security and human rights 27 (2016) 315-325

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The Ukraine-Russia Conflict: A Way Forward

Matthew Rojansky Director, Kennan Institute, Woodrow Wilson Center in Washington, d.c. [email protected]

Abstract

The United States has a vital interest in the restoration of Ukraine’s sovereignty and the resolution of its conflict with Russia, which are key to de-escalating growing ten- sion across the wider European and Euro-Atlantic space. Yet the conflict in Ukraine’s East has settled into a largely recognisable pattern: a new and very large “frozen con- flict,” increasingly reminiscent of that in Moldova, Georgia and Armenia/Azerbaijan, where intense fighting at the time of the Soviet Union’s collapse was reduced by de facto cease-fires, but no effective long-term conflict-settlement mechanism was found. Washington should seek agreement from all parties to engage more directly in an osce-mediated process to stem the ongoing damage to European security, the deep- ening human and economic costs, and the threat to Ukraine’s sovereignty.

Keywords

Ukraine – conflict-settlement – sovereignty – security – osce

On November 14, 2016, the International Criminal Court issued a preliminary finding endorsing Ukraine’s claims that Russia had committed acts of aggres- sion against its territory, citizens and infrastructure.1 Ukrainians, who for more

* A version of this article was originally published by The National Interest, February 2017. ** Matthew Rojansky is an expert on u.s. relations with the states of the former Soviet Union, especially Russia, Ukraine, Belarus and Moldova, he has advised governments, intergovern- mental organizations, and major private actors on conflict resolution and efforts to enhance shared security throughout the Euro-Atlantic and Eurasian region. 1 https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.

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316 Rojansky than two years have called on the international community to condemn and punish Russian aggression, were heartened by the finding. Russia canceled its membership in the court. Whatever legal, political or diplomatic weight the court’s finding may carry, it nonetheless cannot change the reality of Russia’s de facto control over Crimea or the seemingly intractable conflict in Ukraine’s Donbass region. There simply is no “higher power” in international law or geopolitics that can rescue Ukraine from its predicament. Thus, the future stability and pros- perity of Donbass, Ukraine and Europe still rest with the difficult task of ­managing and resolving the conflict through negotiations among the key actors involved—which is why Washington must pay attention. The United States has a vital interest in the restoration of Ukraine’s sovereignty and the resolution of its conflict with Russia, a key to de-escalating growing tension across the wider European and Euro-Atlantic space. What follows is a closer examination of the conditions and steps necessary for Washington to promote more effec- tive management—and potential resolution—of the Ukraine-Russia conflict.

State of the Conflict

More than two years since the Russian takeover of Crimea and the subsequent outbreak of fighting in Donbass, the conflict in Ukraine’s East has settled into a largely recognisable pattern: a new and very large “frozen conflict” in the post- Soviet space. The situation on the ground in Donbass is increasingly reminis- cent of that in Moldova, Georgia and Armenia/Azerbaijan, where intense fight- ing at the time of the Soviet Union’s collapse was halted by de facto cease-fires, but no effective long-term conflict-settlement mechanism was found. As a re- sult, in all three of these so-called “frozen” conflicts, relatively low-level hostili- ties persist between two heavily armed camps, even as international monitors and negotiators discuss the intricacies of conflict management in a seemingly endless loop—just as is now increasingly the case in Eastern Ukraine. In Donbass itself, the local civilian population and economy have been bad- ly depleted. As is often the case in armed conflicts, many of the best educated and most capable citizens have departed the region altogether—some going to Russia, others to Ukraine and Europe—leaving behind an increasingly vul- nerable, elderly population, with little means of restoring basic economic life, let alone rebuilding the region’s destroyed infrastructure.2 Providing for social

2 https://www.wilsoncenter.org/publication/kennan-cable-no16-understanding-the-under- control-donbas.

