The Minsk Agreements – more than “scraps of paper”?

ABSTRACT

The implementation of the Minsk Agreements has been flawed and failure-prone, but they remain the key politico-legal frameworks of reference for addressing conflict transformation and settlement in East Ukraine. This article investigates how and why the Minsk Agreements’ troubled implementation has been shaped by typical or non- typical characteristics of contemporary internationalised and legalised peace agreements. It helps to unpack the Minsk Agreements’ “limbo between failing and the imperative of not failing”, leading to a discussion of ways to approach the negotiation and implementation of peace agreements from pragmatic perspectives beyond the binary distinction between success and failure.

KEYWORDS:

• Ukraine Crisis
• Minsk Agreement
• political settlement
• peace agreement
• ceasefire
• international law
• conflict settlement

1. Introduction

The implementation of the Minsk Agreements has been persistently flawed and prone to failure. But despite the parties’ mutual accusations of non-compliance and violations, the challenges of international monitoring, the troubled processes of establishing violations of the Minsk Agreements, and the lack of effective responses to violations in the form of sanctions and enforcement measures, the package of Minsk Agreements is still, for both the signing parties and international actors, the key politico-legal framework of reference for addressing issues of conflict management, transformation and settlement in the eastern regions of Ukraine. Thus, the Minsk Agreements have proven surprisingly tenacious, even though they have always been closer to failure than to even partial implementation. The Minsk Agreements and Minsk Process seem captured in a “limbo between failing and the imperative of not failing”, a metaphor I will make use of throughout this article as I explore whether and to what extent the politico-legal struggles that have shaped the Minsk Agreements’ troubled implementation record are typical for the complex processes of negotiating and implementing contemporary internationalised and legalised peace and ceasefire agreements.

As I have argued previously, processes of negotiating and implementing contemporary internationalised peace agreements involving state and non-state parties are like laboratories for formulating transitional and post-conflict settlements. Regardless of whether agreements work out by leading to sustainable peace, they open spaces for interactions among domestic, regional and international actors, laws and politics (Wittke 2018a, 48–82). The state and non-state parties to peace agreements usually create politico-legal documents of a hybrid nature that reject clear binary divisions between the international and the domestic and between “law and non-law”, i.e. what is legally binding or not binding (Wittke 2018a, 209–216). Thus, peace agreements and even ceasefire agreements can include simultaneously internationalised transitional constitutions and politico-legal agreements governed by international law (Daase 2015; Wittke 2018a, 48–82). In such contexts, from a pragmatic point of view, direct conflict parties and other actors involved in the negotiation and implementation of peace agreements regard these complex processes and the ambiguous documents they usually produce as opportunities to redefine the legal and political order of the state, i.e. to gain power and “win” at the negotiation table (see e.g. Bell 2006, 2008, 27–76; Daase 2011; Wittke 2018a, 14–47). Additionally, external actors are increasingly involved in these processes – not necessarily as impartial mediators in a traditional sense, but as proactive “third parties” who frame the negotiation and implementation of peace agreements having come equipped with a set of functionalist authoritative international standards, norms, and rules for peace and post-conflict constitution making (Bell 2008, 175–195; Wittke 2018a, 15–22).

Why is an investigation of the politico-legal dimensions of the negotiation and implementation of internationalised peace agreements between state and non-state parties relevant to an exploration of the mechanisms at work to keep the Minsk Process in a limbo between failing and the imperative of not failing? Political science literature, for instance – which mostly focuses on causes of and correlations of different factors with the success or failure of peace agreements and peace processes, and on normative and empirical indicators of the formulation of successful (hence, good) agreements – also discusses implicitly whether and how the legal (looking) form and substance, together with the projected binding force of peace agreements, can more strongly pull the parties to the agreement towards compliance (see e.g. Fortna 2003; Kaldor 2007; Licklider 1995; Stedman, Rothchild, and Cousens 2002). This literature, however, does not identify the circumstances under which parties to peace agreement negotiations create legally binding agreements, nor does it address how and why the parties to highly internationalised and legalised peace agreements are nevertheless prone to non-compliance and violations and thus, eventually, failure (Bell 2006, 2008, 27–31; Fortna 2003; Licklider 1995; Wittke 2018a, 7–10). Moreover, we do not know much about why peace agreements that allegedly have failed nevertheless often remain the main frameworks of reference and serve as substantive and quasi-formal sources for the negotiation and implementation of subsequent formal settlements – i.e. why failed peace agreements usually stay inscribed in future processes and then appear substantively as well in future documents (Wittke 2018a, 39–48).

Departing from these observations, I will approach the question – whether, how and why the Minsk Agreements’ troubled implementation has been shaped by struggles that typically arise during the negotiation and implementation of contemporary internationalised and legalised peace agreements – from the perspective of law and political science.¹ After this introduction, the second section of my analysis will open with a chronological overview of the internationalised negotiation processes and the implementation record of the Minsk Agreements. This overview will help place the Minsk Agreements in the context of the general practices of the internationalisation and legalisation of post-Cold War peace agreements and the rather typical limbo in which a peace agreement’s implementation is failing yet must not fail.

The third section will place the implementation record of the Minsk Agreements in the context of the challenges and struggles that typically arise during the negotiation and implementation of contemporary internationalised and legalised peace agreements. This analytical lens will meanwhile also enable me to discern a set of non-typical characteristics of the process of the Minsk Agreements’ negotiation and implementation – above all the ambiguity of Russia’s role, which shifts from “(in)direct party to violent conflict” to “third party” within the Minsk Agreements’ internationalised negotiation and implementation formats. Russia’s ambiguous relation to the limbo of the Minsk Process and ultimately to the increasingly protracted nature of the conflict has led to debates over whether the conflict constellations in Ukraine’s eastern regions are developing into new “frozen conflicts” or non-recgonised de facto states in the post-Soviet space (e.g. Malyarenko and Wolff 2019).²

Yet instead of diving into the literature on “post-Soviet frozen conflicts” to debate whether the conflict in Ukraine’s eastern regions fits into this more descriptive than analytical category, I will connect the situation to recent debates on political settlements and peace in formalised political unsettlements (Pospisil 2019). Formalised political unsettlements, e.g. peace agreements, are political and legal institutions that rather “contain than resolve a conflict” (Bell and Pospisil 2017, 583) and are usually presented as temporary or transitional. In practice, though, they often result in enduring configurations that leave the conflict parties’ most fundamental incompatibilities unsolved – i.e. the peace process is kept in limbo (Bell and Pospisil 2017, 583). Thus, the article’s fourth section will explore the question of whether approaching the Minsk Agreements and Minsk Process as formalised political unsettlements will further our understanding of how and why the Minsk Agreements are captured in this limbo between failing and the imperative of not failing. My article will conclude with a summary and an outlook on future research on the roles of negotiated settlements in the struggles between war and peace in the eastern regions of Ukraine.

2. The Limbo of the Minsk Process: setting the stage

Former President Victor Yanukovych’s refusal to sign an Association Agreement with the European Union (EU) triggered the so-called Euromaidan or “Revolution of Dignity” in Ukraine. From fall 2013 to February 2014, the situation at Maidan Nezalezhnosti (Independence Square) in Kiev, Ukraine’s capital, had escalated into a violent conflict that pitted special forces against a very diverse crowd of demonstrators. Aware of the rapidly growing humanitarian emergency, Germany, France and Poland took the initiative and mediated talks between Ukraine’s presidential administration and the parliamentary opposition. These negotiations, conducted also in the presence of a Russian diplomat, led to the so-called Kiev Agreement of 21 February 2014 (Agreement on the Solution of the Crisis in Ukraine 2014). The agreement provided for a transitional government of national unity, constitutional reforms and presidential elections at the end of 2014. However, this transitional arrangement collapsed within a few days. The protests in Kiev had already spilled over to other cities and polarised Ukrainian society into proponents and opponents of the Euromaidan. The transitional arrangements laid out in the Kiev Agreement were rejected, especially by the protesters on the Maidan. Unable to hold onto his office, President Yanukovych eventually fled the country, seeking exile in Russia. Amidst a crisis of state power, Ukraine soon also faced threats and eventually violations of its territorial integrity as Russia annexed Crimea in March 2014 and violent conflict broke out in the regions of Donetsk and Luhansk in East Ukraine shortly thereafter.³

Examination of the conflict constellations in the eastern regions of Ukraine 2014 reveals four different layers of conflict at the same time: Russia’s undeniably heavy involvement, fluctuating between “effective” and “overall control” of the conflict;⁴ an elite-driven conflict between local elites in Donbas and the newly appointed government in Kiev over demands for greater local self-government; an elite-driven conflict among different local elites in East Ukraine (e.g. between “Donetskie” and “Dnipropetrovskie”) who have established and funded a number of paramilitary battalions; and lastly a conflict driven by the masses, i.e. supporters of the Euromaidan and their rivals in the so-called Anti-Maidan, usually pro-Russian denizens of East Ukraine who consider the Euromaidan an illegal coup d’état (Galbreath and Malyarenko Forthcoming 2019; Malyarenko and Wolff 2019).

