By Tapio Kanninen, April 19, 2024
Guest article in the Finnish on-line law journal and legal service platform “Edilex”(translated from Finnish with the help of QuillPot, AI-assisted program)
There has not been much public discussion or written articles about a negotiated solution to the war in Ukraine. However, the UN Charter provides several methods for peaceful settlement of disputes between states and in fact these methods should be used before any dangerous conflict escalates into full-scale war, various sanctions regimes, and even the threat of nuclear war. Research on how these methods have been used in the Ukraine war provides a new overall understanding of the attempts to prevent the war in the first place and the extent to which the international community did try undertaking, or should have undertaken, serious efforts to mediate once the war had already started. In this particular case, the danger of nuclear war is always present when superpowers are directly – as Russia is – or indirectly – as the U.S. and its allies are – parties to a war in Europe which has been the battlefield for devastating world wars.
Chapter VI of the UN Charter is called ‘Pacific Settlement of Disputes.’ Its first article, 33.1, reads as follows:
‘Each party to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’
In 1992, the UN Legal Office published ‘Handbook on the Peaceful Settlement of Disputes between States’ (United Nations, 1992). From its table of contents, we see that the means of settlement are divided into these parts:
A. Negotiation and consultation
B. Inquiry
C. Good offices
D. Mediation
E. Conciliation
F. Arbitration
G. Judicial settlement
H. Resort to regional agencies or arrangements
I. Other peaceful means.
Below, I will examine whether these peaceful means were used to resolve the Russian-Ukrainian war, and if not why.
A. Negotiations to resolve the war in Ukraine
Before the war began, it was known that the West and Russia had completely different views on Ukraine’s political, strategic, and military importance to Russia. At the end of the Cold War, the United States and other Western countries still regarded Russia as a military threat, which was why NATO had begun to expand since the 1990s and the long-term objective of Ukraine’s accession to NATO was also agreed by the members of the alliance. Russia, on the other hand, had systematically opposed NATO’s enlargement and had made clear that Ukraine’s eventual membership in NATO would be a “red line”, and if that line is crossed it would have serious consequences.
Some respected U.S. foreign policy experts — such as the chief architect of the containment policy and Marshall Aid, Georg Kennan — also viewed NATO’s expansion as a fundamental mistake as they thought it would start a new Cold War. Kennan even called NATO expansion “a strategic blunder of possible epic proportions” (Talbott, 2002). Similarly, minority opinion in the West has regarded NATO’s threat of enlargement into Ukraine as the real cause of Russia’s aggression in 2022. But also, NATO Secretary-General Jens Stoltenberg said the same in his speech to the European Parliament on September 7, 2023, “So he [President Putin] went to war to prevent NATO, more NATO, close to his borders. He has the exact opposite. He has got more NATO presence in the eastern part of the Alliance…” (Stoltenberg, 2023).
To highlight the importance of spheres of influence concept (“red lines”) to the superpowers, we can take the Cuban nuclear crisis as a comparison to the onset of the Ukraine war. President Kennedy had already in his presidential campaign strongly warned about the possibility that the Soviet Union would infiltrate into the Western Hemisphere through Cuba. According to Monroe Doctrine the United States regarded Cuba as part of its sphere of influence and within its strategic national interests. When the Soviet Union brought nuclear missiles to Cuba and did not withdraw them at the beginning of the crisis, Kennedy threatened with a military response that, if expanded, would most likely lead to a nuclear war. Ukraine, on the other hand, has been a vital area of strategic interest to Russia due to the military importance of the Black Sea. This fact is not widely recognized in the West.
The mainstream view among NATO members is that Russia is an imperialist nation and no longer a superpower. Russia is, however, still a military threat to the West that must be resolutely addressed. Negotiations are not needed, and NATO’s deterrence must instead be strengthened, including expansion of its membership. In addition to the military threat, several Western politicians stress that Russia is a morally corrupt evil empire – especially because of President Vladimir Putin’s increased autocratic leadership that had created dictatorship in Russia. Therefore, it is impossible to negotiate with him.
