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The Steinmeier Proposal – What could possibly go wrong?

December 4, 2015

Having not written about the on-going war in The Donbas for quite some time, it is perhaps timely to glance across at a situation that is far, far from resolution.

Notwithstanding the high (almost certain) probability that The Kremlin will fail to meet the Minsk II deadline of handing control of the Ukrainian border back to Ukraine, nor even attempted to plug the open and gapping hole they have created from the Russian side of the demarcation line, the rest of the Minsk II agreements are a very long way from being met – in no small part as each line item is not only open to quite different interpretations, but that there is also no set order in which they were ever to take place (or so it seems).

An inherent problem throughout the negotiations is that these European foreign ministers have allowed The Kremlin to sit at the negotiating table and assume the same uninterested mediator role as themselves – which makes the entire process flawed for The Kremlin is a party to the conflict with clear involvement and obvious vested interests.  It is not a well-meaning bystander trying to mediate a reasonable outcome.

Thus with a belligerent and truculent Kremlin failing to make any useful gestures but only making demands, the soft soap offered up by the German and French Foreign Ministers way of “negotiation” has put the onus on Ukraine, the far more willing and coercible party, to uniltarerally give ground.

Indeed some readers may be inclined to believe that their “negotiation” is synonymous with “appeasement” and/or “accommodation” of The Kremlin line at best, or at worst a private recognition that pressuring Ukraine to continuously move along the tick-box compliance list is simply so that these two European foreign ministers can cite any progress whatsoever.

(For Ukraine by ticking more Minsk II boxes than The Kremlin, it has insured continuing sanctions against Russia – perhaps a price worth paying thus far.)

All too easily have these European ministers allowed matters to switch from clearly unresolved military agreements to political arrangements with a fairly blind eye now being turned to the former.  The “ceasefire” continues to claim lives daily.  Supposedly withdrawn weapons still manage to be used very frequently.  No condition has in fact been fully met and Russian heavy armour remains in situ in the occupied Donbas – as do Russian personnel.

Fortunately for these foreign ministers, Ukraine wants to keep Germany and France (read the Europeans) “on-side” and thus has had little choice but to keep these “negotiations” from stalling – but the Ukrainian leadership will soon meet internal resistance to many more further unilateral compliances with Minsk II – resistance which the Ukrainian leadership will be hard pushed to ignore.

It is somewhat unclear whether the Ukrainian leadership can garner the constitutional majority of 300+ votes to push through the amendments that facilitate “decentralisation” – with or without the single line regarding a “Special Law” for The Donbas.  Disregarding the line about the “Special Law” there remains issues within the “decentralisation” amendments that many parliamentarians are not particularly happy with.  The inclusion of the line relating to a “Special Law” for the occupied Donbas simply adds to the difficulty in forcing a constitutional majority.  Reaching 300+ votes may not be impossible – but it will be far, far from easy.

Readers will note that despite much official rhetoric for more than a year about “decentralisation”, similar to the rhetoric regarding the removal of parliamentary and judicial immunity throughout 2015, none seem likely to occur in 2015 – nor perhaps swiftly in 2016 either.

However, despite the fact the militaristic issues have not been properly addressed in the occupied Donbas, despite the fact there has been no movement by The Kremlin regarding its activities in the occupied Donbas, despite the fact that The Kremlin is extremely unlikely to return control of the Ukrainian border to the Ukrainians by 31st December as Minsk II stipulates, despite the fact that constitutional amendments have not been adopted by the Ukrainian parliament that would provide for “decentralisation” for the nation and a “Special Law” for the occupied Donbas – it does pay to pave the way for what comes next in the occupied Donbas even if what comes next is actually never arrived at.

Thus we have Mr Steinmeier’s proposals for the next set of sequenced political events – proposals that will be officially discussed in the next few days by all accounts

Donbas

There would appear to be a few issues to be addressed within this list – but there is a serious  ab initio set of problems with implementation even if all points are agreed above.  (For example can Ukraine grant immunity to a successful candidate that is suspected of war crimes – war crimes that the ICC have been asked to investigate?  Ukraine ratifying The Rome Statute is an obligation under the Association Agreement with clear ramifications regarding the ICC).  Elections with Russian troops and military equipment within the occupied Donbas, and elections policed by illegal “People’s Republic” militsia’s/criminal groups clearly fall far outside the Constitution of Ukraine with or without a “Special Law” amendment.  Therefore any election results are highly likely to be challenged, not only on the ground within the occupied Donbas, but also constitutionally and thus placed before the Constitutional Court in Kyiv.  Perhaps cases will go as far as the European Court of Human Rights – or beyond.

When the standard allegations of fraud, corruption, misuse of administrative resources, intimidation, bribery, coercion etc that any and all Ukrainian elections produce results in numerous court challenges – it is an absolute certainty in an environment like the occupied Donbas that court challenges will occur.  But which court?  Which judge?  Who will accept the ruling of an “occupied court” – or a Ukrainian court from the other side?

Under such circumstances,  is the OSCE/ODIHR willing to effectively ruin its regional reputation permanently (and perhaps irreversibly) to baptize as as righteous what will be anything but free and fair elections under the current (or foreseeable) conditions?  Is that organisation prepared to commit reputational suicide for the sake of Mr Steinmeier (who will long be out of office, retired, enjoying a nice pension and writing his memories), whilst OSCE staggers onward mortally wounded from sanctifying such folly should facts on the ground within the occupied Donbas remain unaddressed and unchanged by his “negotiations”.

Just as peace at any cost does not bring a lasting peace, neither will elections in such circumstances bring legitimacy in the eyes of any constituency.

Perhaps Mr Steinmeier simply wants to get the process agreed prior to conditions on the ground somehow falling into place – or perhaps he wants to do it before he retires (or is retired at the next German elections in 2017).  A quick fix there is not.

All of this is perhaps a little harsh on Mr Steinmeier, even considering his apparently very weak diplomatic constitution which has been on display over the past week – where he has been very quick to suggest EU opening “discussions” with the hollow entity that is the Eurasian Union, and the resumption of the Russian-NATO Council.  As Jan Techau points out, in de facto representing the EU, he is inherently negotiating from a position of weakness – notwithstanding any of his own personal weaknesses some readers may attribute to him.  Nevertheless, you take the money and you’re expected to do the job – and be held accountable when the results are “limited” (to be charitable).

Indeed, readers may ponder, which will come first?   Ab initio illegitimate elections (in the current climate) within the occupied Donbas, or the German elections in October 2017.  It’s fairly clear which the OSCE/ODIHR would be happier certifying as “free and fair” in all good conscience when considering their reputation for the future.

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