The main escalation of the violent conflict occurred between the first international negotiations on the situation in East Ukraine in Geneva on 17 April 2014 and negotiations of the first and second Minsk Agreements in September 2014 and February 2015 respectively. The Geneva Statement proclaimed the necessity of an “inclusive, transparent and accountable constitutional process in Ukraine with the immediate establishment of a broader national dialogue with outreach to all of Ukraine’s regions and political constituencies” (Geneva Statement on Ukraine 2014). Later these points were also included in President Poroshenko’s Unilateral Peace Plan of June 2014 as well as the first and second Minsk Agreements.

Based on these observations, the following subsection will provide a chronological overview of the negotiation and implementation of the Minsk Agreements. Next, a second subsection will show how key parties in the “implementation struggle” have argued their official legal position regarding the Minsk Agreements at the International Court of Justice (ICJ). The article’s third section will contextualise the Minsk Agreements in the broader politico-legal practices of the negotiation and implementation of contemporary internationalised and legalised peace agreements, enabling me to unpack, first, the typical and non-typical negotiation and implementation challenges for the Minsk Agreements and thus the Minsk Process’ limbo between failing and the imperative of not failing, which in effect challenges the practicality of the distinction between success and failure and turns the focus to “frozen conflicts” and “formalised political settlements and unsettlements” in the fourth section.

2.1. A chronology of the negotiation and implementation of the Minsk Agreements

The first Minsk Agreement (Minsk I Agreement) of September 2014, which largely resembled the 15 points of President Poroshenko’s failed Unilateral Peace Plan of June 2014 (Unilateral Peace Plan), was negotiated under the umbrella of the Normandy Format⁵ and signed on 5 September 2014 by the members of the Trilateral Contact Group, i.e. Ambassador Talyavini for the OSCE, former President Kuchma for Ukraine, Russia’s Ambassador to Ukraine, Zurabov, and “representatives” of the Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR), Zakharchenko and Plotnitski (Minsk I Agreement). The implementation of the Minsk I Agreement turned out to be highly fragile and prone to failure. Former President Leonid Kuchma’s signing of the Agreement for Ukraine next to the signatures of “representatives” signing for the DPR and LPR led to especially vocal controversy. Critical voices, especially in Ukraine, doubted Kuchma’s legitimacy and mandate to represent Ukraine in negotiations, let alone sign agreements on Ukraine’s behalf. They also questioned the legitimacy and even legality of DPR and LPR representatives being present during the negotiation process, the more so as signing “parties” to the Minsk Agreement (see discussions below in this section regarding the Minsk II Agreement). The latter argument highlights Ukraine’s approach to and interpretation of the conflict in its eastern regions as an international armed conflict between Ukraine and Russia rather than a non-international armed conflict with armed separatist forces of the DPR and LPR. As the next section will show, diverging perspectives on the mandate, accountability, responsibility and status of direct parties and third parties during the negotiation and implementation of peace agreements are typical controversies.

In terms of its form and substance, the Minsk I Agreement laid out a 12-point roadmap for reaching peace, including an immediate ceasefire between the fighting parties, arrangements for prisoners’ release, and amnesty provisions (Minsk I Agreement). The agreement also used political settlements terminology by envisioning the continuation of the process through an “inclusive national dialogue” (Minsk I Agreement; more on political settlements, see section 4). It also envisioned early local elections in Donetsk and Luhansk “Oblasts” (province) and included highly detailed and legalised provisions regarding power-sharing between the central government in Kiev and the conflicted regions, especially through more decentralisation (Minsk I Agreement). Thus, in continuation of the failed Unilateral Peace Plan of President Poroshenko, a ceasefire, holding local elections and decentralising power became substantive and procedural core-pillars of the first Minsk Agreement (Minsk I Agreement; Unilateral Peace Plan).

In a more detailed and compulsory manner than the Unilateral Peace Plan, the Minsk Agreement envisioned establishing local self-government structures in Donetsk and Luhansk under a “Ukrainian Law on Special Status” (Minsk I Agreement) meant to underline Ukraine’s readiness to pass domestic legislative measures to effectively implement the Minsk I Agreement. From its inception, however, the implementation process of the Agreement was troubled. Facing violations of the ceasefire from the start, the Trilateral Contact Group reached an understanding regarding the need for a monitoring and verification mechanism. The task of monitoring was delegated to the Organisation for Security and Co-operation in Europe (OSCE). Meanwhile, the Memorandum on Implementation, also called the “Implementation Agreement” of 19 September 2014, was drawn up especially to bolster the effective implementation of the ceasefire (Memorandum on Implementation). Reaching an effective ceasefire while also implementing a disputed sequence of other measures in the Minsk Agreement, i.e. decentralisation together with the “Law of Ukraine on the interim status of local self-government in certain areas of the Donetsk and Luhansk regions” (Minsk I Agreement; Special Status Law) and necessary changes to Ukraine’s constitution, grew into major obstacles to the implementation of the Minsk Agreement. Violations of the ceasefire continued. Then, in November 2014, the non-recognised separatist entities held local elections. OSCE Chairman Didier Burkhalter declared these elections unauthorised and “counter to the letter and spirit of the Minsk Protocol” (OSCE Press Release 2014). An alarming situation of escalating armed conflict prevailed at the end of 2014. In the next round of Minsk talks on 31 January 2015, members of the Trilateral Contact Group met directly with DPR and LPR representatives to settle disputes about the Minsk Agreement’s interpretation and implementation (OSCE Press Release 2015). However, instead of settling disputes about the interpretation and implementation of the negotiated agreement, i.e. the Minsk Agreement of September 2014, the DPR and LPR representatives requested revisions to both the Minsk Agreement and the implementation agreement (OSCE Press Release 2015). In the end, their meeting with the Contact Group failed to reach any consensus on the Minsk Agreement’s effective implementation.

By early February 2015, the situation in the conflict-ridden regions of East Ukraine had grown even more alarming, and the Normandy Group and Trilateral Contact Group gathered for a dramatic all-night meeting. Chancelor Angela Merkel, and Presidents Putin, Hollande, and Poroshenko, as well as representatives of international organisations, negotiated an updated formalised political settlement for a peace process in East Ukraine. According to Russia’s President Putin, Ukraine’s refusal to talk directly with the DPR and LPR “representatives” further complicated the already complex negotiations. The refusal of one party – usually a state whose territorial integrity is challenged by a non-state party – to meet another party directly during peace negotiations is a typical complication of negotiation processes. Direct negotiations – i.e. meetings in which negotiators make eye contact – could be interpreted as acts of implicit recognition of the non-state parties, their representatives, and their respective claims (Wittke 2018a, 72 et seq.).

Finally an agreement was reached. Even though the same heads of government who had taken part in the Normandy Format had negotiated the second Minsk Agreement and were present, it were again the members of the Trilateral Contact Group who signed it on 12 February 2015 (Minsk II Agreement). Again, two issues proved controversial. First, as in the first Minsk Agreement, the DPR and LPR representatives (again Zakharchenko and Plotnitski) signed the agreement but gave no indication of their de facto (public) office or, therefore, of their de facto (public) mandate. Hence, critics of the Agreements regard these representatives as “private actors” and not as relevant parties to the conflict or the Minsk Agreements and Process (see e.g. Zoria and Shandra 2018). Second, former President Leonid Kuchma’s mandate to negotiate and sign an agreement for Ukraine was questioned by Ukrainian critics who stressed that “None of the procedures envisaged by the Constitution or the Law on International Treaties has been followed. A private citizen isn’t authorised to make any obligations on behalf of the Ukrainian state” (see also Zoria and Shandra 2018).

