Local elections in Donbas risk scuttling the Minsk agreement

Local elections in the Donbas were on the agenda when the foreign ministers of Germany, France, Russia, and Ukraine met in Berlin over the weekend. This issue is the next big challenge to the Minsk agreement and could end up scuttling the agreement.

The de facto leaders of the “Peoples’ Republics” of Donetsk and Luhansk are threatening to hold their own local elections on 18 October and 1 November, respectively. These “elections” would be held in parallel to the local elections organised by the Ukrainian authorities on 25 October. This would constitute a breach of the Minsk agreement and could undermine the already fragile peace process. If last year’s “presidential” and “parliamentary” elections in Donetsk and Luhansk are any guide, it is highly unlikely that these “elections” would comply with OSCE standards or that the OSCE/ODIHR would be able to observe the elections, as required by the Minsk agreement.

The Minsk agreement foresees a ceasefire and a political roadmap in which local elections are an integral part, along with constitutional reform, decentralisation, and the restoration of Ukrainian control over the border with Russia. Local elections should, according to the agreement, be held on the basis of Ukrainian law with questions agreed on in the Trilateral Contact Group. Elections should also be held in accordance with relevant OSCE standards and be monitored by OSCE/ODIHR.

Moscow and its proxies are now trying to use the threat of parallel elections to extract concessions from Kyiv. They are demanding the federalisation of Ukraine, which would in effect give them a veto over essential decision-making. This would not only create a dysfunctional state, but also mean an end to the country's reform efforts and European aspirations.

Kyiv is willing to devolve considerable powers to the regions. The Ukrainian Parliament’s vote to pass constitutional amendments on 31 August – in spite of violent protests that led to three dead policemen – was a major step in this direction. But Kyiv maintains that legitimate elections must be held in Donbas before the territories can be granted any special status. Legitimate elections are necessary to elect legitimate leaders.

Diplomatic efforts are now under way in the Trilateral Contact Group to find a formula to allow the elections to be held on a joint legal basis. The foreign ministers agreed in principle to this over the weekend. But this is a risky strategy since providing Moscow’s proxies with legal cover could lead to their legitimisation and give them space within Ukraine’s political system to wreak havoc. This could undermine Ukraine’s constitutional order and, by extension, its territorial integrity.

Regardless of whether agreement is reached on the elections, the Minsk agreement requires elections to held in accordance with relevant OSCE standards and be monitored by OSCE/ODIHR observers. What are these standards?

Firstly, the holding of free and fair elections requires a conducive atmosphere. Political parties and their candidates should be able to campaign and freely present their views to the electorate. Administrative procedures should be fair and non-discriminatory. Freedom of the media is a basic requirement.

The current climate of intimidation in the separatist-held territories, coupled with the presence of separatist and Russian forces, does not make for a conducive atmosphere for holding elections. Militias dominate the political scene, and there is little in terms of real political parties to choose from.

Secondly, the electoral register must be up-to-date and include all eligible voters. In Donbas this must include those who lived there before the fighting erupted. Not including displaced persons would disenfranchise them and undermine the elections' legitimacy.

Displaced persons should also be given the practical means to vote. About 2.5 million people have fled the fighting and are now in other parts of Ukraine or abroad. Eligible voters should be able to cast their ballot even if they are unable to return home to vote.

Thirdly, the OSCE/ODIHR must also be able to observe the elections. Election observation is an essential feature of holding free and fair elections. Long and short-term observers need to be on the ground before, during, and after elections. They should be able to operate in a secure environment and have free and unfettered access to polling sites.

Parallel elections organised by the separatists are unlikely to comply with even these basic standards or be properly monitored by OSCE/ODIHR. If the separatists cannot accept that the elections are organised by Kyiv then an intermediary – for example, the UN – can be asked to organise them, as has been done in many other instances, notably in the Balkans. But time is running out.

The holding of parallel elections in Donbas risks leading to political deadlock and undermining the Minsk agreement. The separatists would claim a renewed political mandate while Kyiv would maintain that they continue to be illegitimate. This could effectively end the prospect of special status for the territories and prevent restoration of Ukrainian control over the border with Russia. With the political track dead, the risk of the sides going for the military option would increase.

The EU should take a principled position and send a clear message to Moscow and its proxies that elections in the areas under their control must be held under Ukrainian law. Elections must also comply with relevant OSCE standards and be monitored by OSCE/ODIHR in order to be compliant with the Minsk agreement. Anything else would be in breach of the agreement and undermine the already fragile peace process.