Ukraine Crisis and Mediation Not Business As Usual

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Ukraine Crisis and Mediation Not Business as Usual

Christian Schläpfer (former) Political Advisor to the Special Representative of the osce Chairperson-in-Office in Ukraine (until February 2016); Currently employed by the Federal Department of Foreign Affairs of Switzerland

Abstract

This contribution examines mediation efforts undertaken by the Organization for Se- curity and Cooperation in Europe (osce) in the context of the current crisis in and around Ukraine. It describes the establishment and evolution of the Trilateral Contact Group (tcg) and the mediated peace talks on the conflict in eastern Ukraine – the Minsk Process. Drawing from the author’s insider perspective, it sheds light on the unique aspects of the framework compared to classical mediation processes. It argues that, due to its connectivity with high-level diplomacy as well as its ability to adapt to a constantly evolving conflict, the Minsk Process represents a valuable, flexible, at times untypical, mediation framework.

Keywords

Ukraine crisis – mediation – osce – Trilateral Contact Group – Minsk Process – Minsk agreements

***

* Christian Schläpfer received a Bachelor’s degree in Humanities from the University of Lausanne, Switzerland, in 2008 and a Master’s degree and PhD in History from the University of Cambridge in 2009 and 2013 respectively. His doctoral research focused on counter-subversion in early Cold War Britain. ** The author is expressing a personal point of view in this contribution. The opinions stat- ed in this text should not be regarded as the official position of Switzerland, of the Swiss Federal Department of Foreign Affairs or of the osce.

328 Schläpfer

On 6 June 2014, then French president François Hollande hosted foreign digni- taries to commemorate the 70th anniversary of the Allied landing in Normandy. Together with his German counter-part, Chancellor Angela Merkel, he seized the opportunity to arrange the first official face-to-face meeting between the Russian president, Vladimir Putin, and the newly-elected Ukrainian president, Petro Poroshenko, both of whom attended the ceremony. The encounter, however, was not about the ending of the Second World War; it was about the dangerous and worrisome escalation of yet another conflict on the European continent: the crisis in and around Ukraine. The four, who have since become known as the “Normandy Four” (or “ Normandy Format”), decided to establish the Trilateral Contact Group (tcg) with the task of defusing mounting tensions in eastern Ukraine. Both Ukraine and Russia each designated one representative; the third member of the group, it was decided, would be a Special Representative (sr) appointed by the Chairperson-in-Office (CiO) of the Organization for Security and Coopera- tion in Europe (osce).1 The osce had already taken the lead in responding to the crisis by establishing an essential new monitoring presence on the ground as early as March 2014, and was recognised by both Russia and Ukraine as an impartial facilitator for dialogue. The tcg was borne out of crisis and designed as a rapid response mecha- nism, a first platform for dialogue. It took up its activities just two days after the Normandy meeting.2 Unsurprisingly, the structure set up in June 2014 can hardly be described as a textbook blueprint for a mediation process. In light of this, this article examines some of the particularities of the osce-led mediation efforts in the context of the Ukraine crisis and elucidates upon some of the specific challenges that have been encountered to date. In particular, it describes a process that was transformed, in response to a constantly evolving conflict, from a relatively informal dialogue platform into a fully-fledged mediation process through which commitments and their implementation are discussed in a structured manner. Further, it shows how it benefited from direct links to high-level diplomacy as well as osce presence on the ground.

1 The composition in June 2014 was as follows: Ambassador Pavlo Klimkin (Ukraine), Am- bassador Michael Zurabov (Russia) and Ambassador Heidi Tagliavini (osce cio). They have been succeeded since by President Leonid Kuchma (Ukraine), Ambassador Azamat Kulmukhametov and, since December 2015, Boris Gryslov (Russia) and Ambassador Martin Sajdik (osce cio). 2 osce, osce Chairperson-in-Office, upon request of Ukrainian President, appoints Swiss diplomat to accompany talks between Ukraine and Russia, Bern, 8 June 2014. Retrieved on 5 December 2016, http://www.osce.org/cio/119608.

