PART I
On September 7, Ukraine’s Presidential Office and the Kremlin announced a mutually agreed decision to release 35 prisoners from detention by each side. On the same day, the 35 freed citizens of Ukraine were flown from Russia to Kyiv, where President Volodymyr Zelenskyy welcomed them on the airport’s tarmac (see Eurasia Daily Monitor, September 9). Meanwhile, there is no official information on the whereabouts of the 35 freed by Ukraine as a quid pro quo. The Kremlin did not stage a media event to fly any of them to Russia.
The Kremlin and the Ukrainian Presidential Office had negotiated this mutual release agreement amid due secrecy since August 7, following Mr. Zelenskyy’s urgent plea to Russian President Vladimir Putin that day (Ukrinform, TASS, August 7). Both sides are currently negotiating for further prisoner releases.
This event’s international context far outweighs the event itself. A humanitarian matter, which should technically have been handled at the legal level, is instead being conflated with the political-diplomatic negotiations on implementing the Minsk accords. Mr. Zelenskyy eagerly construes Russia’s agreement to mutual prisoner releases as presaging an imminent end to the war. He is thereby raising the Ukrainian people’s expectations even higher than he did during the recent presidential election campaign, when he promised a quick-fix “peace” without addressing the terms of such an end to the conflict.
Hostage to his own aspiration to end the war by December 2019, Mr. Zelenskyy now seeks a summit of the Normandy Format leaders (Russia, Germany, France, Ukraine), to be held in September, and within that summit to hold a bilateral decisive meeting with Mr. Putin (Ukrinform, UNIAN, September 5, 7, 9).
While the 35 Ukrainian citizens freed from Russian captivity were flown home to Ukraine, a mirror action involving the 35 released by Ukraine has not taken place as yet. All 35 in this group participated in one way or another in Russia’s hybrid war against Ukraine as soldiers, paramilitary fighters, intelligence agents or public agitators. This group seems to consist mostly of citizens of Ukraine (whether from the Russian-occupied territory or elsewhere in Ukraine). Under Ukraine’s Constitution, citizens of Ukraine cannot be expelled or handed over to another country. Transferring them to Russia would presumably necessitate some legal formalities – e.g., being granted Russian citizenship. Several citizens of Ukraine from this group are known to still be in Ukraine for the time being, freed from detention “under their own recognizance.” If any of these 35 were flown to Russia, it was not done publicly.
Overall, then, the terms “prisoner exchange” or “swap” (as widely used in the mass media) are inaccurate. What has taken place at this stage is a mutually agreed release, falling (on the whole) short of an actual swap.
The Kremlin demanded the release of Vladimir Tsemakh as a sine qua non condition to the entire 35-for-35 release. Ukrainian media reported on this fact, which was confirmed by Security Service of Ukraine (SBU) chief Ivan Bakanov on the day of the prisoners’ release (Interfax, September 7).
Mr. Tsemakh is a possible key witness in the scheduled international trial on the downing of Malaysia Airlines Flight 17 (MH17) from Amsterdam, over the Russian-occupied Donbas in 2014, when 298 lives (many of them Dutch) were lost. Mr. Tsemakh, an “air defense coordinator” near the site of that catastrophe, subsequently told a local media outlet on video that he had helped to escort and shelter the Russian Buk mobile air-defense battery that shot down the airliner. The SBU abducted Mr. Tsemakh in June from the Russian-occupied territory because of his value as a witness in the upcoming international trial (one SBU officer was killed in the abduction operation). On September 5, a Kyiv Court of Appeals, undoubtedly prompted by the Presidential Office, released Mr. Tsemakh on his own recognizance. He was supposed to report his address and work place to the authorities and to remain at their disposal for two months (UNIAN, Ukrinform, September 5).
For all practical purposes, then, the value of this witness is lost to the upcoming trial. Russia’s insistence on having Mr. Tsemakh freed may be taken as indirect confirmation of Russia’s involvement in shooting down that airplane and fear that its involvement may be exposed. Dutch authorities had asked Kyiv that Mr. Tsemakh not be included in the prisoner release. For its part, Ukraine’s Presidential Office could have used the international trial for counter-leverage on Russia, but it has apparently decided to forfeit this chance. The handling of the Tsemakh case may well encourage other Russian agents in captivity to be uncooperative and quietly await being exchanged.
The 35 freed citizens of Ukraine who returned home include several political prisoners (among whom are two public personalities from Crimea, sentenced in Russia for refusing to take Russian citizenship) as well as the 24 sailors who were seized from three Ukrainian naval boats near the Kerch Strait, in November 2018. Russia was legally obligated to release those sailors and vessels to Ukraine under a May 25 verdict by the International Tribunal for the Law of the Sea (see EDM, May 30).
