This essay sets out a process by which to initiate an agreement to bring Ukraine to peace, including considerations about a new federal constitution and the question of neutrality in military affairs. All we can say for now is that in light of Ukraine’s atrocious plight, there will need to be a lot of strong medicine.
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By Matthew Parish
At the time of writing, the Russian invasion of Ukraine, a so-called “special military operation” by the Kremlin, has been underway for slightly more than a month. At the same time, and even before the war commenced, there have been various negotiations between the parties mediated by various other parties. The story of concurrent negotiations with an extended war can be the subject of several books. In the Bosnian, Kosovar and Syrian civil wars, negotiations took place if not nonstop during the course of those wars then during substantial periods of those wars. Those negotiations went on and off over years. Bosnia
was well-known for a series of peace plans: the Carrington-Cutileiro Plan, the Vance-Owen Peace Plan, the Contact Group Plan, and the Dayton Peace Accords. It is likely that a similar dynamic will be pursued in the context of the war in Ukraine, and we may learn a little from history in trying to get the Ukraine negotiations done better than in other past wars.
Before the war in Ukraine began, the Russian President Vladimir Putin had a demand of Ukrainian President Volodimir Zelenskiy: an undertaking of permanent geopolitical neutrality on the part of Ukraine, together with a promise that Ukraine would never join NATO. Western leaders widely condemned Putin’s demands as wholly unreasonable and unacceptable to Kyiv; and indeed Zelenskiy refused them outright. Now, a mere five weeks later (the blink of an eye in the context of a complex regional war, the sort of event that might be expected easily to last for some years), Zelenskiy has conducted a volte-face in the context of what are currently being called the “Istanbul negotiations”, mediated somewhat unusually by a combination of the Turkish President and the Anglo-Israeli Russian oligarch Roman Abramovich who is known to have good connections with Vladimir Putin personally.
Nevertheless the Istanbul negotiations, which have involved a proposal by Kyiv to provide the neutrality undertakings Moscow has sought, will be unsuccessful. That is because the terms in which Kyiv has framed the proposal involve a series of procedural steps that will scuttle his proposal and ensure that it never comes into force. For this reason, the proposal will be unacceptable to Moscow.
The basic idea of permanent neutrality is a simple one and can be found in a number of neutral countries’ constitutions. Perhaps the best example is in the Moldovan constitution, which provides that Moldova is a neutral country and that she will never permit foreign troops on her territory. It follows from this that NATO membership, that Russia so abhors for Ukraine, is ruled out as a constitutional matter, because members of NATO share military resources and permit one-another to deploy their troops on each other’s territory. An equivalent provision in Ukraine’s constitution might go some way to meeting Moscow’s stated demands.
However President Zelenskiy has added a number of provisos. Ukraine’s territorial integrity, he insists, must be “guaranteed” by third party states as a condition of her undertaking to be neutral. A list of those third party states has been prepared by someone. It includes the United States; Russia; France; China and Israel. It is not entirely clear that any of these states want to serve as guarantors of anything. Moreover it is not clear what it means for a state to guarantee another state’s territorial integrity. What is the guarantee process supposed to involve? The first question is whether Ukraine must complain to anyone before the guarantee process is invoked. If not, then it becomes rather hollow. The United States might creep soldiers into southern Ukraine pretending to be members of the Ukrainian Armed Forces; everyone might know that this is going on; but Ukraine might not complain and hence the international mechanism created would not be invoked. Russia would not find this acceptable. But if Ukraine does not need to make a complaint for the guarantee process to be invoked, then Moscow might decide unilaterally to invoke its right of guarantee by invading Ukraine to expel the US special forces. Presumably that is not the sort of third party security guarantee Ukraine is looking for.
Moreover let us imagine that the guarantee process is invoked under international law, whether upon Ukraine’s request or otherwise. Which of the guaranteeing states is entitled, or obliged, to intervene? What if more than one of them wants to intervene, and in different directions? Are the guaranteeing states obliged to intervene? What is the mechanism for compelling them to do so? In what way should they intervene, and what are the limits to their scope for intervention? Are they limited to making diplomatic complaint, international sanctions or military action? In short, the Istanbul mechanism proposed by the Ukrainians raises so many questions and uncertainties that it makes no practical difference to anybody, leaving all states to act in response to problems they perceive in Ukraine howsoever they wish. That is pretty much the status quo as of today, so in practice it is not progress of any kind.
