Legitimate self-defense and the quest for a just and lasting peace are not contradictory
Negotiation proposal by Professor Dr. Peter Brandt, Professor Dr. Hajo Funke, General (ret.) Harald Kujat and Professor Dr. h. c. Horst Teltschik
Since the beginning of the Russian war of aggression on 24 February 2022, Ukraine has been waging a legitimate war of defense in which its survival as a state, its national independence and security are at stake. This statement is true regardless of the democratic and rule of law situation and constitutional reality and also regardless of the war’s much more complicated antecedents and its equally complicated global political backdrop.
However, the legitimacy of armed self-defense on the basis of Article 51 of the UN Charter does not release the government in Kyiv, and the states supporting it, from the obligation – not least vis-à-vis its own people – to exercise restraint, not to overreact by increasing violence and destruction and to promote a political settlement on the basis of a just and lasting peace. Even during the war – and especially during it – constant efforts to achieve a diplomatic solution must not let up.
This applies just as much to those states indirectly involved, including the Federal Republic of Germany, which is particularly obliged by the peace imperative of its Constitution. Moreover, on 2 March 2022, a few days after the start of the Russian attack, the Federal Government agreed to a resolution1 tabled by Ukraine and adopted by the United Nations General Assembly, calling for a “peaceful settlement of the conflict between the Russian Federation and Ukraine through political dialogue, negotiations, mediation and other peaceful means”. On 23 February 2023, another UN resolution2 called on member states and international organisations to “redouble their support for diplomatic efforts to achieve a comprehensive, just and lasting peace in Ukraine”. This commitment also applies to the Ukrainian government, which continues to reject negotiations with Russia.3
Ukraine has so far resisted the Russian war of aggression thanks to comprehensive Western support. However, far-reaching decisions on the expenditures necessary to continue the war, contrary to all reason and despite the unachievable nature of the political goals, must not be left to the Ukrainian government alone. The constant ramping up of the war has already led to large numbers of Ukrainian casualties, both military and civilian, as well as to substantial destruction of infrastructure. The longer the war goes on, the more Ukraine’s casualties and destruction will increase and the more difficult it will be to achieve a just and lasting negotiated peace that also provides security for the states supporting Ukraine. There is already the potential for further escalation through foreseeable offensives by Russian forces, in the battle for Odesa and through the conflict that has broken out again over Ukrainian grain exports.
Since 4 June 2023, Ukrainian forces have been trying to break through the deeply layered Russian defensive positions and sever the land bridge between Russia and Crimea in order to cut off Russian forces from the logistics hub of Crimea. Ukrainian forces are losing large numbers of soldiers and (Western) armor in the fighting, without having achieved any sweeping success so far.
If the counteroffensive fails, it is to be expected that Ukraine will demand that Western soldiers follow Western weapons, as even the planned Western arms deliveries cannot compensate for the enormous losses of Ukrainian military personnel. Russia, on the other hand, has not yet deployed the mass of its active combat troops. It can therefore be assumed that after further Ukrainian losses in the counteroffensive, Russia will move to secure the annexed territories and thus achieve the goal of the “special military operation”.
Neither side can win the war
It has been clear for some time that neither Russia nor Ukraine can win this war, as neither will achieve the political goals for which they are fighting. Ukraine cannot defeat Russia militarily, even with Western support in the form of arms and ammunition and the training of Ukrainian soldiers. Even the delivery of “miracle weapons”4, which has been demanded by laymen time and again, will not be the hoped for “game changer” that could shift the strategic situation in Ukraine’s favour. At the same time, however, there is an increasing risk of even greater escalation, leading to a military conflict between NATO and Russia and the real danger of a nuclear war limited to the European continent, although the USA and Russia want to avoid it.5
This eventuality should be averted, as it would be most of all in Ukraine’s interest to seek a ceasefire as soon as possible, opening the door to peace negotiations. It is equally in the interest of the European states which unconditionally support Ukraine but lack a discernible strategy. And due to the increasing attrition of the Ukrainian armed forces, the risk is growing that the war in Ukraine will escalate into a European war over Ukraine.
