Ceasefire, release of prisoners and unhindered access for international organisations: five years of non-implementation of the Minsk Protocol raise questions about its efficacy

On 5 September 2014, the Minsk Protocol based on the results of consultations within the Trilateral Contact Group concerning joint steps towards the implementation of the Peace Plan of President of Ukraine P. Poroshenko and the initiatives of President of Russia V. Putin was signed in Minsk. Known as Minsk I, the document stipulates a series of steps needed to resolve the international armed conflict. Six months later, on 12 February 2015, amidst continued full-scale fighting, another agreement on the “Package of Measures to Implement the Minsk Agreements” (known as Minsk II) was signed to assist the implementation of the Minsk I provisions.

Now, five years later, many of the agreements set forth in the document have not lost their relevance. However, the CivilM+ international civil society platform notes the continued lack of progress in their implementation.

The first and central provision of the Minsk Protocol was to ensure an immediate bilateral ceasefire. Despite cessation of the active phase of the fighting in subsequent years, this provision has not been fully implemented. Ceasefire negotiations are ongoing both within the Tripartite Contact Group and at a high level in the Normandy format. While truce has been announced from time to time on certain dates and occasions such as the start of school year, Christmas, Easter, and others, practice shows that even where truce is respected, it does not last long. The change of power in Ukraine has brought about a revival of the negotiation process. On 6 June 2019, Ukraine’s representative in the Trilateral Contact Group, the country’s former second president Leonid Kuchma said that the Ukrainian armed forces were prohibited from responding to fire from the rebels during «windows of silence.» The next step was the withdrawal of Ukrainian and rebel forces from their frontline positions near Stanitsa Luhanska. Then the Trilateral Contact Group in Minsk agreed on a ceasefire starting on 21 July 2019. However, this decision has not yet led to an actual ceasefire. The OSCE SMM continues to report ceasefire violations on a daily basis (34 to 130 explosions daily). Since the beginning of the current truce, at least six Ukrainian servicemen have been killed and nine wounded by shelling.

The Minsk Protocol also required an immediate release of all hostages and illegally detained persons. Unfortunately, in the subsequent years of this international armed conflict, the concept of detainee release has been replaced by that of detainee exchange, reducing prisoners to items of exchange and potentially leading to more detentions. The only and last large-scale exchange took place on 27 December 2017. On that day, Ukraine was able to return 73 detainees from ORDLO (certain parts of Donetsk and Luhansk Regions). In exchange, Ukraine released to the uncontrolled territories 233 convicted offenders detained in connection with the international armed conflict in Donbas. Both in Ukraine and in Russia, this prisoner release was described as the “first wave” to be followed by the “second wave” before the end of January 2018. Later on, the timelines for the «big exchange» were changed, and the negotiations still continue to this day. At the moment, a number of well-known Ukrainian prisoners are expected to be exchanged. They are believed to include the 24 captured Ukrainian sailors, as well as Vladimir Balukh, Alexander Kolchenko, Pavel Grib, Stanislav Klykh, Nikolai Karpyuk, Roman Suschenko and Alexey Sizonovich. The exchange is expected to take place under the 33-for-33 formula. According to some reports, Oleg Sentsov may also be exchanged. Unlike the previous exchange, this time only the detainees held in Russia – but not in ORDLO – are expected to be released. Ukrainian human rights defenders estimate the total number of Ukrainians detained in both ORDLO and Russia at 130 people or more.

The requirement to ensure continuous monitoring on the Ukrainian-Russian state border and its verification by the OSCE, together with the creation of a security area in the border regions of Ukraine and the Russian Federation has not been fully implemented. Nor has there been any progress in implementing the requirement to remove illegal armed groups, military hardware, fighters and mercenaries from the territory of Ukraine.