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Ukraine Crisis and Mediation 329

Moreover, it highlights how the process unusually tackles crisis management and conflict resolution in parallel and the specific challenges this poses to the mediator. Lastly, it explores the importance of the public’s perception of the process and the challenges and opportunities for the mediator in communi- cating with the press. It is, however, beyond the scope of this contribution to expand in detail on any concrete results achieved; regular statements by the cio sr as well as meeting records of the un Security Council provide publicly available and up-to-date information on the state of implementation of the Minsk agreements.3 This contribution is therefore a case study that sheds light on one particular process about which there is little information publicly available. While specific discussion of the academic debates surrounding peace mediation more generally is beyond the present remit, this contribution hopes to provide a valuable example for future research.4 But it is worth stressing here that the wealth of insight provided by academic research enriches and arguably influences methodological approaches used by the osce and is captured in internal reference guides.5 Before describing the mediation framework in Ukraine and examining its specificities more closely, it is worth recalling the regional and historical context. The post-Soviet space, after all, has produced a number of compar able

3 Recent statements by Ambassador Sajdik: osce, Press Statement of the Special Representa- tive of the osce Chairperson-in-Office, Ambassador Martin Sajdik, after the consultations of the Trilateral Contact Group, Minsk, 26 April 2017. Retrieved on 14 May 2017, http://www .osce.org/chairmanship/314286; osce, Press Statement of the Special Representative of the osce cio, Ambassador Martin Sajdik, after the consultations of the tcg, Minsk, 12 April 2017. Retrieved on 14 May 2017, http://www.osce.org/chairmanship/311461; osce, Press Statement of Special Representative of the osce Chairperson-in-Office Sajdik after Meeting of the Trilater- al Contact Group in Minsk, Minsk, 29 March 2017. Retrieved on 14 May 2017, http://www.osce .org/chairmanship/308876. For the most recent reports of the un Security Council: United Nations, Meeting of the Security Council, 2 February 2017, S/pv.7876. Retrieved on 14 May 2017; United Nations, Meeting of the Security Council, 28 April 2016, S/pv.7683. Retrieved on 5 De- cember 2016, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3 -CF6E4FF96FF9%7D/s_pv_7683.pdf. 4 For a useful overview of the current state of research, see: Allard Duursma, “A current litera- ture review of international mediation”, International Journal of Conflict Management, 2014, Volume 25 (1), pp. 81–98. For a general description and conceptualisation of mediation in the context of the osce, see for example the Organization relevant reference guide: osce Conflict Prevention Centre, Mediation and Dialogue Facilitation in the osce: Reference Guide, Vienna, 2014. 5 Exchange between academia and the osce is, for example, facilitated through the osce Network of Think Tanks and Academic Institutions.

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330 Schläpfer conflicts: Transnistria, on Ukraine’s western borders, or Abkhazia, South- Ossetia and Nagorno-Karabakh in the southern Caucasus. It is only natural that actors involved in the conflict, as well as external observers, immediately com- pare and contrast developments in and around Ukraine with the broader post- Soviet context in a search for deeper understanding and lessons-learned. While a comprehensive comparison would, undoubtedly, be a valuable e xercise, for the purposes of this paper, it suffices here to simply highlight that there are significant differences. For example, in eastern Ukraine the area over which the government lost control does not coincide with any historically entrenched, cultural or administrative fault lines, which might have existed before the conflict. Prior to the eruption of the conflict, there were no clear linguistic, ethnic or political differences between the areas on either side of today’s so-called contact line. Moreover, the conflict area in Ukraine is four times larger than Transnistria. The number of people directly affected by the conflict in eastern Ukraine is six times as large as the population of Transnistria or, even more starkly, some 40 times larger than the population of South Ossetia.6 And the two countries represented in the tcg, Russia and Ukraine, are geographically the largest states in Europe. In other words, the conflict in eastern Ukraine liter- ally has another dimension. Still, there are also similarities. Just like the osce, the Russian Federation has been involved – to a greater or lesser extent – in all of the respective formats set up to mediate a peaceful settlement. The crucial outcome of all of these conflicts is that none of them have yet been fully resolved. Perhaps most astonishingly, the spectre of these “worst practices” has thus far had no significant direct impact on the peace process in Ukraine, in so far as it has not explicitly emerged as an issue in discussion during the formal

