Special Representative of the US State Department on Ukraine Kurt Volker, made some comments that reflect the US’s overall propensity to ignore international treaties and international law, during a panel discussion at the Hudson Institute. In comments contrary to the letter and spirit of the Minsk II Agreement, he said that the DPR and the LPR should be eliminated. He based his lacking opinion, which exists outside of rational interpretation of contract law, in some thought that they not comply with the Constitution of Ukraine.
Those familiar with the language of the Minsk Agreement know that it recognizes the DPR and LPR and in fact calls for constitutional changes, which to date has not been carried out by Ukraine. Ukraine lost the right to its present constitution and former territorial boundaries at the Battle of Debaltseve, waged between January 17th and Feburary 20th, 2015, and this was memorialized in the language of the Minsk II Agreement that also served as a cease-fire, which established the present line of contact.
Shocking global audiences, Volker said:
“The so-called Lugansk People’s Republic and the Donetsk People’s Republic are the entities created by Russia with the aim of generating in place of political reality in order to help disguise the role of the Russian Federation and to strengthen the ongoing conflict, and they must be eliminated,” .
“There is no place for them in the Ukrainian constitutional order. The Minsk agreements are aimed at restoring the sovereignty and territorial integrity of Ukraine, and these entities must disappear,” the US special envoy stressed.
Volker proposes instead that a ‘UN peacekeeping force’ be established – naturally consisting of NATO and US forces. How exactly will this commandment that the DPR and LPR must suddenly ‘cease’ to exist, come about? This seems contrary to the fact that these governments already have a monopoly on the use of force, as established at the Battle of Debaltsevo. Of course the only answer is – to relaunch the war, full bore. As was the case last time, this saw the ethnic cleansing of the whole region, with countless scores, perhaps even hundreds of thousands killed, and over a million internally displaced, and a million more who fled to Russia. In terms of calculating the deceased, it is difficult to trust either US or Russian figures, as both sides had different reasons for wanting to downplay the cost of this conflict in terms of civilian lives.
But the reality is: the Minsk Agreement specifically calls for these very changes to the constitutional order. This was meant to avoid another human catastrophe. Volker proposes to double down on human tragedy. His desires have nothing to do with the actual ceasefire, called the Minsk II Agreement.
He’s wrong about restoring sovereignty; the language about restoring sovereignty and territorial integrity are to be carried out after the constitutional changes have been made. Those constitutional changes include recognizing the de facto governments of the LPR and DPR as regions of a de facto federal Ukrainian system, essentially as autonomous regions with dual-power structures (autonomous and federal). This was written about extensively in a 5,000+ word analytic piece which explored both the context and legal framework (including interpretation), by this author. What was written then, on February 19th, 2015 in The Beautiful Truth about Minsk II…’:
“The agreement has 13 points, most of which use terms which at first glance seem to compel certain actions, but in fact rather are contingent upon events which either do not have a specific time table, attach a time table to events which do not have a time table or are not executable, or still require future agreement.
What will figure prominently in the coming disagreements over implementation is the meaning of point 2 and point 4. The Minsk II agreement of February 12th refers back to the Minsk Memorandum of 19th September twice. These are in relation to the borders, one way or another, of Novorossiya.
In point 2 we read:
- Pull-out of all heavy weapons by both sides to equal distance with the aim of creation of a security zone on minimum 50 kilometres (31 mi) apart for artillery of 100mm calibre or more, and a security zone of 70 kilometres (43 mi) for MLRS and 140 kilometres (87 mi) for MLRS Tornado-S, Uragan, Smerch, and Tochka U tactical missile systems:
* for Ukrainian troops, from actual line of contact;
* for armed formations of particular districts of Donetsk and Luhansk oblasts of Ukraine, from the contact line in accordance with the Minsk Memorandum as of 19 September 2014
The pullout of the above-mentioned heavy weapons must start no later than the second day after the start of the ceasefire and finish within 14 days.
This process will be assisted by OSCE with the support of the Trilateral Contact Group.”
This was premised on the fact that the language of the agreement, in connection with these questions, reads as follows (also pay attention to the signatories).
“11. Carrying out constitutional reform in Ukraine with a new constitution entering into force by the end of 2015 providing 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.
