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The Minsk Agreement format should change

05.01.16 | Yevhen Zakharov

At the end of November a Bundestag deputy told me quite directly and pragmatically that we have nothing besides the Minsk Agreement. If Ukraine refuses to implement it, it will be left alone with its opponent, without European support. Peace is the most important thing. It’s therefore necessary to implement them, regardless of all concerns and difficulties.

On 30 December, the Presidents of Ukraine, Russia and France and Germany’s Chancellor had a telephone conversation in which they extended the Minsk Agreement to 2016. And the Foreign Minister of Germany which is now also the Chair of the OSCE in 2016 has just expressed satisfaction with the observance of the ceasefire in Donbas over recent days.  “This gives us the hope that the sides to the conflict will also discuss other difficult steps which need to be taken in order to fully implement the Minsk Agreement, with the will to find constructive decisions which will make it possible to overcome the crisis and finally defuse the conflict”, Frank-Walter Steinmeyer’s statement reads.

Most regrettably our European partners don’t want to acknowledge the real situation, namely that it is entirely useless to demand unilateral implementation of the Minsk Agreement by Ukraine if the Russian side doesn’t fulfil them. Moreover, Ukraine can also not implement the Minsk Agreement simply because Russia is obstructing this.

It’s not for nothing that the Deputy Head of the OSCE Special Monitoring Mission Alexander Hug stated at a press conference in Kyiv on Dec 31 that in 2016 it would be desirable to sign a new agreement between the parties to the conflict in the East of Ukraine to regulate problems which remain unresolved. What we need to do, he said, is fairly clear: it’s enough to write out all existing problems in an agreement and sign them. 

He recalled that during 2015 there had been infringements of the ceasefire; use of weapons banned under the Minsk Agreement; obstruction of mission observers’ freedom of movement, as well as difficulties for civilians in crossing the demarcation line.

Of the infringements listed by Alexander Hug, only the last accusation can be laid against both Ukraine and Russia.  All the other infringements are on Russia’s conscience.

Yet Hug named far from all the provisions of the Minsk Agreement that Russia is violating.

Item 7 -  Provide safe access, delivery, storage and distribution of humanitarian aid to the needy, based on an international mechanism.

No humanitarian aid from the State has reached DNR/LNR [the so-called Donetsk and Luhansk people’s republics]. 

Item 6 – Ensure the release and exchange of all hostages and illegally held persons, based on the principle of “all for all”, no later than on the fifth day after the pull-out of heavy artillery.  And what?!  10 months have passed, and the releases are proceeding with great difficulty. They claim that at the end of 2015 there were 131 hostages and prisoners however it’s impossible to check these figures. The process of release and exchange is totally closed from the public and monopolized by the Security Service [SBU] which cites the need for secrecy. Who it is that takes decisions about exchanges is presently unknown. 

It is however known that the SBU is forced to create a so-called ‘exchange fund’.  People are charged with ‘separatism’ under Article 110 of the Ukrainian Criminal Code, or with another crime.  A written agreement is taken to be part of an exchange (sometimes this happens during the trial), the criminal proceedings are terminated and they’re held in custody in the SBU somewhere until the exchange takes place. This disgraceful practice is absolutely beyond the realms of law, however in Ukraine they are force to resort to this in order to free hostages and prisoners.

The exchange was recently suspended: Russia imposed the demand that there first be an amnesty and then exchange.  What is referred to is Ukraine’s implementation of Item 5 of the Minsk Agreement - Provide pardon and amnesty by way of enacting a law that forbids persecution and punishment of persons in relation to events that took place in particular departments of Donetsk and Luhansk oblasts.

“Amnesty” is a word that makes millions of Ukrainian hearts shudder. How can you forgive those who killed and tortured, abducted, robbed and tormented?! This is all the more disgusting against the background of the more than 400 criminal proceedings which the Central Military Prosecutor is running against Ukrainians for military crimes which on closer analysis are nothing of the kind.

Such an amnesty only encourages impunity of the criminals and pushes them to commit new crimes.  You can’t give up the justice system and justice in exchange for peace since as a result you have neither peace nor justice – the military conflict will return.

Nonetheless our European partners speak of the need for the Verkhovna Rada to pass a law on immunity to those who will be elected in February to DNR and LNR bodies of local self-government. Once again no attention is paid to who will be elected.

Yet Item 5 does not speak of a total and unreserved amnesty. It’s therefore necessary in the draft law on amnesty to list all articles of the Criminal Code which amnesty does not apply for, in the first instance for crimes against humanity and military crimes.  This draft law should apply not only to LNR/DNR fighters, but to Ukrainian servicemen and volunteers. Such an amnesty would be acceptable and could indeed serve to overcome the conflict.

The proposal put by Roman Romanov is popular with human rights activists.  He suggests applying to the European Union with a request to help examine crimes against humanity and military crimes committed during the military conflict in Donbas since Ukraine does not have experience of such investigations, as well as the creation of a separate chamber in the Supreme Court to consider international crimes with the participation of foreign judges. I think that the relevant actions by the country’s leaders in this direct would only strengthen Ukraine’s position at Normandy Four negotiations. 

Items 9, 11 and 12 - Restore full control over the state border by Ukrainian government in the whole conflict zone, which has to start on the first day after the local election and end after the full political regulation (local elections in particular districts of Donetsk and Luhansk Oblasts based on the law of Ukraine and Constitutional reform).  This is some kind of oxymoron!  Who believes that local elections will take place Agreementing to Ukrainian law and monitored by observers, or that they will meet OSCE standards on free, honest and fair elections?! When the laws on DNR and LNR elections are already created and arouse only nervous laughter. Or that the ‘obedient’ Ukrainian parliament will adopt amendments to the Constitution of dubious value which envisage special status for the Donetsk and Luhansk oblasts?

These provisions are written as if on purpose, assuming that all of this is from the realm of fantasy. In present conditions it is impossible to achieve this! And attempts nonetheless to achieve the needed result in a short period from 22 January to 3 February when parliament is supposed to pass all this will lead only to a split in the parliamentary majority and a difficult internal crisis which will rejoice the aggress.

This must not be allowed! We need to find a way and propose new mechanisms and procedure for overcoming conflict and keeping the peace. For example, by passing a balanced law on amnesty and including international mechanisms of investigation and court trial of international crimes in the Minsk Agreement.