6 I am indebted to Ambassador Martin Sajdik for this observation. The comparisons are based on estimates, as no precise statistical information is currently available. Surface: the surface of non-government controlled areas in the Donbass is generally estimated to be around 16’000 km2 (Ukrainian president Poroshenko spoke of 44’000 km2 “occupied” terri- tory including Crimea (c. 26’000 km2); see: President of Ukraine, Statement by the President at the General Debate of the 70th Session of the United Nations General Assembly, New York, 29 September 2015. Retrieved on 5 December 2016, http://www.president.gov.ua/en/news/ vistup-prezidenta-ukrayini-na-zagalnih-debatah-70-yi-sesiyi-36057). Transnistria’s surface is 4’163km2, according to its de-facto authorities’ website, retrieved on 5 December 2016, http:// mid.gospmr.org/en/about_republic. Population: international organisations based in Kyiv estimate the remaining population at around 3 million (less than half of the pre-conflict population). The population of Transnistria is estimated at around 500’000, according to its de-facto authorities’ website, retrieved on 5 December 2016, http://mid.gospmr.org/en/ about_republic. South Ossetia’s population is around 70’000, according to its de-facto authorities’ website, retrieved on 5 December 2016, http://presidentruo.org/category/respublika/.

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Ukraine Crisis and Mediation 331 talks. Nevertheless, their shadow certainly contributes indirectly to a high level of distrust and suspicion between the different sides, as well as plenty of evidence suggesting that the odds are stacked against durable peace.

The Evolution of the tcg

Against this complex historical backdrop, the tcg initially positioned itself as a small and flexible platform that could facilitate quick and uncomplicated contact between its three members. As all three of them were based in Kyiv it could be convened at short notice by any of its members and at any frequency required to address the situation at hand. At this stage, the role of the cio sr in the tcg was not primarily to act as mediator who solely facilitates exchange, but to contribute as an equal member to the development of a plan for a peaceful settlement. In fact, it was Russia – whose official position maintains it is not party to the conflict as such – who more actively sought to be perceived as a “mediator” in this format.7 About one month after its creation, the tcg established its first contact with representatives from certain areas of the Donetsk and Luhansk regions, creating a channel between Kyiv and the Donbass for addressing the conse- quences of increased confrontation due to military escalation. It was in this setting that the cio sr increasingly assumed a mediating role, not least because from that point onwards all sides, including representatives of those who asserted de-facto control in Donetsk and Luhansk, were directly involved in the talks.8 Once the time was ripe, these exchanges were supplemented by in-person meetings in Minsk, which served as a mutually acceptable, neutral location for the talks. The efforts culminated in the adoption of a comprehensive peace plan entitled the “Minsk Protocol”9 on 5 September 2014. The Proto- col recorded agreements on security measures, humanitarian issues, economic aspects and, of course, political questions. It also included the proclamation of

7 Ministry of Foreign Affairs of the Russian Federation, Key Foreign Policy Events of 2014, 27 December 2014, 2981-27-12-2014, Pt 6. Retrieved on 5 December 2016, http://www.mid.ru/en/ web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/871197. 8 The osce’s definition, as reflected in its Reference Guide for Mediation, reads as follows: “Mediation is a structured communication process, in which an impartial third party works with conflict parties to find commonly agreeable solutions to their dispute, in a way that satisfies their interests at stake”. osce Conflict Prevention Centre, Mediation and Dialogue Facilitation in the osce: Reference Guide, Vienna, 2014, p. 10. 9 osce, Protocol on the results of consultations of the Trilateral Contact Group, Minsk, 5 Septem- ber 2014. Retrieved on 5 December 2016, http://www.osce.org/home/123257.

