Ukraine prisoner swap: A sign of hope or desperation?

Ukraine prisoner swap: A sign of hope or desperation?

Commentary

The West is drawing the wrong lessons from Ukraine’s exchange of prisoners with Russia. It now risks rushing Kyiv into an unstable ‘resolution’ to the conflict in Donbas

On 7 September two planes took off simultaneously in Kyiv and Moscow, each carrying 35 prisoners to be exchanged. The plane travelling to Kyiv contained the 24 Ukrainian sailors illegally captured in international waters by Russia’s Federal Security Service border guard, along with prominent Ukrainian filmmakers and journalists, most notably Oleg Sentsov. The plane to Moscow predominantly contained Russian spies and military operatives, the most notorious of whom was Vladimir Tsemakh, the man who commanded the air-defence unit that brought down flight MH17 in July 2017. With the exception of the Netherlands, whose government wanted Tsemakh to be extradited to The Hague for trial, most governments have lauded the prisoner swap as a sign of détente between Russia and Ukraine. They have taken it as an encouraging first step towards ending the war in Donbas. From Kyiv’s perspective, however, things look very different.

The prisoner exchange in itself was an act of desperation for Ukraine, not an act of normalisation. The Poroshenko government tried for years to negotiate the release of Ukrainian political prisoners in Russia. Angela Merkel and other European leaders continually raised the issue with Vladimir Putin. The international maritime court in Hamburg had ordered the release of the 24 sailors – a verdict the Kremlin happily ignored. And, instead of receiving pressure related to Russia’s international obligations, in June this year the Duma won readmission to the Parliamentary Assembly of the Council of Europe – without preconditions. For Ukrainians, this was a clear sign that Western diplomacy and the ‘rules-based order’ were just an empty shell. And so the Ukrainian government realised that, to get its people back, it would need hostages of its own. The moment Tsemakh showed up in Ukrainian custody, the Kremlin signalled interest in exchanging him. It knew that he could have talked in open court about Russia’s involvement in the Donbas war and complicity in shooting down MH17. And so the Ukrainian government was always going to be able to negotiate a high price.

So it is wrong to celebrate the exchange as a sign of détente. In his election campaign, Volodymyr Zelensky made vocal promises around the early release of the hostages. Given the circumstances, this was the only way for him to achieve it. But he also promised peace and an end to the war in Donbas. So is this within reach too?

Ukraine fears being pushed to “fake” progress in order to provide a fig-leaf for the West to celebrate rapprochement with the Kremlin

There are signs of progress in Donbas itself. In Stanyzja Luhanska, the fighting has ceased, opening up the opportunity to repair the bridge across the Seversky Donets river – an important crossing into the so-called Luhansk People’s Republic. Further disengagement of troops is planned in other parts of Donbas, and the harvest ceasefire has been kept with only minor violations. But similar progress has been achieved in the past, only to fall apart after several weeks.

More substantially, this month Ukraine accepted the so-called “Steinmeier formula”, whose implementation is now to be discussed in a Normandy format meeting in the months ahead. The formula foresees Ukraine passing a law on the “special status” of the separatist areas, granting them “self-governance”. This law would only enter into force if regional elections were held in Donbas, and if the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) certifies these as free and fair, and held in accordance with Ukrainian law. On all issues regarding the implementation of this formula, the Ukrainian government and the Kremlin have fundamentally opposing views. The Kremlin wants superficially free elections that it can manipulate at will to ensure its cadres remain in power. Ukraine wants to have free elections supervised and organised by an international organisation.

Were it to be involved, ODHIR’s role would not be to observe election day alone. According to Ukrainian demands and ODHIR’s own practices, the election watchdog would have to begin its observation much earlier – from the start of the registration process, throughout the election campaign, and until the announcement of the results. Curing the whole period, the conditions under which the campaign is to be held would have to allow for a free and competitive contest.

For Ukraine, this therefore needs to encompass Russian troops and paramilitary forces leaving Donbas before the campaign kicks off. In addition, the ‘police’ in the rebel-held areas, along with the riot police and the separatists’ own notorious secret service, the MGB, would also have to be at least temporarily replaced by an international force in order to provide safety for Ukrainian candidates and prevent intimidation of voters. Needless to say, Ukrainian parties and politicians would have to be allowed to participate without incumbents abusing their power to restrict free and fair election. They would have to be able to access local media, and be able to enjoy full freedom of movement within the “republics”. To Kyiv, internally displaced people that resided in the areas prior to the war would have to be allowed to cast their vote as well.

Without an international peacekeeping mission and an internationally organised transitional government, the precondition of an impartial security force and administration can hardly be fulfilled. Needless to say, the Kremlin does not want such a mission to happen. It has not yet actually indicated whether it actually agrees with the Ukrainian version of extended self-governance for the separatist areas or whether it would bring forward additional demands for federalisation during later stages of the Normandy format negotiations. All these technicalities need to be agreed on during the coming summit(s) and then implemented properly. Amid all the optimism, caution is advisable: agreeing to the Steinmeier formula was the easiest part in the process. The difficult details will have to follow.

Given the eagerness that the French president has displayed recently to reach out to Russia, Ukraine also fears being pushed to “fake” progress in order to provide a fig-leaf for the West to celebrate rapprochement with the Kremlin. There is a fear in Kyiv that Europe will declare “mission accomplished” even if the local elections in the “Donetsk People’s Republic” (DNR) and “Luhansk People’s Republic” (LNR) are not conducted under satisfactory conditions. Fear exists too that other issues – particularly regaining control of the Russian-Ukrainian border – would never be touched upon. A bad agreement – in which all points were addressed on paper only, but Russia would effectively still control local administrative and military structures in the DNR and LNR – might prove more destabilising to Ukraine than a low-intensity war. The “republics” would end up spreading terror, organised crime, corruption, propaganda, and intimidation throughout the country, without the perpetrators being prosecutable by Kyiv authorities.

Ukrainian diplomats and negotiators are much more cautious and suspicious of Russia than their new Ukrainian president is. This, again, is not a very reassuring sign. In the past few weeks, Zelensky has moved quickly to reduce the powers of the Rada, curb the authority of the mayor of Kyiv, and centralise more and more agencies and powers into his own hands. With a mixture of populism, on-the-ground results, and clever PR, he has so far been able to outmanoeuvre domestic rivals and succeeded in building his own power-vertical. He might even be confident enough to believe that domesticated Russian proxy parties holding on to separatist areas would just be one more domestic opponent. If true, this would be a dangerous underestimation of the subversive potential and energy of these areas, and of the ruthlessness of the Kremlin.

The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.

Read more on: Wider Europe, Russia, EaP, Ukraine

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