Taking a broader comparative perspective, it would hardly have been the first such case if the members of the Normandy Format, i.e. the present heads of government, had signed the Minsk Agreement directly as external actors, “third parties” or “guarantors”. In fact, peace agreements have been signed with and even between third parties who undertook to act as proxies for the original conflicting parties and as guarantors of a peace agreement’s implementation. The Dayton Agreement and the Cambodia Agreement (Dayton Agreement; Paris Agreement) are well-known examples of peace agreements that were negotiated and signed by third parties. Other instances of strong third-party involvement in negotiation and implementation processes of peace agreements include the Lusaka Agreement for Angola and the Lomé Agreement for Sierra Leone. Unlike in the Dayton and Paris Agreements, the third parties did not de facto assume the role of direct (first) parties or proxies but remained external parties, distinct from the state and non-state parties that were directly engaged in the violent conflict, and thus, the “first parties” in the negotiation process and resulting peace agreement (Boltjes 2007; Wittke 2018a, 15 et seq.). In all these constellations, third parties can exert strong pressure on both state and non-state parties to reach an agreement, consent to the deployment of peacekeeping forces, or delegate implementation and interpretation competencies to external actors, e.g. international organisations.

Speaking generally, third parties often treat non-state parties to peace agreements and their envoys, on the one hand, and representatives of the state on the other, as equally accountable and responsible for the implementation of an agreement, e.g. by effectively enforcing peace agreements or certain obligations they entail, targeting both state and non-state parties to peace agreements with sanctions, or linking far-reaching interventions to the conduct of all parties to the agreement (Kaldor 2007; Wittke 2018a, 15 et seq., 51 et seq., 59 et seq., 189 et seq.). Such engagement with non-state parties to peace agreements is grounded in the supposition that non-state parties to the conflict will be transformed into parties in a negotiation and peace agreement implementation process, and eventually transform into political parties or groups. In sum, the outlined constellations can foster strong commitments between direct parties to conflicts and peace agreements and third parties involved in negotiation and implementation processes. Thus, by signing internationalised and highly legalised peace agreements, direct conflict parties enter into commitments not only to each other but also to third parties, e.g. external actors like individual states, groups of states, or international organisations.

In the end, though, by delegating the signing of the Minsk Agreement from the Normandy Group to the Trilateral Contact Group, a technical implementation group, the negotiators of the Minsk Agreements did not take the step towards the earlier outlined very strong form of third-party involvement seen in the Dayton or Paris Agreements, for instance. Instead, the politico-legal status of the Minsk Agreements remained – deliberately, it seems – far more ambiguous than that of the variations of internationalised peace agreements outlined above.

As for its substance, the 13 points of the Minsk II Agreement specify arrangements referring to the 2014 Minsk I Agreement as well as to the Memorandum on Implementation. The inclusion of content and processual aspects of earlier “failed” agreements in the negotiation process underscores the limbo between a peace agreement’s failure and the imperative that it not fails. The types of path dependencies between different peace agreements that carry a previous agreement’s content forward can even lead to the incorporation of a cluster of failed peace agreements, framing negotiation and implementation processes in the future. Moreover, the Minsk II Agreement demands that parties withdraw troops and that a “dialogue on modalities of local elections in accordance with Ukrainian legislation” be established immediately (Minsk II Agreement). It also sets an ambitious 30-day deadline for the Ukrainian parliament to specify the area that will fall under a special regime in accordance with the “Law of Ukraine on Interim Local Self-Government Order in Certain Areas of the Donetsk and Luhansk Regions” and the Memorandum on Implementation (Minsk II Agreement). Furthermore, the Minsk II Agreement envisions holding local elections aligned to international standards. These elections are or were supposed to be discussed and agreed upon “with representatives of DPR and LPR” in the framework of the meetings of the Trilateral Contact Group for implementing the Minsk Agreement (Minsk II Agreement). The Minsk II Agreement also addressed a “constitutional reform in Ukraine with a new Constitution entering into force by the end of 2015”. The amended constitution was supposed to provide for

decentralization as a key element (including a reference to the specificities of certain areas in the Donetsk and Luhansk regions, agreed with the representatives of these areas), as well as adopting permanent legislation on the special status of certain areas of the Donetsk and Luhansk regions in line with measures as set out in the footnote until the end of 2015. (Minsk II Agreement)

Making decentralisation a key part of Ukraine’s constitution has been a hotly debated politico-legal issue since the country gained independence in 1991. Decentralisation has broader implications for Ukraine’s overall domestic politics and lawmaking (Sasse 2016). Since the onset of violent conflict in the eastern regions of Ukraine, and especially in regard to the form and substance of the Minsk Agreements, international actors have considered decentralisation the key to a political settlement and peace process. Over the course of 2015, legislation regulating local self-government in Ukraine’s eastern regions was added to the draft of constitutional changes concerning decentralisation (Ukraine Reform Monitor August 2015). Having already had been approved by the Constitutional Court of Ukraine, the amendments were passed by the Rada, Ukraine’s parliament, upon a first reading on 31 August 2015 (Ukraine’s Constitutional Court Rules 2015). Unfortunately, this constitutional reform project effectively ended the same day as violent protests against special concessions for the conflicted separatist regions erupted outside the parliament building and four people were killed in a grenade attack (Ukraine Reform Monitor October 2015). This flare-up of violence in Ukraine’s capital, right in front of the Rada, highlighted both the fragility of the constitutional consensus and the instability of the political settlement in Ukraine. The stability of the central state’s political settlement was and is at stake in any attempt to settle the violent conflict in East Ukraine via measures for decentralisation and constitutional change.

Seen from the particular implementation perspective of the Minsk Agreements, effective decentralisation in the form of a special politico-legal status for the contested eastern territories, which will ultimately change Ukraine’s overall constitutional and political order, is still pending. Decentralisation still features prominently on domestic and international donors’ agendas for addressing conflict settlement and transition in Ukraine (Sasse 2016). In spring 2018, a renewal of international attention to the struggles between war and peace in East Ukraine pushed both Ukraine’s President and its Prime Minister to acknowledge the need to advance reforms geared towards decentralisation. However, in doing so they also emphasised that Ukraine’s decentralisation, including the status of the eastern regions, would be subject to Ukraine’s constitutional reform and domestic lawmaking processes but would not be subject to the processes outlined in the Minsk Agreements (President of Ukraine 2018). This “disclaimer” about the Minsk Agreements’ compulsory and regulative nature with regard to decentralisation and the new power-sharing arrangement publicised by Ukraine’s political leadership becomes even more important when it is seen in the context of another measure, such as the law “On peculiarities of state policy on ensuring state sovereignty over temporarily occupied territories in Donetsk and Luhansk Oblasts” N7163 from 18 January 2018 (also called the ”Law on De-occupation and Re-integration”) and the more recent decision on the 30 days of martial law in November 2018, following the incidents in the Kerch Strait (Decree of the President of Ukraine, No. 393/2018). Both measures concern situations of emergency and exception in the eastern regions of Ukraine and delegate extended functional authorities and competences to Ukraine’s presidential administration, i.e. the state’s executive power. Neither measure explicitly addresses its relation to the Minsk Agreements. Yet, domestic and international observers understand especially the “Law on De-occupation and Re-integration” as an implicit collision with and effective opt-out of essential substantive and procedural parts of the Minsk Package. The law declares Russia to be an aggressor against Ukraine’s territorial integrity and an “occupying state”, and characterises Russia’s occupations of DPR and LPR as “Russian occupational administrations” (De-occupation and Re-occupation Law; Galbreath and Malyarenko Forthcoming 2019; Shandra 2018; Stanko 2018). With this law Ukraine is defining and developing the characteristics and terminology of Russia’s “occupation without occupation” and “war without war” (Dunn and Bobick 2014) in its eastern regions. It adds new and contradicting notions to categorisations according to international law between “international” and “non-international” armed conflict, the “laws of occupation” and the “exercise of effective and/or overall control” over a territory and armed groups operating on this territory (see e.g. Boon 2014; Szpak 2017). Thus these domestic legislative measures, using and adapting the language of international law and politics, insert additional meanings and interpretations that contradict the Minsk Agreements and create obstacles to their implementation (see also BBC 2018; Shandra 2018; Stanko 2018).

An earlier addition to the politico-legal complexity of the status and implementation of the Minsk Agreements was Ukraine’s move towards “lawfare” by launching of judicial procedures at different courts of international law, e.g. the ICJ, where the procedure Ukraine vs. Russia raises the question of whether processes of legal dispute settlement and legal decision making could work to obstruct political dialogue and political settlements aimed at conflict settlement between the parties. This question in turn relates closely to another: Can peace agreements be implemented jointly by parties that implicitly and explicitly accuse each other of not acting in good faith and even of being violators of international law?