However, Russia has chosen to release the sailors as part of a bilateral deal with Ukraine. This allows Moscow, on the one hand, to score a “legal” point: it does not recognize any international jurisdiction in its “territorial waters,” unilaterally redefined after seizing Crimea. And on the other hand, it allows Moscow to eschew international penalties for noncompliance with the International Tribunal’s order to release the Ukrainian sailors. The previous administration of President Petro Poroshenko had achieved that hard-won victory in the International Tribunal. The Zelenskyy administration, in turn, has chosen (for humanitarian reasons, as it suggests) to abandon the legal way and reach instead an informal agreement with the Kremlin to free the sailors. The president and his office have therefore refrained from using the International Tribunal’s verdict in Ukraine’s favor.
In spite of the outward parallelism in Kyiv’s and Moscow’s prisoner releases, the underlying politics of these decisions have worked to Russia’s advantage and will continue doing so in the negotiations on further prisoner releases. Ukraine’s public opinion and state leadership (under both Presidents Poroshenko and Zelenskyy) cares deeply about the plight of Ukrainian captives in Russia, in contrast to Russia’s manifest callousness toward its own confederates detained in Ukraine. While Mr. Putin never staked his popularity ratings on freeing those prisoners and never faced pressure from below to have them freed, Mr. Zelenskyy did make such promises during his recent election campaign, raising popular expectations and, by the same token, pressure on him from below to deliver on these promises. And even as the Kremlin redoubles its intransigence in the Normandy and Minsk negotiation processes, President Zelenskyy’s team professes optimism that the mutual prisoner release opens the window of opportunity for some abstract notion of peace.
Part II
Mr. Tsemakh, who topped Russia’s priority list in a recent prisoner release agreement between Moscow and Kyiv, was flown from Ukraine to the Russian capital; he may now be back home in the Russian-occupied Donbas territory.
The Dutch-led Joint Investigation Team (JIT) and other Dutch authorities requested that Ukraine’s Presidential Office not deliver Mr. Tsemakh to Russia after he was released from Ukrainian detention (September 5). They then requested that Moscow extradite Mr. Tsemakh, once he was delivered to Russia (September 7).
The JIT and the Netherlands have raised Mr. Tsemakh’s status from key witness to actual suspect in that crime. Meanwhile, Mr. Tsemakh’s family is hinting, on the Internet, that he has returned to the Donbas. Whether true or not, claiming that Mr. Tsemakh is located in what is legally Ukrainian territory makes it easier for Russia to dismiss the extradition requests. Ukraine’s Presidential Office (at whose behest the Kyiv Appeals Court freed Mr. Tsemakh) added to this legal murk by delivering this Ukrainian citizen to Russia, maintaining secrecy on whether or not Mr. Tsemakh had requested and received Russian citizenship. If not, Kyiv acted unlawfully, as Ukraine’s Constitution precludes handing over citizens of Ukraine to other countries (the Dutch had not requested extradition from Ukraine). Russia could theoretically extradite Mr. Tsemakh as a Ukrainian citizen, but he would be immunized against extradition if made a Russian citizen (Ukrayinska Pravda, RFE/RL, September 11, 12).
One way or another, it would not be surprising for Moscow to ask the JIT and the Dutch to take up this matter henceforth with the Donetsk “people’s republic’s” (DPR) authorities. Such a move would be in line with Moscow’s quest for obtaining de facto international acceptance of its proxies as interlocutors in their own right.
Hundreds of citizens of Ukraine remain in detention in Russia and the Russian-occupied territories after the September 7 mutual release of 35 for 35. The term in official usage is “detained persons.” According to the Ukrainian Parliament’s human rights ombudsman, Ludmila Denisova (she handles the negotiations on freeing detained persons within the Minsk process), Ukraine has specifically identified 113 of its citizens detained in Russia as a consequence of this war; the actual number is almost certainly higher. For its part, the Security Service of Ukraine has identified 227 detainees held by the Donetsk and Luhansk “people’s republics” (Interfax-Ukraine, September 10). Ukraine holds far fewer, including local citizens who fought or otherwise operated on behalf of Russia in this hybrid war.
Freeing the prisoners is a highly sensitive political issue in Ukraine, where the society cares deeply about their plight and state leaders are expected to strive to bring them home. Russian attitudes differ markedly from Ukraine’s at both the popular and leadership levels. Moreover, Russia holds many more prisoners from Ukraine than the other way around; and most of those held in Ukraine are apparently local citizens of Ukraine who served Russia in this undeclared war. The Kremlin, therefore, does not have to deal with public or family demands to “bring them home.” Russia exploits this political-psychological advantage over Ukraine.
