TWO VASTLY DIFFERENT OUTCOMES — Conditions for lifting the new EU sanctions (once in force): (1) Ceasefire holds; or (2) All steps in Minsk Protocol on ceasefire and peace process completed

Much has been at stake in the battle within the EU over whether the new sanctions against Russia (agreed on September 5) should now enter into force, or whether a further round of negotiations among the EU member states is required. In point of fact, the latter is already taking place.

The pacifists and appeasers want to examine whether the “ceasefire” established by the Minsk Protocol is “holding”.

They are only focusing on the ceasefire, not the additional 11 steps in the Minsk peace plan.

If they succeed in using this criterion for gutting the sanctions, Putin will achieve the goal of a “frozen conflict”, as he did in Georgia, and will retain the power to press Kiev militarily to achieve his objectives. These may include the establishment of a land corridor linking Russia proper with the Crimea.

The reality is that once the momentum within the EU for new sanctions has dissipated, Putin will be able to press hard on the ground to achieve his goals.

If on the other hand the sanctions are implemented now, and the conditions for lifting them include completion of all 12 steps in the Minsk Protocol, Putin will have a strong and continuing incentive to pressure the leaders of the so-called Donetsk People’s Republic and the Luhansk People’s Republic to make reasonable accomodations with Kiev on the “special status law” for areas under their control. This issue is the key to a settlement of the conflict.

In short, if all Putin has to do in order to stop the imposition of new sanctions is to maintain the ceasefire, he can easily do that until the concentration and determination of the EU’s members to impose the sanctions dissipate. These will inevitably weaken over time (probably in only a couple of weeks).

Putin will then get away with invading the eastern Ukraine with regular forces without paying any price, while the “ceasefire” is allowed to collapse.

After that Putin will be free to return to his strategy of exerting
military pressure on the Ukraine through ” stealth warfare” or more direct military intervention.

Under this scenario he will have no lasting incentive to press the “separatists” to reach a reasonable accomodation on the status of their territories, and the Minsk Protocol peace process will simply collapse.

Consequently, the specific conditions for lifting the new sanctions are outcome determinative. Putin wins. Or an independent Ukraine wins, with Russian acquiescence due to the desire to lift the sanctions.

One final point: the Members of the EU should reflect deeply on the fact that Putin doesn’t even admit that Russian troops have been fighting in the Ukraine.

What kind of negotiated deal which relies on promises regarding future behavior (the other points in the Minsk Protoccol–to which Russia is not even a party) can you have when your antagonist denies the essential factual predicates on which it must be based?

This constitutes a powerful argument for not letting up the sanctions pressure until Putin’s actions can be confirmed and verified on the ground.

The EU, the U.S. and NATO need to approach Putin and Russia from a position of strength.

They must put aside the fear Putin’s military aggression has put into their hearts.

They must put aside parocchial economic concerns.

Of course the economic sanctions will affect them. Hitler’s invasions of their countries also had negative economic effects.

There is a price to be paid to halt and turn back aggression, and to help protect the citizens of the eastern Ukraine from the widespread abuses of fundamental human rights and war crimes to which they have been subjected by the “separatists”.

International order based on the U.N. Charter is not a free public good. Nor is the protection of fundamental human rights.

There is a small price to be paid. The member states of the EU should pay it now, and agree on the immediate entry into force of the new sanctions.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.