February 17, 2015
At the “zero hour” on Sunday, we were supposed to observe a pause in the war in Ukraine under the Minsk ceasefire agreement negotiated on February 12 (variously called the Minsk Protocol or Minsk II). Instead of seeing a start to peace, we see instead a stunde null for more fevered military gains by those who are called separatists in the West, terrorists in Kyiv and citizens of Novorossiyain Moscow. It is for the third nomenclature that Minsk II will be a victory in a war with no certain start date nor even admitted Russian combatants. Minsk II is part of the first attempted partition of a European country in this century. It follows the first annexation of territory from a sovereign state under threat of arms in this century. The Minsk II ceasefire agreement is the Brest-Litvosk treaty in reverse: This time, Russia has set out to undermine, not to recognize, Ukraine’s independence with conditions that will ultimately shrink it. Germany and France agreed to them at the expense of Ukraine’s territorial integrity. Russia will now use this agreement, however long it might endure or whatever it really means beyond a ceasefire, to blunt calls for arming Kyiv and to ensure that elections in Eastern Ukraine result in a partition backed by Russian arms. Minsk II is a clear victory for Moscow.
For proof of this interpretation of Minsk II, one need only look at the fighting in and around Debaltseve, where today Russia’s combatants continue the war with no apparent Russian demand that they cease. Special Monitoring Mission observers from the Organization for Security and Cooperation in Europe (OSCE) have been denied access to Debaltseve, and social media show a buildup of Russian forces there, as well. Given Russian cooperation with the OSCE on the whole during the war in Ukraine, that Minsk II hands verification of its imprecise, limited and contrived provisions to the OSCE is neither surprising nor reassuring.
Parsing the text of the agreement easily demonstrates why it is such a bad one for Ukraine. The three largest Russian gains in Minsk II are: (a) weak disarmament and monitoring provisions to verify that heavy equipment has been moved away from locations where it is militarily useful, along with no provision that Russia must either cease sending heavy equipment into the Donbas or that it return to Russia any it now has there; (b) amnesty from prosecution for war crimes for Russia’s mercenaries; and (c), the conduct of elections and constitutional reform in Ukraine that can only result in two new republics emerging in Ukraine. It is no wonder why Russia signed on to it. Minsk II keeps in place Russia’s steady flow of arms to its new puppet regimes in Luhansk and Donetsk to what the text of Minsk II calls their “armed forces.” For them, it is a good deal. For the United States and Ukraine, the deal is bad. Under it, Russia will continue to arm groups in all-but-declared new republics, the geographic, linguistic and legislative existence of which are Russian creations. Providing no basis for peace, it instead means that the United States and NATO will have to continue to undertake preparations for assistance to Kyiv, if not a widening war in Eastern Europe.
On the Withdrawal of All Heavy Weapons
Minsk II’s agreed measure (2) requires both sides to withdraw “all heavy weapons by both parties at equal distances in order to create a security zone.” These security zones vary from weapon to weapon. For all artillery systems that can fire 100mm-caliber or more munitions, they must be a minimum of 50km apart from each other; 70km apart, generally, for most multiple launch rocket systems (MLRS); and a minimum distance of 140km between specific MLRS named in the accord, which are the Tornado-S,Uragan, Smerch, and the tactical ballistic missile system Tochka. These named systems must be withdrawn to the specified distances starting not later that the second day after the ceasefire starts and be placed apart from each other at the distances specified within 14 days. As this is a rather limited accord, there is nothing in it that clarifies what happens to the equipment after 14 days, only that it is moved in the manner specified by Minsk II. After the 14th day of “withdrawals,” Minsk II’s agreed measure (4) kicks in, and it specifies that
On the first day after the withdrawal [is completed], a dialogue will begin on the modalities of local elections in accordance with Ukrainian law and the Law of Ukraine “On temporary order of local government in some regions of [the] Donetsk and Lugansk regions,” as well as the future operation of these areas on the basis of [that] Act.
Insofar as this text refers back to a Ukrainian statue on the books, it is relatively acceptable, but later provisions in Minsk II preempt fair elections. Minsk II has nothing to say about whether or not its dialogue on elections must halt if the military equipment it purports to govern is either not verifiably placed at required distances apart from each other by the OSCE or if it is again used to conduct offensive strikes. Another potential loophole in Minsk II, one through which Russia can drive entire tank columns, is that should equipment be moved back into Russia, the OSCE has severely constrained rights to verify it there. And there are no effective means for doing so in Russia under other more formal arms control measures (see below). Owing to its lack of substance on weapon withdrawals, the chances for real dialogue are slim to none under Minsk II.