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The Ukraine-Russia Conflict: A Way Forward 317 welfare and restoring conditions for economic growth should be the responsi- bility of local authorities, ideally in partnership with international experts and donors. However, the failure so far to broker internationally recognised elec- tions has meant that much of the world perceives the de facto Donbass author- ities as little more than warlords and criminals. The region’s current economic limbo, in between Russia and Ukraine, also empowers black marketeers and blockade runners, who can make enormous profits trafficking in everything from cigarettes and medicine, to weapons. Since the fall of 2014, the only formal framework for managing and resolving the Donbass conflict has been the Minsk Agreements, brokered between the Ukrainians and Russian-backed separatists, with Russia, Germany and France as guarantors. The United States has played a de facto guarantor role, but has remained outside the so-called Normandy format. The Agreements were re- vised and updated through a second round (“Minsk ii”) following the outbreak of heavy fighting in February 2015. Since that time, the conflict has settled into a low-intensity war of attrition, with near-constant violations of the cease-fire provisions. The osce’s Ukraine Special Monitoring Mission, in place since the summer of 2014, has confirmed many of these violations, and its ongoing pres- ence and real-time response capability is thought to help prevent further esca- lation of hostilities.3 The heads of state of Russia, Ukraine, Germany and France met in the Nor- mandy format in Berlin in October 2016, instructing their negotiators to work toward a “road map” for implementation of Minsk ii.4 Since that time, domes- tic political developments on all sides may have substantially altered the incen- tives for pursuing concrete progress. Russia is under intense pressure from an economy that contracted almost 4 percent in 2015, plus double-digit inflation, which has left the average Russian household about 15 percent poorer over the past year.5 Western financial sanctions, coupled with Russia’s own counter- sanctions regime, have severely constrained investment and consumer spend- ing, deepening a recession brought on by structural weaknesses and persistent low global energy and commodity prices. Yet Moscow has shown no signs of compromising on the West’s terms, per- haps in part because it perceives political developments in Europe and the United States to be breaking in its favor. The result of the uk’s “Brexit” refer- endum, elections in Poland and continuing developments in Hungary have all

3 http://www.osce.org/ukraine-smm/reports. 4 http://tass.com/politics/913866. 5 https://themoscowtimes.com/news/russian-households-grew-15-percent-poorer-since- mid-2015-56242.

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318 Rojansky underscored a deepening anti-eu trend in European politics, while elections in Bulgaria, Estonia and Moldova have brought leaders to power who advocate more conciliatory approaches toward Russia. In France, where presidential elections are scheduled for April 2017, both center-right and far-right candi- dates have spoken favorably about improving ties with Russia.6 Although lead- ing voices from both parties in the United States remain hawkish on Russia and supportive of continuing the coordinated Western sanctions regime, President Donald Trump spoke about restoring productive u.s.-Russia relations on the campaign trail, and has already held an initial short discussion with Vladimir Putin to that end. Ukrainian politics has witnessed dramatic and potentially destabilising change over the past year. The government formed under Prime Minister Arseniy Yatsenyuk following parliamentary elections in October 2014 pur- sued major reforms, demanded by international donors who have supported Ukraine through tens of billions of dollars of loans and grants. While Prime Minister Volodymyr Groysman, appointed by President Petro Poroshenko to replace Yatsenyuk in April 2016, seems committed to continuing the reforms, the broader political context is not favorable. A sense of deep cynicism and anger pervades, as few ordinary Ukrainians are seeing direct benefits from the painful and slow-moving reform process. With near constant reports of cease- fire violations and Ukrainian casualties streaming back from the war in Don- bass, the popular mood favors those who promise decisive action over talk—a rallying cry for Ukraine’s own populist demagogues and far-right nationalists.7 In this context, there is an increased risk of conflict escalation from both sides. Both Russia and Ukraine have arrested the other side’s nationals on charges of espionage, sabotage and terrorism.8 These actions seem designed to underscore the popular perception of the other side not as legitimate com- batants, but as traitors or terrorists—a dehumanising trope that could be a prelude to further provocations, or even renewed heavy fighting in the winter or spring. Russia has already acknowledged its infiltration of Ukrainian terri- tory with special operatives, so-called “little green men,” while the Ukrainian side can justify almost any operation in Russian-held Crimea, in Donbass, or

6 https://www.bloomberg.com/view/articles/2016-11-21/vladimir-putin-is-winning-the-french -election. 7 https://www.kyivpost.com/ukraine-politics/saakashvili-ukraine-faces-chaos-no-snap-­ elections-held.html?utm_source=traqli&utm_medium=email&utm_campaign=traqli_daily. 8 http://www.nytimes.com/2016/08/11/world/europe/putin-accuses-ukraine-of-plotting-ter rorist-attacks-in-crimea.html.

