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.
Introduction
Both sides in the war over Ukraine still seem to expect victory. Every three to six months, the government in Kyiv keeps raising hopes for a military breakthrough. Ukraine had managed to pierce the lines of the Russian occupying forces in autumn of 2022, regaining some territory during a surprise offensive that occurred further North than had been expected. But since then, the hopes for spring offensive, then a summer offensive, and finally a repeat of the offensive of the past autumn, have not come to fruition. Given the harsh conditions of winter, presumably now is the time to start talking up the prospect of a new spring offensive.
Moscow, too, has not been able to make the advances that may have been anticipated by President Vladimir Putin and his Generals. The Russian Federation still does not control all the territories belonging to the four additional provinces, or oblasts, of Ukraine, purportedly annexed well over a year ago.
Russia continues to strike civilian targets as Ukraine gains long-range capacity
Russia is still using its ability to strike deep into Ukrainian territory, using missiles and drones. Its counter-city operations are an attempt to engender a sense of fatigued terror in the civilian population. Ukraine, too, is now slowly gaining more longer-range capacity that for some considerable time was denied to it by its Western backers. The first US-made F-16 fighter jets are reportedly nearing deployment by April, and some longer-range missiles have already been used to some effect, in particular against naval targets.
For Ukraine, this means that a different suite of advanced weapons brings hope for breaking the military stalemate this spring. But the Russian Federation, too, has had its confidence boosted, first by the delay in the release of billions of dollars of United States military and economic aid, and then by a similar crisis in the European Union, when Hungary blocked additional massive disbursements this December. Moscow has observed that Ukrainian munitions have already been consistently running low, with foreign supplies slowly becoming depleted, and an indigenous production capacity only developing slowly. Moreover, Ukraine is starting to experience a man-power shortage, having exceeded the numbers and endurance of available recruits.
West signals lack of staying power to keep supporting Ukraine
The decision to start seriously considering Ukraine for EU membership may be of long-term importance, but this can hardly overcome the immediate boost of confidence that both episodes of delayed disbursement will have provided for the Kremlin. Here are the long-awaited first signs that the ‘flabby’ West lacks the decisiveness and staying power to keep supporting Ukraine in the long run. And Moscow is definitely playing a long game, restoring or bolstering its relations with non-aligned states while doing its best to keep China on side. At the same time, the conversion of its economy to a war-time economy with increased military production is progressing.
With both sides ready to sustain the conflict, what are the chances of peace, then? Ukraine offered its own peace plan just about a year ago. Essentially it was a plan for victory. This includes a full withdrawal by the Russian Federation from all of Ukraine (including Crimea, which was already forcibly taken in 2014), effective security guarantees with Western integration, full accountability for international crimes, etc.
It is difficult to oppose a plan of this kind, as it reflects what Ukraine is entitled to in international law. Exhortations from Western governments that Kiev should be more ‘realistic’ and bargain with Russia keep falling on deaf ears. For now, any prospect of a peace deal sounds like treachery to Ukrainian ears. It would mean caving into aggression and a betrayal of those who have lost their lives in the struggle thus far.
Moreover, the Ukrainian leaders, and many Ukrainians, are entirely persuaded that any peace would not be worth the paper it would be written on. There is a clear expectation that this would only be a brief pause in the fighting, until Moscow has managed to restock its arsenal of men and munitions. Putin’s declaration at the beginning of the conflict that Ukraine has no historic entitlement to exist is still remembered. Few believe that the Russian Federation under Putin will be content with anything other than the total destruction and domination of what would remain of Ukraine. For them, only a democratic revolution in Russia would create a basis for a durable peace deal—rather an unlikely condition. Rather, the expectation among the intelligence community is that Putin is here to stay. If he is to be replaced, due to health or other events, it would most likely be an even more aggressive military clique taking over.