The Ukrainian war’s beginning may be seen as stemming from the events of early 2014 – the Maidan Revolution in Ukraine and the Russian occupation of Crimea. Immediately after these events, Henry Kissinger, in his opinion article in the Washington Post, saw the conflict severely escalating if the parties to it – the West and the East, as well as Ukraine and Russia – cannot address its underlining facts, its root causes. Addressing them would be the only way to prevent a greater catastrophe (Kissinger, 2014). His proposals as the principles for a negotiated solution were as follows:
1. Ukraine should be able to choose its economic and political alliances according to its wishes.
2. Regarding the military alliance, Ukraine should not join NATO.
3. Ukraine should form a government that heeds the preferences of the residents of both the Eastern and Western regions of the country and, internationally, it should follow the model of the Finnish policy of non-alliance and neutrality, in force at that time.
4. Crimea should remain part of Ukraine, but its autonomy should be guaranteed through a referendum monitored by international observers, and the status of the Russian naval base in Sevastopol should be clarified.
Negotiations between Ukraine and Russia took place between 2014 and 2015 in Minsk, Belarus, with France, Germany and the Organization for Security and Cooperation in Europe (OSCE) as intermediaries. The United States and the United Nations were not official parties to the negotiations, nor were Kissinger’s broader principles for resolving the root causes of the conflict any subject of negotiations. The talks concerned only the territory of Donbas and the end of the prevailing war in which both Ukraine and Russia were parties. However, the Minsk I and II agreements that resulted from the negotiation process failed to prevent the continuation of the Donbas war.
Just before the start of the larger war in December 2021, Russia presented a negotiating offer both to NATO and the United States which included, among other things, giving up NATO’s goal of Ukraine becoming a member. The United States and NATO rejected the proposal. Steven Pifer of the Brookings Institute, however, believed that some of Russia’s proposals could well have been negotiated with the U.S. and NATO, some would have been difficult to accept as negotiable items but still possible for negotiations, and some would have been nonstarters to the West (Pifen, 2021). But there was no desire for negotiations in the West at that point of time (Stoltenberg, 2023 and Kanninen & Patomäki, 2023).
The main talks during the war were held in February 2022 in Belarus, and later in March-April 2022 in Turkey under President Erdogan. Fiona Hill and Angela Stent stated in Foreign Affairs that the preliminary agreement between Ukrainian and Russian negotiators had already been reached. Ukraine would no longer seek membership in NATO but would receive security guarantees from several countries. Russia would on its part agree to withdraw to the military situation of 23 February 2022, that is, outside Ukraine’s borders (Hill & Stent, 2022). Ukrainian pro-government newspaper Ukrainska Pravda explained why the negotiations collapsed (Balachuk & Romaniuk, 2022). In early April, British Prime Minister Boris Johnson made a surprise visit to Kiev and told President Zelensky that 1) Ukraine should not negotiate with a war criminal, President Putin and that 2) the West would not support a negotiated solution, as Russia is militarily weaker than the West expected. Negotiations ended shortly after this visit and serious negotiations have not since begun.
B. Inquiry in the War in Ukraine
Inquiry or fact-finding has not yet been officially used to resolve the war. However, in April 2023, 155 former U.N. officials proposed in a letter to the United Nations Secretary-General that he would appoint, or request the General Assembly to appoint, a Commission of Experts to collect information from all parties to the conflict as this would be useful for resolving the war (FOGGS, 26 April 2023). Likewise, in June 2023 in an article entitled “Peace Prospects in Ukraine” Tapio Kanninen proposed that the UN General Assembly could ask the Secretary-General to embark to a fact-finding mission to the crisis area and the capitals of the countries concerned and to explore how various methods the UN customarily uses for a peaceful resolution of a conflict – peacekeeping operations, temporary governance administrations and peacebuilding – could be applied in Ukraine. The Secretary-General would report on the outcomes of his trip to the General Assembly and the Security Council. This turn of events might create momentum for the international community to consider UN’s traditional methods of bringing peace in Ukraine more seriously than is now the case (Kanninen, 2013).
