An Off-Ramp for the War in Ukraine

[Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge, a Barrister at Doughty Street Chambers and a former United Nations Senior Mediation Expert. He has served as Senior Advisor in a large number of international peace negotiations and is the co-editor of International Law and Peace Settlements (Cambridge University Press, 2021).]

In an earlier post, Marc Weller provided a narrative discussion of a possible settlement for Ukraine. In this companion piece, he presents an outline of a possible settlement.

Contents

1. Requirements
2. Status Issues
3. Cease-Fire and Full Withdrawal
4. Humanitarian Issues, Returns and Recovery
5. Alliances and Integration
6. Armament Issues
7. Cooperative Security Arrangements
8. Other Matters

1. Requirements

A settlement of the Ukraine conflict aims to end violence and humanitarian suffering, while retaining the territorial integrity of Ukraine and avoiding steps that can be seen to reward aggression.

Any settlement will require a departure of the sides from their positions. This will be particularly difficult for Russia, given the close personal association of the President of Russia with the invasion. 

A settlement, at least as is proposed here, would provide only fairly limited gains for Russia. However, in order to make it acceptable to Moscow, the Kremlin would spin it into a narrative claiming that the outcome is consistent with its stated war aims. Given the nature of the Russian aggression, this would be difficult to accept for many. This sacrifice would be made in order to avoid even greater humanitarian suffering. 

Sadly, pressure for additional concessions will increase if the trajectory of the conflict moves towards significant further gains for Russia. However, short of the full-scale occupation of Ukraine coupled with enforced regime change, Russia may realize that a settlement will be required in the end. 

If a settlement is necessary in the end, Moscow will need a partner to conclude a deal. That partner must be credible in the eyes of the Ukrainian population. This realization may assist in reducing the impetus towards capture of the entire country, and in particular Kyiv and the government there.

Ukraine has been ready to engage in diplomatic efforts with Russia in three rounds of talks in Belarus thus far and at high-level talks held in Antalya last week and now continued via video link. While the talks where inconclusive, it seems that some concessions have already been contemplated and recent signs are that there may be movement in this direction after all. Nevertheless, the sense of justified outrage and injustice on the part of the Ukrainian side will be difficult to overcome if a settlement emerges.

Any settlement can of course only be seriously contemplated if the Ukrainian government is ready to embrace it. The Ukrainian government must not be pressured by the West into accepting an outcome that rewards a war of aggression. 

In the end, a settlement will be possible when other options become unavailable or less attractive to the parties to the conflict. This will be the case when outright victory seems unlikely for both sides, or when the losses and sacrifices imposed upon them by a continuation of the conflict become unbearable.

There are clear red lines within a rules-based system that cannot be transgressed. These include territorial integrity, freedom to determine foreign policy, the integrity of NATO and its guarantee of effective defence, etc. 

A settlement must also not freeze lines of control that would lead to the de-facto division of Ukraine, or further territorial losses.

The settlement must not intrude upon the continued efforts to establish accountability for the serious and horrific atrocities committed on the Russian side.

A settlement plan needs to be prepared and proposed in a way that does not undermine Western resolve to support the defence of Ukraine. If a settlement is proposed from within NATO, say, by France and Germany, it needs to be carried by full consensus, maintaining the posture of resistance to aggression throughout.

The settlement process must be conducted in accordance with UNSC Resolution 1235 (1999).

Any settlement will likely involve several layers, ranging from the two parties to regional governments and institutions, the United Nations and other international institutions. Russia and Ukraine could agree an outline as proposed below, but they will require mediation and involvement of others in order to re-cast it into the comprehensive agreement that will be needed, also at the regional and universal level.

2. Status Issues

Luhansk and Donetsk

• Asymmetrical Federation (if necessary by another name), establishing wide-ranging self-governance, going beyond Minsk II;
• Entrenchment of that arrangement in the Ukrainian constitution (as at present (nominally) for Crimea)
• Removal of claims to statehood;
• The legal identity of the entities extends to the entirety of the territories assigned to both Oblasts under the Ukrainian constitution, dissolving the previous lines of control;
• Exercise of public power in both Oblasts is based on regional democratic processes, with power-sharing, ensuring fair representation of ethnic Russian and other population segments;
• Enhanced local self-governance for localities in both Oblasts where ethnic or linguistic communities form a local majority;
• Democratic governance, human and minority rights with international supervision throughout both territories, reassuring Russian and non-Russian population elements alike;
• Possibility of cross-border links with the Russian Federation.

