Former Ukraine Rep in TCG Marchuk on Donbas Conflict Resolution and Minsk Agreements

Ahead of the likely prisoner exchange between Ukraine and the Moscow-backed "Donetsk and Luhansk People's Republics", we spoke to the former Ukrainian prime minister, defense minister and representative of Ukraine in the Trilateral Contact Group Yevgenij Marchuk about the Donbas war, Minsk agreements and how Ukraine could draw peace nearer.

What main barriers to peace in the Donbas do you see right now?

The first problem is Russia's refusal to compromise on almost all issues. Starting with the delicate factor of prisoner exchange or detainees and naturally, the main indicator: a ceasefire, to be precise, an overall and permanent ceasefire.

We know in Paris the sides reached a conclusion to agree and formalize precisely a complete and permanent ceasefire and to conduct a prisoner exchange before the end of 2019.

Is it realistic? A ceasefire was announced 21 times, but the war still continues.

The longest ceasefire was in 2016 when we agreed on it. It wasn’t just agreeing and fulfilling. It's a lot of vexatious business with markers. Technically, procedurally: the participation of the OSCE, the Joint Centre for Control and Coordination (JCCC) at the time and many more. Back then in 2016, we were able to go 1.5 months with ceasefire: September and half of October — it was the only long-term period where there were no casualties during this time.

I personally link it to the fact that the last round of Normandy format talks also took place in 2016.

After that, it was clear Russian leadership ordered to withdraw their representatives from the JCCC. After that almost all ceasefire arrangements including New Year, Christmas, as you know, were tied to some significant humanitarian factors above all. 99.99% of the time there were violations from the other side. There were some cynical incidents after the agreements were signed: ceasefire forbade shooting of any weapons starting 12 a.m. on a certain date, so the joint control procedure was initiated. But violations took place as early as 12.20 a.m. We all appreciate it was under Moscow's command. It's evident and to be honest those wishing to resolve the conflict in the Donbas need to at least establish a ceasefire and start other resolution components.

Apart from dependence on Russia's command, a lot depends on what the so-called Luhansk and Donetsk “people’s republics'” military leaders want.

Because the Ukrainian side doesn't have a clear formalized plan in the form of a government decree. There should be a formalized government decree containing all the components to reinstate Ukrainian authority in the Donbas. Yes, it seems hypothetical, as if it's something virtual. It's true to a large extent. But when it is all written out it should include things like: what guarantees Ukrainian authorities give and to whom if they return there. Whom and what does it guarantee? What happens to property. How insurance works, how business is treated. People who left the area are scared to return, how will their problems be resolved? Who bears what costs, because there's a lot of destruction there? These are the main things I often stress.

Do the current military leaders and functionaries of the so-called "DPR" and "LPR" know what to expect when the conflict is resolved? They do. What can they expect?

Trials, I hope. Just trials.

They bear different degrees of responsibility. Okay, they do know. What about the firemen? The cleaning lady in the offices of [Donetsk and Luhansk leaders] [Denis] Pushilin and [Leonid] Pasechnik? Is this woman a collaborator or not? And so on.

Thus there should be a governmental decree that stipulates for unconditional guarantee formulas, mandates for various ministries and agencies to perform certain functions by a certain deadline.

For instance, the law on amnesty is not worded per the Minsk agreements -- although it does exist -- it is not in force.

How and when needs to be finalized and by what deadline. What non-criminal responsibility is there for certain persons: either they can't vote for five years or they can't hold certain positions -- this is non-criminal liability. Or there might be other forms apart from criminal liability for all those who killed our people with weapons in their hands.

You think this method will work and this will increase the chances of a ceasefire?

I'm not 100% sure that it'd work but it would work for those people living amid fake fears that Banderas would come and slaughter everyone here. Bear in mind, these people are not living in a Ukrainian media space. They live in the local media space, which at times is even worse than the Russian, and the Russian media space.