Ukraine is increasing this risk by launching an increasing number of attacks against Russia’s strategic infrastructure with Western support, like the one against the Engels nuclear strategic base near Saratov on 26 December 2022 or the Kerch Bridge.6 Moreover, the West might feel compelled to intervene actively to prevent a crushing Ukrainian defeat. There is a growing realisation that this is a real danger. (Daily Telegraph: “Ukraine and the West are facing a devastating defeat.”)7
Is it possible to negotiate with Putin?
So far there is no evidence that the political goal of the “special military operation” is to conquer and occupy the whole of Ukraine and that subsequently Russia is planning to attack NATO states. Nor is there any evidence that Russia and the USA are making preparations for this eventuality. From a military point of view, however, one cannot completely rule out the possibility that Russian forces intend to conquer areas west of the Dnieper, as they have not yet destroyed the bridges over the river, although this would be to their advantage in the current configuration. Putin vigorously refutes that he is pursuing – as is often claimed – the imperialist goal of restoring the Soviet Union: “Whoever does not miss the Soviet Union has no heart, whoever wants it back has no brain.”8
Putin was willing to negotiate with Ukraine and certainly still is – but always on the condition that the other side – the American, Ukrainian and Western sides – also want to negotiate. Putin has made several positive statements in this respect. For example, on the occasion of the declaration of partial mobilization on 21 September 2022: “This is what I would like to declare publicly for the first time. After the start of the special military operation, in particular after the Istanbul talks, Kyiv representatives voiced quite a positive response to our proposals. […] But a peaceful settlement obviously did not suit the West, which is why, after certain compromises were coordinated, Kyiv was in effect ordered to wreck all these agreements.”9
Also on 30 September 2022, in the declaration on the annexation of the four regions: “We call on the Kyiv regime to immediately cease fire and all hostilities; to end the war it unleashed back in 2014 and return to the negotiating table. We are ready for this, as we have said more than once.”10
On 17 June 2023, Putin told the African peace delegation: “We are open to a constructive dialogue with all those who want peace, based on the principles of justice and taking into account the legitimate interests of the different sides. “11/12 On this occasion, Putin demonstratively showed an initialled copy of the draft treaty from the Istanbul negotiations.
The “Welt” wrote in a detailed editorial on 23 June 2023 that the Russian media also spoke of negotiations; one can assume that this was done with the approval of the Kremlin. The African initiative had been widely picked up and favorably commented on in Russian news coverage on the occasion of the Russia-Africa summit. The state news agency, RIA, published a commentary deploring the failure of the previous peace initiatives. Editor-in-chief Margarita Simonjan, who had previously called for tougher action by the Russian army, advocated a ceasefire and a demilitarised zone secured by UN peacekeepers. It was right to stop the bloodshed now, she said. Ukrainians should then vote in referendums to which country they want to belong. “Do we need territories that do not want to live with us? I am not sure about that. For some reason it seems to me that the president doesn’t need them either,” Simonjan said.13
The war could have been prevented,14 had the West accepted a neutral status for Ukraine – which Zelensky was initially quite willing to do – renounced NATO membership and enforced the Minsk II agreement on minority rights for the Russian-speaking population. The war could have ended in early April 2022 if the West had allowed the Istanbul negotiations to be concluded. It is now once again, and possibly for the last time, the responsibility of the “collective West” and especially the USA to set a course towards a ceasefire and peace negotiations.
It is imperative to ward off danger
Imperial rivalries, national arrogance and ignorance triggered the First World War, which has been called the seminal catastrophe of the 20th century. The Ukraine war must not become the seminal catastrophe of the 21st century! The increasing Europeanisation of the conflict threatens to slide into a major war between Russia and NATO, which neither side wants and, in view of the acute threat of nuclear catastrophe in such a case, cannot possibly want. Therefore, it is urgent to stop the escalation before it develops a momentum of its own that escapes political control.