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The Ukraine-Russia Conflict: A Way Forward 319 even over the Russian border as an enforcement action against Russian-backed terrorists.9

u.s. Interests in Managing and Resolving the Conflict

By far the most compelling u.s. national interest at stake in the Ukraine con- flict is the maintenance of stability and security across the European and ­Euro-Atlantic space. While Russia has argued that u.s.-led bombing of Serbia in 1999 and subsequent support for Kosovo independence violated interna- tional norms, especially the principles of state sovereignty and peaceful reso- lution of disputes enshrined in the 1990 Charter of Paris, its own actions in Ukraine now risk the total breakdown of that very order. Europe’s security is an obvious and vital concern for u.s. national security, as world wars that began in Europe have dragged Americans into bloody con- flict twice in the past century. Moreover, u.s. nato allies, especially those bor- dering Russia and Ukraine, have become understandably nervous, welcoming increased reassurance measures from the United States and western Europe, while undertaking self-help measures of their own. These developments are viewed with deep skepticism by Moscow, which continues its own substantial military buildup in the Baltic and Black Sea regions, including forward deploy- ment of sophisticated air defenses and nuclear-capable missiles. A further concern for Washington is the intersection of mounting humani- tarian and economic costs of the Ukraine-Russia conflict. The United States does more bilateral trade with European countries than with any other region, and European economies stand to lose the most from a Ukrainian and Russian economic collapse precipitated by the one-two punch of the global financial crisis and the military conflict in Ukraine. Meanwhile, the migration of more than a million displaced persons from Donbass to other parts of Europe and Russia simply reinforces the crisis triggered by ongoing violence in the Middle East and North Africa, which has unleashed a flood of desperate refugees on Europe’s southern borders. The current situation amounts to the largest con- centration of displaced persons in Europe since the decade after World War ii, and it is doubtful whether even the wealthiest and most stable European societies are prepared to manage its short- and long-term consequences. The final vital u.s. interest at stake in managing and resolving the Ukraine- Russia conflict is in the continued sovereignty of Ukraine itself. Since the Soviet

9 http://www.nytimes.com/2016/11/21/world/europe/russia-ukraine-crimea-soldiers-detained .html.

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Union’s collapse, the United States has expressed strong support for Ukraine’s sovereignty and territorial integrity, not only because of its implications for wider European security, but in the belief that a strong and stable Ukraine can be a strategic partner for the United States in a region of enormous strategic importance, at the cross-sections of eastern and central Europe, the Mediter- ranean, and the greater Middle East. It is with these concerns in mind that the United States has expended more than $5 billion over the past quarter century to support Ukraine’s democratic development, market reforms and denuclearisation.10 However, as the experi- ence of other post-Soviet states amply demonstrates, no amount of outside support can substitute for a strong and consistent commitment to good gover- nance by a country’s own political leaders. In Moldova, for example, decades of de facto acceptance of Transnistria as a semi-lawless gray space has argu- ably contributed to a reckless view of Moldova’s own state sovereignty. Lead- ing Moldovan politicians have viewed state coffers as their own personal piggy bank, even stealing some $1 billion from the national bank and unleashing a political crisis that resulted in the election of an oligarch-backed former Com- munist as president.11 Although often presented in zero-sum terms by the parties themselves, management and resolution of the Ukraine-Russia conflict serves u.s. interests in relations with both Ukraine and Russia. The longer the conflict persists— whether as a low-intensity war or a quieter de facto separation—the more it will empower populist and far-right forces on both sides, and the more it will become a breeding ground for trafficking, offshoring and other illegal activity. Since Washington has adopted a leading role in the coordinated international response to Russia’s military intervention, peaceful conflict resolution is also a sine qua non for restoration of productive u.s.-Russia engagement across a broad range of mutual interests, from counterterrorism to trade.

Framework for Conflict Resolution

The United States can and should play a central role in future management of the conflict between Ukraine and Russia, and in negotiations and strategic investments aimed at creating the conditions for sustainable resolution of the

10 http://www.state.gov/p/eur/rls/rm/2013/dec/218804.htm. 11 http://www.dw.com/en/pro-russia-candidate-igor-dodon-to-win-moldova-presidential -election/a-36379350.