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332 Schläpfer a full ceasefire throughout the conflict area.10 Efforts continued both towards expanding the agreed text as well as its implementation. First, a Memoran- dum, detailing parameters for the ceasefire regime, was signed on 19 Septem- ber 2014. Second, a Package of Measures was agreed on 12 February 2015, in view of re-energising the stalling implementation of the Minsk Protocol and reversing the negative trend of renewed escalation of military violence, which had been witnessed over the preceding weeks.11 Point 13 of the Package of Measures tasked the tcg to “intensify its efforts by means of the establishment of working groups”. Following lengthy discussions within the tcg, and in consultation with representatives from certain areas of the Donetsk and Luhansk regions, a concept was drawn up under the initiative of the cio sr. On 6 May 2015, four working groups on different thematic issues – security issues, economic issues, political issues and humanitarian issues – commenced their work. Each was coordinated by a representative appointed by the osce cio. The working groups were to meet roughly every two weeks in the Belarussian capital Minsk, immediately followed by a meeting of the tcg. In this second phase, the initial setup developed into a more institutionalised and more formal structure, which has become known as the “Minsk Process”.12

Risks and Opportunities in Transforming the Process

This path, from the foundation of the tcg to the elaboration of the Minsk Process, very clearly reflects the high adaptability and dynamism of the framework. It was able to transform itself from a relatively informal format of exchange, through which agreement on the fundamental principles for a peaceful settlement of the crisis was facilitated, to a fully-fledged platform known as the Minsk Process, through which the sides continue their engagement to

10 For detailed accounts on the security situation in the region, including adherence to the ceasefire, see daily reports published by the osce Special Monitoring Mission in Ukraine, see: http://www.osce.org/ukraine-smm/reports. 11 osce, Memorandum of 19 September 2014 outlining the parameters for the implementation of commitments of the Minsk Protocol of 5 September 2014, Minsk, 19 September 2014. Retrieved on 5 December 2016, http://www.osce.org/home/123806. osce, Package of Me asures for the Implementation of the Minsk Agreements, Minsk, 12 February 2015. Retrieved on 5 December 2016, http://www.osce.org/cio/140156. 12 The Minsk Process is not to be confused with the osce Minsk Group, which was established in 1995 to spearhead the osce’s efforts to find a peaceful solution to the Nagorno- Karabakh conflict. For further information on the osce Minsk Group, see http://www .osce.org/mg.

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Ukraine Crisis and Mediation 333 elaborate and implement their commitments. It even moved its geographic centre-point from Kyiv to Minsk. This transformation was underpinned by a high degree of external pressure, as swift outcomes were called for, especially from the Normandy For- mat. Instead of developing the framework, the mediator could have cited a lack of genuine political will as a reason for the lack of results, and resigned himself to the option of simply keeping the process afloat and a channel of communication open. After all, when the time for real compromise arrives, having a platform for talks is better than having none, provided it does not become an impediment for achieving improvements for the conflict-affected population. But the experience of protracted conflicts in the post-Soviet region clearly demonstrates just how long this “ripening” process can take. In the case of Ukraine, Western leaders, or indeed businesses and voters affected by the sanctions, have not shown any readiness to wait for a drawn-out and passive process to produce results which, if any, could take years or even decades in even the best of cases. And the sheer scale of the conflict, as referred to above, makes it rather difficult to ignore. Certainly, the Ukraine crisis makes fewer headlines today, three years after it erupted, but it remains prominently on the political agenda. The Normandy Format still meets at the highest level, hold- ing its latest gathering on 20 October 2016, and the eu, to the surprise of many, continues to maintain unity on its sanction policy. The political pressure on the mediator to act, thus, remains exceptionally high. Naturally, such transformations encompass risks along with opportunity. The establishment of four working groups, though necessary, increased both the number of meeting formats and of representatives involved.13 This made the process slower, more cumbersome, and created a more complicated structure, which is more likely to be paralysed by disagreements over content and procedural matters. If anticipated, such risks could be mitigated by the mediator who can either resort to carefully crafted and precise rules of procedures or indeed rely on creative ambiguity (or both). In the context of the Minsk Process this balance has so far been achieved. Consensus on the general functioning of the working groups was forged through lengthy discussions within the tcg, based on a proposal that had been tabled by the cio sr. This consensus represented a sufficiently broad basis for solving in a flexible manner and on an ad-hoc basis procedural questions that came up after the working groups were established. The tcg remained the decision-making

13 At least 5 individuals per working group (for a total of 20) as opposed to 3 individuals (tcg) consulting with 2 representatives from certain areas of the Donetsk and Luhansk regions.

