Tuesday, August 11, 2015

If Minsk fails, let Moscow pay

By Alan Riley


Declare Russia the occupying power and make them financially accountable for rebel enclave.

The leaders of Russia, Ukraine, France, and Germany held a conference call last month to discuss the peace process in Eastern Ukraine. During their two-hour conversation, Presidents Putin, Poroshenko, Hollande and Chancellor Merkel agreed that all the terms of the Minsk-2 ceasefire agreement must be implemented by the end of 2015.
Notwithstanding the optimistic tone of the leaders’ declaration, a starkly different reality has emerged in Eastern Ukraine.
On the day the four spoke, a barrage of missiles was launched into a residential area of Donetsk, a city controlled by Russian proxies. Ukrainian officials quickly reported that the attack was a maskirovka (a military subterfuge) launched by the separatists. A day later, in “retaliation,” Russia-backed fighters attacked four municipalities in Ukraine-controlled territory, killing four civilians and threatened to destroy the Adviivka coal coking plant, Europe’s largest and crucial to Ukraine’s steel industry.
In the weeks that followed, Ukrainian authorities reported a steep jump in ceasefire violations. Indeed, in the first five days of August, the number of Ukrainian military killed and wounded stood at over 50, the largest number of casualties since the Accords were signed less than half a year ago.
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While the Minsk ceasefire is violated repeatedly with deadly effect (200 dead on the Ukrainian side since February), primarily by the Russia-backed forces, there are many other reasons why the Minsk peace process is in trouble.
With some 85,000 Russian soldiers massing near Ukraine’s Eastern border, there is no sign President Putin seeks demilitarization.
Halfway through the 10-month-long timetable for a settlement, most of the confidence-building measures have come from the Ukrainian side. Ukraine has removed its heavy artillery from the negotiated zone of separation between the combatants, while Russia’s proxies have not. Ukraine has also drafted constitutional amendments that allow separatist enclaves to elect their own leaders, and is working on decentralization legislation to grant their municipalities substantial budgetary authority and control over local police. Additionally, Ukraine pays pensions to most retirees in the breakaway regions.
There have been no reciprocal steps from the separatists. Instead of the drawdown of weapons, as called for by Minsk, NATO and Western intelligence services report a steady buildup over the last few months, which has left the enclaves with some 800 tanks (more than Italy, France, and Germany combined), an estimated 1,200 armored personnel carriers, hundreds of howitzers, and scores of Grad missile systems. There is also no progress on the return to Ukraine of hundreds of miles of territory along its Eastern border with Russia.


With Russian military and Russian proxies comprising at least a third of the forces in Eastern Ukraine, and with some 85,000 Russian soldiers massing near Ukraine’s Eastern border, there is no sign President Putin seeks demilitarization. Instead, he aims to block Ukraine’s path toward European and Euro-Atlantic integration by undermining Ukraine’s reformist leadership through a war of military and economic attrition, all-the-while working to weaken sanctions against Russia through lip service for the peace process.
With the likelihood that the Minsk process will fail, Ukraine and the West should be thinking of alternative approaches. Such approaches must have several aims: a) to engage international institutions; b) to defend the rights of the Ukrainian citizens in the rebel regions; and c) to exert economic pressure on Russia.
It is time for Ukraine to consider declaring Russia as the occupying power.
One way of achieving these aims is to declare Russia the occupying power in the Donetsk and Luhansk enclaves. Mounting evidence, including captured and killed Russian soldiers, geolocation on posts by Russian fighters on social networks, and the presence of massive numbers of weapons of exclusive Russian production, makes it clear that Russia is engaged in an occupation. The Russian state armed, engineered and continues to sustain the separatists. When its proxies were close to collapsing in August 2014, the Russian army stepped in directly to repel the Ukrainian army.
It is time for Ukraine to consider declaring Russia as the occupying power, making them financially accountable for the occupation. Under Article 69 of the fourth protocol of the Geneva Convention an occupier is responsible for the needs of the population. Currently it is the Ukrainian government that is paying the pensions, supplying some of the energy consumed on occupied territory. But these costs should be borne exclusively by Russia, whose broad legal liability for the costs of occupation stems from the respect for territorial integrity contained in Article 2(4) of the UN Charter and from a range of provisions under the European Convention on Human Rights.
Ukraine can start accounting for losses suffered to the state, companies, and people. Legal processes can be initiated before the European human rights court as well as in a range of other international fora. As the Yukos case indicates, international litigation may take years but can eventually deliver. However, in Ukraine’s case, accounting for the losses of occupation could potentially provide a quicker resolution. First, the Russian state will face reputational damage as international tribunals rule that Russia is indeed the occupier. Second, Russia will have to dodge seizure of foreign-held assets. Third, as the scale of Russia’s international liabilities becomes clear, those liabilities will affect the creditworthiness of the Russian state. These three factors can force the Russian state in the direction of settlement.
Every effort must be made to give the current peace process a chance. But with the odds heavily stacked against Minsk, it is essential for Ukraine and its friends in the West to explore alternative options. Even this first step, which would ratchet up the economic costs to Russia far beyond current sanctions, may bring Putin and Russia’s elite to their senses.

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