitutional reforms) is over, complete control of the state border should be reinstated by the Ukrainian government throughout the conflicted areas. To this end, paragraph 11 of this agreement should be implemented properly upon due consultations and agreements with the separatist leaders of the Donetsk and Luhansk regions within the framework of the Trilateral Contact Group.
  8. OSCE should monitor the withdrawal of all foreign military units, formations, types of equipment, and mercenaries from Ukrainian soil and all illegal groups should be disarmed.
  9. Constitutional reforms should be carried out in Ukraine and by the end of 2015, a new Ukrainian Constitution should come into force. The constitutional reforms should provide for decentralization as a key element while including references to the special status of the Donetsk and Luhansk regions as per the agreements with the separatist leaders of these areas. Further, permanent legislation containing various measures should be adopted to grant this special status to these regions. Some of these measures, as envisaged in the agreement, should be-
  1. Elections to establish local self-governments should be in conformity with OSCE standards. These local elections are to be held as per Ukrainian law and based on agreements made with representatives of the Donetsk and Luhansk regions. All these should be monitored by the OSCE/ODIHR (Office for Democratic Institutions and Human Rights).
  2. The work of the Trilateral Contact Group should be intensified to implement the relevant provisions of the Minsk Agreements. To this end, working groups should be established which should also reflect the composition of the Trilateral Contact Group.

It can be clearly seen from the above clauses that peace was the desired outcome of the agreement in a manner that was acceptable to all parties to the war. But reality speaks differently and we are forced to ask if peace was ever an option for the leaders of this war. What went wrong with the Minsk agreements? Are any amendments necessary to the agreements to usher in peace? Or do we need a Minsk Agreement III? The following discussions will try to answer some of these burning questions from an analytical viewpoint as far as practicable.   

Analytical significance of the Minsk Agreements : a failure or a way forward

No one knows the ultimate result of the current Russian-Ukraine crisis, its scope of future recurrence and when durable peace would emerge, but the Minsk Agreements that were supposed to help definitively answer these-  are they a failure or a way forward? Perhaps an analysis of these agreements will give us a better perspective of the same.

Amidst divergent viewpoints, the most common and accepted view regarding these agreements is that the conflicts started once again at the cost of peace due to different interpretations of the clauses of these agreements. Ukraine saw this as an opportunity to restore her sovereignty and regain control of her borders, while Russia interpreted the same as a way of handicapping Ukraine by creating proxy governments in the name of local self-governments in the Donetsk and Luhansk regions. For the purposes of clarity, it is best to take a deeper look at these conflicting interpretations.

At the outset of briefly studying the conflicting interpretations of the Minsk Agreements, it is pertinent to mention that the reason for these conflicting interpretations was that the negotiators of the Minsk Agreements pursued differing goals at the very least, if not opposing goals.

Historically, Ukraine stayed within Russia’s sphere of influence for about three and a half centuries, from about 1654 to 1991. So, Russia believed that the self-governing Donetsk and Luhansk regions would ensure that Ukraine would fail to become a member of the EU and/or NATO. This logic and interpretation of Russia were built on a myth or delusion that territorial conflicts in a country would automatically disqualify the country from becoming a NATO member. Now, the veracity of this myth or delusion of Russia, which acted as one of the strong pillars behind her self-serving interpretations of the Minsk Agreements, is beyond the scope of this article, but no official NATO documents confirm this myth for NATO membership criteria.

Ukraine and the EU were not far behind in their own self-serving interpretations either, and such interpretations will be analyzed shortly in the next phase of this analysis. As pointed out shortly before, all these self-serving conflicting interpretations can be traced back to the differing (or even opposing) goals of the negotiators that were built on differing priorities. All these previous and inter alia subsequent studies of conflicting interpretations of the Minsk Agreements will eventually lead us to ask why durable peace was not the first priority of the negotiators. Why were the clauses left ambiguous? Was the ambiguity a mere product of haste or was furthering deeper objectives the shadow goal? The agreements show only the Russian ambassador to Ukraine as a signatory, but why was Russia as a country not a signatory like Ukraine? Why did Russia continue to behave as a merely disinterested arbiter? Was it so that Russia could favor the implementation of the pro-Russian clauses and avoid the anti-Russian clauses by avoiding responsibilities? Or was it because the special status of the Donbass areas was not enough to serve Russia’s interests? Unfortunately, the article can only logically speculate about the minds of the Kremlin in an attempt to comprehend their interpretations of the Minsk Agreements.