Thus, approaching resolution it is necessary to list all transitional phases including what we often say that there are normal citizens there -- and it is true that there are those who would want to somehow resolve the situation. But there are still lots of people who had worked there somewhere -- they had to. But were they working as collaborators and thus fought against the return of Ukrainian authority or not?

Thus there should be some grading but that's not all. This government decree should include a list of things to be done on the humanitarian level, for instance: restoration of sanitary-epidemic services and medical care altogether which has turned into a massive problem. The issues of education need to be resolved: whether it should remain or things should change. Regarding language: there should be no ultimatums there: Ukrainian only or else because this is not the right time. There should be a transitional period. At some point, yes, we should do this, but for some time there need to be mutual compromises.

[For instance], the sides have agreed in Paris to establish a ceasefire by the end of the year and to conduct an exchange.

As for the prisoner exchange: as far as I know, the other side confirmed around 72 people who are on their territory, we confirm around 200. We confirm those they have declared. But I know for sure that at the time of my presence in the Minsk group, there wasn't just 72, there were about 200 [Ukrainian citizens] who were alive [in the occupied territories]. And now if they confirm [just] 72 and don't admit to having another 100+ …

But isn't [Volodymyr] Zelenskyy's initiative to admit the Red Cross designed to confirm essentially ...

It's not just his initiative, it's a technology that is used during exchanges as a rule. We have used it before and it's the right thing to do now: for the Red Cross to access all those whom we name. The Ukrainian side even knows where they are located because they're not all in legal authorities. We as a state confirm that some are indicted, others are being tried and in other capacities. That's right, but I can surmise as to why they are reluctant to hand everyone over.

Why?

I am strongly convinced that they tortured those people and there are torture marks: cut ears and many other things and so on. They appreciate this would mean the Hague for them -- these are military crimes.

These are direct proofs of their crimes ...

Crimes against humanity. Maybe -- this is my hypothesis because I see no other logic if we're doing this "all for all". There was a clarification that it'd be all established for all established. It's not the right thing to do. Because they can say: all established -- we have established this number, but we should insist that it should be all for all. The other side proposed all established for all established. I have clarified why: we confirm all, while they confirm only a part.

There is another thing: what does "exchange" mean? We have for instance 200 people, and legal compliance must be proven. What does this mean?

So that you understand why I pose this question -- if a person is indicted by a Ukrainian court, who can give an order to release him and exchange? Nobody.

The president can issue a pardon for that person.

What if it's a grievous crime like murder? The president cannot pardon a murderer.

And how can this be regulated?

Well, there is a technical process. These are difficult things. But the main thing is elsewhere -- the president can't release him -- it must be the court granting a decision. What if this concerns 200 people -- this can't be done in a swift manner. So there will be a problem.

I pray to God, this is all preliminarily discussed and I think our side was ready for this. But there will be another problem -- why? Because the issue of legal compliance is not a formality -- it is prescribed in Ukrainian legislation. I hope our side has thought and worked this through and that it will take place before the end of the year. But these two circumstances prove how difficult this is.

There are other parameters too. But even these two carry the risks of the exchange problematics. Of course, we want [the prisoner exchange] to go ahead but this is not a case where we should be so eager that we do it at any cost. Because on the other hand: how could we let this opportunity to exchange slip? That'd be inhumane too. But I do hope they find a formula and there is agreement.

On the other hand, if we discuss the next round of Paris talks...

Planned to take place in three months ...

There was this remark of Mrs. [Angela] Merkel about the flexibility of the Minsk process. It has been rendered as if she meant that many things can be altered and so on or even the Minsk process could be replaced altogether. I know many versions and I am familiar with many of them starting with altering or transforming the Minsk and Normandy negotiations, the Budapest Memorandum. It sounds pretty, right and fair, by the way. And there are grounds for this, but the circumstances are different: the American side said if Russia agrees, then we'll [come in], but we know that Russia won't agree.