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The Ukraine-Russia Conflict: A Way Forward 321 conflict. As a first step, Washington should seek agreement from the parties to the Normandy format to become a formal participant in this ongoing process. The United States held back from direct stewardship of international nego­ tiations during the immediate aftermath of the Russian seizure of Crimea and outbreak of hostilities in Donbass, seeking instead to emphasise the ­European-led negotiation process. Up to now, that has produced an awkward and occasionally destabilising dynamic in which Europe ostensibly represents the collective Western position in negotiations with Russia, yet the United States still holds many of the important cards, in terms of incentivising Russia to cooperate, as well as deterring further Russian aggression in Ukraine and the region. Washington clearly has an inescapable role to play in this process, and becom­ing a formal party to the only comprehensive international format for conflict management can help increase the consistency and focus of u.s. ­policy toward both Russia and Ukraine. Given Ukraine’s longstanding desire for greater u.s. leadership on conflict resolution efforts, Russia’s new hopes for dramatic improvement in ties with the incoming u.s. administration, and the enormous domestic political pressures now facing both France and Germany, it is likely that all sides would consent to such a proposal. Washington’s formal entry into the Normandy process would do little by itself to address the deep deficit of trust between the sides. Indeed, it is lack of trust, combined with uncertain political will, that has delayed any decision on a new “road map” for implementing Minsk ii. Here, Washington can make a significant contribution to mitigating distrust and supplementing political will by proposing that each step of a new road map be assigned to capable third parties for verification. The third parties should not include any of the cur- rent Normandy format participants, or the United States, but should include European and Eurasian states that enjoy a high degree of trust and productive relations with both Moscow and Kiev—for example, Finland, Austria, Switzer- land, Belarus, Kazakhstan and others. Since each is also an osce participating state, it would make sense to formalise their verification roles through a single blanket decision of the osce Permanent Council endorsing the road map. Given the viciousness of the conflict and surrounding political rhetoric over the past two years, osce verification and the best efforts of third parties to smooth over difficulties will not alone suffice to reassure the conflicting sides. A major concern will be how to structure the disengagement of armed forces to minimise the chance of backsliding. One option would be to allow the par- ties to designate discrete reservations for their forces in key sectors that will allow them to “hedge” against the possibility of a resumption of hostilities. The idea could be based on past successful phased disengagements in the Middle

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East and Balkan conflicts.12 Security reservations—which should be limited to only a handful of positions and should be time-limited—will be extremely difficult for both sides to agree upon and accept. However, they could make the difference between a modest success, and an overambitious blanket with- drawal agreement that fails before the ink is dry. The United States can help substantially increase Russia’s incentives to sup- port a road map for Minsk ii implementation by linking each step to specific sanctions relief. For example, following verified withdrawal of heavy weapons by the Russian-backed separatists, Washington should provide appreciable and immediate relief from sanctions barring u.s. financial institutions from medium- or even long-term lending to Russian entities. Following handover of the Ukrainian side of the border to Ukrainian forces, Washington could sus- pend prohibitions on u.s. companies cooperating with Russian companies to exploit nonconventional energy resources. With further steps to advance a poli ­tical settlement, the United States could remove individual Russian com- panies and officials from its asset-freeze and travel-ban lists. Of course, a complete cessation of violence in the region is a necessary pre- condition for a political solution. While sanctions relief and permitted security reservations should be used to incentivise Russian compliance and begin to restore working trust on all sides, the major political steps cannot be imple- mented until the shooting is stopped, and the total safety of the civilian popu- lation is assured. Such an improved security environment is also a necessary precondition for Ukraine to fully implement a new law enshrining the special status of the Donbass region, in advance of free and fair elections. The special status law is needed not only as a guarantee to Russian-backed forces that they will not be forcibly brought to heel in the future, but also so that the local population understands exactly what powers their representa- tives will have when an election is held. At the same time, without complete safety for civilians, displaced persons will be unable to return to cast their bal- lots, and the local population will not view elections as a credible step toward improving their lives. Here as well, third-party stewardship and osce verifica- tion of both the special status law and local elections can help contain and mitigate attempts to derail the process by self-interested spoilers on either side. Successful disengagement of military forces, followed by full implementa- tion of the special status law and local elections, will lay the foundation for the most costly and most important phase of conflict resolution: an internationally supported initiative to rebuild infrastructure and economic life in the region, bring displaced persons home and facilitate their resettlement, and ­reintegrate

12 http://www.dtic.mil/dtic/tr/fulltext/u2/a522945.pdf.

