Ukraine is scheduled to hold local elections throughout the country (except the Russian-occupied territories) on October 25 – the first such elections since the advent of a Western-oriented Ukrainian government.
Under Ukrainian laws, passed in March (and corresponding with international law), elections of Ukraine may not be held in territories of Ukraine not controlled by the government of Ukraine but that are, instead, under the control of foreign military forces and the nominees of a foreign power (Rada.ua, March 17, 18).
Moscow, Berlin, Paris and, apparently, Washington, however, are urging Kyiv to agree with the staging of local elections in “certain areas of the Donetsk and Luhansk oblasts” – i.e., the Moscow-controlled Donetsk and Luhansk “people’s republics” (DPR, LPR). Russian and Western diplomats involved in this process may have reached consensus about the prerequisites to the holding of valid elections in this territory.
Left unmentioned in this context are the evacuation of Russian forces and disarmament or demobilization of DPR-LPR troops and security services. Such measures are not being listed as prerequisites to holding valid elections. It seems, therefore, that elections would be held under the gun in this territory.
The declared prerequisites (at this point) are, first, that elections in Donetsk-Luhansk should be deemed as part of Ukraine’s countrywide local elections, under Ukrainian law. And second, that the Organization for Security and Cooperation in Europe (OSCE) should prepare and observe the elections in that territory, in accordance with the OSCE’s standards. This implies, first, a wishful assumption that the DPR and the LPR could be made to appear as adhering to democratic standards; and second, that elections in Donetsk-Luhansk could be recognized as valid, if they are staged with Kyiv’s consent and simultaneously with local elections in the rest of Ukraine.
That is a path toward legitimizing the Donetsk-Luhansk authorities and inserting them into Ukraine’s political and institutional system. This has been Moscow’s scenario since the Minsk I armistice (September 2014). Under Minsk II, moreover (February 2015), local elections in that territory are to be held not only under Ukrainian legislation, but also under “modalities” to be negotiated between Kyiv and Donetsk-Luhansk (Article 4).
This approach compromises Ukrainian legislation in several ways. First, the mere fact of holding elections in this territory contradicts Ukrainian law. Second, Ukraine’s electoral code is inherently incompatible with DPR-LPR election practices (as displayed in their November 2014 “parliamentary and presidential elections,” which produced the current authorities there). Third, the “modalities” of the proposed elections are to be negotiated by Kyiv with Donetsk-Luhansk, instead of being determined by Ukraine’s legislation. And negotiating with DPR-LPR authorities would imply recognition of those authorities by Kyiv. Thus, international reassurances that those elections would be held “under Ukrainian law” are misleading, irrespective from which capital they emanate.
Meanwhile, holding or even preparing elections in that territory would necessitate Ukraine’s consent, which Russia has failed on its own to obtain.
Western diplomacy, increasingly anxious to “freeze” this conflict, seeks Kyiv’s consent to holding elections in that territory. Pro-Russia authorities would predictably win. Yet, discussions are accelerating in the Normandy format (Russia, Germany, France, Ukraine), the bilateral Russia-U.S. format (on the deputy ministerial level, Grigory Karasin-Victoria Nuland) and the Minsk Contact Group (Russia, Ukraine, OSCE, DPR, LPR), about holding elections in the secessionist territory.
Those forums and channels are, by definition, concerned with “implementing the Minsk agreement,” the main political clauses of which carry a December 2015 deadline. Russia bears no direct “obligations” on the military clauses; it is not even named. The burden of “Minsk obligations” is being shifted entirely onto Ukraine at this stage: i.e., consenting to local elections being held in Donetsk-Luhansk and adopting a constitutional status for that territory. Even in that case, under Minsk II, Ukraine would not regain control of its border with Russia, but could only start negotiating about that with the armed DPR-LPR (another form of recognition de facto).
Politically, “re-integrating” Donetsk-Luhansk in their existing form into Ukraine’s political system would eventually bring a contingent of pro-Russia deputies into the Ukrainian Parliament. According to Hiorhiy Tuka, recently appointed governor of the liberated part of the Luhansk Oblast, sentiment favoring Russia and the former Party of Regions is widespread, and would impact on elections accordingly (Ukrayinska Pravda, July 26). The Ukrainian government may be able to change that mood in the liberated area eventually, but the militarized DPR-LPR will remain beyond Kyiv’s reach in political terms, even if that territory is formally re-integrated with Ukraine.
At this point, Moscow seems content to watch Western diplomats urging Kyiv to legitimize the Donetsk-Luhansk authorities through local elections, and (as a consequence of this) enshrining an official status for that territory in Ukraine’s Constitution (see Eurasia Daily Monitor, July 20, 24).
According to Kyiv officials, cited by Zerkalo Nedeli (June 26), U.S. Assistant Secretary of State Nuland has “gently encouraged Ukraine to include the rebel territories in the upcoming local elections. When reproached politely about such a scenario being unrealistic, Nuland said with a smile: ‘Look for strong characters capable of winning a campaign there.’ Nuland named free access for all media and foreign observers as sufficient conditions for the occupied areas to express their wishes.”
Similarly, German Foreign Affairs Minister Frank-Walter Steinmeier recently urged Kyiv to “go on, hold elections in those territories, change the Constitution, and they [Donetsk-Luhansk] will gradually change, too,” according to Ukraine’s chief negotiator, former President Leonid Kuchma (Zerkalo Nedeli, June 26).