C. and D. Good offices and mediation
“Good offices” could be discussed as its own chapter in this study. This method of peaceful resolution of disputes is less formal than traditional mediation. The mediation activities of President Martti Ahtisaari, for which he was awarded the Nobel Peace Prize, might well belong to this category. However, as good offices and mediation are linked in many ways, it is easier to deal with them together in the same chapter.
Before the Russian invasion, French President Emmanuel Macron tried to prevent the outbreak of the war with his talks and visits to Moscow. These efforts did not produce results. But the negotiations initiated by Israeli Prime Minister Naftali Bennett with both President Putin and President Zelensky, starting already before the invasion, and especially immediately after it, were close to yielding results. Bennett himself considered a 50% success rate during the negotiations but said in a long interview in January 2023 that the West did block his proposed solution to the war (Losonczi, 7 February 2023; in the article there is a video link to the interview with English subtitles).
Bennett’s idea was to reach a ceasefire, which both Putin and Zelensky had agreed to. Bennett coordinated his mediation process with President Biden, President Macron, Chancellor Scholtz and Prime Minister Johnson. Macron and Scholtz were positive about the negotiations, Johnson on the side of the continuation of the aggressive policy of the West (i.e. supporting the war efforts), and Biden in the middle, i.e. supporting both approaches. Bennett was disappointed that the West did not support his proposal, but later said that it may be that continuing the war was indeed the best option.
Traditionally, the Secretary-General of the United Nations offers himself as a mediator to resolve wars and conflicts or appoints a special envoy for mediation. Furthermore, the Secretary-General does not traditionally strongly condemn either of the parties, as if this were the case he is unlikely to be accepted as a mediator. At the start of the war, however, Antonio Guterres did not take any initiatives regarding his potential mediation mission, nor did he appoint a special envoy for the task and made statements condemning the Russian invasion as clearly a serious breach of the UN Charter [1]. But although the Charter of the United Nations has been violated several times over the decades by great powers or other states, it has not prevented several previous Secretaries-General from presenting peace proposals and actively taking initiatives for mediation efforts. As the war continued, Antonio Guterres was increasingly criticized for passivity.
In addition to other critics, former UN officials decided to take a new initiative and sent a letter to the Secretary-General on15 April 2022 asking him to start necessary mediation to end the war. A total of 283 former UN officials, including several former Under- and Assistant Secretaries-General, signed the letter (FOGGS, 15 April 2022). Two days later, Guterres traveled to Moscow and Kiev for talks with Putin, Zelensky and other heads of state. There were no results from this mediation attempt, however.
Countries outside the West have also submitted peace plans. On February 24, 2023, China submitted a twelve-point proposal to end the war in Ukraine, including a ceasefire, the observance of the rules of the war, the waiver of sanctions, the opening of peace negotiations and the prohibition from using nuclear weapons. The proposal has been criticized in the West as too general and even Russian-minded.
Former Defense Minister of Indonesia who won his country’s February 2024 presidential election, General Prabowo Subianto, proposed the following at the Shangri-La Dialogue Conference in Singapore in June 2023:
– Establishment of a demilitarized zone in Ukraine.
– The United Nations should monitor the zone and hold elections (referendum) in the disputed areas in Ukraine.
This proposal was also criticized by Western security experts. It remains to be seen how the new Indonesian president intends to campaign for his proposal in the future, including at the UN, and whether he will get behind the proposal any other developing countries or even some in the West.
E. Conciliation
The English term “conciliation” generally refers to the Conciliation Commissions which use both the investigative procedure and mediation to resolve conflicts. In the war in Ukraine, this method has not been used.
However, a proposal to use the method has been submitted to the UN. In a letter to the Secretary-General on 26 April 2023, 155 former UN officials proposed that the Secretary-General should ask the General Assembly to appoint a Mixed Armistice Commission, consisting of representatives from Russia and Ukraine and headed by a special envoy of the General-Secretary. The Commission would prepare a ceasefire agreement and be assisted by a separate panel of experts on the investigation procedure. However, the Secretary-General has not taken any such initiative neither responded to the letter.