Minsk II’s specificity on MLRS is in stark contrast to its generality when it comes to other weapons now on the ground. It does not mention, by name, Russian tanks and other equipment in Ukraine. Such weapons may be understood to fall generally under the term “heavy equipment,” but the lack of specificity compared to MLRS is notable. Even if the longer-range MLRS Smerch or the ballistic launcher Tochka are returned to Russia, they are sill quite capable of firing tens to hundreds of kilometers into Ukraine, albeit with smaller rockets in the case of Smerch. And rather than the immediate removal of all Russian equipment in Ukraine, Minsk II grants two full weeks to Russia and its proxies to undertake the equipment’s “withdrawal,” which under the agreement will likely mean moving it to places in Ukraine under the control of Russia and its agents. During this time, one must assume that all measures of active and passive concealment could be employed by Russia so as to impede the verification of these so-called withdrawals, which might better be called new emplacements.
Under agreed measure (3), the parties agree so as to “Ensure effective monitoring and verification of the ceasefire and the withdrawal of heavy weapons [by the OSCE] [starting on] the first day of the withdrawal, [that they will use] all necessary means, including satellites, drones, radar systems and so forth.” There is no way satellites will be able to detect much of this equipment if it is concealed in Ukraine. Many OSCE Participating States have satellites or access to imagery provided by various kinds of them, both military and commercial. Russia certainly does have such capability. But there is no specificity in Minsk II on when and how such imagery would be used or which nation’s imagery will be the definitive data used to verify Minsk II. Drones and radar systems could detect assets on the ground, but can also be fooled and spoofed. And there is no mention in Minsk II of the consequences of a Russian MLRS or tank being caught in a place where it should not be. Such images already populate social media, which in the end may be better at verifying equipment locations and withdrawals than traditional sources of intelligence. A friend informs me that the CIA watches Twitter more than CNN for this reason.
There could have been better ways to provide verification for Minsk II had Russia not suspended or blocked nearly all of them. Some of these can be found in the treaty on Conventional Forces in Europe (CFE), the operation of which Moscow suspended for itself in 2007. Minsk II’s transparency measures are not meant to work like binding treaty verification, but rather they appear to be based loosely on the OSCE’s Vienna Document on Confidence and Security-Building Measures, which include provisions for on-site inspections. However, Russia has undermined previous OSCE measures to verify past peace measures in Ukraine, even refusing OSCE monitors access to Crimea as separatists are currently doing in Debaltseve. Additionally, the number of inspections that Vienna Document parties can carry out is limited to three in any year, plus two “evaluation visits.” Another way could have been the treaty on Open Skies, but Russia continues airspace restrictions that have effectively impeded U.S. over-flight rights and the State Department has reported a host of other Russian actions that constitute noncompliance with it.
Minsk II leaves out one of the most important elements for an effective ceasefire that can lead to a lasting peace. It makes no mention of Russian troops or personnel. Russia’s “little green men” who started the war are still moving quite freely in and out of Ukraine. Presumably, they will remain where they are, readying and resting for another round in the war. The reason Russia cannot agree to include military personnel is quite simple: It refuses to admit it has any of them there.
Amnesty and Arms
Agreed measure (5) of Minsk II declares that the parties will “Provide pardons and amnesties by the enactment of a law [in Ukraine] prohibiting the prosecution and punishment of persons in connection with the events that took place in some areas of the Donetsk and Luhansk regions of Ukraine.” Given the makeup of the current Ukrainian Rada and the fact that Minsk II is by no means legally binding, it is hard to see how and when Kyiv would ever enact such a law. To do so is to keep men in the fight that should be in Russia, behind bars, or banished. This provision attempts creation of an effective safe harbor in Ukraine for lawless mercenaries and lunatics sent to Ukraine to foment instability and spout Muscovite paeans.