The Protocol also established the obligation to decentralise power, including through the adoption of a law on provisional self-government in certain areas of Luhansk and Donetsk Regions and holding an election there, and to examine and legally regulate amnesty-related matters. Ukraine has taken steps to adopt the requisite legislation for implementing the relevant part of the agreements. In particular, a law was passed establishing a special procedure for local self-government in certain areas of Donetsk and Luhansk Regions. This law prohibits criminal prosecution of persons who have taken part in the events in Donetsk and Luhansk Regions, guarantees the right to linguistic self-determination, and sets out procedures for local self-government. However, there is no possibility at the moment to implement this law, since the other party to the conflict has so far failed to fulfil the Minsk agreements. In addition to the above, the Verkhovna Rada has provisionally approved amendments to the Constitution of Ukraine regarding specific aspects of local self-government in ORDLO. This bill is currently pending consideration by the Constitutional Court. The de-facto authorities in ORDLO have unilaterally held so-called “elections” but these fail to meet relevant international standards and therefore cannot be considered a form of implementation of the agreements.

The Russian leaders’ reluctance to admit their support of illegal armed groups operating in ORDLO, to discontinue military, financial and logistical aid to the de-facto authorities in ORDLO, and to release Ukrainian prisoners of war and civilian hostages has significantly hindered the implementation of the agreements.

With no progress made in the peace process, armed clashes and casualties persists, more prisoners are taken and more violations committed against civilians in the area of this international armed conflict, and the humanitarian situation in the region remains critical. According to the Office of the UN High Commissioner for Human Rights (OHCHR), the total civilian death toll of the conflict reached at least 3,331 as of 15 May 2019 [1]. The international armed conflict and continued hostilities along the contact line have a profound adverse impact on the local people’s daily lives: deaths and injuries, including those of civilians, psychological trauma, destabilisation, economic stagnation, bitterness and fragmentation of communities, and much more.

The Minsk agreements are currently the only formalised instrument for a peaceful settlement of the conflict. Given the lack of progress in their implementation, we, members of the CivilM+ international civil society platform committed to ending the conflict in Donbas, call on all parties and stakeholders to the process:

• to insist on the enforcement of the specific provisions which save lives, such as an immediate bilateral ceasefire; continuous monitoring on the Ukrainian-Russian state border and its verification by the OSCE, together with the creation of a security area in the border regions of Ukraine and the Russian Federation; ensure Ukraine’s control of its border with the Russian Federation;
• to release immediately all hostages and illegally detained persons; to remove illegal armed groups, military hardware, fighters and mercenaries from the territory of Ukraine;
• to examine the gaps and limitations of the current negotiation process and to upgrade it for making real progress towards peace;
• to support broad, direct and substantial involvement of civil society and especially groups affected by the international armed conflict in the peaceful settlement;
• to direct efforts towards reconciliation and reintegration of communities, to provide assistance to victims of the international armed conflict, particularly by facilitating access to public services and payments for people living in the uncontrolled territories to ensure the fullest possible exercise of their civil rights;
• to facilitate unbiased documentation of human rights violations and other war consequences in ORDLO and to ensure access for international humanitarian organisations so they can effectively provide assistance to the local civilians;
• to encourage other urgent steps towards a peaceful settlement, in particular, facilitate humanitarian demining, improve the situation at checkpoints, and support state and society initiatives to restore the region.

Based on many years of fieldwork experience in the conflict zone, members of the CivilM+ international civil society platform are prepared to present their proposals concerning ways to improve the humanitarian situation and restore the rule of law in the conflict region to the newly elected President of Ukraine, other parties to the Normandy-format negotiations, and to members of the Minsk Trilateral Contact Group working on a resolution of the international armed conflict in Donbas. We are also prepared to participate in joint efforts to develop an action plan aimed at restoring contacts between the Ukrainian authorities and the Ukrainian citizens living in the temporarily uncontrolled territories.

[1] https://www.ohchr.org/RU/Countries/ENACARegion/Pages/UAReports.aspx

«Alternativa» Luhansk Regional Human Rights Centre (Ukraine)

Center for Civil Liberties (Ukraine)

Kharkiv Human Rights Group (Ukraine)

NGO Kraina Vilnykh Liudei (Ukraine)

Truth Hounds (Ukraine)

Ukrainian Helsinki Human Rights Union (Ukraine)

Human Rights Center “Memorial” (Russia)

NGO “Citizen and Army” (Russia)

DRA (Germany)

Memorial Deutschland (Germany)

Helsinki Citizens Assembly (France)