Finally, President Zelenskiy’s proposal requires confirmation by national referendum, which he says must include all the people of Crimea and Donbas, including the Russian-annexed / occupied areas. In other words, Ukraine’s pre-2014 territorial integrity must be returned, something Russia is likewise unlikely to agree to particularly given the Kerch Strait bridge Russia has constructed to Crimea and the other infrastructure links Russia has developed with the Russian-occupied Donbas region. Zelenskiy has hypothesised that such a referendum could take a year to organise, all the time during which Moscow must observe a ceasefire. Obviously Moscow is not going to agree to this, given that Russia’s leverage in these negotiations derives from the fact of her special military operation, whatever that is supposed to mean. She is not going to stop war pending a year’s delay upon a referendum of dubious sense and logic, given that war is her point of leverage.
Hence the Istanbul negotiations are going nowhere. The only thing we can say with confidence is that this must be obvious to everyone, notwithstanding the various parties’ commitments to examine the proposals carefully. They are dead in the water.
Now let us return to first principles, and consider the logic of peace agreements. At its simplest, there are two types of agreements to end wars. There are those the principal purpose of which is to set international territorial boundaries; and there are those purpose of which is to recreate the political geography of a state so that her neighbours and other strategically interested parties may all compromise upon an amended constitutional structure for the country. The former category of agreement, we can call territorial agreements. Most peace agreements were of this nature until the 1990’s; because the latter category of agreement, that we might call “state-building agreements”, were not popular between the end of World War II there were several, as Europe was reconstructed – but then an abeyance) and the end of the Cold War when a class of international officials (including this author) thought they could do better at the end of a war than just redraw the boundaries of the warring nations, because there was an international assimilation of values as to what a successful modern state ought to look like.
The first question for the West is, which of these two categories of peace agreement does the West want to see for Ukraine. This is a very important question, because the approaches one makes to Russia, and the mechanisms by which one approaches Russia, are totally different if one goes down the state-building route as opposed to the route of territorial modification.
Let us assume that all we want from a Ukrainian peace agreement is settlement of her borders: a truly Westphalian approach. In that case we are going to have to accept that Russian territorial gains in the course of the war are permanent (at least until the next war) and the approach of the international community towards the war in Ukraine ought to be to let the parties fight it out until they have fought themselves to a halt. Once they have done this, no matter how many months or years it takes (and that depends on how much foreign intervention there is; foreign intervention extends the lifespan of wars because it alters the balance of power, and hence prolongs conflict and death toll), we call in the cartographers and we determine by agreement the extent to which Ukraine has shrunk as a result of Russia’s invasion of her. Upon this philosophy, we should stop all foreign intervention, including so-called lethal assistance, because (as we saw in Syria) this merely extends the war, causes ever more people to die, results in ever greater ruination of the country’s infrastructure, causes ever greater ripples of regional and even global economic recession, and none of it has a purpose because all we are doing is redrawing borders.
If you adopt this approach, then Russian aggression is virtually certain ultimately to be rewarded, because there is no level of lethal aid the West can provide to Ukraine to assist her in pushing the Red Army back to pre-2014 border positions. It just can’t be done; the Ukrainian army is insufficiently professional, insufficiently large and too corrupt, to swallow the virtually indefinite level of resources the West would have to provide to aim to push Europe’s largest land army back to what we consider to be the internationally recognised Russia-Ukraine border. On this model, Russia is simply fighting a territorial war, for whatever reasons; and she will largely succeed. We should look at Russia pushing as far as Odessa, thereby consuming the entirety of Ukraine’s Black Sea coast, and we should get on with the job of agreeing that with them. Unless of course the United States would like to invade Ukraine herself to fight the Red Army, pitting us all at risk of World War III.
On the other hand, if all this makes you want to vomit; and if you would like to see Ukraine become a better country and to resolve her underlying political and structural problems, then you are heading the state-building route and this author would be delighted to help you. The problem with state-building Ukraine – that is to say, reconstructing the entire political and economic basis of the country so that she ceases to be so problematic both geopolitically and in terms of the absorption of resources (i.e. massive subsidies), is that this will be one of the largest state-building projects ever attempted. That is because Ukraine is massive, and her problems are proportionate to her size. It will also be difficult because the structure of the project at least will need to be agreed with Russia, who may have some very different ideas.