F. Arbitration
In 1899, the Hague Peace Conference established the Permanent Court of Arbitration. In arbitration proceedings, the parties to the conflict agree to settle their dispute in accordance with international law and may themselves appoint judges who will give their evaluation on the dispute and its fair settlement. The resolution brought by this method is binding to both parties to the conflict. Arbitration may also be conducted in the other forums than the Permanent Court of Arbitration, including in secret proceedings that could increase the confidence of the parties in the method. Nevertheless, this procedure has not been used in the settlement of the war in Ukraine.
G. Judicial settlement
Ukraine filed charges before the International Court of Justice on 27 February 2022 accusing Russia of manipulating the concept of genocide to justify its military aggression against Ukraine. On March 16, 2022, the court ruled that Russia must immediately stop its military operations. However, the verdict was not unanimous, with 13 judges for and two against. The judges appointed by Russia and China disagreed. It should also be noted that, at this point, the Court’s decision is only a provisional order (or protection order) although it is still 100% binding.
The press release issued at the time by the United Nations said that while the verdict is binding news reports questioned whether Russia intends to accept and implement it because the Court has no direct methods to enforce its verdicts. Russia has not indeed complied with the Court’s decision. However, Ukraine has continued its proceedings in the Court and the main trial of the indictment is still ahead.
The second indictment procedure has taken place at the International Criminal Court. On February 28, 2022, the prosecutor of the Court announced that he was seeking permission to initiate investigations on the agenda item “Situation in Ukraine”. On March 2, 2022, the prosecutor officially opened an investigation into war crimes, crimes against humanity and genocide in the territory of Ukraine. The prosecutor stated that 39 states had supported the initiation of the investigation (“sent referrals to ICC”), including Finland. The Court announced the charges and arrest warrants against President Putin and the Russian Commissioner for the Rights of the Child Maria Alekseevna Lvovo-Belova on March 17, 2023. According to the Court, it is reasonable to assume that both suspects are responsible for the illegal removal of Ukrainian children from Ukraine to the Russian territory. A possible consequence of the arrest warrant has been that President Putin has not participated in person, for example, in the UN General Assembly High-Level Debates or the G-20 meetings.
H. Resort to regional agencies and agreements
Regional organizations in Europe include the European Union, the Organization for Security and Cooperation in Europe (OSCE), NATO and the Council of Europe. Ukraine is a member of the Council of Europe and the OSCE. Russia is only a member of the OSCE. None of these regional bodies have been used for a peaceful settlement of the conflict in a sense that both sides are involved in negotiations. On the contrary, European regional agencies have been used to condemn Russia, to impose sanctions against Russia, and they are also giving a wide-range support to Ukraine’s war efforts.
The European Union has strongly condemned the Russian invasion, imposed several sanctions and trade restrictions on Russia, and it supports Ukraine’s 10-point peace plan including a peace conference. Both have been rejected by Russia. The Union’s support for Ukraine is divided into 1) financial assistance, 2) humanitarian assistance, 3) civil protection assistance, 4) support for the Ukrainian armed forces, 5) refugee reception, 6) investigation and prosecution of war criminals, 7) protection of children and 8) peace, recovery, and reconstruction.
The Council of Europe has strongly condemned the Russian invasion. On March 16, 2022, its Council of Ministers decided immediately to cancel Russia’s membership in the Organization.
The OSCE has been in crisis since the Russian occupation. Several member states would like to separate Russia from the Organization, but since the OSCE operates on the principle of consensus, it is not possible. In any case, the Organization’s Secretary-General and a large majority of its Parliament members have condemned the war launched by Russia and taken several activities to assist Ukraine, including in the investigation of war crimes. On the other hand, Russia did block the election of the new Secretary-General and the approval of the budget.
As mentioned above, Russia submitted a negotiating offer to NATO in December 2021, but the Organization rejected the proposal. NATO has strongly condemned the Russian invasion and supported Ukraine in numerous ways including by coordinating aid to the country and by aligning Soviet-era Ukrainian military equipment standards, training, and combat lessons with NATO standards. NATO has also established a NATO-Ukraine Council to improve political relations. In a broader geopolitical sense, NATO has also expanded after Finland and Sweden joined the Organization, and at the Vilnius Summit in July 2023 NATO confirmed the earlier goal that Ukraine should join the Organization once necessary conditions were met. This longer-term objective has been, as mentioned above, a “red line” for the Russian leadership.