Now it is up to the European states and the European Union, whose global political weight is constantly being reduced in the war and by the war, to direct all their efforts towards the restoration of a stable peace on the continent and thus prevent a major European war. Averting this requires the commitment of leading European politicians, namely the French President and the German Chancellor15 in a joint effort and in coordination with the US and Turkish Presidents, while there is still time and the “point of no return”, to which Jürgen Habermas has specifically referred, has not yet been passed.
Peace is possible – a way out of danger
Positions of the warring parties:
– Negotiations only after the withdrawal of Russian troops from Ukrainian territory or after the liberation of all Russian occupied territories.
– Obligation on Russia to bear the costs of reconstruction.
– Condemnation of the Russian leadership responsible for the attack.
– NATO membership after the end of the war.
– Security guarantees by states designated by Ukraine.
– Consolidated neutrality of Ukraine – no NATO membership.
– No stationing of American and other NATO troops on Ukrainian territory.
– Recognition of the Luhansk, Donetsk, Zaporizhia and Kherson regions as Russian territory.
– Ceilings on Ukrainian armed forces in general and for each armed force in particular.
– Arms control negotiations with the USA/NATO, in particular on verification mechanisms for NATO’s Ballistic Missile Defence System/BMDS in Poland and Romania.
Both warring parties have set preconditions for the start of negotiations after Ukraine’s withdrawal from the Istanbul agreements, and the Ukrainian president has even issued a decree forbidding negotiations. Both sides have also made demands for the outcome of negotiations that are impossible to fulfill in this way. Therefore, it is essential that all preconditions for the start of negotiations are dropped. The Chinese position paper offers a reasonable approach. It calls on the parties to “resume peace talks […] resumption of negotiations”.
The USA has an important role to play in bringing about negotiations and would have to pressure the Ukrainian president to negotiate. In addition, the USA (and NATO) must be prepared to engage in arms control negotiations, including confidence-building military measures.
Phase I – Ceasefire
To start the peace process, the UN Security Council should consider a draft resolution along the following lines and mandate further measure as outlined below:
- The UN Security Council:
- shall adopt, in accordance with Article 24(1) of the UN Charter, a timetable and schedule for a ceasefire and for negotiations to end the Ukrainian war and restore peace, consistent with the primary responsibility assigned to it by its members for the maintenance of international peace and security,
- shall decide on a general and comprehensive ceasefire between the warring parties, Russia and Ukraine, with effect from “Day X”. The ceasefire shall be without exception and without limitation or special arrangements, irrespective of the deployment of the opposing armed forces and weapons systems. It shall be binding and implemented in a general and comprehensive manner,
- shall entrust a High Commissioner for Peace and Security in Ukraine with the political responsibility for the implementation of the timetable and schedule as well as all measures decided by the UN Security Council in this context,
- shall decide on the deployment of a UN peacekeeping force16 in accordance with Chapter VII of the UN Charter, tasked with observing and enforcing the ceasefire and the security and military measures agreed between the parties to the conflict.
- The parties to the conflict shall cease all hostilities on the date determined by the UN Security Council (“Day X”).
- No more weapons and ammunition shall be supplied to Ukraine from that date. Russia shall also cease supplying arms and ammunition to its forces in the territories occupied since 24 February 2022 and Crimea.
- All irregular foreign forces, military advisors and intelligence personnel of both warring parties shall be withdrawn from Ukrainian territory by Day X +10.
Phase II – Peace Negotiations
- Peace negotiations shall begin on Day X +15 under the chairmanship of the UN Secretary-General and/or the UN High Commissioner for Peace and Security in Ukraine at UN Headquarters in Geneva.