2.2. The case of Ukraine v. Russia at the ICJ and the Minsk Agreements

On 17 January 2017, Ukraine filed a lawsuit against Russia at the ICJ, a move that most observers had anticipated. Many drew parallels to Georgia’s case against Russia after the Russo-Georgian War of 2008. For instance, Ukraine accused Russia of violations against the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) addressing especially the situation of Crimean Tartars after the annexation of Crimea in March 2014. Ukraine added allegations regarding violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) by the Russian Federation’s support of what Ukraine considers terrorist activities in the eastern regions of Ukraine.

At first glance it appears rather odd that Ukraine’s lawsuit referred to the CERD and the Terrorist Financing Convention, when the major issue at stake for Ukraine seems to be Russia’s acts of aggression and unlawful use of force to annex Crimea in 2014 and conduct a proxy war in the eastern regions of Ukraine ever since. This odd legal basis of the dispute was selected because the exercise of the ICJ’s jurisdiction is based on the idea of state consent. Russia, which does not recognise the compulsory jurisdiction of the ICJ, would have denied the ICJ’s jurisdiction had Ukraine not been able to rely upon international treaties providing for the possibility of dispute settlement by the ICJ if direct negotiations between treaty parties failed to lead to a settlement of conflicts concerning the treaties’ interpretation and implementation. Both the CERD and the Terrorism Financing Convention include such provisions and have been ratified by Ukraine and Russia. Thus, Ukraine invoked those two instruments as the basis for its lawsuit at the ICJ.

Given this background, why did Ukraine decide to go to court at all, if it could not address what was at stake for the Ukrainian state through the most suitable international law, but only through those two conventions? A first reason might revolve around the idea and ideal that sovereign equality of all states is a basic principle of the Charter of the United Nations (UN) and guides its principal organs – including the ICJ, where states meet as sovereign equals. Law and international legal procedures are often related to the image of law and courts of law as a higher, objective institutions in which – unlike in power politics and warfare, where anything goes and the strongest power prevails – certain arguments can be made and others not, leading in the end to objective judgements by leading jurists about who is right or wrong according to international law.

Thus, if we regard Ukraine’s lawsuit against Russia as a strategy of “lawfare” and therewith as the “continuation of politics and warfare” by means of law, it seems an apt assumption that Ukraine approached the ICJ to make its case heard and fight its courtroom battle of legal arguments against Russia. Moreover, for purposes of this article, this move by Ukraine also emphasises that Ukraine views the violent conflict in its eastern regions as an international armed conflict with Russia, rather than a non-international, i.e. intra-state, armed conflict with separatist armed groups. Meanwhile Ukraine’s accusation that Russia violated the Terrorism Financing Convention effectively casts “representatives” of DPR and LPR as members of terrorist groups supported by Russia.

Considering this background, what role has the Minsk Agreements’ negotiation and implementation played so far? The case is still pending at the ICJ. But initial tendencies are visible in the order of preliminary measures issued by the ICJ in April 2017, referring to the Minsk Agreements in the pending case Ukraine v. Russian Federation. The ICJ stressed that:

With regard to the situation in eastern Ukraine, the Court reminds the Parties that the Security Council, in its resolution 2202 (2015), endorsed the “Package of Measures” for the Implementation of the Minsk Agreements, adopted and signed in Minsk on 12 February 2015 by representatives of the OSCE, Ukraine and the Russian Federation, as well as by representatives of “certain areas of the Donetsk and Luhansk regions”, and endorsed by the President of the Russian Federation, the President of Ukraine, the President of the French Republic and the Chancellor of the Federal Republic of Germany. The Court expects the Parties, through individual and joint efforts, to work for the full implementation of this “Package of Measures” in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine. (Request for the Indication of Provisional Measures, 34, para. 104)

The ICJ underlined the internationalised dimension of the second Minsk Agreement’s implementation, especially by referring to the UNSC’s endorsement of the Agreement and stressing the need for the parties’ compliance and implementation in order to guarantee progress in the peace process. At the same time, though, the ICJ avoided any clear statement about the politico-legal nature of the obligations the Minsk Agreements would impose on its state and non-state parties, and thus, also about the statuses and responsibilities of the different parties that the Court addressed directly.⁶ Instead, the ICJ focused on securing the endorsement of the 2015 Minsk Agreement in an SC resolution (Wittke 2018a, 161 et seq.). The outlined rhetorical and substantive ambiguity is in line with the ICJ’s previous handling of complex internationalised and legalised peace agreements that address the settlement of complex conflicts between state and non-state parties (see e.g. Lang 2008; Solomou 2014; Wittke 2018a, 83 et seq.).

Why, then, did the ICJ deem it necessary to address the second Minsk Agreement at all? It was Russia that had brought up the Minsk Agreements during the public hearings at the ICJ by underlining that “[t]he Minsk Agreements are repeatedly referred to by international actors as the only uncontested solution to the conflict” (Verbatim Record, CR 2017/2, 15, para. 20, 18 para. 9). Russia also pointed to the SC’s endorsement of the Minsk Package. According to Russia, Ukraine had persistently “ignored” the Minsk Agreements in its statements to the ICJ while trying to “stigmatise” the representatives of the DPR and LPR as “terrorists”, despite them being signatories of the Minsk Agreements and part of its internationalised technical implementation format, the Trilateral Contact Group. In the same vein, Russia asked the ICJ to abstain from any interference with the political negotiation and settlement process based on the Minsk Agreements, e.g. by taking substantively or procedurally conflicting legal measures (Verbatim Record, CR 2017/2, 15 para. 20; 18 para. 9 et seq., 52 para. 87). In sum, Russia argued that an international legal procedure at the ICJ could run the risk of impeding implementation of the Minsk Package and placing unintended political constraints on the continuing internationalised dialogue and peace process in Ukraine.

Ukraine replied that it is “historically quite common” for states to negotiate with “terrorist groups” to reach peace agreements, referring to the example of Columbia’s negotiations with Revolutionary Armed Forces of Colombia – People’s Army (FARC). However, Ukraine stressed that in its perspective DPR and LPR lacked the status of official parties to the negotiation and implementation processes of the Minsk Agreements (Verbatim Record, CR 2017/3, 17–18, para. 15). Additionally, Ukraine argued, legal procedure at the ICJ, together with the ICJ’s order of preliminary measures, could “bring Russia into compliance with its Minsk obligations” (Verbatim Record, CR 2017/3, 17–18 para. 15). Finally, Ukraine emphasised that the political dimensions of the negotiation and implementation of the Minsk Agreements would not and should not impede the ICJ’s jurisdiction over legal disputes between parties that are involved simultaneously in a dialogue and political settlement process (Verbatim Record, CR 2017/3, 17–18 paras.15–16).

In the next stages of their legal dispute, Ukraine and Russia will presumably continue to draw on and refer to the Minsk Agreements in their statements to the ICJ. The outlined initial exchange of legal arguments about the Minsk Agreements points to the importance of the politics of law, i.e. the interconnections and struggles between the legal and political dimensions of negotiating and implementing internationalised and legalised peace and ceasefire agreements. Moreover, statements by the legal representatives of Ukraine and Russia have directly and indirectly addressed typical disagreements about the politico-legal dimensions and status of contemporary peace and ceasefire agreements, explicitly or implicitly pointing inter alia to the contested legitimacy, authority and responsibility of the parties to the agreements. Russia and Ukraine disagree on both the nature of the conflict and the status of the parties to the Minsk Process. Whereas Ukraine considers Russia a direct conflict party that bears responsibility for the implementation of the Minsk Package, Russia implicitly positions the conflict in East Ukraine as a non-international armed conflict, the status of the LPR and DPR “representatives” as parties to the peace agreements and its own role as that of mediator and international negotiator. This discussion leads us to the broader question of whether and to what extent the cluster of Minsk Agreements of 2014 and 2015 share typical characteristics with contemporary negotiation and implementation processes of internationalised and legalised peace agreements.

3. The Minsk Agreements in the politico-legal context of contemporary peace agreement practices

From a general perspective, contemporary post–Cold War peace agreements have become objects of political science research, which from early on focused on matters like the causes and consequences of complex multilevel violent conflicts between state and non-state actors; the ripeness of moments and readiness of parties in violent conflict to reach a negotiated formalised settlement; the role of external actors in mediating, negotiating and implementing peace agreements; and the determinants of the success or failure of peace agreements and peace processes in short-, medium- and long-term perspectives (see e.g. Collier, Hoeffler, and Söderbom 2004; Hegre 2004; Licklider 1995; Stedman, Rothchild, and Cousens 2002; Zartman 2001). At the same time, social science and conflict research literature started discussing terms like “new wars”, “asymmetric conflict”, or “extra-systemic conflict”, i.e. the context of the negotiation and implementation of contemporary peace agreements (see e.g. Bell 2008; Daase 1999; Kaldor 2007; Münkler 2002).

