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Steinmeier’s Ukrainianization. How do we make Kremlin’s idea safe for Ukraine?

For a week now, Steinmeier’s formula has been the buzzword in Ukrainian politics, but the number of questions about its content and possible consequences is still high. Especially – after the latest news according to which, Ukraine has already agreed on the content of the formula, but allegedly, according to Russia, does not want to sign a written commitment.

This news raises the question: isn’t Kyiv trying to “outwit” the Kremlin?

Is Zelenskyi’s team planning to agree to the Steinmeier’s formula and then refuse to hold a real election?

However, such logic will not help to defeating the Kremlin. This is a mistake, because when political settlement begins, it will be impossible to back away. Therefore, if Ukraine gives its final consent to the formula application, it must consider all the possible risks and consequences of its move.

Some of them are disclosed in this article for the first time.

The formula in three unknowns

Former Foreign Minister Pavlo Klimkin, current Foreign Minister Vadym Prystaiko, and former  adviser to President Poroshenko Kostiantyn Yelisieiev have already told the Ukrainska Pravda what is hidden by the name ” Steinmeier’s formula” and how it emerged in the negotiations between Ukraine and Russia.

In short, it is an agreement on how one and only one of the Minsk Agreement clauses should be implemented: introduction of the so-called “special status” of the CDDLR, i.e. the law “On Local Self-government”. The “formula” states that this law enters into force in two stages. It should be temporary on the day of local elections in the territory of the CDDLR. And only if the OSCE ODIHR recognizes this election as fair and free, does the law come into force on an ongoing basis.

The formula does say how long “temporary” will last. The OSCE normally reserves eight weeks from the election day to prepare its final report stating whether the elections were fair or vice versa (and as far as we know, this is the document in question).

But this description leaves a number of questions.

OSCE may turn a deaf ear to the violations and issue a positive conclusion – though this “authority” is questionable, but it is ready to cooperate with Kyiv, and therefore it is necessary to make steps towards peace. Therefore, this scenario should be anticipated and blocked.

Secondly, when will the operation of the central authority resume in the currently occupied territories?

The law on so-called “special status” governs the work of local self-government bodies, but the authority in Ukraine is not limited to mayors and local councils. There is government, there is regional state administration. There is police after all. Who will guarantee security during elections? In the government-controlled territory, this is done by the Ukrainian National Police. Who will do this in L/DPR?

Thirdly, who will be the arbitrator capable of making a decision on the fairness of the election? 

Of course, a new mission must be formed to monitor the Donbas election – OSCE SMM monitors have neither the mandate nor the knowledge to do that. But the experience of SMM allows evaluating how real the work of observers on the occupied part of Donbas is in its present form. In addition, it will be necessary to monitor not only the elections, but also the militants (whether they intimidate people or not, whether they have taken away hardware, put down their weapons, etc.).

At present, the OSCE SMM is unable to answer these questions. Their movement through the occupied territory is completely and fully dependent on the “goodwill” of the militants. If they allow them to go to some place – the observers go. If they do not allow – verification stops there. Not to mention that the mission only works in daylight hours and does not use dirt roads! The situation in Stanytsia Luhanska is very vivid example in this context. Many capitals’ attention is riveted on attempts to demilitarize the site, but the OSCE SMM is still unable to fully survey the militant-controlled site and force the militants to dismantle their fortifications.

How can one be convinced of comprehensive demilitarization in these circumstances? Preparing for elections without withdrawing troops is like committing a suicide.

Of course, we can leave everything in place. Then the Russians and the militants will let the OSCE SMM access only the “exemplary” territories. Does anyone doubt that, on the basis of such field trips, the mission will recognize the “election” in the occupied territory as the election that has taken place “with some irregularities” though?

Ukraine’s requirements for elections in Donbas

Despite these reservations, it is worth emphasizing: Steinmeier’s formula itself is not a “betrayal”. If we do not let things fall where they may with the election, if we put forward clear requirements and work out the details, then the election in the Donbas may be a step towards the return of the occupied territories under the control of the central government.

After all, both Minister Prystaiko and President Zelenskyi have already made statements about the importance of the security component, the mandatory withdrawal of Russian troops as a prerequisite for election, that election should be held under Ukrainian laws, with the participation of Ukrainian parties, under the control of the Ukrainian CEC, etc.

It is critically important that Kyiv insist on these conditions right now, rather than counting on the OSCE’s “honest reports” on alleged demilitarization and “relatively free” election.

Ukraine has grounds for such requirements. And they stem from the Steinmeier’s formula.

We have already mentioned that this formula is not a substitute for “Minsk” or its “decipherment”; it concerns only one specific clause. This means that at the same time it is necessary to agree on other details of the election. Timeline of actions, verification, controls – these should all be in the same future document.

By the way, the Ministry of Foreign Affairs has already announced certain conditions on the Ukrainian side, the so-called “Zelenskyi’s Plan” – however, it is unknown whether it includes the requirements proposed in this text.

Requirement 1. Security first.

And it’s not just words. This is a key and vital position for Ukraine: security and political track must be combined, with the first one taking priority.