Conclusions
In accepting the Charter of the United Nations Member States are obliged to observe its methods of peaceful mediation, as the Charter say, “first of all”, when an international dispute is likely to endanger the maintenance of international peace and security. Article 51, however, states that a Member State has an inherent right for individual or collective self-defense. As the results of this study show the West, the Western Defense Alliance NATO, and other European regional organizations, as well as the Western-minded Secretary-General of the United Nations (former Prime Minister of Portugal) have mainly supported individual and collective self-defense of Ukraine under Article 51 but have largely neglected the mediation and other peaceful methods of conflict prevention and settlement under Chapter VI, especially after the first months of the war. Only the mediation efforts of Macron, Erdogan, and Bennett before and immediately after the war have been in line with Chapter VI of the Charter but at the same time some of the Western leaders, and in particular Prime Minister Boris Johnson, have worked to torpedo any peaceful negotiating solution for geopolitical reasons.
The judicial settlement is also in accordance with Chapter VI of the Charter. On the other hand, it may be questioned whether initiating the court proceedings have been an appropriate way to contribute to the peaceful settlement of the war when, for example, under the threat of an arrest warrant from the International Criminal Court, President Putin cannot attend the annual General Assembly High-Level sessions of the UN nor the meetings of the G20 where initial mediation talks in person or otherwise could be advanced.
From the broader perspective of the theory and practice of mediation, it seems that as the war has continued, the non-war parties – the U.S., the UK, France and the EU at the forefront – have seized the settlement efforts from the two main parties of the war who have become followers to external geopolitical forces and no longer willing to mediate as they did in the early months of the war. The main question now is who wins militarily and not how to settle for peace. The resolutions to end the war from the West has so far focused only on proposals on more punishment, military aid, and sanctions. Instead of mediation, more arms will flow to Ukraine and there is an effort going on to isolate Russia completely. In developing countries outside of the West, however, the war is viewed differently, and there is still a desire in the global South to seek peace and reconciliation in Ukraine.
Why then the search for a peaceful and mediated solution to the war continues to be crucially important. The New York Times’ respected veteran reporter David E. Sanger, in an article published on 9 March 2024, stated that the nuclear Armageddon — the threat of using first tactical nuclear weapons by Russia and then the war’s expansion into a global nuclear war — was much closer in October 2022 than is widely known. Through Ukrainian very successful military advances in the battlefield at that time, the scenario of their further breakthrough towards the Crimean Peninsula, Russia’s main strategic interest, seemed quite possible, and in this situation according to the CIA’s estimate, the likelihood of Russia using nuclear weapons rose to more than 50 percent or even more. For his article, Sanger interviewed political and military leaders of NATO countries over 18 months [2]. As the war continues at the time of this writing, the danger of nuclear war still exists and can increase considerably if the conflict expands.
Unfortunately, proposals for a peaceful negotiated solution to the war have been rare. However, in December 2022, A. Dirk Moses and Jessie Barnes Hronesova published an article exploring how the UN’s temporary administration model could be used to resolve the Ukraine-Russia war (Moses & Hronesova, 2022). Similarly, Tapio Kanninen and Heikki Patomäki suggested in January 2013 article in Le Monde Diplomatique that the United Nations’ long-standing experience in peace negotiations, peacekeeping forces, the establishment of demilitarized zones, the organization of elections, the reconstruction, the interim administration of the UN and other means of the Organization to build peace could be used to resolve the war. In particular, they highlighted the very successful experience of the UN in East Timor (Kanninen & Patomäki, 2013).
It is interesting that – as mentioned earlier in section C.-D. – the new president of Indonesia, General Prabowo Subianto, while still a defense minister at the Shangri-La Dialogue Conference in Singapore in June 2023, proposed a ceasefire and a demilitarized zone in Ukraine and that the UN should monitor the zone and hold elections in the disputed areas in Ukraine.