- Both parties to the conflict shall reaffirm their determination to conduct the negotiations with the firm intention of ending the war and seeking a peaceful and lasting settlement of all issues in dispute. They shall take account of Russia’s letters to the United States and NATO of 17 December 2021, insofar as they are relevant to the bilateral negotiations, and Ukraine’s position paper for the negotiations of 29 March 2022, and build on the results of the Istanbul negotiations.
- Elements of a negotiated settlement:
- a) The parties to the conflict
– would not consider each other as adversaries in the future and would undertake to return to the principles of equal and indivisible security,
– would undertake to renounce the threat and use of force,
– would undertake not to take any preparatory measures to wage war against the other party,
– would undertake to show transparency in their military planning and exercises and greater predictability in their military and political actions,
– would accept the deployment of a UN peacekeeping force on Ukrainian territory in a 50 km wide zone from the Russian border, including the regions of Luhansk, Donetsk, Zaporizhia and Kherson within their administrative boundaries,
– would undertake to resolve all disputes without the use of force through the mediation of the United Nations High Comissioner or if necessary, by the guarantor states. The right of Ukraine to individual and collective self-defense under article 51 of the UN Charter would not be affected.
- b) Russia
– would withdraw its armed forces from the territory of Ukraine to the borders of 23 February 2022,
– would withdraw its armed forces on its own territory to no less than 50 km from the Ukrainian border, if they have been deployed to this zone since 24 February 2022.
- c) Ukraine
– would withdraw its armed forces from a zone no less than 50 km from the Russian border, including the regions of Luhansk Donetsk, Zaporizhia and Kherson,
– would declare as permanent its status as a neutral state and would not join any military alliance, including the North Atlantic Alliance. Ukraine’s sovereignty, territorial integrity and state independence would be guaranteed by corresponding pledges of guarantor powers.17 The guarantees would not apply to Crimea, and the regions of Luhansk Donetsk, Zaporizhia and Kherson within their former administrative borders,
– would renounce the development, possession, and deployment of nuclear weapons on its territory,
– would not allow the permanent or temporary deployment of the armed forces of a foreign power or its military infrastructure on its territory,
– would not permit exercises and manoeuvres by foreign armed forces on its territory,
– would implement the agreed ceilings18 on Ukrainian armed forces within two years.
- d) The problems related to Crimea and Sevastopol would be negotiated bilaterally through diplomatic channels within 15 years and resolved by renouncing military force.
- e) The future status of the Luhansk, Donetsk, Zaporizhia and Kherson regions would be mutually agreed in the negotiations. Russia would allow refugees to return. If the negotiating partners failed to reach an agreement on this issue, the United Nations High Commissioner for Peace and Security in Ukraine would hold a referendum within two years of the peace treaty coming into force, in which the population would decide on the future status. Ukrainian citizens who were permanent residents of these regions on 31.12.2021 would be eligible to participate. Russia and Ukraine would undertake to recognize the results of the referendum and implement them in their respective national legislations by the end of the year in which the referendum took place. For the population of regions that decided to remain within Ukraine, the Ukrainian government would incorporate into its constitution minority rights according to European standards and implement them by the end of the year in which the referendum took place (in accordance with the Minsk II Agreement).
- f) Guarantor states, which are members of the European Union, would promote Ukraine’s membership by supporting rule of law and democratic reforms.
- g) The reconstruction of the Ukrainian economy and infrastructure would be promoted through an international donor conference.
- h) Both Parties would participate in and constructively support a Conference on Security and Cooperation in Europe in the CSCE format with the aim of establishing a European security and peace order. The conference would take place within one year of the entry into force of the Peace Treaty.
- i) The Treaty would enter into force as soon as both Parties and five guarantor states had signed the Treaty and, to the extent necessary, the parliaments of these states had approved it, and Ukraine had enshrined its status as a neutral, independent and non-aligned state (without the goal of NATO membership) by amending its constitution.19
- k) Any delays would not justify either breaking the ceasefire or withdrawing from the agreements reached so far.