On the other hand, concerning the change of format -- the documents. The change of format could happen if the Budapest [Memorandum] came into play, but if the very document [is altered]? Because many people are discussing the terms laid out in the current version which comprises three documents. That now the deadline can be changed from 2015 to 2020 or 2021 obviously. 

That is not quite the issue. This is the so-called roadmap which is a genuine format of work when old documents aren't good and can't be fulfilled. Then a roadmap is devised which stipulates the step-by-step ...

The sequence.

The sequence and order of their realization. There were several such attempts to devise a roadmap -- but to no avail. I won't give reasons, but if in principle they succeeded in using the current Minsk format and devising a roadmap for 2020 setting out how to fulfill this package of basic documents -- there are three of them. Plus there is a framework decision.

But what else do we have here that our side hasn't used yet -- I didn't see this during the Paris summit -- what we ourselves should raise with the Russian side. Because it turned out that the outcome of the Paris summit was merely tasking Ukraine. Who else needs to do things, other than Ukraine?

That side is also tasked, if we speak about the separation of forces or the prisoner exchange.

Separation -- yes. That's right. But I mean the point at issue -- which was mentioned by Mr. Zelenskyy -- that he has different views on the problem of elections, then control over the border. He as an acting president cannot agree with this, which is the right thing to do ...

Point 9 of the Minsk agreements...

Yes, he's right to pay attention to that, but apart from that ... Maybe it was discussed during the negotiations: take the first document of the Minsk documents -- the Protocol dated September 5, 2014 -- point 4. "To ensure the permanent monitoring of the Ukrainian-Russian border and verification by the OSCE with the creation of security zones in the border regions of Ukraine and the Russian Federation." This hasn't been fulfilled yet. Nobody allows them near the border -- 406.7 kilometers as far as I remember of the non-government-controlled part of the border. Nobody lets them there. The OSCE has got used to this and the Russians have taught everyone -- this point will not be fulfilled. Because it is not in their interest.

But hold on, Mr. Putin, we have different positions now. You cite "Minsk" and say: "it's written there." But I also cite "Minsk". Let's agree to task the OSCE with the creation of a "security zone" by the end of the year, as a transitional component. A security zone along the border is not easily done -- extra resources are required, extra equipment. It's winter, and people need to somehow live and work there. This can't be a 20-minute job -- that is not [proper] control.

But this wasn't used, even though it can be used. We can raise this question and say "This is also 'Minsk'. You're right, Mr. Putin.'".

To balance ...

Let's find a compromise: fulfill this as a transitional period. After that, we'll discuss how we reach [the rest].

Mr. Marchuk, regarding the border, this is the most difficult issue. President Zelensky admits it himself. What can we offer here? We currently see that the Russian president is not prepared for this. Can we offer any scenario here?

We can. We have tried to force it on them, but it didn't work in Minsk. I also take part in two other international platforms on the Donbas war where -- among others -- Russians participate too. We started discussing, despite not reaching a complete agreement, but this was defined as a possibility. Although it does require a lot of work.

Russia ties the border to the political reform. We have differing views with Russia on the peacekeepers. We want them at the border, whereas Russia only wants them at the demarcation line, the de facto frontline. We suggested breaking this down into three stages and synchronizing the stages with the border and the political reform.

Peacekeepers need to come for half a year at the very least, if not longer. We are talking about UN peacekeepers because other peacekeepers would imply a different status. Perhaps there could be a third intermediary too, but that would further complicate things.

Stage one: demarcation line: UN peacekeepers come out and Ukraine divides the political reform and the elections into three stages.

The second stage involves peacekeepers moving to the center where they do their work.

The third stage is when they get to the border and we end with the elections.

This can be discussed.

Mr. Marchuk, do you have an understanding of how we want to reintegrate the Donbas? There is the Law "On Reintegration of the Donbas" that was devised and approved by the previous authorities but which is still in force now. Do you see a "Zelenskyy Reintegration Plan"? What is your understanding?

