(Bloomberg View) -- For the last three years, the West's approach to the conflict in eastern Ukraine has been through the Minsk agreements. Now Russia says a new Ukrainian law buries the deal. In reality, Minsk has been dead for a while -- in large part because Germany and France, which helped negotiate it, have done nothing to enforce it. It's time they took a more active role.
The Ukrainian bill, submitted by President Petro Poroshenko last fall and passed by parliament on Thursday, defines Donetsk and Luhansk as "temporarily occupied territories," names Russia as the occupying power and the "people's republics" established in eastern Ukraine as Russian occupation administrations. It doesn't refer to the Minsk agreements at all. Anyone cooperating with the occupation administrations will be subject to criminal charges under Ukrainian law. Of all the documents they issue, only birth and death certificates will be recognized. Russia alone is declared liable for any damage to people and property in the occupied territories. The Ukrainian president gets de facto absolute powers to conduct any kind of military and law enforcement operations there without formally introducing martial law -- something certain pro-European lawmakers consider unconstitutional.
The three-year old Minsk deal ruled out the prosecution of those who opposed Ukraine in the conflict. It called for elections in the rebel-held areas under a special law Ukraine promised to pass, and then, the day after the elections, the reestablishment of Ukrainian government control over the eastern border. Ukraine also promised to amend its constitution to give the eastern areas a special status and to invest in the territories' economic recovery. The new law essentially disavows those promises. Its primary goal is to set a framework for legal action against Russia once the "occupied territories" are, in some way or another, restored to Ukraine.
We are continuing to beat the path toward the reintegration of occupied Ukrainian lands by political and diplomatic means. This is the key signal of the law that the parliament passed on my initiative today. This is a signal both to Donbass and to Crimea: You are inalienable parts of Ukraine.
The Russian reaction was immediate and harsh. The foreign ministry in Moscow described the law as "preparation for a new war." "Kiev is burying the agreements achieved in Minsk and the entire existing mechanism for seeking mutually acceptable decisions to overcome Ukraine's internal crisis, including the 'Normandy format,'" the ministry said, referring to the negotiating group including the leaders of Ukraine, Russia, Germany and France. "One cannot ignore that the law's passage, stunningly, 'coincides' with the announcement in Washington that the U.S. is ready to supply Ukraine with lethal weapons."
Indeed, the U.S. doesn't put much stock in Minsk. While paying lip service to it, U.S. special envoy Kurt Volker has pointed out, correctly, that the sides are still fighting, though Minsk was supposed to put an end to that. It's not the Ukrainian law that has "buried" Minsk. Russia is responsible for failing to make the ceasefire work and have heavy weaponry pulled back from the separation line. Ukraine, for its part, has not worked to make an election even theoretically possible: That would have looked to voters like a betrayal of national interest.
In December, when EU national leaders extended sanctions against Russia, they based the decision on Russia's failure to implement the Minsk agreements. But, according to Roman Bessmertnyi, a Ukrainian diplomat who took part in negotiating them, Minsk today is "like a vinyl record on which the music has run out but which is still rolling, hissing, making background noise."
Essentially, there is no longer any kind of universally recognized resolution plan for eastern Ukraine. Poroshenko, with the parliament's support, has merely stepped into the void to claim unlimited powers.
The conflict will not be settled this way. A military solution is a phantom: Russia, the world's second strongest military power, won't be beaten by Ukraine under any circumstances -- and ending the support of the pro-Russian forces in Ukraine would be universally seen as defeat. So the Ukrainian law merely sets up a long-term stand-off. That's probably fine with the U.S., which has nothing to gain from putting pressure on Poroshenko and no leverage with Russian President Vladimir Putin. Europe, however, cannot afford to let it drag on: Ukraine is too geographically close to allow long-term instability and economic malaise there. And, unlike the U.S., it has strong cards to play with both Ukraine and Russia.
As soon as Germany has a government, Chancellor Angela Merkel and French President Emmanuel Macron should try to revive Minsk, building on Putin's willingness in principle to allow United Nations peacekeepers into eastern Ukraine. It should be possible to invite the UN to organize a fair election in the war-ravaged area that is still home to about 3 million people -- and among about as many people who have fled to other parts of Ukraine, to Russia and to Europe. Peacekeepers could maintain order during the vote and the Organization for Security and Cooperation in Europe, which has been observing the shaky ceasefire, could help see that it's correctly held and tallied. Ukraine would have to guarantee that it wouldn't prosecute collaborators with the "people's republics" to keep post-election peace.
That part would require putting more pressure on Ukraine than on Russia: It doesn't believe a vote is possible until Russia has relinquished control of the border. But Europe has leverage: It could threaten that the European Union would withdraw visa-free travel for Ukrainians, seen as Poroshenko's major achievement. If that works and an election can be organized, German and French leaders will need to pressure Putin into letting Ukraine establish border control. Here, Merkel has a particularly sharp tool: It's in her government's power to scupper Russia's NordStream-2 project to pipe gas into northern Germany. The project faces much opposition from Eastern European countries and the U.S., but Germany has backed it so far. If push comes to shove, though, Germany can win points with neighbors and with Washington by turning away from NordStream-2.
It's up to Merkel and Macron to play a solid hand well and revive Minsk. Otherwise, they're leaving the problem to Poroshenko and Putin -- and their track record in the conflict is well-known. Court dramas over compensation and reparations, as well as objective research into the roots of the conflict and the way it has unfolded -- perhaps funded by the EU to get at the objective truth -- will follow someday. Now, as three years ago, the priority is to stop the fighting, demilitarize eastern Ukraine, and let Ukraine as a whole concentrate on building institutions and trying to grow its economy.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Leonid Bershidsky is a Bloomberg View columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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