12. Based on the Law of Ukraine “On interim local self-government order in certain areas of the Donetsk and Luhansk regions”, questions related to local elections will be discussed and agreed upon with representatives of certain areas of the Donetsk and Luhansk regions in the framework of the Trilateral Contact Group. Elections will be held in accordance with relevant OSCE standards and monitored by OSCE/ODIHR.
13. Intensify the work of the Trilateral Contact Group including through the establishment of working groups on the implementation of relevant aspects of the Minsk agreements.
They will reflect the composition of the Trilateral Contact Group.
Participants of the Trilateral Contact Group: Ambassador
Second President of Ukraine, L. D. Kuchma___________________
Ambassador of the Russian Federation to Ukraine, M. Yu. Zurabov___________________
I.W. Plotnitski___________________ ”
It is important to remember the Minsk II was based on the previous September 14th Minsk Protocol Agreement, which produced the Trilateral Contact Group, and that Minsk II finds its rationale and origin in that agreement. Like Minsk II, among the signers of the Minsk protocol Agreement were the then DPR and LPR leaders Alexander Zakharchenko and Igor Plotnitsky
There is no language which indicates that these entities, DPR and LPR would at any time cease to exist, and given that they are signatories and guarantors, it would mean that the force of Minsk II relies on the governments of the DPR and LPR, from which their own authority derives.
This is why and how the September 2015 Minsk Protocol Agreement carries forward into the Trilateral Contact Group, which then had the authority to sign the Minsk II Agreement of February 12th, 2015. These cannot be disconnected from each other. There are no features of this which can rationally allow for the disbandment of the DPR and LPR.
Living in an alternative universe, according to Volker, it may take 6 months to prepare local elections in the Donbass, but only after the full deployment of the peacekeeping forces there. This is contrary to the language and meaning of the agreement.
In this case, he imagines that the transfer of Donbass territories under the auspices of Ukraine will be possible only after organizing and holding local elections, “when there is security, when amnesty will be provided to the persons who committed crimes that are part of the conflict, when a special status is assigned.” Here he uses language in the agreement ‘amnesty’ and ‘special status’, but insists on elections under the central authority of Kiev to determine the leadership of LPR and DRR, which is contrary both to the letter and intent of the agreement.
Volker not only places certain necessary parts of the agreement in the wrong order, but in so doing, speaks against the agreement itself while claiming to want to see it fulfilled. This has mirrored Poroshenko’s own comments since February 2015, when it became obvious that Ukraine had no intention to fulfill it’s part of the agreement.
In short, Ukraine must undergo constitutional reforms which recognize the ‘special status’ of the Donbass breakaway republics, which de facto federalizes governance in the two easternmost regions of Ukraine.
“And then the transition to Ukrainian control,” Volker said and added that the timing of these processes has yet to be consolidated.
Yes, ultimately there is to be a transition to Ukrainian control, but this is after a new constitution – then requiring new elections, and hence a new government – i.e, not one led by Poroshenko, unless he manages to win a clean election with voters in the Donbass actually participating, instead of hiding in cellars and basements while being shelled and ethnically cleansed from their villages and cities. In fact that elections were carried out in Ukraine while in this state of emergency, were contrary to the Ukrainian constitution as it exists today – that is, what ought to be in force.
Volker noted, the deployment of UN peacekeepers may take several months from the moment of agreeing a political agreement on this matter.
“It may take another 6 months to organize local elections. Since the elections, and they will be confirmed as free and fair, the transition period will begin,” Volker said.
Yet what he means is that the elections which have already taken place in the DPR and LPR are not valid, even though these were carried out by the same LPR and DPR signatories to the very Minsk agreement which he butchers while referring to.
In reality, the onus this whole time has been on Ukraine to carry out two major parts of the agreement, which so far they have failed in: a.) A real ceasefire, which means the withdraw of heavy weapons from the line of contact and the cessation of hostilities, and b.) constitutional reform granting special status, de facto federalization, to the break-away republics.
But given that Volker is the executive director of the McCain institute, none of this comes as any surprise. Meanwhile, back in reality, the DPR and LPR show no signs of ever coming under Kiev’s authority any time soon.