KENNAN CABLE No. 35 l August 2018 Anti-tank obstacles in the “grey zone” near Mariupol, Ukraine (Source: https://www.svoboda.org/a/29091572.html) Institutional Paths to Ending the Donbas Conflict By Serhiy Kudelia Ever since the armed conflict in Donbas started military presence and restoring Kyiv’s control in 2014, Washington and Kyiv have seen its over the border. It rests on designing a new resolution through the prism of altering Russia’s institutional framework that can provide long-term behavior in the region. As Kurt Volker, the U.S. guarantees to civilians and separatist insurgents special representative on Ukraine, often notes, and prevent conflict recurrence. Responsibility for Moscow can quickly resolve the conflict by the adoption of new institutions lies primarily with withdrawing its troops from Donbas, ending arms the Ukrainian authorities. So far, they have avoided supplies to separatists, and allowing local elections publicly discussing the specifics of a long-term under international control.1 This explains why settlement. Moreover, the idea that resolving the Western sanctions have been tied to Russia’s conflict would require the adoption of a special set implementation of the Minsk Agreements.2 of rules for the region, as outlined in the Minsk However, the successful reintegration of Donbas Agreements, remains highly controversial among into Ukraine requires more than ending Russian Ukrainian political elites.3 However, lack of credible KENNAN CABLE No. 35 l August 2018 Ukraine’s current constitutional design control over issues of most concern to the communities. Following the end of the Cold War, is particularly ill-equipped for resolving power-sharing provisions have been included in over the type of armed conflict that has two-thirds of the settlements of intrastate conflicts.4 been raging in Donbas. Political and military power-sharing models primarily intend to resolve conflict over central government institutional guarantees for the separatist side control between ethnic groups relatively equal in would undermine any prospect of implementing size and, hence, require institutional changes on a peace agreement. Details of a new institutional the national level. But executive power-sharing with arrangement in Donbas should be a vital aspect of government quotas, guaranteed representation, and any viable conflict-resolution strategy. The end of veto powers for regional representatives would have similar conflicts in other parts of the world offers an adverse effect on the peace process in Ukraine a guide in searching for the most appropriate and its state capacity. It would allow a relatively institutional solutions for Ukraine. small, region-based group to obstruct national decision-making and turn state institutions into Power-Sharing Options in Donbas arenas of permanent and inconclusive contestation between competing visions of the Ukrainian state. Ukraine’s current constitutional design is particularly ill-equipped for resolving the type of armed conflict Territorial or economic power-sharing, by contrast, that has been raging in Donbas. The president’s targets small secessionist groups and addresses outsized role in decision-making makes policy local incompatibilities without necessitating outcomes reflective of the majoritarian logic of the changes in the composition or decision-making zero-sum competition for the office. It also gives the procedures of the central government. This makes president leverage in dealing with local authorities them particularly fitting for the type of conflict that through appointment and dismissal of heads of Ukraine has experienced since 2014. Territorial local administrations and dissolution power of local autonomy that affords local governments in Donbas assemblies. Recent decentralization reforms put broad powers in certain policy domains would not local governments in charge of the provision of threaten effective policy-making or institutional education and healthcare services and increased capacity on the national level. Rather, it will allow their fiscal powers through new tax allocation rules. the resolution of key incompatibilities behind the However, they did not empower local communities conflict. It will give the region expanded self- to influence the content of their educational governance powers it has long sought, including programs or design their own cultural, linguistic, or the right to design its own educational and cultural historical preservation policies. policies, choose its historical preservation priorities, and maintain cross-border ties with Russia. While Any negotiated settlement of the conflict would the region will not have veto power over Ukraine’s then require the introduction of power-sharing foreign policy strategy, economic power-sharing measures that would guarantee local governments may allow local industry to continue trading with KENNAN CABLE No. 35 l August 2018 Russia with minimum barriers through the creation The most serious risk associated with autonomous of a special regional trade zone. The region could status for Donbas is the prospect of giving local also maintain access to Russia’s cultural space leaders legal institutional weapons to strengthen and engage in various cross-border cooperation their political dominance and, potentially, challenge and exchange projects. Territorial autonomy the central government. Whenever segmental coincides with the current preference of residents institutions give stronger leverage to segment- of separatist-controlled areas of Donbas, where state leaders there is constant pressure for further the majority prefers “special status” either within devolution of power leading to potential nation-state Russia or Ukraine.5 crisis.6 It can lead to the hegemony of regional identity, collective action directed against the The risks associated with territorial power-sharing central government, and consolidation of regional should be lower in Ukraine’s case. Since the conflict elites embedded in autonomous patronal structures is not driven by interethnic confrontation, there (with independent distribution of rewards and are fewer opportunities for ethnification of issues punishments). in political competition. In the absence of other regions with a similarly strong regional identity or There are several possible remedies to prevent the non-titular ethnic majority, the risk of “contagion” types of problems associated with segment-states. of autonomy demands from other regional leaders First, territorial autonomy should be granted to the is also low. Still, the central government needs to entire Donetsk and Luhansk oblasts rather than just pursue inclusive cultural and linguistic policies on to the two separatist-controlled enclaves. As one the national level to effectively reintegrate local recent poll shows, residents of Ukraine-controlled Ukrainians into the broader political community and Donbas are more likely to identify themselves as increase their identification with the Ukrainian state. Ukrainian citizens and speak Ukrainian in their daily OSCE observers at the Uspenka checkpoint in the Donetsk Region on the border. Photo courtesy of https://sputniknews.com/europe/201610231046643377-ukraine-russia-border-donbass/ KENNAN CABLE No. 35 l August 2018 lives.7 They are also more likely to support Ukraine’s would, thus, be effectively localized. This would limit pro-Western foreign policy and express distrust in their capacity to coordinate broader anti-government Russian leadership, even though a strong majority in actions or reframe the region’s history and identity. both parts oppose integration with the EU or NATO. The merger of the two parts of Donbas will thus The stability of the post-conflict settlement would allow for a natural diversity of views and orientations be further enhanced if any changes to the terms in the region. This will serve as an important barrier of the agreement, particularly regarding territorial against both the consolidation of regional identity power-sharing, require ratification by the localized antagonistic to Ukraine and the establishment of majorities across Donbas. It would serve as a a political monopoly by actors associated with the reassurance mechanism for regional elites that the separatist forces. fluidity of ruling coalitions or executive turnover will not affect the terms of the settlement. The Second, an insight from the work of a political current law on the “special status” of separatist- scientist Philip Roeder about power-dividing or controlled territories should be viewed as a multiple-majority strategy of conflict resolution transitional framework set for renegotiation with should guide the design of a new institutional new regional representatives once local elections makeup of Donbas. Its goal, he writes, is to are held. However, the territories should keep their divide a majority within a group “among multiple “special status” until they reach an agreement on a crosscutting majorities and minorities,” which permanent institutional settlement. would “foster through politics the development of dispersed rather than cumulative cleavages.”8 In effect, this means shifting power within territorial autonomies to directly elected mayors and city Rebel Disarmament, Demobilization, assemblies that would set their own policies to and Conversion correspond with local preference. The emerging Reaching an agreement on power-sharing is one ideational diversity of Donbas will then find its precondition for beginning to disarm and demobilize expression