To different extents, these conceptualisations seek to accommodate international and transnational dimensions of contemporary conflict constellations. The liberal peace model promoted by state- and peace-building literature and practice has been held under a critical lens for the past 25 years (for an overview from a political settlement perspective, see Pospisil 2019, 1–55). This critique is based foremost on the observation that peace by design does not lead to the desired goal, i.e. sustainable peace. These diverse critical perspectives range from strong criticism of the normative goal of peace- and state-building initiatives based on the liberal peace paradigm, i.e. the western liberal democratic state, to a perspective oriented to inclusive peace and/or indicators of daily, local peace (Mac Ginty 2013; Pospisil 2019, 1–55). This short article cannot provide an in-depth overview of these general debates in the literature, but the outline sketched here makes the important point that alleged binary divisions – between “internal” and “external”; between “aggression” (attacks from abroad) and “repression” (attacks from inside the country); or even between “local”, “domestic”, “regional” and “international” spheres – are impossible to draw or sustain for all parties and actors involved in contemporary processes of conflict transformation (see also Dunn and Bobick 2014; Kaldor 2007; Wittke 2018a). This same point holds true for the perspective that continues to divide records of implementation into successes and failures based on predetermined implementation indicators (Pospisil 2019, 1–55). It relates to, but differs from, my perspective on the limbo of peace agreements’ implementation between failure and the imperative not to fail. Considering the foregoing, how and why does the politico-legal dimension factor into the contextualisation and explanation of the Minsk Agreements’ limbo between failing and the imperative of not failing? Given the outlined background and context of social science and conflict studies research, it is still remarkable that legal and especially international legal scholarship initially dealt only hesitantly with the legal dimensions and challenges that complicated the negotiation and implementation of internationalised post–Cold War peace and ceasefire agreements (Campbell, Ní Aoláin, and Harvey 2003; Cassese 2004; Gaeta 1996; Kooijmans 1998; Quigley 1997; Ratner 1993; Watson 2000). Later it turned the focus to complex and fragmented processes of lawmaking and implementation in conflict transformation, and even to an emerging Lex Pacificatoria or Ius Post Bellum (Bell 2000, 2006, 2008; Stahn, Easterday, and Iverson 2014). Recently scholars of law and political science have drawn attention to political settlement research (Bell and Pospisil 2017). But despite an innovative turn to methods of social science research in law and the compilation of peace agreement databases and collections,⁷ a uniform legal definition for peace agreements or peace accords, let alone for peace agreements between a state and a non-state party, seems unfeasible and maybe also undesirable.

Nevertheless, need we explore whether contemporary peace agreements constitute a category of documents with certain consistent and common formal, substantive, political, legal or even just rhetorical features, in order to contextualise the Minsk Agreement? Any attempt to characterise peace and ceasefire agreements and contextualise them in broader politico-legal contexts will reveal a “lack of fit” with a majority of contemporary peace agreements (see also Bell 2006, 392). Lack of fit indicates metaphorically that peace and ceasefire agreements are usually negotiated in the grey zones between ongoing violent conflicts, the cessation of immediate violence, and the initiation of a sustainable peace process. Moreover, lack of fit could also point us to the question of whether law, be it domestic and/or international, is at all “fit” to deal with the challenges of peace agreements (Wittke 2018a, 4, 81).

The conflicts addressed by internationalised peace agreements usually include elements both intra- and interstate in nature. These written and signed documents – often hammered out between at least one state party and one non-state party that are direct parties to a violent conflict – usually have a transformative or transitional character in that they strive to regulate the political transformation from violent conflict to peace. Altogether, the outlined characteristics of contemporary peace agreements shape debates and trigger continuous disputes about the status, mandate and legitimacy of the various parties involved in the negotiation, signing and implementation of peace agreements. Yet substantively, these agreements cannot be clearly divided into legally binding and non-binding arrangements of either domestic or international law (Bell 2000, 2006, 2008, 27 et seq.; Wittke 2018a, 48 et seq., 62 et seq.). Instead, contemporary peace agreements like the Minsk Agreements tend to operate as extra-constitutional agreements. Usually they are neither international treaties of a state nor documents of a constitutional character nor domestic agreements between the state and a “private” or “public” entity under the constitution. Thus, peace agreements usually fall outside a state’s constitution (Wittke 2018a, 48 et seq.).

In this context, peace agreements are usually negotiated, drafted and implemented in an internationalised mediation process characterised by the involvement of third parties (Boltjes 2007; Daase 2012, 2011; Whitfield 2007; Wittke 2018a, 15 et seq.; 79 et seq.). As stated earlier, the term third party can refer to various actors, for instance individual states or groups of states, so-called groups of friends or contact groups and international governmental as well as national and transnational nongovernmental organisations that seek to promote or facilitate the mediation and resolution of violent conflicts (Whitfield 2007; Wittke 2018a, 31 et seq., 79 et seq.). In theory a third party is not actively involved or otherwise a stakeholder in the violent conflict constellation, and thus also has no stake in any particular outcome of a peace process shaped by political dialogue and a settlement process (Boltjes 2007; Daase 2012; Whitfield 2007).

Third-party mediation and facilitation is assumed to advance peace agreements’ negotiation and implementation, increasingly pulling the parties towards compliance (Daase 2012; Kaldor 2007; Martin 2006; Reisman 1998). Still, considering practices since the end of the Cold War, we can comfortably state that contemporary forms of third-party involvement go beyond traditional ideas of “mediation” and “facilitation” and can be highly proactive in the establishment of normative and institutional standards and constraints for negotiating, drafting and implementing peace agreements, e.g. by selecting parties and seating them at the negotiation table. Strong third-party involvement can take the form of politico-legal intervention and lead to effective international guidance or supervision and thus, eventually, the internationalisation of peace agreements and peace processes (Daase 2012; Martin 2006; Reisman 1998; Wittke 2018a). Third parties can also become legal and political norm promoters by taking on the role of quasi-“guarantors” and “witnesses”, especially as signatories to agreements but also via their membership in oversight mechanisms established by these agreements (Whitfield 2007; Wittke 2018a, 19). Indeed, when it comes to verifying a peace agreement and monitoring its implementation, first parties often delegate interpretation and enforcement and in rare cases even dispute settlement authority to third parties (Daase 2011, 2015; Wittke 2018a, 164 et seq.).

In sum, instead of strict binary divisions between legally binding and non-binding, an analysis of peace agreements could start by focusing on criteria like the degree of “obligation”, “precision” and “delegation” (adapting the Concept of Legalisation to the politico-legal analysis of peace agreements, Bell 2006, 384 et seq.; 2008, 136–138; Lang 2008, 147 et sq.; Wittke 2018a). These criteria, expressed in terms of degree, permit peace agreements to be located on a continuum of low to high legalisation. For instance, highly legalised peace agreements can be formulated in a treaty- and/or constitution-like manner and delegate monitoring, dispute settlement and implementation competences to third parties (see also Abbott et al. 2000, 401–419; Bell 2006, 379 et seq.; 2008, 162; Goldstein et al. 2000, 385–399; Keohane, Moravcsik, and Slaughter 2000, 457–488). Such internationalised and highly legalised peace agreements resemble international treaties in their form, the language used by the parties and their reference to international law and international standards as an authoritative source for creating a post-conflict legal and political order for conflict affected territories (Bell 2006, 379 et seq.; 2008, 162; Wittke 2018a, 82). However, these characteristics do not make internationalised and legalised contemporary peace agreements per se into international treaties and therewith sources of international law. They can instead be seen as extra-constitutional transitional agreements governed by international law, which function as source of authority and legitimacy for peace agreements’ substance and process (Bell 2006; Corten and Klein 2011, 10; Daase 2011, 2015; Ludsin 2011; Wittke 2018a, 82 et seq., 101 et seq., 139, 242). All these characteristics are components or amalgams of contemporary complex peace agreement negotiations and the subsequent implementation processes. Do the Minsk Agreements “fit” into this context?

3.1. The Minsk Agreements as typical peace agreements

The Minsk Agreements, as a cluster of peace agreements that were negotiated as internationalised and extra-constitutional agreements, are highly legalised and include arrangements for both a ceasefire and, supposedly, transitional power-sharing arrangements requiring a state party, i.e. Ukraine, to take particular domestic legislative measures, including a constitutional amendment affecting the state’s territorial unity. Implementation of the resulting set of extra-constitutional agreements has been highly problematic. Not only do they put the eastern regions of Ukraine, i.e. the places immediately affected or threatened by violent conflict, under a formalised process of transition, but they also directly affect politico-legal debates and processes in the entire Ukrainian state while it strives to renew the transformation and democratisation process that followed the so-called Euromaidan or Revolution of Dignity. Interestingly enough, it seems that this transitional political settlement process seeks to reform all of Ukraine also works parallel to, i.e. despite and alongside, the Minsk Agreements and their troubled implementation. In the end, as section 4 will show, we may face different politico-legal settlements and unsettlements operating in parallel in Ukraine.