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334 Schläpfer body, able to direct and instruct working groups and their coordinators. The establishment of the working groups has thus complemented (rather than un- dermined) the tcg’s proper functioning. While the Minsk Process has evolved significantly since the inception of the tcg almost three years ago, the conflict is far from being resolved. As time goes on, it becomes increasingly difficult to maintain trust in its ability to bring about solutions. Thus, public – and presumably internal – pressure on the mediator to take action and try new approaches continues to rise. The challenge for the mediator is twofold. On the one hand, they must preserve a process that usually demands precious time and political capital to build upon. On the other hand, they must not shy away from rethinking and adapting the pr ocess to continually make it more effective and more reflective of the on-going developments on the ground and its geopolitical ramifications. In mirroring the conflicts they seek to mediate, negotiation frameworks are not static but dynamic processes and a mediator ought to take this into account and ensure that procedures and habits are established but not entrenched; an inflexible process will simply become part of the beast it seeks to tame.

Interdependence and Independence

One of the most important specificities of the Minsk Process is that it does not exist in a political and diplomatic vacuum; rather, it is connected both with high-level channels as well as with osce structures on the ground. This provides the cio sr with more political leverage than a stand-alone mediation framework could have.14 This connection is perhaps most apparent in the direct involvement at the highest political level during the talks on the Package of Measures on 12 Feb- ruary 2015, when the Normandy Four personally led the negotiations. More generally, the work of the tcg feeds into the Normandy Format and receives direct guidance from it. Importantly, while this relationship is established, it is not institutionalised. It thus leaves a high degree of flexibility and freedom for the mediator. Notably, there are no explicit rules and procedures as there may have been in cases where the tcg had reported, for example, to the Permanent Council of the osce or the Security Council of the United Nations.

14 This combination may be an example for a combination of power mediation and pure mediation that Isak Svensson describes as most effective. See Svensson, Isak, “Mediation with Muscles or Minds? Exploring Power Mediators and Pure Mediators in Civil Wars”, International Negotiation, 2007, Volume 12 (2), pp. 229–248, at p. 244.

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Ukraine Crisis and Mediation 335

Significantly, this arrangement ensures that the relevant decision-makers in the top political echelons are directly involved in the process. Particularly in a setting like the Minsk Process, where instructions are generally narrow and handed down from high political levels, negotiators have little room for manoeuvre and instances of common ground are few and far between. The structural advantage of the framework, thus, is that it covers all different levels: from the technical niches of the working groups to the high politics of the tcg and Normandy Format with its roll call of political directors, foreign ministers as well as heads of state and government. This allows the tcg to delegate or escalate individual issues to the appropriate level of decision-making. Indeed, thanks to its direct link to the osce cio, through the person of the cio sr, it is even possible to use the regional multilateral platform of the osce and, in particular, its political leadership embodied by the foreign minister of the participating State occupying the rotating chair of the osce in that year. While this multi-layered structure is undoubtedly of great use, it also bears the risk of issues being shuffled around, clouding effective stand-still on a given question in a flurry of activity. In addition to the tcg’s privileged connections with high-level diplomacy, the cio sr can also draw on the presence of other osce structures in Ukraine, most importantly the Special Monitoring Mission (smm). The presence of osce monitors on the ground, on both sides of the so-called contact line, means that the cio sr (as indeed everybody else) disposes of a wealth of independent information on developments on the ground, as observed by the osce monitors and reported almost in real-time. This strengthens the position of the cio sr serving as mediator as he or she does not have to rely exclusively on information provided by either side, thus enabling them to better assess and react to claims and counter-claims made during talks.15 Such linkages, of course, come with strings attached. The influence of the highest political level equips the mediator with more leverage, but it also nar- rows their flexibility and ability to drive the process. Rather than setting pri- orities for talks independently, for example, the mediator may have to follow an agenda set by a Normandy summit meeting. And the cio sr’s proximity to the smm can also give rise to expectations of their ability to take action on the ground. In discussions on the security situation within the tcg, the cio sr is

15 The importance of information provision in mediation has been examined by Burcu Savun. See: Savun, Burcu, “Mediator Types and the Effectiveness of Information Provision Strategies in the Resolution of International Conflict”, in Bercovitch, Jacob and Gartner, Scott (eds.), International conflict mediation: new approaches and findings, Routledge, London, pp. 96–114.

