Marc Weller is General Counsel of ICDI, head of the Cambridge Initiative on International Peace Settlements and Professor of International Law and International Constitutional Studies in the University of Cambridge. He is the co-editor of International Law and Peace Settlements (Cambridge University Press, 2021), has served as Senior UN Mediation Experts and as Senior Advisor in a large number of international peace negotiations. The view expressed are his own alone.
This paper was first published on the ICDI website.
Peace is made when further fighting offers no prospect of victory for either side in a conflict. In addition, peace might be imposed by powerful external actors, such as the United Nations Security Council, if its action is backed by the major powers represented within it. In fact, the highly destructive Iran-Iraq war of the 1980s ended that way. From 1986, with the early signs of the end of the Cold War, the then Soviet Union and the United States found a common voice on the Council and threatened enforcement action against both sides unless they stopped fighting. Of course, the Security Council cannot act where one of its permanent members is a party to a conflict. Hence, Russia’s invasion of Ukraine could be denounced by members of the Council, but not by the Council itself – thus, there was no prospect of enforcement action.
Similarly, the UN General Assembly revealed broad condemnation of the invasion, by 141 states. However, it can only recommend, not enforce. Sanctions adopted by the ‘global West’ against Ukraine turned out to be relatively toothless. They were only adopted by less than a quarter of the world’s governments, lacking the universal bite of action backed by a Chapter VII resolution of the Council.
The challenges of peace in a war that both sides think they can win
If the conflict cannot be brought to an end from the outside, through coercive, third-party diplomacy, then the only option is to await the ‘ripeness’ of the dispute for a settlement, in Professor Bill Zartman’s terms. In essence this means that a settlement must offer more benefits to both sides than the continuation of the conflict. This is unlikely where both parties believe, as Russia and Ukraine have shown at each stage of the conflict thus far, that a decisive military victory or advance on the ground is just around the corner.
The government of Ukraine was buoyed by its ability to reverse Russian advances in eastern Ukraine last autumn. This has confirmed Ukraine’s view, encouraged by its Western allies, that it might prevail in the conflict in the end. As heavier Western military hardware is slowly arriving on the scene, including Challenger 2 and Leopard 2 main battle tanks, Ukraine’s hope is being re-enforced. However, even before these gains, the United Kingdom government, under then-Prime Minister Boris Johnson, encouraged Kyiv to believe that it might do more than reverse the present aggression. Ukrainian President Volodymyr Zelensky has indicated that the aim is now also to re-take territory occupied by Russia or its proxies since 2014, including Crimea.
Russia, on the other hand, has been waiting for the effects of its mobilization of 300,000 extra troops to trickle through, launching a major new offensive as the conflict enters its second year. Ukraine will remain hard pressed to defend the very long line of contact of more than 1,000 kilometres over the coming weeks. And even if there is no breakthrough, there remains the hope to break down the will of the Ukrainians to resist over time. Moscow might continue its the strategy of terrorising the population through missile strikes against civilians and civilian infrastructure while attempting to win a slow war of attrition on the ground. After all, it might conclude, its supply of manpower and relatively low-tech armament, still in Cold War storage at present in amazingly large numbers of lower tech, past generation tanks, artillery, and armoured personnel carriers, is virtually endless.
Behind the scenes negotiations that could have avoided a full-scale war
Does peace have a chance in view of these military expectations of the sides? Oddly enough, the sides almost came to a peace agreement during the very first phase of the conflict, against all expectations and experience gained from other wars. Rather than waiting for each side to be ground down in a long war, Ukraine and Russia entered into meaningful negotiations within four days of the launch of the invasion. The talks were initially held in Belarus.
Given the involvement of the leadership of President Alexander Lukasheko, who aided the invasion, Ukraine’s acceptance of Belarus as the venue was as surprising as its willingness to talk while its capital was under imminent threat of capture. From the beginning, there was some doubt as to whether the two sides would be able to settle this conflict bilaterally. After all, President Putin’s actual war aims and accompanying rhetoric seemed to be addressed at the West, and the US in particular, that is – rolling back NATO or at least halting its further expansion, as much as it was to Ukraine – removing the ‘Nazi’ leadership that he claims came to power through an ‘unconstitutional coup’ in the wake of the Maidan revolution and disarm and neutralize Ukraine.
Oddly, the initial talks did not immediately collapse into the mutual recrimination and hostile rhetoric that might have been expected. After three rounds in the initial format, conducted without any external involvement at all, they moved to Antalya and Istanbul, Turkey, respectively. By the end of March, as the vast, column of tanks and armoured personnel carriers that had been stuck on the way towards Kyiv appeared to start moving towards the capital again, and a miracle seemed to happen: a peace deal was on the table.
Ukraine and Russia’s early peace proposals
Ukraine had offered a plan for peace with Russia, consisting of 10-15 points in its various incarnations. The key idea was that Moscow would stop its advance, then still threatening Kyiv, and withdraw to lines held before 24 February. Ukraine would accept that it would never join NATO and would refrain from the acquisition of nuclear weapons. Instead, the security of Ukraine, excluding territories held by Russia since 2014, would be placed under a mainly Western-backed security guarantee and Kyiv would remain free to join the EU.