One mistake this author thinks that the West is in the habit of making is to assimilate the Russian Federation in 2022 with Serbia in the 1990’s. The policy the West is adopting towards Russia is basically the same as that adopted towards Belgrade, the capital of a country that kept changing its name throughout the course of various conflicts but started out being called the Socialist Federal Republic of Yugoslavia and ended up being called just the Republic of Serbia. Serbia’s intransigence amidst the various wars that erupted around her, including the war with Slovenia, that with Croatia, that in Bosnia and later that in Kosovo, led (as with the Russian invasion of Ukraine) not to the international community committing troops to protect the territorial integrity of the various emerging countries with whom Serbia was in conflict (nobody likes to put their troops in harm’s way before the international media) but instead by way of crippling economic sanctions that ultimately caused Belgrade to concede to western state-building projects in her former satellite territories, and finally toppled her autocratic leader Slobodan Milosevic.
It is easy to conceive of the West undertaking the same role in respect of the war in Ukraine. Bosnia is Ukraine; Milosevic is Putin; sanctions are sanctions and in the end you break the back of your enemy with them. The problem with this analogy is that Russia is not small Serbia. Instead she is the largest country in the world, with the world’s largest nuclear arsenal and the world’s second largest exporter of hydrocarbons. Her hydrocarbon economy is quite sufficient to resist European and American sanctions; she simply sells her products to India and China. Moreover the sanctions drive up the price of the commodities she sells, thereby assisting her in financing the war she is fighting. It follows that sanctions are not a very effective method of forcing the Russian Federation to yield to the West’s writ. In fact they just give her more money. That extra financing will more than compensate for the loss of a few rich men’s private jets. And of course sanctions make Russia all the more intransigent in agreeing peace arrangements, because sanctions have a history of staying in place for a long time. Any student of sanctions knows that they are not repealed in peace agreements but only generally many years later when there has been a change of power at the top of the sanctioned country. That could easily be a decade away in Russia’s case. Hence the imposition of sanctions simply disincentivises the Kremlin to settle, because the economic links between Russia and the West have more or less permanently been severed.
Nor is the imagined model in which the West drives, using sanctions, Moscow into the penury of the late 1990’s amidst the weakness of Boris Yeltsin’s regime towards the end of that decade. Russia’s collapse in 1998 had nothing to do with sanctions or hydrocarbons. Russia’s hydrocarbon economy only really flourished after her recovery from the events of 1998. Rather Russia’s 1998 collapse was the result of comprehensive criminalisation of the Russian economy by the so-called Oligarchs, who borrowed massive amounts of money from western banks off the back of pledges of huge Soviet Union state assets that they had stolen using corrupt voucher privatisation schemes. Those extraordinary events are not going to be repeated as a result of Western sanctions upon Russia that have been imposed as a result of her various interventions in Ukraine since 2014. It follows that one wonders what the purpose of sanctioning Russia was at all, given that sanctions are known in the literature to be irreversible ratchets and hence they cannot be used effectively to discipline countries. This is all the more the case where western European economic development and peace depends upon cheap Russian oil and gas, which the sanctions hurt. European consumers are the big losers from sanctioning Russia. Russia seems to be one of the biggest winners, because hydrocarbon prices have skyrocketed supporting her primary industry economy.
Nevertheless we are where we are: amidst a bloody war in Ukraine the only palatable route out of which (aside from ceding approximately half of Ukraine’s territory to Russia, thereby rewarding her wanton aggression) is to agree a state-building plan for Ukraine, after we have hurled diplomatic abuse at Russia in the midst of a self-harming sanctions campaign. One cannot help thinking that we in the West might have been better advised to hold our tongues, notwithstanding the inequities of watching Ukraine being invaded. There are many unjust things that happen in the world, but complaining about them publicly and using such stark loudhailer diplomatic tools is not always the best way of addressing them and achieving the best outcome.
With those reservations in mind, let us draw up a short list of agenda items for a state-building peace treaty. We can forget the idea of an armistice pending negotiations; that doesn’t work when you are negotiating with an enormous belligerent neighbour that sees every advantage in her favour in simply continuing the process she has already begun. Based upon our experience of prior state-building treaties, we will need a highly complex agreement, that is self-enforcing (i.e. all the parties have an interest in its being observed and hence recourse to a subsequent war is less likely pursuant to its infringement), if this is to work.
The basis of every state-building treaty is and has been regionalisation of a contested territory so that different parts of the territory can develop in more or less different ways as a compromise between the belligerent parties’ more entrenched extremist positions. Russia has one vision of Ukraine; Europe has another; and the United States doesn’t matter because she has no strategic interest in Ukraine. The country is a long way away and is ultimately totally unimportant to US interests. All the war in Ukraine is going to achieve is a strong swing in favour of the Republican Party in the 2022 US legislative midterm elections, together with a possible consequent re-election of Donald J. Trump, bizarrely as both 45th and 47th President, in 2024. The reason all this is happening is because the price of gasoline is going up globally as a result of this war; and if there is one thing the United States electorate does not like it is increases in the costs of their filling their cars with gas.