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336 Schläpfer regularly asked to present an assessment on a specific escalation in the conflict area. Frequently, this demand implies an expectation for an investigation on the ground to be conducted by smm staff in order to establish responsibility. Such requests not only ignore the fact that the smm is guided and bound by an independent mandate16 but also force the mediator into the role of an arbiter in an argument, which can be difficult to reconcile with his role as independent mediator.

Combining Crisis Management and Conflict Resolution

Needless to say, the overall objective of the cio sr and the Minsk Process is a complete and peaceful settlement of the crisis. It is worth highlighting that in osce practice, conflict resolution is usually described as a separate phase following crisis management in the so-called conflict cycle.17 In the Minsk Pro- cess, however, these two phases occur simultaneously and in parallel. A comprehensive peace agreement was reached relatively early, in Septem- ber 2014, providing a template for addressing key political questions. For example, the Minsk Protocol prescribed that “early local elections” be organised “in accordance with Ukrainian law ‘on a temporary order of local self-governance in certain areas of the Donetsk and Luhansk regions’ (law on special status)”.18 But this legal base had yet to be elaborated and passed by the Ukrainian legisla- tor. The Package of Measures, therefore, specified that a dialogue be launched within the framework of the Minsk Process “on modalities of local elections”.19 This dialogue takes place in the working group on political issues and touches

16 The smm received its mandate from the Permanent Council of the osce, that is prior to the establishment of the tcg: Permanent Council of the osce, Decision 1117: Deployment of an osce Special Monitoring Mission to Ukraine, Vienna, 21 March 2014, pc.dec/1117. Retrieved on 5 December 2016, http://www.osce.org/pc/116747?download=true. 17 The conflict cycle consists of early warning, conflict prevention, crisis management, conflict resolution, post-conflict rehabilitation. For further detail see: Ministerial Council of the osce, Decision No. 3/11 on elements of the conflict cycle, related to enhancing the osce’s capabilities in early warning, early action, dialogue facilitation and mediation support, and post-conflict rehabilitation, Vilnius, 7 December 2011, mc.dec/3/11. Retrieved on 5 Decem- ber 2016, http://www.osce.org/mc/86621?download=true. 18 osce, Protocol on the results of consultations of the Trilateral Contact Group, Minsk, 5 September 2014, paragraph 9. Retrieved on 5 December 2016, http://www.osce.org/ home/123257. 19 osce, Package of Measures for the Implementation of the Minsk Agreements, Minsk, 12 Feb- ruary 2015, paragraph 4. Retrieved on 5 December 2016, http://www.osce.org/cio/140156.

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Ukraine Crisis and Mediation 337 upon one of the core issues at hand, that is who can legitimately represent the interest of the population in these areas, and how. A resolution of the conflict, without a mutually agreeable answer to this question, seems impossible. Un- surprisingly, the working group, despite three years of intensive efforts, is still vigorously debating this point. In other words, the “resolution” phase of the “conflict cycle” did not end with the Minsk agreements, it merely started. At the same time, crisis management continues. The other three working groups tackle various practical issues – particularly in the area of security, humanitarian affairs and restoration of public utility infrastructure – where immediate measures are urgently needed. Focus, throughout, rests on de- escalation and mitigating the impact of the conflict on the civilian population. Whenever progress is noted in this area – for example, when a call by the tcg for full adherence to the ceasefire from the start of the school year (1 September 2015) was heeded, initiating a period of calm in the conflict area – the atmospher e of the talks immediately becomes more constructive. In this specific instance, it most likely contributed to reaching an agreement on modalities for the withdrawal of additional types of weapons from the line of contact.20 Unfortunately, the opposite is equally true: on-going ceasefire violations and volatile security conditions make serious and concrete discussions on, for example, the organisation of local elections in the area almost impossible. Conflict resolution efforts and crisis management do not necessarily follow the same logic or timeframe. In Minsk, issues of contention (e.g. the political status of certain areas of the Donetsk and Luhansk regions within the constitutional framework of Ukraine) and symptoms (e.g. the humanitarian needs of the civilian population) are both tackled in concert. The key challenge for the cio sr, thus, is to ensure that both aspects are addressed appropri- ately within the framework. This distinction is particularly important when it comes to political messaging. If successful measures in the area of conflict management – say, for example, the successful opening of a crossing point for civilians on the line of contact – can be reported publicly, care must be given not to inflate the impact of these developments in terms of resolving the conflict. Otherwise, false expectations may arise not only among the public but also among relevant political actors as to the framework’s ability to achieve a comprehensive settlement.