By the way, in the logic of Frank-Walter Steinmeier in 2016, when he proposed his “formula”, the approach was quite the opposite. It was suggested that a regime of silence be established, that the troops should be separated, and then that there had to be a complete set of political steps on the part of Ukraine, up to the amendment of the Constitution. And that is why this proposal did not ‘take off’ – it clearly lacked the withdrawal of foreign troops, that is, the de-occupation and demilitarization of Donbas. And also a guarantee that Kyiv will regain control of the border.

We can already see that Kyiv has not used former Steinmeier’s proposals: it has been officially declared that the Constitution will not be amended. But it is also necessary to change the security part of the arrangements.

The withdrawal of troops should take place before the start of the election!

First, silence regime. Constant and without any violations. Not a week or two, but at least a month, with full access of the OSCE SMM to any parts of the occupied territories. After that – the withdrawal of heavy weapons (though it had to have happened), as well as the separation of troops along the entire demarcation line. Then – and this is vital – withdrawal of illegal armed forces and foreign troops from the occupied part.

It is impossible to talk about any election without this.

And only after that – beginning of preparation for the election: either with the previous resumption of the work of the Ukrainian authorities in these territories, or with the introduction of an international mission to fulfill their role.

Requirement 2: Election is not just a vote

Fortunately, in 2015, the Ukrainian side has partially created an airbag for itself listing the election standards by adopting a law on some additions to the “special status”.

It mentions the observers (international and Ukrainian ones) and the safe conditions for their work, withdrawal of all illegal armed groups, participation of all willing parties, freedom of agitation, access to media, work of Ukrainian media in the territory of the CDDLR, the right to vote for IDPs.

And since the framework requirements for the elections have already been defined, no one can formally demand that Ukraine deliberately organize election that will not be fair and free under these internationally recognized standards.

Does this strengthen Ukraine’s negotiating position? Certainly.

Will Russia object to compliance with all these conditions? Undoubtedly.

But we must insist on keeping the critical clauses.

Who will manage the election process? It should be the Ukrainian CEC, rather than the CEC of self-proclaimed “republics”. In order to do so, the CEC must recover the voter registry. The police have to guarantee security, and for that purpose, the police should physically be in the CDDLR at that time. Ukrainian courts have to work in one form or another during the election campaign.

The Ukrainian media must work smoothly, and politicians should hold their campaign. Simply “allowing” all Ukrainian parties to participate in this election means absolutely nothing, unless we guarantee that there is no physical threat to the representatives of these parties in this territory. And this brings us back to demilitarization and disarmament.

Requirement 3. Amnesty and its application

Implementing this requirement now seems difficult, but it remains important.

Amnesty of those who participated in the events in the Donbas is provided for by “Minsk”, but Kyiv has repeatedly stated: it cannot apply to those who have committed grave crimes, who have tortured our soldiers and prisoners. It will clearly be a mistake to ‘forget’ about this problem.

In this case, some time after the election, we may find out that among the newly elected representatives of local authorities there are war criminals who have already received public recognition as partners of official Kyiv!

Completing the amnesty overnight is undoubtedly impossible: investigations and lawsuits can take years. But Ukraine may insist that relevant investigations begin at the same time as the start of the preparations for the election.

In this process, it is necessary to distinguish between lustration (those who held certain offices in certain bodies of pseudo-republics, in punitive units, etc., by default, should not apply for offices in local government) and the process of amnesty. And while with the first block restrictions can be determined at the level of the law, it will not work with amnesty.

Amnesty is an individual thing. There must be an investigation and a trial (formal, by the consent of the parties) that will determine the degree of guilt of the individual.

Therefore, before the elections, the operation of law enforcement agencies (even in some transitional form before the full restoration of the Ukrainian police) should be launched, which will start the process of investigating crimes after 2014.

“Red lines” in public opinion 

One of the biggest complaints to the new government on negotiations with Russia is the lack of publicly drawn red lines, that is, arrangements that Ukraine will never agree to.

However, some unofficial “red lines” are already in place – they have been drawn by public opinion.

Ukrainians reject elections under the conditions established by militants; complete amnesty; legalization of “people’s police” and the like. Such sentiments are typical both in Ukraine in general and in the East, both among the voters of the Servant of the People and even for the voters of OPFL.

And this is also an argument for our Western ‘Normandy’ partners: You do not want to get political destabilization in Kyiv, do you?

Thus, even the Steinmeier’s formula can have a completely different meaning if we focus not on holding election as such, but on detailing all the conditions for holding election. An absolute priority is the completion of security steps towards the implementation of the political part.

And we should not as much as hint that the election in Donbas may take place “tomorrow,” or in a few months. Neither the demilitarization of the region, nor the preparation for fair elections, nor the resumption of the work of the Ukrainian authorities in the Donbas a priori can take place in half a year, as suggested by the Ukrainian Foreign Minister.

It is simply impossible to reintegrate the Donbas in half a year. During this time, it is only possible to legalize the status quo – but not on Ukrainian terms and with unpredictable consequences for the state.

Mariia Zolkina, Serhii Sydorenko, the Yevropeiska Pravda (European Truth)

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