Meanwhile, as section 2 points out, the parties to the Minsk Agreement disagree about both the nature of the conflict the Agreements are supposed to transform and the status and involvement of the parties to the conflict and the Agreements. This implicitly contradicts the idealised notions of peace agreements forged to address incompatibilities between conflict parties, i.e. that peace agreements will end a violent conflict by addressing and settling the incompatibilities between the direct parties to the conflict. In practice, though, this solution would in turn require that the parties reach an agreement on the politico-legal nature of their conflict as well as on who are parties. As outlined earlier, Ukraine considers itself to be in direct international armed conflict with Russia and does not recognise DPR and LPR representatives as parties to either the conflict or the Minsk Agreements, while Russia considers itself a third-party mediator and/or guarantor of the interests of the DPR and LPR as well as the Agreements’ implementation. Can agreements created and signed under these circumstances really be seen as transitional settlements carried out with the consent of the first parties? As noted earlier, agreements challenging a party’s legitimacy or even its legality with respect to the agreement are often addressed via politico-legal supervision or intervention by external, third-party actors.

What effects has the involvement of international actors like the Normandy Format, the Trilateral Contact Group, or the UN on the Minsk Agreements’ negotiation and their troubled implementation record? Various third parties were and are relevant in the negotiation and implementation of the Minsk Agreements. At the regional level they include the Normandy Format, the Trilateral Contact Group and the OSCE. The Normandy Format offers an international semi-formalised network and ad hoc framework for negotiations, but apart from some high-level meetings in Minsk, the degree of actual institutionalisation of the Format is low. The partners discuss the situation in the eastern regions of Ukraine over the telephone or on the side of multilateral and bilateral meetings. The actual signatories of the Minsk Agreements, as mentioned earlier, were members of the Trilateral Contact Group, made up of representatives for Ukraine, Russia and the OSCE. Since 2014 the Trilateral Contact Group has hosted a forum to discuss the technical implementation of the Minsk Agreements, and it has established several sub–working groups to guide the implementation of the Minsk Package. Representatives of the DPR and LPR can lay out their proposals to the Trilateral Contact Group and take part in the subgroups under its umbrella, but the Minsk Agreements did not equip the Normandy Format or the Trilateral Contact Group with a mandate for effective and binding dispute settlement between the parties in case of disagreement about the Agreements’ interpretation and implementation, and/or in case of mutual accusations of non-compliance and violations. Therefore both of these formats lack the effective authority to adjudicate and sanction non-compliance with, and breaches of, the Minsk Package, or to enforce the Package’s implementation.

Attempting to address conflict constellations and potentials the OSCE created a Special Monitoring Mission to Ukraine (SMM) already in March 2014. The SMM is set up as an unarmed civilian mission. Monitoring the implementation of the ceasefire that was included in both Minsk Agreements and delivering daily reports on the situation have been its most challenging tasks since September 2014. It is important to note that the SMM has a mandate to monitor (but not to sanction) violations and/or effectively enforce the ceasefire in cases of non-compliance and violations. In any case, the OSCE’s reports are important political tools for the Normandy Format and Trilateral Contact Group. The OSCE also regularly reports to the UN SC and/or the SC’s president on the situation in Ukraine. Does this mean the additional engagement of the UN and more specifically the SC could pull the involved parties towards stronger compliance with and implementation of the Minsk Agreements?

The UN SC specially addresses the negotiation and implementation of peace agreements in resolutions, floating between its competences according to Chapters VI and VII UN Charter (e.g. Henderson and Lubell 2013; Wittke 2018a, 164–202). In its resolutions the SC “calls upon” parties involved in inter- or intra-state conflicts and “recommends” or “demands” that they establish ceasefires and negotiate more comprehensive peace agreements. Follow-up resolutions often include measures addressing the effective implementation or even enforcement of ceasefires and peace agreements (Henderson and Lubell 2013; Wittke 2018a, 164 et seq.). The SC usually takes sanction and enforcement measures under a “Chapter VII chapeau”, establishing itself as a functional and authoritative norm promoter, adjudicator and enforcement body during the negotiation and especially the implementation of peace agreements (Daase 2011, 2012; Henderson and Lubell 2013; Wittke 2018a, 164 et seq.).

The SC’s engagement as a third party can have an internationalising effect on the peace process, the peace agreement and the obligations incurred by the first parties (Daase 2011, 2012; Kooijmans 1998; Wittke 2018a, 164 et seq.). For instance, by directly addressing both the state and the non-state parties to a peace agreement, demanding compliance with or implementation of a peace agreement, and sanctioning the parties in cases of violation and/or non-compliance, the SC contributes to the legalisation of peace agreements based on and governed by the UN Charter, i.e. international law (Daase 2011, 2012; Kooijmans 1998; Wittke 2018a, 164 et seq.). Thus, by addressing the implementation of peace agreements in Chapter VII resolutions, the SC has created a politico-legal tool by which to directly address non-state parties to a peace agreement and hold them responsible for their non-compliance with its terms. These measures also allow the SC to elevate the status of the peace agreement itself, and of the non-state parties to it, in order to proceed with the agreement’s implementation of and advance the ongoing peace process under its supervision (Wittke 2018a, 164–202 with detailed examples). Moreover, these SC measures are likely to create effects and structures with long-term implications for the overall peace process and may even extend beyond the transition from immediate violent conflict to peace.

Thus, the SC often goes beyond dealing with an immediate situation that has been determined to constitute a “threat to peace” in accordance with Article 39 UN Charter and therewith its Chapter VII powers (Daase 2011, 2012; de Wet 2004; Kooijmans 1998; Wittke 2018a, 164 et seq.). Very strong, thoroughgoing SC involvement also exposes parties to the risk that the exercise of functional and executive authority over an agreement’s interpretation and implementation could be taken out of their hands (Wittke 2018a, 164 et seq.). How should the SC engagement in the negotiation and especially the troubled implementation process of the Minsk Agreements be evaluated? The answer to this question, in the context of contemporary peace agreements’ negotiation and implementation struggles, leads to what I call the non-typical characteristics of the Minsk Agreements.

3.2. The Minsk Agreements as non-typical peace agreements

Considering how the SC addressed the Minsk Agreements and Process, it is immediately clear that that the SC’s endorsement of the Minsk II Agreement remained below the bar of Chapter VII UN Charter. Indeed, when the situation in the eastern regions of Ukraine under OSCE-monitored ceasefire was being addressed, the Minsk Agreements fell outside the outlined pattern: the SC explicitly determined neither a threat to peace nor a breach of peace according to Article 39 UN Charter. Instead, with Resolution 2202 of 17 February 2015 the SC expressed “grave concern” about the degree of violence in the eastern regions of Ukraine as well as its firm conviction that “the resolution of the situation in eastern regions of Ukraine can only be achieved through a peaceful settlement to the current crisis”. The SC “endorsed” the Minsk Package and welcomed

the Declaration by the President of the Russian Federation, the President of Ukraine, the President of the French Republic and the Chancellor of the Federal Republic of Germany in support of the “Package of Measures for the Implementation of the Minsk Agreements”, adopted on 12 February 2015 in Minsk (Annex II), and their continuing commitment therein to the implementation of the Minsk Agreements. (U.N. Security Council S/RES/2202)

SC resolution 2202 then called “on all parties to fully implement the ‘package of measures’, including a comprehensive ceasefire as provided for therein” (U.N. Security Council S/RES/2202). The included reference to previous resolutions, e.g. S/RES/2166 of 2014 likewise does not indicate that S/RES/2202 of 2015 can be located under the umbrella of Chapter VII. Also S/RES/2166 of 2014 used terms like “crisis” instead of “war” or “armed conflict” when addressing the situation in the eastern regions of Ukraine. It “calls for”, rather than “demands” a “peaceful settlement”. In sum, these SC resolutions very clearly avoid the established precise, obligational language and specific terminology of Chapter VII resolutions when addressing the peace and ceasefire agreements.