Crimea

• No formal recognition of the annexation by the Russian Federation;
• Instead a formulation noting that the present territorial status quo relating to the Crimea will not be overturned, or will not be forcibly overturned;
• Prospect of an OSCE-like international (political) confirmation of this principle.
• International cooperation in securing the rights of non-Russian speakers in the territory, special protection and promotion of the rights of Crimean Tatars

3. Cease-fire and Full Withdrawal

• A cease-fire cannot freeze the occupation of any Ukrainian territory by Russian forces. It has to be part of a dynamic and front-loaded withdrawal arrangement.
• Withdrawal from the parts of Luhansk and Donetsk within the previous lines of control may be delayed, with the possibility of an international presence (OSCE) during a transitional phase;
• Full withdrawal of forces is a condition for performance of all other undertakings in the settlement.

4. Humanitarian Issues, Returns and Recovery

• Immediate, full and unconditional humanitarian access.
• Complete exchange of prisoners and release of detained persons;
• Full right of voluntary returns and respect for property rights;
• Safe return of control over nuclear installations with IAEA involvement;
• Large scale and rapid international support for rehabilitation and reconstruction;
• Fair distribution of rehabilitation funds, including for Luhansk and Donetsk;
• No discrimination or adverse treatment for Russian-speakers throughout Ukraine.

5. Alliances and Integration

• No departure by NATO from its Open Door policy;
• Possibly a voluntary self-limitation/moratorium by Ukraine;
• Potential confirmation by the US of its January statement that NATO membership for Ukraine is not realistic in the short- or mid-term, or transformation of that statement in a side-letter;
• Possible extension of such an undertaking in relation to Georgia and Moldova;
• Actual and effective security guarantees for Ukraine, Georgia and Moldova if there is to be a such an undertaking;
• No obstacles to membership  for Finland or Sweden if they wish it;
• Continued EU Association and Stabilization, but for now the EU accession criteria mean that there no realistic prospect of EU integration for Ukraine in the short-term.

6. Armaments Issues Beyond Ukraine

• No withdrawal of all foreign or NATO forces from the territory of NATO members that joined after 27 May 1997. The present aggression reinforces that clear case;
• Ukraine reaffirms its permanent commitment not to acquire nuclear weapons in a legally binding way and confirms continuation of the comprehensive inspection regime of its nuclear facilities through the IAEA;
• An investigation and report by the OPCW and experts on biological technologies on chemical and biological weapons allegations, and a reaffirmation of Ukrainian commitment never to acquire such weapons; 
• As Russia withdraws from Ukraine, some of the recent NATO deployments Eastwards since January 2022 may be reversed;
• Undertakings to accelerate talks on mutual balanced force reductions, taking due account of the security interests of all states;
• An obligation to negotiate towards this end, or even a pactum ad contrahendum, also addressing transparency and confidence building, can be contemplated;
• No withdrawal of US nuclear weapons from Europe as part of the settlement; 
• Willingness to return to inter-mediate range arms limitations, also addressing the consequences of missile defences, the question of participation beyond Russia and the US, and the treatment of SSC-8, SS-25 and RS 26;
• Possible consideration of limitations of tactical nuclear weapons.

7. Cooperative European Security Architecture

• The above undertakings may flow into discussions, or formal negotiations, about a Cooperative European Security Architecture based on safety and security for, and sovereign equality of, all;
• However, it is clear that such a Cooperative European Security Architecture will respect the full integrity of the nuclear unbrella on which NATO is based (no de-coupling of Europe from the US) and will not expose members of NATO that joined after 27 May 1997 to security threats;
• The security of states in Eastern Europe that may not wish to join NATO in the mid-term (say, Ukraine, Georgia, Moldova) will be guaranteed and assured through the Cooperative European Security Architecture and other steps;
• Disengagement of forces between East and West can be negotiated in support of the Cooperative European Security Architecture will be mutual and balanced. Reduction of forces, where agreed, will be permanent and meaningful, supported by transparency, placing of heavy weapons covered by the agreement beyond use, and effective verification.
• Further steps to reduce tensions, such as rules of the road for military flights towards national borders, previous announcements of military manoeuvres, their observation, and limitations on numbers of forces and weaponry and their location, will be discussed.
• The Cooperative European Security Architecture can draw on existing institutions and arrangements where they suit the purpose, including in particular the OSCE and other arms limitation and confidence-building formats.
• A time-frame for the discussions under this and the previous headings may be agreed.

8. Other Matters

• No exclusion of individual criminal responsibility;
• Significant commitments to rehabilitation and reconstruction from within Europe and other states and regional and global financial institutions;
• Review of language and cultural rights (cultural autonomy for Russian speakers) throughout Ukraine in line with best practice in Europe to be conducted by the Venice Commission of the Council of Europe and a commitment to implement its recommendations in Ukrainian legislation;
• Significant support for the re-building of cultural and other ties between Russia and Ukraine;
• Graduated lifting of aspects of sanctions as implementation of the settlement progresses;
• A settlement will consist of several layers, ranging from Ukrainian-Russian undertakings, to commitments by a broader range of states, and those of supporting governments and international institutions;
• A settlement will be endorsed and adopted by the UN Security Council acting under Chapter VII.