Franco-German Proposals in the Normandy Forum: A Letdown to Ukraine

The Kremlin’s representative to negotiations over Russia’s war in Ukraine’s east, Dmitry Kozak, is undoubtedly the source of the outpouring of secret documents to the Russian daily Kommersant (March 24), revealing the negotiating positions of the parties to the Normandy process (Germany, France, Russia, Ukraine).

Kozak has, in recent months, urged Kyiv, Berlin and Paris to turn the negotiators’ informal, give-and-take position papers into official documents, under the envoys’ respective signatures, and make them public. His stated goal (Interfax, March 18) is to expose Kyiv’s “obstructive” attitude and blame the deadlock on Ukraine. On the other hand, his unstated goal (as Kyiv analysts see it) is to provoke mistrust and disaffection in Ukrainian society toward the authorities involved in these negotiations. Kyiv, Berlin and Paris, citing diplomatic confidentiality, had all declined to have these documents publicized, unless and until the Normandy Four come to an agreement on this basis. Kozak’s leak is the latest move in Russia’s psychological warfare, coupled with a spike of armed hostilities at the front (see EDM, February 18, March 15, 24, 25). Four Ukrainian soldiers were killed and two others wounded on March 26, prompting the usual nervous reaction from President Volodymyr Zelenskyy (President.gov.ua, March 26, 27).

Irrespective of Kozak’s primordial intention, however, the centerpiece in the trove leaked to Kommersant is the Franco-German document on implementing the Minsk “agreements.” The German chancellor and the French president’s top political advisors, Jan Hecker and Emmanuel Bonne, respectively, are its main authors. Titled, somewhat awkwardly, “Key Clusters for Carrying Out the Minsk Agreements,” the document has been on the Normandy negotiating table (by video-conferences) since February 8. Russia tabled its counter-proposal on February 16, along with Donetsk-Luhansk’s counter-proposal (not taken under consideration in the Normandy forum). Ukraine had earlier tabled some counter-proposals of its own, but it has yet to respond to these latest Franco-German and Russian proposals.

Moscow wants Kyiv to respond officially and negatively, not so much to the Russian document (a deliberate nonstarter) but to the Franco-German proposal, so that Kyiv would look intransigent and alienate Berlin and Paris. Indeed, the Franco-German “Key Clusters” adhere to the Russian-imposed Minsk Two “agreement” while tinkering with the sequence of steps at the margins. The Kremlin, however, is not interested in ending its multi-dimensional war against Ukraine and, therefore, not interested in the Franco-German proposals, regardless of how favorable they are to Russia. They amount, as Ukrainian analyst Mariya Zolkina observes, almost to a copy-paste of Minsk (Ukraiynska Pravda, March 26).

The Franco-German document comprises 11 clusters (blocs) of stipulations of the Minsk Two “agreement,” to be carried out sequentially. Kyiv had recently argued that the Minsk One and Minsk Two “agreements” (September 2014 and February 2015, respectively) should both be taken into account, given that Russia’s breaches of Minsk One had turned Minsk Two into an even worse dispensation for Ukraine (see EDM, February 22, 2021). The Franco-German proposal nevertheless proceeds from Minsk Two only.

The “Clusters” document is offered (according to its preamble) as the basis for a “roadmap” that Kyiv and Donetsk-Luhansk should negotiate in the Minsk Contact Group, as the Minsk “agreement” requires. The roadmap shall be subject to the Normandy Four’s approval. Ukraine has done its utmost to avoid negotiating with Russia’s proxies, but the Franco-German proposal would nudge Kyiv back into that trap.

Cluster A answers to some of Kyiv’s security concerns in order to get the political process started. It provides (as does Minsk Two) for full adherence to the ceasefire, pullback of heavy weapons, troop disengagement at selected places along the demarcation line, de-mining, opening crossing-points, all-for-all exchange of detainees, and unimpeded access for the Organization for Security and Cooperation in Europe’s Special Monitoring Mission (OSCE SMM).

Under Cluster B, Ukraine would offer political concessions in return for Cluster A’s threat-reduction measures. Kyiv should negotiate with Donetsk-Luhansk in the Minsk Contact Group over the content of legal acts that the Minsk “agreement” requires the Ukrainian parliament to adopt. Those acts include: constitutional reform to decentralize Ukraine’s state administration, a special status for the Donetsk-Luhansk territories (“certain areas of the Donetsk and Luhansk oblasts”—Russian acronym ORDLO), an amnesty law applicable in ORDLO, a law on a special economic zone in that territory, a distinct law on “local” elections in ORDLO, and incorporating the Steinmeier Formula into Ukraine’s legislation (this latter requirement is not a part of the 2015 Minsk “agreement” but a 2019 aggravating addendum—see below). Cluster B and the subsequent ones flowing from it, therefore, facilitate Russia’s intrusion via Donetsk-Luhansk into Ukraine’s legislative processes, which is the Minsk “agreement’s” logic.

