Discussing the ceasefire agreement and NATO

Alexander Mercouris is a London-based legal expert and commentator who regularly appears on RT

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SOME POINTS CONCERNING THE CEASEFIRE

Alexander Mercouris

Peter Lavelle and Alexander Mercouris

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Since the ceasefire was announced criticism has mounted with more criticism from people like Gubarev. I understand some of this criticism but I think it would help to explain some points.

Criticism is now focusing on two specific issues:

(1) The protocol of the ceasefire agreement, which is in Russian only.

https://slavyangrad.files.wordpress.com/2014/09/protocol-of-the-tripartite-liaison-group-minsk-september-5-2014-original.pdf;

and

(2) Complaints that the ceasefire benefits the junta more than the NAF and is at the very least premature.

In my opinion (1) is simply wrong. There is much more to be said for (2). However there are points to be made even about (2).

The Protocol

Before discussing the Protocol in detail I want to say that this is in my opinion an essentially academic discussion. The wording of the Protocol does not bear the weight people are attaching to it if only because those involved in the conflict will interpret it in their own way. I merely discuss this issue because others do.

1. The first point to understand about the Protocol is that it originates from a forum, the Tripartite Contact Group, that was supposedly set up to "implement" Poroshenko's (non) peace plan. The NAF is not formally a member of the Contact Group. Its members are the OSCE, Russia and the Ukraine. The Contact Group "invited" the NAF representatives to attend and provided a venue for discussions between the junta and the NAF, which was useful for agreeing a ceasefire. 

However the Protocol is in no sense a final settlement agreement. That is postponed pending the "national dialogue" the Protocol refers to.

2. The Protocol is a technical document. If one ignores the language of the Protocol (deriving from the Contact Group's origins as a body to "implement" Poroshenko's (non) peace plan) and focuses instead on its content it is clear that it is the NAF that has gained most from it. Specifically:

(1) It has obtained a "bilateral ceasefire" something it has been seeking since April. Please note that the key word is "bilateral". Poroshenko's previous ceasefire was unilateral which meant he could end it whenever he wanted to and that he did not recognise the NAF by declaring it. What "bilateral" means is that the Ukraine now acknowledges the NAF as a party to the conflict and is negotiating with it. As I have previously argued Poroshenko did everything he could to avoid this and tried to agree a ceasefire with Putin instead of with the NAF. Putin said no.

The word "bilateral" incidentally also means that Kuchma's status is no longer in question. The junta had previously pretended that he was not representing it. Since Kuchma negotiated the ceasefire, which is "bilateral", and since the junta is bound by what he agreed, the fiction that Kuchma does not represent the junta is over and he is confirmed as the junta's representative in negotiations with the NAF.

(2) the Protocol commits the junta to a total amnesty and an exchange of prisoners. Quite apart from the obvious human considerations by definition this again recognises the NAF as a party to the conflict since the people so amnestied can no longer be criminals or "terrorists".

(3) the Protocol reproduces language drawn from the 17th April 2014 Geneva Statement about the dissolution of "illegal groups". Note however that in light of (1) and (2) since the junta now recognises the NAF as a party to the conflict it cannot in logic any longer claim in international law that the NAF is an "illegal group". Already the NAF leadership is treating this part of the Protocol as referring to the various paramilitary groups controlled by people like Kolomoisky and Right Sector.

(4) Russia is a signatory of the Protocol. This is crucial. The US and EU by contrast are not signatories to the Protocol. They have been completely cut out of the negotiations. The fact that the Protocol is only in Russian and that there is no official translation of it into any other language (apparently not even Ukrainian) is a significant fact in itself. The long weeks of February to July when the Russians negotiated fruitlessly with the US and EU are over. Since Russia is a signatory of the Protocol it is a party to it. Since the US and EU are not signatories to the Protocol they are not parties to it. Its signature gives Russia grounds to act if the terms of the Protocol are breached. Russia has not had clear cut grounds to act up to now, As a party to the Protocol Russia is in effect its guarantor and it now does.

3. The part of the Protocol that is causing the most criticism are the sections that refer to "decentralisation" and to local elections happening under a Ukrainian law for "decentralisation".

(1) The point to understand about these sections is that the Protocol does not present itself as a final political settlement of the conflict. That in theory depends on the "inclusive national dialogue" referred to in the Protocol (wording that also ultimately originates with the 17th April 2014 Geneva Statement). Zakharchenko and Plotnitsky immediately following their signing of the Protocol made clear that the NAF's objective remains full independence. Zakharchenko has said the same today (8th September 2014).

(2) The fact that Zakharchenko and Plotnitsky issued their statement immediately after the Protocol was signed (but before it was published) refutes claims by people such as Gubarev that they did not know what they were signing when they signed the Protocol but that they merely signed whatever was put in front of them. On the contrary it is clear that they wanted to make their position unambiguously clear precisely because they did not want their intentions to be misconstrued by the language of the Protocol.

(3) The point here is that the Protocol provides for elections to local bodies of power which because they would happen in accordance with a Ukrainian law the Ukraine would be legally obliged to recognise. It is a foregone conclusion that these elections if and when they happen will be won by the NAF. If so since the Ukraine is legally obliged to recognise the elections it is also legally obliged to recognise their outcome (the "international community" would incidentally be as well).