Until mid-July, President Petro Poroshenko and Ukrainian parliamentary leaders resisted such entreaties; they stood firm even when German Chancellor Angela Merkel and French President François Hollande turned their recommendations into outright pressures (see EDM, July 9, 10).
On July 16, however, Ms. Nuland prevailed on Kyiv to start the process of enshrining a constitutional status for Donetsk-Luhansk, as well as to hold talks in the Contact Group about local elections in that occupied territory (see EDM, July 20, 24). Ms. Nuland held Kyiv strictly to its “obligations” under the Minsk armistice.
The day after Ms. Nuland’s agitated visit, President Poroshenko assured U.S. Vice-President Joseph Biden by telephone about “Ukraine’s undeviating fulfillment of the Mink agreement.” Mr. Biden, praising that first constitutional step, urged Ukraine onto the next step: “elections to be held throughout the Donetsk and Luhansk oblasts” (Ukrinform, White House press release, July 17).
Also on July 17, the leaders of the Normandy group of countries touched on the Donetsk-Luhansk elections in a telephone conference. Russian President Vladimir Putin, Chancellor Merkel and President Hollande caucused in advance, then surprised President Poroshenko with their call while he was visiting the Kryvyi Rih steel plant. Mr. Hollande said that all parties should implement their Minsk “obligations” by the end of this year, including local elections in Donetsk-Luhansk. And “the interlocutors agreed with him” (Ukrinform, Elysee.fr, Bundeskanzlerin.de, July 17).
Russia’s Foreign Affairs Minister Sergei Lavrov called his U.S. and German counterparts, John Kerry and Frank-Walter Steinmeier, separately to discuss “Ukraine’s main obligations” at this stage of the Minsk document’s implementation: direct dialogue with Donetsk-Luhansk and local elections to be held there (Interfax, July 18).
On July 20, Mr. Poroshenko instructed Mr. Kuchma and the other Ukrainian delegates to the Minsk Contact Group to discuss holding elections in Donetsk and Luhansk, merely on the condition that the latter abandon their intentions to hold elections separately from the rest of Ukraine (Ukrinform, July 21). At that point, apparently, Kyiv was still in full retreat.
Meeting on July 21 in Minsk, however, the Contact Group broke down over DPR-LPR’s demand that Ukraine adjust its electoral legislation, taking into account DPR-LPR’s proposals, which they had submitted in May (see EDM, May 19, 22, 26) as a basis for holding local elections.
At that Minsk meeting, furthermore, Donetsk and Luhansk asked Kyiv to withdraw the constitutional amendment on the status of “certain areas in the Donetsk and Luhansk oblasts” from consideration. The Verkhovna Rada initiated the approval procedure of that constitutional amendment under Western pressure on July 16 (see EDM, July 20). Donetsk and Luhansk, however, insist that the amendment must be mutually agreed (as distinct from a unilateral Kyiv document), submitted to the Contact Group and re-submitted in the modified form to the Verkhovna Rada. The DPR-LPR delegates in Minsk asked for negotiations with Kyiv about the electoral law and the constitutional amendment (Donetskoye Agentstvo Novostey, Luganskiy Informatsionnyi Tsentr, July 21, 22).
The Organization for Security and Cooperation in Europe’s (OSCE) chairman-in-office, Serbian Foreign Affairs Minister Ivica Dacic, exceptionally attended the Minsk meeting. He declared that “the conditions of holding the elections [in Donetsk-Luhansk], inviting the ODIHR [Office for Democratic Institutions and Human Rights, the OSCE’s election monitoring arm], etc., must be worked out by Kyiv and Donbas [Donetsk-Luhansk] in consensus” (Belta, Ukrinform, Interfax, July 21). And the Donetsk and Luhansk delegates, Denis Pushilin and Vladislav Deynego, went on to declare that their side “strictly adheres” to the Minsk II document, while Kyiv contravenes it (Interfax, July 24).
A follow-up meeting, tentatively scheduled for July 30, does not seem to have taken place.
The Contact Group’s temporary breakdown may well have contributed to Mr. Poroshenko’s recovery of morale on July 29. While visiting Lviv, he declared that the constitutional amendment initiated on July 16 does not envisage any special status for Donetsk-Luhansk, but refers only to Ukraine’s already existing law, adopted unilaterally in September-October 2014, and supplemented with pre-conditions in March of this year. From the “dozen” conditions that must be met before that law goes into effect, Mr. Poroshenko cited the evacuation of Russian forces from Ukraine’s territory and the restoration of Ukraine’s sovereign control over its border with Russia. That same law (with its March supplement) also lists democratic election standards as pre-conditions to validating any local elections in Donetsk-Luhansk (Ukrayinska Pravda, July 29).
Russia is regularly citing the Minsk II document to the effect that Kyiv may not unilaterally adopt decisions on the status of Donetsk-Luhansk and elections there, but only by negotiation with Donetsk-Luhansk authorities. It is a fact that, under the Minsk II armistice, the constitutional status of Donetsk-Luhansk and the modalities of elections there are supposed to be agreed between Kyiv and the “representatives of those territories” (Articles 11 and 12), as distinct from being adopted by Kyiv itself. Western officials will have to remember this, and stop holding Kyiv strictly to the “Minsk obligations,” when Kyiv tries to wiggle out from those Moscow-dictated “obligations.”
The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.