The Minsk accords call for the exchange of detained persons. President Poroshenko’s administration (2014-2019) succeeded in releasing almost 3,000 from Russian captivity (Ukrayinska Pravda, September 12). Mr. Poroshenko accepted the political risk of mandating his adversary, the Kremlin’s friend Viktor Medvedchuk, to negotiate those exchanges. The Kremlin allowed Mr. Medvedchuk to bring whole groups of prisoners home to Ukraine, expecting thereby to boost Mr. Medvedchuk’s and his party’s political rating in Ukraine. The last such exchange took place in December 2017, after which President Poroshenko ended Mr. Medvedchuk’s mediating role.
Russian propaganda and President Putin personally worked to raise Mr. Medvedchuk’s profile during Ukraine’s recent presidential and parliamentary election campaigns (see EDM, August 5). Mr. Putin, however, agreed with Ukrainian President Zelenskyy by telephone, on August 7, to establish a direct channel between the two presidents’ offices for handling mutual prisoner releases (and possibly political matters as well). Mr. Zelenskyy and his team may well have expected that a direct channel to Mr. Putin would exclude Mr. Medvedchuk from the politically rewarding game of prisoner releases, in favor of Mr. Zelensky’s team, but this was not so.
In that phone call, a palpably frightened Mr. Zelenskyy (as seen on his videotaped briefing recounting the call – Ukrinform, August 7) petitioned Mr. Putin to intercede with “the other side” (the Donetsk-Luhansk forces) to stop firing, after they had killed four Ukrainian soldiers in the preceding night. Having thus conceded the high ground, psychologically and politically, to Mr. Putin as would-be mediator, Mr. Zelenskyy nevertheless asked the Russian president to consent to a face-to-face meeting within the next few weeks, as part of a Normandy Group summit. Mr. Zelenskyy and his team apparently project that group picture as a backdrop for a bilateral Zelenskyy-Putin meeting that would “end the war.” The Kremlin can only welcome a bilateralization of the negotiations while continuing the multilateral format in parallel.
It was in that context, on August 7, that Mr. Putin granted Mr. Zelenskyy’s request for direct negotiations on prisoner releases through a bilateral channel (usable also for political matters). This bilateral channel circumvents the Minsk Contact Group, one of whose subgroups is officially mandated to negotiate prisoner releases under the Minsk accords and remains in session. As a goodwill gesture to Mr. Putin, after that phone call, Mr. Zelenskyy dismissed the tried-and-tested Ukrainian negotiator Roman Bessmertny from the Minsk Political Subgroup.
The Kremlin is stringing Mr. Zelenskyy along on the matter of a bilateral summit within a Normandy meeting. Moscow has been raising its preconditions. Meanwhile, Ukrainian troops at the front remain under strict orders to not respond to enemy fire. In this context, three Ukrainian volunteer battalions were disarmed on September 11 (Ukrayinska Pravda, September 11). Ukrainian soldiers were killed and injured every week at the front during August; and four troops were killed in the first week of September alone, until the September 7 release of prisoners.
The September 7 release was negotiated down to the wire in the bilateral channel. As late as September 5, it seemed not yet finalized (possibly held up by Dutch requests to President Zelenskyy’s office to keep Mr. Tsemakh in Ukraine). That day, Mr. Putin hinted that he could bring Mr. Medvedchuk back into the game. Speaking to an international forum in Vladivostok, Putin stated: “We are about to finalize the talks about the prisoners’ exchange, including the talks that we [also] conduct with the official authorities… I know that Mr. Medvedchuk feels very strongly about some of the Ukrainian detainees in Russia.” This was an insinuation that the Kremlin may have been talking to Mr. Medvedchuk as well, and could award him the victory lap in Ukraine. As Mr. Putin spoke, Russian television showed Mr. Medvedchuk smirking in the audience (TASS, Russian TV Channel One, September 5). On that same day, the Kyiv Appeals Court removed the last obstacle, at the Presidential Office’s behest, by freeing Mr. Tsemakh.
Mr. Zelenskyy telephoned Mr. Putin again on September 7, the date of release of the 35-for-35 prisoners. They agreed that additional prisoner exchanges would take place, without indicating a timeframe. According to the Zelenskyy office readout, they agreed that they would set the date for a summit “soon.” But, according to the Kremlin’s readout, they only “exchanged views about that possibility,” and Mr. Putin “underlined the need for preparations to ensure results” (Ukrinform, TASS, September 7). Thus, Mr. Zelenskyy’s display of impatience and eagerness allows the Kremlin to string him along.
The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.