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Nadiya Savchenko and Minsk

March 30, 2016

In recent days the spokesperson of the Russian Foreign Ministry, Maria Zakharova commented upon demands for the prompt release of Nadiya Savchenko following the end of her show trial, under the provisions of Minsk (I and II).

She stated thus “Russia is not a party to the Minsk Agreements. These agreements only concern two sides that are part of the conflict.

We have the responsibility to influence the parties of the conflict exactly the same way as France or Germany should influence Kiev. That’s all, we owe nothing more.”

For the sake of clarity, the tripartite liaison group charged with resolving technicalities, on 12th February 2015 negotiated the following – “Provide release and exchange of all hostages and illegally held persons, based on the principle of “all for all”. This process has to end – at the latest – on the fifth day after the pullout of weapons.”

More than a year later whilst there have been occasional prisoner swaps, the pullout of weapons is yet to occur, so whether or not Nadiya Savchenko would have been included in the Minsk process, the basic conditions for an “all for all” swap are still far from being realised.  That notwithstanding any swap involving Ms Savchenko will probably be for high profile prisoners in exchange, not necessarily from within Ukraine.  Moscow still prides itself on getting its most (in)famous prisoners home after all – wherever they may be incarcerated.

Ever since the Minsk text was formulated, this blog has frequently lamented the fact it is was fatally flawed from the very outset by allowing Russia to sit at the table with the same standing as France and Germany – as negotiator and/or mediator – but unrecognised as a party to the conflict that it undoubtedly is.

A reader perhaps would question why such a negotiator and/or mediator would be subject to international sanctions for its part in the Donbas war, but apparently such considerations have no impact upon the status given The Kremlin in the Minsk document or negotiation formats.

Thus, it is simply policy necrophilia to continue try and force Ukraine to follow the Minsk text in the unlikely event of it managing to fully implement its part, to then be left with the hope that The Kremlin will then do the same.  Whatever political embellishments President Poroshenko may be telling his western peers, the fact is that he is a long way short of the 300 parliamentary votes required within the Verkhovna Rada to change the constitution allowing Ukraine to fully meet its obligations outlined in the Minsk document.  Indeed his political party currently does not even manage to lead a coalition that can gather the 226 votes necessary to pass basic statute.

This clearly being the case, this blog has stated that the focus of “The West” should be on pressuring Ukraine to reform and not pressuring Ukraine to adhere to the text of Minsk.

“Indeed only the foolish (or perhaps The Kremlin) would expect Ukraine to fully implement its Minsk obligations in the current circumstances within the occupied Donbas.  “The West” would be far better off publicly stating that it understands that is the situation and thus publicly lean less on Ukraine to fulfill such obligations while the circumstances remain significantly unchanged, and lean far harder on Ukraine to reform instead.

Perhaps such a shift in “Western” messaging would change the Kremlin calculus somewhat.  The entirety of “western” political and diplomatic energy pushing a reformed Ukraine, with less pressure regarding Minsk would at the very least raise eyebrows in Moscow.  Unless the situation changes dramatically regarding ceasefires and the ability to hold elections that in current circumstances would forever sully the reputation of the OSCE, it is policy folly.  Such a messaging shift would inevitably mean Kyiv actually moving “westward” slightly faster than it is doing.  As The Kremlin cares far more about the Ukrainian shift “westward”, and cares nothing about the occupied Donbas should it fail be to an effective lever over Kyiv, it is possible such a change in messaging could have an effect – or not.”

The above quote most recent example of many written here urging the need for western refocus in an attempt to force recalculation elsewhere.

However, Ukraine, like Russia and the “Republics”, have no legal obligation to adhere to the Minsk Agreement (I or II) – which is something that probably requires highlighting once more, lest we forget.

Far too often the Minsk Agreement is touted with the inference that it is somehow a binding legal document that cannot be broken.  It is not.  There are numerous legal international instruments, treaties and laws that have been broken in respect of Ukraine, all by Russia, but Minsk is not one of them – even if Russia were a fully recognised party to the conflict within the document.