These proposals initially seemed to fail to gain traction. However, after a further round of talks in Turkey, Ukraine confirmed that it was indeed willing to consider going beyond not joining NATO and instead to enter a permanently neutral status —a key demand of the Russian Federation. Again, this was to be balanced by security guarantees.
Ukraine foresaw a fairly broad range of guarantors. These could pledge immediately to provide assistance to Ukraine in self-defence against future aggression, by sending both weapons and troops. Later it added the automatic imposition of a no-fly zone and other steps. Russia’s draft for a Treaty on the Settlement of the Situation in Ukraine and the Neutrality of Ukraine provided merely for an obligation of the guarantors to consult about appropriate steps to be taken in case of a breach of the agreement.
Oddly, from a Western perspective, both sides agreed that the Russian Federation, along with Belarus, and perhaps even China, would be part of the security guarantee mechanism. With this in mind, Russia, in a further developed draft of its mid-March proposal provided that the guarantors might take necessary measures in the face of aggression against Ukraine, based on the decision of all guarantor states. Hence, Russia would retain a veto over collective action in defense of Ukraine should it launch a further aggression in the future.
Withdrawal from Kyiv and evidence of war crimes scuppers peace deal
In Istanbul, on 29 March 2022, the sides came very close to concluding a peace deal. The principal obstacle, the question of a Russian veto over the security guarantee, could have been overcome through a compromise formula that emerged a few days later. The guarantee would operate once a majority of guarantor states, rather than all, decided to use their armed forces to protect Ukraine. At that point, Russia announced that it would withdraw its massive array of conventional forces, which had by then resumed their previously stalled move to encircle Kyiv, and instead focus its military campaign on Donbas. It presented this move as a response to the near agreement in Istanbul, although military analysts argued that Moscow had decided to abandon its campaign in Western and Central Ukraine because it was unable to sustain it. However, two critical events took place – and tragically and ironically, the Russian withdrawal from areas around Kyiv scuppered any prospect of a peace deal.
First, President Zelensky was no longer under immediate pressure to settle, as the Ukrainian capital seemed to have been saved. Moreover, the withdrawing Russian forces left behind a trail of destruction and war crimes. The discovery of 458 bodies in Bucha, many apparently tortured before being executed, including civilians, along with evidence of similarly shocking crimes elsewhere, made a settlement at that point virtually impossible. Second, then UK Prime Minister Boris Johnson made a surprise visit to Kyiv and impressed upon the Ukrainian government that the West would never participate in any security guarantee arrangement in the shape foreseen in the draft agreement. It was also inconceivable for the NATO allies to enter into any sort of arrangement of this kind that included the aggressor state, the Russian Federation.
These factors spelled the end of any genuine negotiations between the sides on a peace deal. Such a deal might have included cooperative arrangements for governance in mainly Russian inhabited areas of Luhansk and Donetsk (i.e., those areas beyond Ukrainian control as of 23 February 2022). While not giving in to Russia’s demand that Ukraine would have to positively recognize Crimea as part of the Russian Federation, it could have agreed to a de facto regime based on the exercise of effective control by Moscow over the area. There would have been assurances on transport and communication links, and on fresh water supplies and electricity. All this has been, however, wiped off the table since early April 2022. While progress was made on sectoral issues, such as grain exports and exchange of prisoners of war, there has been no prospect for significant political negotiations. Instead, Ukraine has been negotiating with the West, not with Russia.
Security guarantees a point of contention
The tensions in these negotiations with Ukraine’s Western partners were around the security guarantees. Ukraine has demanded that key NATO states would conclude legally binding arrangements, providing for automatic assistance in case of renewed aggression, following Article 5 of the NATO treaty. That arrangement would be ratified by the national parliaments of the participating states. This wish proved entirely illusory. If NATO states were unwilling to support Ukraine through direct intervention in the present conflict, the same would apply in relation to any future conflict. In view of the risks of a direct armed confrontation between NATO states and the Russian Federation, an automatic obligation to intervene was simply not possible. Moreover, even Article 5 of the NATO treaty does not in fact provide such an automatic obligation of all-out participation in a future conflict.
Similarly, a binding treaty, subject even to parliamentary ratification, was out of the question. Over the past decades the US has been unable to conclude any significant international agreements on sensitive issues given the need for Senate advice and consent, and instead has had to resort to lower-level executive arrangements or even lesser instruments. An example is the Iran-Nuclear deal (the Joint Comprehensive Plan of Action or JCPOA), which was deliberately a non-legal instrument. The US would never have been able to conclude a binding treaty on the subject. Indeed, even that non-binding instrument was later disowned by the US government. When this became clear, Ukraine stormed out of the negotiations with its Western partners, rather appearing to bite the very hand that was feeding its defensive efforts. Instead, it appointed an international blue-ribbon commission under the chair of former Danish prime minister and former NATO Secretary-General Anders Fogh Rasmussen and Ukrainian National Security Chief Andreii Yermak. In rather a face-saving way, the report of the commission issued in September 2022 devised a scheme of security guarantees that would leave it to Ukraine to provide the fighting force for its future defence, while Western partners would commit to building up that force and to sustain it over the long term, along with the threat of the immediate re-imposition of sanctions in case of further aggression. The proposed arrangement was termed a ‘compact’ rather than a treaty, leaving its legal character somewhat open.