One of the major sources of the conflicting interpretations of the Minsk Agreement II was the sheer fact that the clauses did not orderly mention the priority order for the implementation of the political and military aspects of the clauses.

Exploiting this ambiguity, Ukraine interpreted the clauses and wanted the pro-Russian armed forces to withdraw completely first and then only conduct local elections for self-governance. In other words, Ukraine wanted to regain full control of its border first and then, only thereafter, grant some powers of self-governance to the Donetsk and Luhansk regions. This interpretation of the Minsk Agreements can be viewed as Ukraine’s attempt to regain her full sovereignty and be fully independent regarding her foreign policies.

Russia, on the other hand, from the very first day of the withdrawal of heavy weaponry, wanted dialogues for local elections that would grant self-governance to the Donbass regions. To this end, within 30 days of the signing of the Minsk Agreement II, Russia wanted the Ukrainian Parliament (Verkhovna Rada) to pass a resolution identifying the exact areas for self-governance. And after the local elections have taken place as per the Minsk Memorandum of 19th September 2014, only then can Ukraine enjoy the restoration of control of her state borders.

These conflicting interpretations can be compared to the chicken-egg dilemma or the scenario where neither of the two duelists is ready to blink first in fear that the other will gain an advantage and implement her own deeper objectives/priorities through this advantage.

Unfortunately, on top of these conflicting interpretations, the EU did not take any side regarding these varying interpretations nor gave any interpretation of its own that would resolve the contradictory nature of the clauses. Such a stance did nothing but fuel and deepen the crevices of mistrust and fear further.

After 2014 and 2015, it is true that intermittent attempts were made by various modes and various parties to bring peace by implementing the Minsk Agreements, but no options for implementation were becoming mutually acceptable. Under these circumstances, Russia, fearing that Ukraine was biding her time to side with the west and gain their various memberships gradually, declared a “special military operation” to “demilitarize and denazify” Ukraine on 24th February 2022.

So, to address the burning question raised earlier- are the Minsk Agreements a failure? Or are they the way forward? A big lobby argues that owing to the inherent structural fallacies in the clauses of the agreements which hinder their implementation, the Minsk Agreements are indeed failures. The contrary view is that the ambiguities need to be addressed, and through amendments, the Minsk Agreements may be made the way forward to durable peace. Debates over which view is right are pointless for the views are very much subjective at their cores. But it can be agreed that in the present format, the Minsk Agreements cannot usher in peace. Especially the key points of ambiguity like the order of priority while implementing the military and political aspects of the clauses, defining the constitutional reforms of Ukraine so that Russia may not discard the same later as being dissatisfied, making sure that the signatories do not further create any ambiguous clauses and end up signing on them etc.

Conclusion

The foregoing analytical discussions may want us to tear down the Minsk Agreements as big failures, and may perhaps rightly so. But if we remove the veil of the gross failures from these agreements, we shall see that, to some extent, they brought peace in the Donbass regions before the 2022 war started. The violence did not stop, but it was indeed reduced by virtue of these agreements. It was a bad peace, but isn’t a bad peace better than no peace at all? The design flaws and lack of political will of the parties for implementation should be blamed and not the sheer clauses of the Minsk Agreements. The solution may lie in a well-drafted Minsk Agreement III that inter alia envisages the use of UN peacekeeping forces in the disturbed areas along with their mode of usage. The seeds of fear and mistrust have run deep since the days of the cold war. The west does not want a USSR 2.0 and Russia does not want to bow before the west by losing power and influence. Keeping all these in mind, through the Minsk Agreements or otherwise, better judgment should prevail in a way where accommodations are preferred over confrontations and durable peace becomes the priority over power to avoid Ukraine becoming the Syria of Europe.

References

  1. https://www.thehindu.com/news/international/explained-what-is-the-minsk-agreement/article65187598.ece
  2. https://www.thehindu.com/opinion/lead/caught-between-russia-and-the-eu/article5757614.ece
  3. https://www.thehindu.com/news/international/world/ukraine-european-union-sign-agreement-on-closer-ties/article5814539.ece
  4. https://www.reuters.com/world/europe/what-are-minsk-agreements-ukraine-conflict-2022-02-21/
  5. https://www.fmprc.gov.cn/eng/wjb_663304/zwjg_665342/zwbd_665378/202202/t20220218_10643212.html
  6. https://www.atlanticcouncil.org/blogs/ukrainealert/the-2008-russo-georgian-war-putins-green-light/ 

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