If either side in the conflict has committed war crimes, the enactment of a domestic law in Ukraine preemptively expunging the crimes of only one side, and in this case, the side that started the war, i.e., Russia, is a betrayal of Russia’s purported respect for “the entire system of international law and order.” No law forced on Ukraine by Russia can trump the facts of any war crimes, and exposure to legal liability and prosecution for war crimes where there are legal predicates. Russia’s insistence on such a law is comic and expresses either a ludicrous interpretation of the Law of War in armed conflict, political-military expediency, or the zenith of its hybrid warfare tactics, a facet of which, if left to stand, now appears to be immunity from crimes against humanity.
Agreed Measures 9, 11 and Russia’s Love Note
Even while agreed measure (4) specifies that a Ukrainian statute will govern in setting up local elections, agreed measures (9), (11), and the note to measure (11) are the real poison in Minsk II’s chalice. Reading them together, Ukraine is permitted full control over its borders, but only after local elections take place in Donetsk and Luhansk. This means that when the newly elected mobs take over and push for closer association with Moscow, Ukrainian border guards and other troops will have the unhappy task of enforcing borders against newly elected pro-Russian separatists. Under Minsk II, Ukraine’s sovereign right to control its borders — a right it has notwithstanding any measure in Minsk II — must wait on the outcome of elections and a “comprehensive political settlement with Luhansk and Donetsk.” While these measures reflect the facts of Russia’s supremacy on the ground in these areas, their contrivance at lessening the ability of Kyiv ever to regain control over Donetsk and Luhansk is all too apparent. Thus the formula for the partition of Ukraine is clear: elect pro-Russian parties, drag out negotiations on a political settlement, and gain time to build up military equipment and relatively well-rested ground forces for a complete secession. Agreed measure (11) further specifies that
[There will be] constitutional reform in Ukraine [which will enter] into force by the end of 2015, and a new constitution, [which is] intended as a key element of decentralization (taking into account the characteristics of individual regions of Donetsk and Luhansk regions, agreed with representatives of these areas), as well as the adoption of a permanent law with the measures specified in Note 1 [of this agreement], until the end of 2015.
Worse still, in Note (1) to agreed measure (11) there are highly dubious measures that severely limit the sovereign judicial and military control of Kyiv in Donetsk and Luhansk, among the worst of which are: Exemption from punishment, harassment, and discrimination of individuals associated with the events that took place in “some areas of Donetsk and Luhansk regions”; participation of local governments in the appointment of prosecutors and courts in Donetsk and Luhansk; Kyiv’s assistance for “cross-border cooperation in selected areas of the Donetsk and Luhansk regions” with Russia; and the creation of “people’s militia units to address local councils in order to maintain public order in some regions of Donetsk and Luhansk regions.”
These measures amount to a legal safe harbor, outside of Ukrainian law, for Donetsk and Luhansk, for war criminals who would be subject to sympathetic courts and prosecutors appointed by the Russian-backed parties in elections that will take place under the threat of resumed fighting and increasing cross-border linkages with Russia. All of this would unfold under the watchful eyes of “people’s militia,” who, like the “armed forces” of Luhansk and Donetsk cited earlier in Minsk II, are by no means lawful, uniformed combatants but doubtless will use their Russian-supplied weapons and sheer brute force to ensure that elections and their results bring Donetsk and Luhansk closer to Russia. In short, a prescription for continued conflict.
If all of Minsk II is implemented by the end of this year, Ukraine will be effectively partitioned after being subjected to the Russian annexation of Crimea. It is for this reason more than any other that Minsk II will fail to keep the peace as it is so obviously crafted to dismember Ukraine. Just as Russia’s hybrid war in Ukraine has no easily discernable start date, so too it has not had even one effective ceasefire, under last September’s Minsk agreement, and nor is it likely to have one under Minsk II. At each turn, Russia has been unwilling to admit guilt, refrain from supporting its combatants, or make agreements that would truly limit its continued war in the Donbas.
To sit idly by while Minsk II codifies Russia’s key aims in the Donbas would be to allow a model for future Russian wars of expansion in Eastern Europe. Russia’s campaign in Ukraine is not just coincidental with its dismantlement of the entire post-World War II security architecture in Europe, it is its testing ground for it. On paper, Minsk II is another Russian experiment that succeeded.
Thomas C. Moore is Senior Fellow with the Lugar Center, and was for a decade the Republican Professional Staff Member for arms control on the Senate Foreign Relations Committee. These views are entirely his own.
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