Zelensky proposes his own peace plan
By that time, on the occasion of the annual high-level opening of the new session of the UN General Assembly, President Zelensky presented what he termed his own peace plan. The plan foresaw a complete Russian withdrawal, Western hard security guarantees, massive Russian compensation, and accountability for war crimes for its leaders and soldiers alike. Similarly uncompromising, at the end of the month, President Putin solemnly admitted the Ukrainian provinces of Donetsk, Kherson, Luhansk, and Zaporizhzhia into the Russian Federation. At the time, Russia did not actually control all this territory supposedly annexed by Russia. The UN General Assembly overwhelmingly rejected the purported annexation.
From that point onwards, Russia would argue that it would never give up ‘its own’ territory and defend it against foreign ‘aggression.’ Hence, the condition for a deal, a Russian withdrawal to the lines held on 23 February, 2023, seems to have been rendered impossible to fulfil. Ukraine, too, developed its increasingly assertive demands, reiterating them in November in the form of conditions to be fulfilled before negotiations might commence again.
As before, by the first anniversary of the conflict, on 24 February, 2023, both sides appeared to be looking for a major strategic breakthrough by way of military means, with a major Russian offensive taking place, and preparations for a Ukrainian counter-offensive on the way. However, one important signal was sent on the very day of the anniversary from an unexpected quarter.
Could China offer a solution?
The government of the People’s Republic of China, which had promised limitless friendship with Russia just before, and also during, the conflict, published its own peace initiative. That document set some limits on Moscow’s future conduct. It ruled out any nuclear escalation as entirely unacceptable and sought to emphasize the need of the sides (mainly Moscow in effect) to come into compliance with humanitarian law. While it recognized that the security needs of all need to be taken into account (again, mainly Moscow), it urged rapid progress towards a settlement. In that context it emphasized the prohibition of the acquisition of the use of force and the protection of territorial integrity and sovereignty in international law. This might be seen as a denial of claim to forcible annexation put forward by Russia.
While this initiative has been seen as meaningless by many Western observers, giving its formulaic character, Ukrainian President Zelensky has wisely offered to engage with it. From the beginning it has been clear that China may, in the end, hold the key to the termination of this conflict.
This impression was confirmed when President Putin received his Chinese counterpart, President Xi Jinping, on a significant state visit in Moscow. In fact, this trip was deliberately billed as President Xi’s first foreign foray since his re-election to office. Much was made of the deep and lasting friendship of both states, and ever-increasing and deepening cooperation. However, there were also other signals. In their final declaration, it was noted that the lengthy discussions among both presidents had been what has been variously translated as ‘in-depth and candid’ and ‘fruitful and frank.’
The terms ‘candid’ and ‘frank’ might give pause for those who have rushed to criticize China for providing diplomatic and economic cover to the Russian Federation. In diplo-speak, these terms are used to communicate serious disagreement between the sides — a disagreement that was openly expressed.
China’s future world order
During the visit, China laid out its vision for the future world order. Rather than relying on the Western-liberal vision of a rules-based system oriented towards human rights and democracy, it would be a ‘United Nations-centered’ system. By that, President Xi may be taken to mean the traditional elements of a classical, sovereignty-based state system, characterized by the doctrine of non-intervention in the internal affairs of states, be it in relation to their democratic practices or human rights performance (or lack thereof).
According to President Xi, China would act as the new guardian of this system, resolutely defending the ‘world order based on international law.’ This vision was consistent with the China’s 12-point peace-plan for Ukraine. Point one of the plan noted that the principles of the United Nations Charter ‘must be strictly observed.’ The text continued: ‘The sovereignty, independence and territorial integrity of all countries must be effectively upheld.’
Evidently, this key requirement is not consistent with the purported forcible annexation of a significant portion of the territory of Ukraine by the Russian Federation. Hence, the Ukrainian adventure of President Putin poses a significant challenge to the United Nations-centered, sovereigntist vision of the world over which China wants to stand guard as a new, globally leading power.
Yet, at the same time, the crisis over Ukraine presents China with the opportunity to demonstrate the ability to deliver this leadership, even if it means pressing the Russian Federation into accepting painful concessions.
The Russian Federation praised the Chinese peace plan, but noted at the summit that Ukraine and the West were not yet ready to engage on it. When that time comes, though, it is clear that China will have a key role to play in brokering an end to the war. Ignoring China and instead condemning it for having failed to oppose the Russian Federation may prove somewhat short-sighted.