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The Ukraine-Russia Conflict: A Way Forward 323

Donbass into the regional and global economies. Clearly, none of these efforts will be possible without a substantial financial commitment from the interna- tional community, in which the United States and Europe must take the lead. Russia should also be expected to make a contribution, in particular by provid- ing free or substantially discounted energy to Ukraine to offset the energy costs of rebuilding Donbass industry. The economy of the Donbass region has always been uniquely dependent on mining and energy-intensive heavy industry, and this component will re- main important in the future. However, the opportunity of post-conflict re- construction can be used to reduce the dependence of the local economy on artificially vast Soviet-era plants, which have traditionally been owned by the state or by oligarchs, and are nearly impossible to operate according to modern standards of efficiency and environmental cleanliness. New interna- tional lending should therefore focus on supporting small and medium-sized enterprises and entrepreneurial activity—creating a magnet for reversing the region’s “brain drain” of talented and highly educated citizens. Meanwhile, internationally financed major infrastructure restoration should be designed and overseen by international experts, with actual construction jobs favoring lower-skilled local laborers. Unraveling the influence of oligarchs on the local economy will be a diffi- cult long-term challenge. The immediate post-conflict goal should be to avoid “blame” narratives and focus on shovel-ready projects to rebuild opportunities with real economic promise, including in partnership with the region’s long- standing industrial kingpins. However, Ukraine’s new transparency require- ments for public office holders should be applied to local elected and appoint- ed officials, with enforcement by the new anticorruption task force and the reformed national police. Perhaps the most important contributions to sustaining conflict resolu- tion over the long term can come from a joint effort by Russia and the West to overcome what has become a “zero sum” narrative in and around Ukraine. The events leading up to the Maidan protests of 2013–14 and the ensuing con- flict amply demonstrate that Ukrainians cannot be forced into one or another geopolitical box. Thus, Russia and Europe should finally commit to negotiate an agreement for extending to Ukraine as a whole the benefits of free trade and travel with both East and West. If this ambition proves too difficult, then Brussels and Moscow should at least agree to extend special joint free-trade benefits to enterprises in the Donbass region during a specified reconstruction and transition period. Similarly, the growing gulf between Ukraine’s national cultural and historical narrative and that promoted by Moscow promises to continue diminishing and

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324 Rojansky dividing the region’s social capital. Kiev has been wise to resist pressure from nationalist politicians to denigrate the Russian language, but there has been in- creasing and troubling evidence of revisionism in state-sanctioned reforms of Ukraine’s national archives and teaching curriculum.13 Anti-­Ukrainian propa­ ganda has been absolutely rife in state-supported Russian-language media, and must be stopped.14 No matter how the Donbass conflict evolves, Russia and Ukraine will remain neighbors for eternity, and it can be in neither side’s long-term interest to erode mutual understanding and foster intolerance.

After January 2017

Up to now, the United States has played an important but secondary role in managing the Ukraine-Russia conflict, preferring to negotiate and apply pres- sure jointly with European countries with far greater economic leverage on both Russia and Ukraine. Yet Washington cannot overlook its own vital inter- ests at stake in this ongoing conflict, nor continue the contradictory and occa­ sionally damaging role of its uncertain engagement in the process so far. The transition to a new u.s. administration provides a useful inflection point for a revised and reinvigorated u.s. approach to conflict management and support for long-term resolution. Before concluding, it should be noted that this paper has focused primar- ily on the urgent need for conflict resolution in Donbass, and therefore only briefly mentioned the problem of Crimea, which is yet another central driver of conflict between Russia and Ukraine. Washington should have no illusions that Russia will abandon its newly acquired territory, nor that Ukraine will ac- cept nominal financial payment or other compensation to surrender its legiti- mate and sovereign rights. However, for a variety of reasons, especially the low likelihood of further military conflict over Crimea, u.s. policy has and should continue to concentrate on settling the Donbass conflict. It is likely that the default path on Crimea will repeat the u.s. position toward Soviet occupation of the Baltic states from 1939 to 1991: long-term nonrecognition.15 Even under the best of circumstances, the probability that the Russia- Ukraine conflict can be fully resolved remains low. However, in light of the

13 http://foreignpolicy.com/2016/05/02/the-historian-whitewashing-ukraines-past-volody myr-viatrovych/. 14 http://www.nybooks.com/articles/2014/03/20/fascism-russia-and-ukraine/. 15 https://www.foreignaffairs.com/articles/europe/1966-04-01/how-baltic-republics-fare -soviet-union.

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The Ukraine-Russia Conflict: A Way Forward 325 risks to vital u.s. interests in the region, and the implications for u.s. relations with Europe and Russia on a wider global agenda, Washington cannot afford to miss a window of opportunity to push for concerted progress on de-escalation, disengagement and trust building. The relative openness of the parties to di- rect u.s. involvement, and the potential for Washington to apply its geopoliti- cal clout through coordinated diplomacy, may offer just such a window.

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