Crimea: Key to Ending War in Ukraine

Crimea: Key to Ending War in Ukraine

[John Quigley was appointed in 1994 by the US Department of State and the Conference on Security and Co-operation in Europe (predecessor to the Organization for Security and Co-operation in Europe) as an independent legal expert to recommend solutions for the status of Crimea and to promote reconciliation between the authorities in Kiev and Simferopol.]

Russia’s failure to achieve a quick military victory in Ukraine opens the prospect of a negotiated settlement. The military posture is key to whether Russia may look for an exit ramp, but Ukraine’s resistance may incline Russia in that direction. A negotiated settlement could come more quickly if Russia were able to withdraw claiming that its “special military operation” had achieved the aims Russia set for it.

Ukraine’s future relations with NATO is one issue on which Russia could claim victory. Ukraine President Volodomyr Zelenskyy has already indicated that Ukraine may back off from seeking NATO membership. Russia’s aim of “de-Nazification” is another. Mariupol has been defended by the Azov Battalion, a component of the Ukrainian army that sprang up in 2014 that flaunts Nazi symbols.

In recent days, Russian President Vladimir Putin has dialed back his aims. Instead of aiming at some overall change in Ukraine, he appears to be focusing on the protection of Russian speakers in the Donbas and Crimea. Russian officials say they are shifting military efforts to the Donbas.

This shift opens a path to a negotiated Russian withdrawal. The situation of the Donbas was to be resolved under the 2014 Minsk agreement that called for autonomy for the Donetsk and Luhansk regions. If Ukraine were to agree to re-open the Minsk talks and to make concessions on autonomy, President Putin could claim victory even without occupying the Donbas.

The Crimea issue could also be resolved. Russia demands that Ukraine accept the 2014 merger of Crimea into the Russian state. Ukraine insists that Crimea is part of its territory, a position broadly backed by the international community, which regards Russia as having violated Ukraine’s sovereignty.

Painful as it might be for Ukraine, its acceptance of the merger could be the step that could end Russia’s assault. Ukraine has already lost Crimea and is unlikely to regain it under any scenario. Acquiescence would be a recognition of the inevitable. Russia is unlikely to relinquish Crimea. Ukraine might not have to forego its claim in principle. It could say that it considers Crimea to be part of its territory, but that it will not contest Russia’s claim.

The possibility that Ukraine could take this stance is not so remote as one might think from press coverage of the Crimea issue. It is true that Crimea was territory of Ukraine. It is true that Russia incorporated it over and against the will of Ukraine, and that it did so by military means. 

At the same time, by abandoning Crimea, Ukraine would not be giving up territory that is essential to its national ethos. Historically, Crimea has had only marginal connection to Ukraine. Up until the late eighteenth century, Crimea was a caliphate, populated by Tatars and under the dominion of the Turkish Empire. After Russia took Crimea from Turkey, Crimea’s Tatar population was supplemented by migrating Russians, who eventually became its majority. Many of the Russians were connected with the port at Sevastopol, which became Russia’s prime naval port, housing its military fleet, and making Crimea key to Russia’s access through the Black Sea to the oceans of the world. Through the nineteenth century, Crimea was administered as part of the Russian Empire. Some Ukrainians to be sure migrated to Crimea, but in smaller numbers than the Russians.

Following the Bolshevik Revolution, when republics were created in what had been the Russian Empire, Crimea went to the Russian Republic, not the Ukrainian Republic. Only in 1954 was it transferred by the Soviet Government to the Ukrainian Republic, and then for reasons having little to do with its connection to Ukraine. Nikita Khrushchev, who initiated the transfer, apparently hoped that the transfer would gain him support from a Ukrainian politician. At the time, following the death of Joseph Stalin, Khrushchev was jockeying for political power. Even after the 1954 transfer, however, Ukrainians never numbered more than one-quarter of Crimea’s population. And despite the transfer, the port of Sevastopol remained under the control of Moscow.

So long as the Soviet Union existed, the Russian population of Crimea had the backing of the Russian-dominated Soviet Government, regardless of the fact that Crimea was technically in the Ukrainian Republic. Once the Soviet Union was dissolved, however, Crimea’s Russians found themselves an ethnic minority, and a minority in a country with long-standing grievances against Russia.

Territorial change resulting from the breakup of the Soviet Union was taken up by the Conference on Security and Co-operation in Europe, a preventive diplomacy organization of which the United States is a member. The situation was seen as being in need of international prevention like that at the end of World War 1, when the breakup of European empires left ethnic groups vulnerable for being minorities in states ruled by ethnicities ill disposed toward them.

The Conference on Security and Co-operation in Europe, which to then had been only a series of annual meetings, began to develop an institutional capacity to address ethnic discrimination situations that might threaten the peace.