Moreover, in the extended period from 2015 to 2018, the SC addressed the implementation of the Minsk Agreements only aside of SC meetings and resolutions. Despite the OSCE’s reports on the Minsk Agreement’s flawed implementation process, the situation in Donbas was mainly addressed in so-called Arria-Formular meetings of SC members – an informal dialogue format (Concept Note 2018). In spring 2018, after lengthy diplomatic negotiations, the SC President issued a statement addressing the flawed implementation process of the Minsk Agreements (U.N. Security Council S/PRST/2018/12). The statement preceded a meeting of the Normandy Format in June 2018, at which the negotiating parties eventually consented to an exchange of hostages and technical support but remained unable to agree on new arrangements, such as sending in UN peacekeeping troops (Normandy Format Meeting 2018). Meanwhile, the initiative to establish a UN peace mission in Donbas seemed also to have reached a dead end. Arriving at agreement on a relevant SC resolution, or even taking the unusual step of passing a resolution of the General Assembly establishing such a mission, would again pose challenges.

Returning to the Minsk Package, the main reason for its exception from the SC’s rather typical practice of referring to internationalised and legalised peace agreements is clear: Russia, one of the five permanent members, would have vetoed a Chapter VII resolution. Russia is included in all above mentioned negotiation and implementation formats (i.e. the Normandy Format and Trilateral Contact Group) of the OSCE and its mission. Russia is one of the five permanent SC members with veto power, so Russia’s absence from an internationalised dialogue and conflict settlement process for Ukraine seems unfeasible. Yet Russia is also a third party with direct stakes in the conflict’s management and settlement. Russia’s involvement in the separatist conflict constellations in Ukraine’s eastern regions, its controversial exercise of effective or overall control of these regions, and its role(s) as a member of the above introduced negotiation formats blur the lines between mediator, negotiator and direct (conflict) party. In effect, Russia’s engagement and non-engagement continue to trap the eastern regions of Ukraine in a protracted limbo between “war without war” and “occupation without occupation” (Dunn and Bobick 2014). Parallels to previous protracted conflict constellations and internationalised negotiation processes are evident, e.g. the Federal Republic of Yugoslavia’s role as a proxy for the Bosnian Serbs in the negotiation of peace for Bosnia and Herzegovina, a role that Russia declined for the Minsk Process (Gaeta 1996; Holbrooke 1999; Wittke 2018a, 51 et seq.).

Moreover, Russia is a permanent member of the SC whose role oscillating between first party and third party seems to have developed into a deliberate strategy since the Russo-Georgia War and the recognition of Abkhazia and South Ossetia in 2008. Initially, this pattern of conduct was limited to the so-called post-Soviet space, i.e. Russia’s “Near Abroad” (Wittke 2018b). Now it seems to have moved beyond the post-Soviet space, judging from Russia’s military and political interventions in the war in Syria. The troubled process of drafting an SC ceasefire resolution for Syria (U.N. Security Council S/RES/2401) that also turned out to be below the threshold of Chapter VII – much like Russia’s initiative to establish a internationalised dialogue and settlement process in Astana with Turkey and Iran at the negotiation table parallel to the UN-led format in Geneva – underlines that Russia is blurring the lines between mediator, negotiator and direct (conflict) party even beyond its Near Abroad.

In sum, this exploration of the typical and non-typical characteristics of the Minsk Agreements in the contemporary context of negotiation and implementation of internationalised and legalised peace agreements can conclude that the challenges of reaching and implementing a negotiated settlement for the eastern regions of Ukraine are not exceptional; rather they are, in context, form and content, typical of contemporary post–Cold War peace agreements. The cluster of Minsk Agreements of 2014 and 2015 sprang from the post–Cold War practice of negotiating and implementing complex internationalised and legalised peace and ceasefire agreements. The Agreements comprise a complex cluster of internationalised arrangements formulated in precise and obligatory language and they are operating as “extra-constitutional agreements” parallel to and in tension with Ukraine’s constitution. On the other hand, Russia’s unusual role as both first party and third party and the lack of clear SC engagement under Chapter VII UN Charter are non-typical core-features of the Minsk Agreements’ negotiation and implementation processes from a comparative perspective. At first glance these non-typical features could themselves turn out to be typical features of peace agreements and processes in the “post-Soviet space”, i.e. Russia’s Near Abroad. In effect this means the Minsk Agreements could end up “freezing the conflicts” and creating two more non-recognised de facto state entities backed by Russia as a protector or kin state in the post-Soviet space.

4. The Minsk Agreements: beyond (failed) implementation

The arguments presented above draw on other examples of post-Soviet non-recognised de facto states like Abkhazia, South Ossetia and Transnistria, which over the past 25 years have built up quasi-state institutions based on quasi-constitutions (Daase 2016). Since the early 1990s, internationalised negotiation mechanisms have been developed for all these protracted territorial conflicts (Daase 2016; Wittke 2018b, see also Relitz in this Symposium). But although the internal status of these non-recognised de facto state entities seems increasingly constitutionalised and stabilised, all these (frozen) status conflicts are still in legal and political limbo, from an international perspective. Russia has a particular role in each negotiation format and (frozen) conflict constellation. On the one hand, no solution of these status conflicts seems feasible without Russia’s involvement in the various multilateral negotiation and conflict settlement mechanisms. On the other hand, Russia acts as a kin or protector state supporting the putative internal stabilisation of the non-recognised de facto state entities and the perpetuation of their external limbo (Daase 2016; Zürcher 2007). It is therefore unsurprising that the complex conflict constellations in East Ukraine and the troubled implementation record of the Minsk Agreements have implicitly and explicitly put back the complexity of post-Soviet “frozen conflicts” on the international agenda (Wittke 2018b). The comparative dynamics of frozen conflicts and their external relations are addressed in greater detail by Sebastian Relitz in this issue’s symposium. From the perspective of this article, the Minsk Agreements have not established politico-legal conflict settlements, but rather formalised political unsettlements in which the idea of freezing the conflict becomes politico-legal rhetoric and a tool for both Russia and Ukraine. Neither party negotiated the Minsk Agreements in good faith regarding their transformative nature. Russia’s good faith is especially strongly and consistently doubted by external observers. Yet Ukraine’s good faith also merits discussion alongside the question of whether it actually has the capacity to implement the Minsk Package. Given Ukraine’s statement at the ICJ regarding the Minsk Agreements, together with domestic legislative measures on decentralisation, the so-called ”Law on De-occupation and Reintegration” and the declaration of temporary martial law in November 2018 raised doubts – not just about whether Ukraine had the capacity to implement the agreement, but also whether it was still willing to do so or had instead turned towards a policy of “strategic failure” (see discussions in sections 2 and 3 of this article). In fact, Ukraine’s rationale for negotiating and signing the agreements seems to have been an amalgam of domestic and international pressure in 2014 and 2015, its military’s weakness in the face of Russia’s engagement in the eastern regions and the goal of getting other states to enact sanctions against Russia and support Ukraine as it struggled to defend its territorial integrity. All the while the motivations, mandate, accountability and responsibilities of the DPR and LPR “representatives” who signed the Agreements and have taken part in the implementation coordination in the Trilateral Contact Group remain in the twilight (see discussions in sections 2 and 3 of this article).

Does this finally lead us to conclude that the Minsk Agreements are merely scraps of paper? Before arriving at such a verdict I want again to highlight the metaphor of the Minsk Agreements’ limbo between failing and the imperative of not failing. Instead of distinguishing between failure and success in the implementation of the Minsk Agreements and attainment of sustainable peace, we need to explore the grey zones between “strategic failure” and “continuous dialogue” within and between the parties to the Minsk Agreements. This is not a turn to word or mind games but instead to pragmatic perspectives on the Minsk Agreements and Minsk Process that connect to recent debates on peace building and political settlements or unsettlements.

The term “political settlement” originated in the practical challenges of international development and peace building. The United Kingdom’s Department for International Development (DFID), for instance, defines a political settlement as the expression of a common understanding, usually forged between elites, about how power is organised and exercised (DFID 2010). Political settlements can be formal institutions for managing political and economic relations, such as electoral processes, peace agreements, parliaments, constitutions and market regulations. But they can also be informal, often unarticulated agreements that underpin a political system, like deals made between elites to control the division of spoils (DFID quoted in Ingram [2014] 2015, 1). From an academic perspective, Di John and Putzel (2009, 4, referring to DFID) characterise a political settlement as “the forging of a common understanding usually between elites that their best interests or beliefs are served through acquiescence to a framework for administering political power”. And Khan underlines that

… at the highest level, a political settlement is a description of the “social order” that describes how a society solves the problem of violence and achieves a minimum level of political stability and economic performance for it to operate as a society. (Khan quoted in Ingram [2014] 2015, 6).