Disregarding the Minsk document may be morally wrong (or not), but it is not unlawful to do so.

Neither Minsk I or II have any legal standing whatsoever.  It legally binds nobody to anything.  It is not even a signed and certified document enforceable by law comparable to the most basic of legal contracts.  It carries no signatures of the conflicting parties (recognised or unrecognised).  It has been ratified by no parliament.  It is therefore not a document that has been deposited with any international body or has any domestic power.  It is text.  It is a document listing bullet points along a possible path to the return (prima facie) to international laws and treaties – despite the perilous repercussions that its implementation would have internally for Ukrainian sovereignty as the text stands, if and when territorial integrity is returned.  It is a framework document, not a legal framework.

duress

The word “Agreement” is something of a misnomer to begin with.  It would be better identified as the Minsk Document or the Minsk Text.  “Agreement” masks the fact that Ukraine was coerced through both hard and soft Kremlin power, to concede its legitimate and lawful sovereign rights.  “Agreement” tends to soften the perceptions through the passage of time of what was, and remains, a serious violation Ukraine.  Minsk is a text forced upon Ukraine under duress.

In two years the Minsk document/text has not managed to secure even a ceasefire.  The closest it came to doing so was when Chancellor Merkel and President Hollande made it clear following a meeting in Paris that they were prepared to declare Minsk dead, prompting The Kremlin to turn down the heat for a while at the time when it had few other avenues to sit at the international table.  It’s actions in Syria have now changed that somewhat, thus allowing for Kremlin disregard of the Minsk text once again.

Further underscoring the absence of any binding legality of the Minsk text was The Kremlin’s clear desire to disregard and circumvent the Normandy Four (and lesser negotiation committees) and seek parlance directly with the USA via the ill-fated Nuland-Surkov channel initiated at the Kaliningrad meeting of January 2016..  No sooner was that channel opened than it was closed, with Berlin making robust representations to Washington and President Obama pulling that plug (no doubt to the ire of Ms Nuland).

A reader may ponder whether in pulling that plug the White House had already decided that no solution would be reached during the final months of an Obama presidency (ergo 2016) and therefore it saw no reason to become directly involved when reality suggests it would probably become an unfinished foreign policy legacy for any new president, or whether it was done to save face for Frank-Walter Steinmeier whose fumbling of the issues has thus far led the western response.  Any Nuland-Surlov solution would hardly be a fitting final chapter for his memoirs as he nears the end of his career.

All of the above said, and in full recognition that the Minsk document has no legal standing, and was necessarily born of entirely illegal Kremlin actions within Ukraine, a reader may now ponder that in the absence of binding legalities upon any parties within or without the Minsk text, how best western diplomacy be employed.

Is “western diplomacy” best employed in keeping Ukraine adhering to entirely arbitrary Minsk timelines during 2016 (and beyond), or it is better employed in finding reasons why Ukraine should not be held to such arbitrary timelines, unilaterally expected to fulfill the text of such an onerous document?

Should western diplomacy pursue the first option then the European neighbourhood is likely to become more rather than less stable.

If it be the latter, which would be the widely perceived path of integrity, then there is a need for either a Plan B to resolve the matter (which seems unlikely – and in fact given the outcomes thus far possibly yet more unhelpful for Ukraine in the long run), or a recognition that a war of exhaustion that will last many years, perhaps decades, presents itself for which it will have to be prepared to fully engage in – purely transactional necessities aside.

Whatever the case, every now and again it will serve us well to remember that the Minsk text in and of itself places no lawful obligations on anybody whatsoever, and is indeed not even a document of any legal standing.  Expectations of it relating to the release of Nadiya Savchenko necessarily have to be tempered accordingly – similarly to those long since discarded (and always misplaced) expectations of a ceasefire or weapons withdrawal.

That Ms Savchenko will not serve the 22 years passed down at the conclusion of her show trial there is little doubt.  Sooner or later she will become a bargaining chip and released long before.  When that occurs however, it will have little to do with the Minsk document.

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