We remember that Indonesia conquered East Timor and occupied the country between years 1975 and 1999. General Subianto himself had a much-criticized role during the military rule. But on the other hand, he may now see more clearly than others the possibility of the UN’s neutral role in the settlement of the war in Ukraine – at least to some extent under the same difficult circumstances as he himself witnessed as Indonesia conquered East Timor – and when Indonesia was searching for a way out of the occupation to secure a lasting peace.
[1] After the International Court of Justice ruled on March 16, 2022, that Russia should immediately withdraw from Ukraine, the Secretary-General tweeted that the decision supports his several petitions for peace. But the ruling was not unanimous when Russian and Chinese judges opposed the decision.
[2] Sanger explains further: “This account of what happened in those October days — as it happened, just before the 60th anniversary of the Cuban Missile Crisis, the closest the United States and the Soviet Union ever came to a nuclear exchange in the Cold War — was reconstructed in interviews I conducted over the past 18 months with administration officials, diplomats, leaders of NATO nations and military officials who recounted the depth of their fear in those weeks.”
Tapio Kanninen, PhD, New York
Project Leader on Major Wars
Ralph Bunche Institute for International Studies/CUNY Graduate Center
Former Head of Policy Planning at the UN Department of Political Affairs
Editor: Jani Surakka, Edilex (jani.surakka@edita.fi)
Sources:
Balachuk, Ilyna and Romaniuk, Roman. Possibility of talks between Zelensky and Putin came to a halt after Johnson’s visit, Ukrainska Pravda, 5 May 2022 https://www.pravda.com.ua/eng/news/2022/05/5/7344206/
FOGGS, 26 April 2023. https://www.foggs.org/wp-content/uploads/2023/06/Letter-to-UNSG-on-Ukraine-with-signatures-of-former-UN-staff-with-Addendum-April2023.pdf
FOGGS, 15 April 2022. https://www.foggs.org/wp-content/uploads/2023/06/Letter-to-UNSG-on-Ukraine-with-signatures-of-former-UN-staff- with-Addendum-April2022.pdf
Hill, Fiona and Stent Angela. 2022. The World Putin Wants. How Distortions About the Past Feed Delusions About the Future, Foreign Affairs, September-October 2022
Kissinger, Henry. 5 March 2014. How the Ukraine crisis ends. The Washington Post
Losonzi, Marton. 7 February of 2023. Russia-Ukraine Peace was blocked by Western Powers, former Israeli Prime Minister claims. The Hungarian Conservative
Kanninen, Tapio & Patomäki Heikki. Towards a Negotiated Peace in Ukraine, Giving Peace a Chance, Le Monde Diplomatique, January 2023
Kanninen, Tapio. Peace Prospects in Ukraine, in “An Enhanced Role for the United Nations in Peace & Human Security”, Peacemaking Reflection Group of Former UN System Staff (PRG) and the Foundation for Global Sustainability and Security
Moses, Dirk A. & Hronesova, Jessie Barton. 5 December 2022. A diplomatic option to end endless war in Ukraine, Noame Magazine
Pifer, Steven. 2012. Russia’s Draft Agreements with NATO and the United States: Intended for Rejection? December 21, 2022, Brookings Institute https://www.brookings.edu/articles/russia-draft-agreements-with-nato-and-the-united-states-intended-for-rejection/.
Talbott, Strobe,2012. The Russia Hand: A Memoir of Presidential Diplomacy, New York: Random House
Sanger, David E., Biden’s Armageddon Moment: When Nuclear Detonation Seemed Possible in Ukraine. New York Times, 9 March 2024 https://www.nytimes.com/2024/03/09/us/politics/biden-nuclear-Russia-Ukraine.html?smid=nytcore-ios-share&referringSource=articleShare
Stoltenberg, Jens, 7 September, 2023. Opening remarks by NATO Secretary-General Jens Stoltenberg at the joint meeting of the European Parliament’s Committee on Foreign Affairs (AFET) and the Subcommittee on Security and Defense (SEDE) followed by an exchange of views with Members of the EU, NATO website: https://www.nato.int/cps/en/natohq/opinions_218172.htm
United Nations.1992. Handbook on the Peaceful Settlement of Disputes between States, https://legal.un.org/cod/books/HandbookOnPSD.pdf, New York