20 osce, osce Chairperson-in-Office Dačić welcomes agreement on withdrawal of weapons in eastern Ukraine reached within the Trilateral Contact Group, New York, 29 September 2015. Retrieved on 5 December 2016, http://www.osce.org/cio/186831.

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338 Schläpfer

Managing Confidentiality and Public Outreach

A mediator must, in general, consider the potentially problematic interaction between the process and the wider public. The longer the conflict lingers, the harder it becomes to convince the public and partners alike that the process is still functioning and, most importantly, capable of producing results. A common dilemma faced by mediators is how to find a balance between public relations and guaranteeing the confidentiality of the process. Strict confidentiality is often cited as a necessary condition for a constructive and effective en- vironment for negotiations.21 Undoubtedly, when ideas and proposals, which are introduced informally or formally in talks, end up in the public sphere participants will be reluctant to go beyond repeating well-known positions; finding new approaches and compromises under such circumstances is nearly impossible. This was demonstrated in the Minsk Process when sensitive docu- ments, relating to proposals for modalities for local elections in certain areas of the Donetsk and Luhansk regions, were leaked. Similarly, public comments by members of working groups, publicised widely by the media, repeatedly elicited harsh criticism from other participants, thus creating a difficult cli- mate for discussions. Public comments, it was said, contravened the agreement that only the cio sr or the tcg could, in corpore, make press statements on the process.22 While these concerns are valid, there is unquestionably also a need to update the general public on the efforts undertaken, in particular in the case of Ukraine, where there is wide-spread scepticism within the general public about the Minsk agreements, which are seen as a disadvantageous deal that Ukraine had been strong-armed into accepting.23 Moreover, as a number of measures outlined in the agreements require acts of parliament, such as

21 osce Conflict Prevention Centre, Mediation and Dialogue Facilitation in the osce: Reference Guide, Vienna, 2014, p. 55. 22 Up to the establishment of working groups in May 2015, the tcg generally issued statements or addressed the press in corpore. Thereafter, it became custom for the Special Representative to brief the assembled press in Minsk on the outcome of the talks on behalf of the tcg and working groups. 23 For some more detail on public opinion on the Minsk agreements in Ukraine see for example: Iuliia Prudnyk, Cacophony of the Minsk Process, 16 May 2016. Retrieved on 5 December 2016, https://www.sipri.org/commentary/blog/2016/cacophony-minsk-process. For further analysis and data based on a poll conducted by the Gorshenin Institute in February 2016 see: Gorshenin Institute, Social and political sentiments of Ukrainians (Section 2: War and Peace), Kyiv, 1 March 2016. Retrieved on 5 December 2016, http:// gorshenin.eu/programs/researches/224_social_and_political_sentiments_of.html.

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Ukraine Crisis and Mediation 339 the passing of constitutional provisions related to decentralisation,24 a fully “closed-door” approach is unlikely to be sufficient. The challenge for the mediator is to keep the balance and, either explicitly or tacitly, reach agreement amongst all participants on the red lines for public communication. Of course, at the same time, media and public opinion can also be a very useful tool for a mediator. Provided it is done cautiously, and within the realm acceptable for all sides, the tide of public opinion can help move discussions in a desired direction. For example, when 800 truck-loads worth of humanitarian assistance prepared by un agencies was stuck in storage because access to the conflict-stricken area was not granted, the cio sr emphasised this fact in his usual press briefing following the Minsk talks. The point was taken up by the press,25 which contributed to a partial improvement of the situation as the un were given the green light to resume operations in certain areas of the Luhansk (but not Donetsk) area.26