The Franco-German proposals’ Cluster C envisages a “start” to the withdrawal of “foreign” armed forces from the Donetsk-Luhansk territory, as well as a “start” to disarming unlawful armed groups in that territory, “excepting the people’s militia.” This would allow Donetsk and Luhansk to retain at least some armed forces. People’s Militia is the title of their existing forces, and the Minsk “agreement” entitles them to a “people’s militia.”

Under Cluster D, Ukraine would (again) offer political concessions in return for Cluster C’s measures on threat reduction. Kyiv would bring the constitutional reform on decentralization as well as the ORDLO electoral law and special economic zone law into force, all temporarily at this stage. Kyiv is supposed to have negotiated and agreed those laws co-equally with ORDLO’s representatives in the Minsk Contact Group (see above).

Cluster E envisages the “completion” of Cluster C’s troop withdrawal and disarmament measures. This is no completion, however, because this cluster legitimizes ORDLO’s People’s Militia as a force in being alongside Ukrainian interior ministry forces. Security in the ORDLO territory shall be provided by joint patrols of Ukrainian police and the People’s Militia, with the participation and mediation of the OSCE’s SMM. The SMM would also establish a presence on the legally Ukrainian side of the Ukraine-Russia border in ORDLO (410-kilometer section, currently under Russian and proxy control). The OSCE would, for this task, include some Ukrainian personnel in the SMM. All this presupposes a large increase in the SMM’s manpower, equipment and, therefore, budget, as well as correspondingly enlarging SMM’s mandate. Russia, however, has a long record of using its veto power to sabotage OSCE missions, restrict their mandates, and cripple their budgets, including those of the SMM in Ukraine.

Under Cluster F, rewarding ORDLO’s partial demilitarization, Ukraine would bring the ORDLO special electoral law (as pre-agreed with ORDLO’s negotiators—see above) into force permanently.

Cluster G provides for ORDLO to stage “local” elections, monitored by the OSCE’s Office of Democratic Elections and Human Rights (ODIHR). By “local elections,” Kyiv has all along meant elections to district-, town- and village-level administrations, whereas ORDLO authorities have meant elections to their “parliaments” and “presidents,” while Russia has equivocated. The Franco-German proposals do not dispel that dangerous ambiguity. In close correlation with ORDLO’s elections, Ukraine would bring the law on ORDLO’s special status into temporary effect as of 8:00 PM on election day (end of the ballot-casting). Ukraine would, thus, accept ORDLO’s special status instantly, without awaiting the OSCE’s final post-election assessment (i.e., in practice, irrespective of those elections’ rectitude). In practical terms, it would be politically impossible for Ukraine to revoke the temporary special status even if ORDLO’s elections are unfree and unfair. Were Kyiv in that case to revoke the temporary special status, Kyiv would probably be accused of reigniting the war; and Russia would probably itself reignite the war while blaming it on Kyiv. The so-called Steinmeier Formula (named after former German foreign minister Frank-Walter Steinmeier, who proposed it) aims to de-couple ORDLO’s special status from democracy qualifications. This would be the first stage of applying the Steinmeier Formula; the second stage concerns bringing ORDLO’s special status permanently into force (see Clusters B and K).

Under Cluster H, the restoration of Ukrainian control at the border (as envisioned conditionally in Cluster E) would “begin.”

Cluster I requires Ukraine to reciprocate by bringing the amnesty for “participants in the events in ORDLO” (Minsk parlance for the armed conflict and related crimes) temporarily into force.

Under Cluster J, Ukraine would regain full control of its own side of the Ukraine-Russia border in ORDLO. This would occur three stages behind the “local” elections in ORDLO, thus negating Kyiv’s top priority, which is to regain control of the border before ORDLO’s elections, not after. Furthermore, “full” Ukrainian control is in jeopardy while the People’s Militia remains a force in being and would already have performed joint patrols with Ukrainian police (Clusters C and E).

Finally, Cluster K requires Ukraine to bring the constitutional reform on decentralization as well as the laws on ORDLO’s special status, special economic zone and amnesty into force permanently, provided that the OSCE certifies ORDLO’s “local” elections as having “complied with [the] OSCE’s standards on the whole.” This would be the second stage of applying the Steinmeier Formula (the first stage is contained in Cluster G). Compliance “on the whole” makes it possible for the OSCE to give passing marks to a non-compliant election. The “on the whole” qualification is Russian Foreign Minister Sergei Lavrov’s subsequent contribution to the original Steinmeier Formula. For its part, Ukraine wants ORDLO’s “local” elections to comply with the European Union’s Copenhagen criteria; but the Franco-German proposal would offer Russia a discount on this matter also.

All told, the Franco-German proposals have missed the chance of revising the Minsk “agreements,” which is a top-priority of Ukraine in the Normandy Four negotiations.