I would start my response from a different angle. Do we know what  we want to reintegrate? We are still far from reintegration because without the resolution of the war component we can't reintegrate with the hostilities ongoing. How can we deploy peacekeepers if the war is still ongoing? Peacekeepers don't go where there is no ceasefire agreement.

But Zelenskyy says he wants to return people first ...

It sounds right and it is right from the point of view of humanity. But we want the people to remain there -- we don't just want the land back. We want a normal, functional structure. So when we talk about reintegration we should seek answers to many questions [first].

What is the current economy of the so-called "DPR"? It is a self-contained structure. Every month, Russia supplies a few hundred thousand of pieces of food, everyday items, fuel. Other than arms. Once reintegration begins, Russia ceases to do this. We are still far from this -- but we should take this into account.

Is it a democracy there? Have people been exposed to democracy over these five years? People have their human essence. But we want to reintegrate people living in a totalitarian military regime. We have to think about what needs to be done beforehand.

Concerning demilitarization and disarmament: can we reintegrate if there are 36,002 army corps? Even if Russians leave, what are we to do with this?

As far as I know, in the last roadmap dated 2016 Merkel proposed setting up camps where militants would leave weapons and where they would be located.

This is unacceptable in our circumstances because Russia knows this and uses it to scare the locals, along with the "concentration camps" ...

Putin called it "Srebrenica".

The best method would be to have the peacekeepers carry out disarmament. Ukraine doesn't take part in this because a question immediately appears: "do people laying down arms know what to expect?"

Will they all ground arms, especially ignorant ones, living in a world of fakes like Banderas coming and slaughtering everyone?

We have a question of liability. Is amnesty coming into play? Because even in international practice there is no amnesty for [all crimes]. There are crimes against humanity where there has never been amnesty.

Should the [militants] assume that would be the case or should Ukraine pass a certified formalized act that is made public?

As far as I know currently this act is the "Special Status Law."

Transitional justice is in there. It's a positive sign that Zelenskyy introduced this transitional justice, as well as liability.

So Ukraine needs a concrete plan.

And those bearing weapons, do they know what will happen to them? It's one thing if you're at the frontline, but there are tens of thousands who need to know beforehand how the law will [regard them]. Do we want guerilla bands?

To sum up: you don’t believe in a ceasefire being established this time around? There are problematic aspects with regard to the exchange. Will the next summit go ahead if there is no [stable] ceasefire? 

It might not.

President Zelenskyy says there will be no "special status" in the Constitution. What does this statement give us for the negotiations?

It's the right statement and I hope President Zelenskyy expands on the argumentation as to why. It is difficult because Minsk documents stipulate for constitutional reform, and moreover a "special status" is mentioned.

We have argumentation to unblock the possible attempts to stall progress. Putin's main argument is to create autonomy within Ukraine and then block Ukraine's [Euro-Atlantic integration] through it.

We need to find argumentation as to which constitutional reform and amendments can be passed with regard to the ongoing decentralization and land reform.

We can't allow for the three to be carried out simultaneously because it would be too difficult for the current authorities.

On the other hand, work needs to be done on counter-argumentation because constitutional amendments and reform can be two different things.

The question "to which extent it would only apply to the Donbas as a whole or just the occupied territories" should be avoided because if they return to Ukraine, they can't be a separate part -- they will just be Ukraine. Decentralization -- which is currently being considered in the parliament -- can [actually] be utilized for this purpose.

No doubt Russia will try to push through its own interests, but we should come to the negotiating table with two or three different options bearing in mind where we can compromise and where the opponent can.

On the other hand, there could even be a "transitional period" clause in the Constitution to save the country as a whole. This is a difficult issue, especially difficult to take for the society.

But we should weigh up the two options: a tough transitional period allowing for that, that and that or nothing and [the status quo] is maintained.

All in all, I feel there can be progress despite the difficulties. If the exchange does take place, if ceasefire stays for at least half of January, and if the separation of forces in three new areas further takes place, Putin will find it hard to deny anything in the presence of Macron and Merkel. He will have nothing to cite.

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