Once again focusing on the Minsk Agreements, we may conclude that the concept of political settlement offers no added analytical value for further understanding and unpacking why and how the Minsk Agreements remain in the identified limbo between failing and the imperative of not failing.

Nonetheless, recent research on peace agreements and political settlements suggests that partial or absent implementation is normal in complex conflict and transition settings. This research also calls for exploring of these struggles as part of normality, and for exercising pragmatism when studying the negotiation and implementation of peace agreements. One suggestion is to regard peace agreements like the Minsk Agreements, and processes like the Minsk Process, as formalised political unsettlements through which different parties have created obligations and set up processes that contain the violence in a formal settlement and dialogue process framed in a spirit of transition (Bell and Pospisil 2017, 583). Formalised political unsettlements can exist next to other political settlements in a state; thus they also break with the idea of a unitary political settlement for the state, generating constant struggle and (re)negotiation processes. The idea of formalised political unsettlement could serve as a tool to analytically describe both the Minsk Agreements and the context of political settlements’ parallel operation and collision in Ukraine. Like the Minsk Agreements, political unsettlements are usually introduced as temporary or transitional. In practice, however, they often result in indefinite and enduring configurations that leave the most fundamental incompatibilities between the parties unresolved, i.e. in limbo (Bell and Pospisil 2017, 583).

Political unsettlements are not easily replaced by new political settlements, as the example of the Minsk Process demonstrated (Bell and Pospisil 2017, 583). The Minsk Agreements have local, regional and international politico-legal dimensions; that is, they operate on the local level with regional and international involvement. All dimensions operate within and with multiple sources of authority and legitimacy, not just for purposes of negotiation but more importantly for the implementation struggles of the Agreements. Thus, in the context of the Minsk Agreements’ negotiation and implementation, the various internal and external, international, national, and local actors are negotiating the terms of a new political settlement while (continuously) redefining both their own authority and the legitimacy of the ongoing internationalised conflict settlement process (Bell and Pospisil 2017, 587 et seq.). “Authority” and “legitimacy” become objects of struggle in these ongoing political settlement processes as actors’ redefinitions give formalised settlements, as well as the processes of their creation and implementation, a character of enduring transformation (Bell and Pospisil 2017, 583). In the end, speaking pragmatically, formalised political unsettlements cannot be considered something static like a stalemate; nor do they enable either of the conflict parties to attain their maximum goal. Instead they can create islands of agreement and enable formats for dialogue but also enduring struggle between the parties to a (violent) conflict.

5. Conclusion and outlook

Yes, the Minsk Agreements are more than scraps of paper. They are formalised political unsettlements in a limbo between failing and the imperative that they not fail. From the standpoint of politics and law, the Minsk Agreements of 2014 and 2015 are typical examples of the challenges and problems that arise during the negotiation and implementation of internationalised and legalised post-Cold War peace agreements. Thus, some blame the Minsk Agreements’ troubled implementation and captivity in limbo on typical characteristics that also feature in the general practice of contemporary internationalised and legalised peace agreements. Yet the negotiation and implementation of the Minsk Agreements have also been shaped by non-typical or context-specific characteristics, one being the absence of effective engagement of the UN SC via Chapter VII resolutions during the Agreements’ negotiation and implementation. Instead, the SC specially endorsed the second Minsk Agreement in resolutions that strategically float between its Chapter VI and VII competences without clear sanction or enforcement measures under Chapter VII. This lack of strong SC engagement can be traced back to Russia’s multiple roles as both a veto power in the SC and, in its Janus-headed role as negotiator in all internationalised formats set up for negotiating and implementing formal conflict settlements, and effectively a conflict party at the same time. Based on these findings, the article discussed whether the Minsk Agreements and the troubled Minsk Process are formalised settlements that turn “freezing the conflict” into a (long-term) strategy. However, instead of seeing the conflict in Ukraine’s eastern regions as a new “frozen conflict”, I argued for abandoning the binary analytical distinction between success and failure in the implementation of contemporary peace agreements like the Minsk Agreements and viewing the Minsk Agreements’ limbo between failing and the imperative of not failing as a kind of formalised political unsettlement in the eastern regions of Ukraine. The parties to such an unsettlement might lack good faith during negotiating and implementing an agreement, but the agreement is the best but worst formalised arrangement they could create, and it opens up a format for continuous dialogue, political struggles and islands of agreement. This perspective also stresses that in Ukraine, several political settlements simultaneously might operate in parallel and collide with each other, causing continuous struggles.

In sum, the implementation of the Minsk Agreements is shaped by strong dynamics between failure and the imperative of not failing, because the Minsk Package is the best but worst institutionalised set of arrangements that the parties could reach. In the end, the Minsk Agreements are indeed more than just scraps of paper, for although they probably will not bring peace to Ukraine, they will continue to shape its politics and future processes of dialogue and negotiation over the effective, legitimate exercise of political power in the eastern regions of Ukraine.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Cindy Wittke is leader of the junior research group “Frozen and Unfrozen Conflicts” with the Leibniz Institute for East and Southeast European Studies (IOS) in Regensburg, and since March 2019 principal investigator of the project group “Between Conflict and Cooperation – The Politics of International Law in the post-Soviet Space” funded by the German Federal Ministry for Education and Research. Before taking up her position with the Leibniz-IOS, she was a senior post-doctoral researcher and lecturer with the Department of Politics and Public Administration of the University of Konstanz, Germany (2014–2017). Additionally, she is an external programme associate of the Political Settlement Research Programme, University of Edinburgh, Global Justice Academy. Cindy Wittke earned a Magistra Artium (M.A.) in East European Studies (2007) and a Ph.D. in Law (summa cum laude) from the Faculty of Law of the Freie Universität Berlin (2014). In the academic year 2007/2008 she worked as a lecturer for European and International Law at Yerevan State University in Armenia sponsored by the Lectureship Programme of the Robert Bosch Foundation. Cindy Wittke’s research is situated at the intersection of international law and politics and is based on her interdisciplinary background as well as on her previous affiliation with several interdisciplinary research centres. These include Governance in Areas of Limited Statehood at the Freie Universität Berlin (2006–2010); the Lauterpacht Centre for International Law in Cambridge (2009, 2010); and the Centres for Law, Society & Culture, and for Constitutional Democracy at Indiana University’s Maurer School of Law in Bloomington (2013–2014). Cindy Wittke published amongst others with the Indiana Journal of Global Legal Studies, the Cambridge Journal of International and Comparative Law (now Cambridge International Law Journal), the Heidelberg Journal of International Law (ZaöRV), and the Review of Central and East European Law. Her first monograph “Law in the Twilight: International Courts and Tribunals, the Security Council and the Internationalisation of Peace Agreements between State and Non-State Parties” was published with Cambridge University Press in 2018.

Notes

1 My analytical perspective on the Minsk Agreements and the Minsk Process differs from that of Jakob Landwehr, whose contribution to the Symposium “Five Years After: The Role of International Actors in the ‘Ukraine Crisis’” is focused, from a negotiaton theory perspective, on exploring the role of conflict mediators and the potential avenues towards breaking the “Minsk stalemate”.

2 Sebastian Relitz offers in his contribution to the same Symposium a comparative analysis of DPR and LPR with other non-recognised de facto state entities using his “stabilization dilemma” – approach.

3 The extended debates over the causes of these conflict constellations are beyond the scope of this article, see e.g. Galbreath and Malyarenko Forthcoming 2019; Malyarenko and Wolff 2019; Wittke 2018b.

4 Referring here to debates regarding state responsibility in international law, see e.g. Boon 2014 (from a general perspective); Szpak 2017 (focusing on Ukraine).

5 The Normandy Format was created on 6 June 2014, when leaders of France, Germany, Russia and Ukraine met on the margins of the 70th anniversary of the “D-Day” in Normandy. The Format is supposed to support a conflict settlement and transition process in the eastern regions of Ukraine, the members are in regular contact, especially on the level of senior diplomats.

6 It is typical that the ICJ avoids any form of general evaluations of the legal nature of the conflict, the status of the conflict parties, and in the end, the nature of the obligations created in a peace agreement or cluster of agreements (Wittke 2018a, 83 et seq.).

7 Examples are the KROC Peace Agreement Matrix: https://peaceaccords.nd.edu (Accessed 13 March 2019); UN Peacemaker’s Peace Agreements Database: https://peacemaker.un.org/document-search (Accessed 13 March 2019); The “Language of Peace” database: https://www.languageofpeace.org/#/ (Accessed 13 March 2019); and the PA-X Peace Agreements Database: https://www.peaceagreements.org/search (Accessed 13 March 2019).