With the United States increasingly out of the picture as her domestic politics head into warp drive towards the end of this year, we are left with Europe (by which I mean principally Berlin) and Russia working out a negotiation to rebuild Ukraine. And the model will have to be – because there is no other – a regionalisation of Ukraine, a massive country, into subfederal units each of which can develop in different directions. The areas where Ukrainian is the first language can develop in one direction; the areas where Russian is the first language can develop in slightly different ways; and the whole structure needs a common agreed base.
With these thoughts in mind, consider the following elements.
1. A new federal constitution, in which Kyiv is a real capital (not just a city-state) and the regions have de jure autonomy (as opposed to current de facto autonomy, each of which is run by a private unelected oligarch). The new country can be called the Federal Republic of Ukraine, for example. And it will have guaranteed constitutional neutrality in military affairs, permanently excluding her from NATO membership. It is inconceivable that Russia would agree to a state-building programme in which this is not a central tent. If you’re faced with an immovable negotiating term, you have to agree it or keep on fighting.
2. Each of the regions should be larger than the current oblasts, which are presently too small to carry balancing federal weight one against the other in a balanced federal democracy, particularly given Ukraine’s institutional paucity.
3. State assets will need to be removed from the hands of the oligarchs and placed in the hands of responsible state institutions, with federal representation. This will have to be done while minimising the temptation for corrupt deals to divide things up behind the scenes. While all politics involves deals between competing interest groups, the constitutional structure will have to be followed rather than the politics of a small group of men. Power will need to be defused down to the people.
4. Hence there will need to be real democracy and real political parties; and a decision will need to be made about which electoral system to adopt in the new Ukraine and why; and measures will need to be put in place to prevent backsliding to oligarchy without Ukraine’s solutions simply falling away into autocracy of the nomenklatura which presumably we want to avoid or we can just let Mr Putin run the place as he is very good at that system.
5. A genuine federal constitutional division of powers will be necessary. The regions will have elections out of synchrony with the state elections, to encourage a perception that they have separate competences. A robust judicial structure will need to emerge, to enforce distinctions between federal and regional competences.
6. A frank and realistic agreement with Russia must be made about Ukraine’s debts and subsidies. This will be a matter of haggling; because just as Ukraine has massive debts to just about everyone, so we can expect this to continue for some years until our state-building project has turned the country around and for the first time in her history Ukraine might become a self-sustaining economic entity. Only if and when that happens can Ukraine’s independence genuinely be guaranteed in the future.
7. The Ukrainians need to be taught how to grow out of their bad habits of Sovietism, wanton corruption, theft of state assets and wholesale forgery and judicial corruption.This is going to require the sorts of people who are most expert in shifting transition economies, namely European Union experts. But it can be done. It was done for Poland, another big country, and it can be done for Ukraine. Although physically massive, Ukraine’s population is not colossal. She is a manageable problem, provided that one takes her in bite-sized chunks.
8. The legal system, totally corrupt and hopeless, the worst in Europe (it makes the Russian legal system look superlative), must be started again from scratch. This will require hordes of experts and a comprehensive reinvigoration of the Ukrainian legal professions.
9. Decisions will have to be made about which of the current elected politicians stay; and which go. That will have to be negotiated with the Russians; other terms of the peace treaty will turn out differently depending upon how insistent Europe is that certain politicians remain. If the Russians have no confidence in Ukraine’s politicians, then they are more likely to push for a territorial peace agreement in which they keep their territorial gains. If we agree to change them, then the Russians may be willing to provide more latitude elsewhere.
The way you get a peace process going is by talking about things like those listed above. The big problems, such as where Ukraine’s final borders are going to lie, are determined in a crunch negotiation right at the end of the process, once everything else is in place.
This essay has sought to set out the process by which to initiate an agreement to bring Ukraine to peace. The second essay in this series will study the issues listed above in rather more detail, so that we can start to imagine what the parameters of a negotiated state-building settlement for Ukraine might look like. All we can say for now is that in light of Ukraine’s atrocious plight, there will need to be a lot of strong medicine.
Matthew Parish is the Managing Partner of The Paladins, www.the-paladins.com, a private firm of legal, security and intelligence consultants. He is the author of three books and over four hundred articles on international law, international relations and geopolitics. www.matthew-parish.com. Follow the author on Twitter @parish_matthew.
This article was originally published by The Paladins and is available by clicking here.
The views expressed in this article do not necessarily reflect those of TransConflict.