The CSCE appointed a former Dutch foreign minister as a High Commissioner on National Minorities. He focused on preventive diplomacy  to prevent military conflict that might emerge in former Soviet territories in which substantial populations of Russians resided.

Crimea was seen as a particular source of potential conflict. It was moving to separate itself from Ukraine. An election was held for the post of president. A candidate favoring merger with Russia was elected. A referendum was called on whether Crimea should gain autonomy within Ukraine, and it passed handily. So too did a referendum  asking whether Crimeans should have the right to be dual nationals of both Ukraine and Russia.

The CSCE saw conflict brewing. It decided to dispatch a team of “experts on constitutional and economic matters to the Ukraine,” to “facilitate the dialogue between the Central Government and Crimean authorities concerning the autonomous status of the Republic of Crimea within Ukraine.” Germany, Italy, and the United States were asked to nominate the team’s members. I was asked to serve by the United States. With my German and Italian colleagues, I shuttled between Kiev and Simferopol, conferring with all relevant parties. The Tatars had a traditional leadership body called the majlis. They were focused on ensuring a level of self-rule within their community. Crimea’s political leadership – predominantly Russian in composition — chafed under Ukrainian rule. In the Crimea Parliament, I was confronted with insistent demands for separation from Ukraine, based on the principle of self-determination. Why should Crimea be under Ukraine, I was asked, when the majority of its population wanted something else. The Russians, moreover, had practical concerns. With their Soviet nationality gone, they feared that their children might not be admitted to university in Moscow.

The Ukraine government understood a need to accommodate the Russians of Crimea but was unwilling to give up too much control. The CSCE thought it might help to draw middle-level officials from the two sides into an extended discussion session so that each side could hear the point of view of the other. A neutral setting was suggested, and the Swiss Government offered to host. My colleagues and I organized a two-day session in Locarno, a session that was held in a spirit of collaboration. Ukraine was unwilling, however, to go as far as the Russians of Crimea demanded in the direction of autonomy. Just at that time, Ukraine successfully removed the Crimean president from office and brought Crimea under closer central control.

I devised a plan that I thought might satisfy both sides. My plan, written as the draft of a bilateral agreement, called for autonomy for Crimea to be guaranteed by oversight, compulsory if necessary, by the CSCE. The High Commissioner had control over what was done in the CSCE’s name, and he had no doubt that the Ukraine government would recoil at my provision for outside oversight. Even showing the draft agreement to the Ukraine government, he feared, would lead the Ukraine government to reject any further CSCE efforts. My draft agreement did not see the light of day.

Russia at the time played no role to support the Russians of Crimea. It gave no indication that it was willing to take Crimea into its territory. But as time passed, that situation changed. In 2014, the Crimean Parliament voted to separate from Ukraine and join Russia, now knowing that Russia would be receptive. Then a referendum vote was taken  – largely boycotted by Tatars and Ukrainians – for separation. That vote passed. Russia did step in. Russian military units, some already in Crimea under an agreement with Ukraine, and other non-uniformed Russian forces took over from Ukraine authorities with minimal confrontation. Crimea and Russia then agreed on a treaty to incorporate Crimea into Russia.

From the Russian standpoint, the action was a re-establishment of the historical status quo and a realization of self-determination, not the annexation of territory of a foreign state. In the long term, the peace of the region may be better served if Crimea remains with Russia. If Russia were to return Crimea to Ukraine tomorrow, a Russian government a generation or two in the future might contest the matter.

Regardless of the long-term situation, the issue of the moment is to end the bloodshed in Ukraine. The Ukrainians may be able to convince Russia to leave by their resistance alone. Short of that outcome, Russia may be willing to leave if it can do so while saving some face. Russia is more likely to withdraw sooner if it can claim that it has accomplished its goals. Crimea could be the key to ending the invasion. Even if Ukraine can hold the Russian forces back, the ongoing cost in human lives and in infrastructure is enormous. By giving up something it will not likely get back in any event, Ukraine could parlay its military successes into a Russian retreat.

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Europe, Featured, General, Public International Law, Use of Force
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Tamás Hoffmann

Dear Prof. Quigley,

I have read your post with great interest and I agree that a Ukrainian concession on the status of Crimea could probably result in a temporary agreement.

However, I’m afraid that you fail to consider the systemic implications of such a move. Even if you state that “From the Russian standpoint, the action was a re-establishment of the historical status quo and a realization of self-determination, not the annexation of territory of a foreign state.”, in reality it was exactly the latter, territorial conquest. If Ukraine – and the international community – accepted the annexation of Crimea, it would essentially obliterate the post-World War II consensus on the abolition of aggressive war. Indeed, why should Russia refrain from future acts of aggression if it could ultimately secure further territories by following the same course of action?

Yours sincerely,

Tamás Hoffmann

Anton Moiseienko
Anton Moiseienko

Quick, someone tell the Ukrainian government the war will be over if they give up Crimea!

Shocked no one thought of this before.