(4) What this section of the Protocol therefore means is that the Ukraine not only now recognises the NAF as a party to a conflict but once the elections are out of the way will also be legally obliged to recognise the NAF as the political leader of the Donbas as well.

4. Having made these points, let me now make the key point: the Protocol is in my opinion a total red herring. The Protocol is not a contract or a treaty. There is no court or tribunal that will arbitrate on the meaning of its words. All the sides will construe it as they wish. The junta will not of course construe it as I have done and nor will its western backers even though my interpretation is undoubtedly the correct one. The junta will continue to call the NAF "terrorists" and will continue to deny they are the representatives of the Donbas whether they win an election or not. Certainly the junta will not recognise an election the NAF wins or any declaration of independence the NAF makes. For what it's worth in my opinion there is little chance of the terms of such an election being agreed upon or such an election taking place whilst the Donbas remains part of the Ukraine.

5. I have laboured the point about the meaning of the Protocol not because I attach the slightest importance to this question but because others do and because it is being suggested that Zakharchenko and Plotnitsky somehow signed away the NAF's position when they signed the Protocol. In terms of what the Protocol actually says that is simply not the case. Having said this I think the Protocol will before long be a forgotten document left to collect dust in some unvisited archive as events move beyond it.

Ceasefire benefits the Junta

This seems to me a far more powerful criticism. However I would make the following points:

(1) I will say straight away that I think this criticism has merit. The NAF would surely have been in a better position looking forward if Mariupol and Debraltsevo had been recaptured. As it is there is bound to be argument over the next few weeks and months about the status of Mariupol especially.

(2) I cannot believe the NAF leaders did not realise this when they agreed the ceasefire. However having demanded a ceasefire for months they obviously felt once the junta offered one that they had no realistic option but to agree. I would rather that they had not and that things had turned out differently but then I am not in a position to second guess their decisions or to know why they made the decision that they did. Doubtless Russian pressure played its part but one should not overlook the factor of war weariness in the Donbas itself. Possibly the NAF leaders were concerned that the population of the Donbas and possibly some of the NAF fighters might not understand or be happy if the war was prolonged further when a ceasefire was being offered. I would point out that there have been no mass protests from people in the Donbas opposing the ceasefire since it was declared and the NAF troops (apart from some commanders) seem to accept it. 

The one possibility I do exclude is that Zakharchenko and Plotnitsky are fools or traitors. I have watched Zakharchenko and I am sure he is neither.

(3) It is important anyway not to over dramatise the problems the arguably premature end to the fighting will cause. Just 3 weeks ago the very existence of the NAF and of the DPR/LPR was in doubt. Lugansk was suffering from a humanitarian crisis and both Lugansk and Donetsk were threatened with encirclement.

(4) That danger has gone. The junta instead of achieving a military victory has suffered a decisive defeat. NATO has refused to help the junta. Despite desperate attempts by the junta to get at least the token NATO support through publicly admitted (as opposed to covert) arms supplies even that request has been refused. The US/EU has failed even to provide additional economic support. For all the brave talk at the recent EU and NATO summits the reality is NATO and the EU have cut the junta off. Meanwhile the Ukrainian economy is in freefall with Russian gas and Donbas coal no longer available, output plunging, the currency collapsing and foreign exchange reserves draining away The vice meanwhile is tightening. The very latest reports say the Russians are quietly telling European states thinking of sending gas to the Ukraine through the (bogus and illegal) "reverse flow" scheme that they may have their own gas supplies reduced if they do.

(5) Any idea that the latest redeployments are going to change the situation decisively in the junta's favour look in the light of this frankly alarmist. In truth these deployments look to me like further examples of the junta's perennial tendency to reinforce failure by sending troops to places like Mariupol and Debratselvo that are no longer defendable.

(6) The NAF made absolutely clear again today that they want all the junta's military units withdrawn from their territory. As I said previously (see below on this Page) Putin now supports this demand. If the junta does not withdraw its troops a renewed NAF offensive to drive them out looks inevitable. Indeed the NAF said as much today.

(7) I would repeat what I have said previously. In my opinion in military terms a prolonged pause will strengthen the NAF militarily more than the junta. I appreciate many others take a different view. However the NAF now has more time to consolidate its gains (some people were worrying not so long that it was overextending itself), to attract more recruits (easier to do now it is winning) and to absorb the vast quantity of heavy weapons it has captured. A renewed NAF offensive when it comes will be more powerful than the one we saw in August. In its weakened state the junta's military will struggle to resist it. Following its defeat and against the backdrop of the economic crisis and the coming of winter the junta's ability to renew the offensive on anything like the scale we saw in July is surely for the time being non existent.

Conclusion

The key lesson of the last few weeks is that the NAF can no longer be defeated, that Russia is now involved, that the US/EU are no longer involved in any meaningful way and that the junta having been defeated and facing an economic crisis is left facing the NAF and Russia by itself. In the Ukraine it is unwise to count on anything but the balance in this conflict has now shifted decisively. I do not see how that will change. For what it's worth that is also the assessment in Britain. The mood here in the news media is one of humiliation and failure.