Russia agrees to negotiations and continues to annex
Moscow, on the other hand, has repeatedly professed itself ready to return to negotiations. But since last September, when it annexed the four partially occupied provinces, it has rather boxed itself into a corner. It is hardly conceivable that President Putin could ever ‘un-annex’ what he now claims to be part of Russia’s eternal patrimony. The Russian federal constitution, he asserts, would prohibit such an assault of Russia’s newly proclaimed, enlarged territorial integrity. Hence, a peace deal for Russia would require Ukrainian ratification of the forcible territorial change that has occurred. This is an impossible condition for both Ukraine and the West.
So, for now, the sides keep their respective faith in a military solution. On the one side, this may be the delivery of F-16s, of yet longer-range missiles or of other Wunderwaffen. On the other it may be the expectation of perhaps another military call-up or may be the exchange of personnel at the very top of the Russian military machine that may result in victory. This hope in the Kremlin that perseverance pays is now also nourished by the increasingly confident expectation that Western determination to keep supporting Ukraine will ultimately fold.
No opportunities for a settlement
Hence, there is still no market for hearing about options for a settlement among the sides. These will not be the options of the kind explored by the parties during the first few weeks of the conflict, when they very nearly came to a peace agreement in April 2022. A neutral status for Ukraine seems now far less likely, as EU and perhaps even NATO membership have been mooted by the West. Security guarantees for Ukraine would be constructed against the Russian Federation, rather than with it, as the initial design had foreseen. And placing the issue of sovereignty over Crimea and perhaps Donbas somewhat in abeyance also seems less likely, given the absolutist positions of the sides, and the further, forcible territorial acquisitions by Moscow.
If there are no opportunities for a settlement for now, and also no clear options for the substance of such a settlement, does this mean that nothing can be done? It is evident that ambitions among would-be peace-makers can at present only be fairly limited. As the well rehearsed formula goes: this conflict is not yet ripe for resolution, however tragic for the affected population. Still, the periods of hiatus while waiting for the next expected military breakthrough of the one or other side, which may or may not come, need to be constructively exploited in four ways.
First, there is a need to encourage and empower those in both states who anticipate that in the end, some form of settlement will necessarily need to come. The Russian Federation will always be the immediate neighbor of Ukraine, and relations will at some point need to be addressed. For Ukraine, where talking about future relations with Moscow remains taboo for now, this may need to be badged as ‘planning for victory,’ rather than negotiating for peace. Anything else can still hardly be countenanced. Still, it is necessary to help build a constituency of men and women willing to work towards likely scenarios for terminating this dreadful war.
Second, even while both sides may be officially reluctant to admit it, it is necessary to generate a repository of options for a settlement on all the issues that all know will need to be addressed at the end of the day. Even if the sides may not be able to do so at present, others can perform some valuable and innovative sherpa work in developing settlement options on which the sides might draw when the conflict becomes ripe for mediation. This includes the really difficult issues which seem unresolvable at present, including the future fate and status of contested territories, accountability and reparations, security guarantees that satisfy both sides, and a broader security architecture that may need to revive or replace the presently moribund OSCE system.
This process will be quite delicate. Experts and politicians on both sides are quite reluctant even to start thinking about creative options which depart from the maximalist expectations of their constituencies. This, they fear, could be taken by the other side as a sign of weakness. Moreover, at least amongst the leadership in Ukraine, there is concern that its Western supporters may cook up an unacceptable peace deal with Russia, behind their backs. Hence, even the mere development and discussion of options by outsiders, and the process of sharing them with the sides, require a great deal of sensitivity, explanation and reassurance.
The third element might also contribute to such anxieties, as it involved international affairs beyond the immediate control of both sides. A credible external coalition for peace needs to be established—an informal Contact Group of Friends of a Settlement. This needs to go beyond the West and include some non-committed international players, along with some states that have gained Moscow’s confidence. Again, informal considerations of ways out of this otherwise interminable conflict, without any commitment of the participating states to particular options or positions, might help. This could initially include a considerable element of expert discussion, drawing on experienced individuals one step removed from serving government officials.
Fourth, the present attempts to keep open channels of communication with and between both sides need to be kept up and enhanced. It will be necessary to build up some modicum of confidence that there can be a safe space for discussion, and that deals can in the end be made and kept.