Conclusion

The work of the tcg in Ukraine has shown that much can be achieved when an appropriate framework for the talks is implemented and there is sufficient political will from all sides. Reaching a comprehensive agreement within the span of just three months, from June to September 2014, is no small achieve- ment. Nevertheless, its implementation proved more cumbersome, as the agreements represent a solid basis for a resolution to the conflict, but certainly not its conclusion. Thus, efforts to hone out the finer details continue at the same time as the elaboration of measures designed to mitigate the impact of the crisis, for example the humanitarian response or the reestablishment of damaged vital infrastructure. Even with some progress on the latter, it has become increasingly challenging to convince the public that the process is still productive. It is therefore crucial that the mediator contributes, to the extent possible, to the public discourse in order to deepen the public’s understanding

24 osce, Package of Measures for the Implementation of the Minsk Agreements, Minsk, 12 February 2015, paragraph 11. Retrieved on 5 December 2016, http://www.osce.org/ cio/140156. 25 Il’ya Barabanov et alii, “oon isklyuchili iz dnr i lnr”, Kommersant, 22 October 2015. Retrieved on 5 December 2016, http://www.kommersant.ru/doc/2837356. 26 Office for the Coordination of Humanitarian Affairs (ocha), Humanitarian Bulletin Ukraine, Kyiv, October 2015, Issue 3. Retrieved on 5 December 2016, http://reliefweb.int/ sites/reliefweb.int/files/resources/humanitarian_bulletin_ukraine_-_issue_03.pdf.

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340 Schläpfer of the possibilities but also the limitations of the peace process, while nurtur- ing realistic expectations of a timeframe in which results could be achieved. They may be less constrained in doing so than publicly elected officials or government representatives who have stronger incentives to put emphasis on quick fixes and take credit for them. A central lesson from mediation efforts in and around Ukraine is how a platform, such as the tcg, benefits from a link with high political levels in which its efforts can be reconfirmed, supported and oriented, even if it limits the ability of the mediator to steer the process independently. In staunchly hierarchical political systems, the “vertical of power” is a reality that cannot be ignored but must be engaged. In the case of Ukraine, this was realised through the Normandy Format, without an institutionalised connection to the tcg. More generally, the osce also provides connections among different political levels. Not only can it build up operational capacity on the ground through the deployment of missions (such as the smm) capable of supporting mediators, but also, through the office of the Chairperson-in-Office, in which the incum- bent cio can, if so willing, use his political leverage to complement the work of a mediator via high-level diplomacy. In reality, of course, there are many factors that might discourage a cio from engaging in such a role, ranging from a bias based on his or her government’s interests and political agenda to a lack of resources. Nevertheless, recent Chairmanships such as Switzerland in 2014 and Germany in 2016 engaged the whole Organization actively and achieved more than most dared to expect previously. Furthermore, despite all efforts towards a peaceful settlement, a mediator may not be able to prevent a conflict from freezing over rather than being resolved. The example of Ukraine has demonstrated, once again, that there is no quick solution, and even the most competent mediator cannot, on his own, undo the geopolitical entanglement and colliding political interests which frame and shape the conflict. They can, however, ensure that the negotiation process does not encounter the same fate. The tcg started out as a small, flexible format for exchange with three representatives meeting in Kyiv. Today the tcg is supported by four working groups and numerous experts in a fully-fledged and established process. The tcg’s dynamic transformation was a response to the evolution of the conflict. If appropriate and executed with care, such adaptations of the framework can provide a new impetus or approach towards reaching a solution. This is far easier said than done, of course; and in Ukraine, it has so far not been enough to solve any of the fundamental issues and, not even fully stop the shelling and human suffering in the conflict zone. Nevertheless, the transformation of the tcg into the fully-fledged and

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elaborate Minsk Process shows that, in this case, the mediation framework succeeded in remaining relevant and meaningful to its participants, who continue to meet in Minsk frequently, usually bi-weekly, to continue talks and try to move, however slowly, towards a peaceful settlement.

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