Phase III – A European Security and Peace Order
In the long term, only a European security and peace order can guarantee Ukraine’s security and freedom, in which Ukraine and Russia have their place. This European security architecture would ensure that Ukraine’s geostrategic position would no longer play a key role in the geopolitical rivalry between the United States and Russia. The way to achieve this is through a conference in the CSCE format that builds on the great progress made in the “Charter of Paris” and develops it further, taking into account the current security and strategic framework.
3 According to FAZ, Ukraine still sees no chance for a negotiated peace with Russia. “This peace must be fought for. And Russia must be defeated. Otherwise, there will be no peace,” the Ukrainian ambassador in Berlin, Oleksii Makeiev, told the newspapers “Rheinische Post” and “General-Anzeiger”.
4 German politicians, who do not understand the strategic principle of end-means relationships, are again demanding the delivery of Taurus cruise missiles. https://www.faz.net/aktuell/politik/ukraine-liveticker-deutsche-politiker-fordern-lieferung-von-marschflugkoerpern-faz-19030454.html
5 And then there’s the whole question of, if Ukraine is really losing, let’s assume that the Ukrainian military cracks […] and the Ukrainians are on the run. Again, I’m not saying that’s going to happen, but it is a possibility. What is NATO going to do? Are we going to accept the situation where Ukraine is being defeated on the battlefield in a serious way by the Russians? I’m not so sure. And it may be possible in those circumstances that NATO will come into the fight. It may be possible that the Poles decide that they alone have to come into the fight, and once the Poles come into the fight in a very important way, that may bring us into the fight, and then you have a great power war involving the United States on one side and the Russians on the other. https://mate.substack.com/p/john-mearsheimer-ukraine-war-is-a?utm_source=substack&utm_medium=email
12 Azali Assoumani, President of Comoros and Chair of the African Union, after meeting President Putin: “President Putin has shown that he is ready for dialogue and to find a solution, and now we have to convince the other side. I hope we will succeed.” https://augenauf.blog/2023/07/28/afrikanische-union-waffenstillstand-in-ukraine-ruckt-naher-wenn-selenski-will/
13 The editorialist of the “Welt” writes: “Putin currently considers negotiations and a ceasefire to be the most advantageous option. At any rate, a better one than having to decide for himself how many of the conquered territories he can hold. For Ukraine’s counteroffensive is advancing. The costs of the war are also growing with each passing day and are detrimental to developments in the country. The population feels this, and Putin, who does not want any social tensions around next year’s presidential election, knows it.” The author concludes: “Should the negotiations between Ukraine and Russia be taken up seriously at some point – for example, because Ukraine’s counteroffensive has not produced the desired results – nothing will have changed in the conflict: Ukraine will need credible security guarantees from the West so that Russia does not invade Ukraine again after the ceasefire.
At the very least, it is a sign that the Kremlin is testing the waters, but it should be heeded because it takes up what the Chinese initiative has always emphasized, namely that the Istanbul negotiations, that were not finalized, should be “resumed”. (Compare Harald Kujat’s ceasefire and peace plan, printed in Funke: “Ukraine. Negotiation is the only way to peace”. Berlin 2023: S. 100-104).
14 Jeffrey D. Sachs: “In fact, the war was provoked by the U.S. in ways that leading U.S. diplomats anticipated for decades in the lead-up to the war, meaning that the war could have been avoided and should now be stopped through negotiations.” consortiumnews.com/2023/05/24/the-war-in-ukraine-was-provoked/
15 President Biden on 31.05 2022 in NYT: “As President Volodymyr Zelensky of Ukraine has said, ultimately this war will only definitively end through diplomacy.” www.nytimes.com/2022/05/31/opinion/biden-ukraine-strategy.html
16 The selection and composition should not follow the usual force generation procedure of the UN, but the troop contributors should be coordinated by the negotiating partners. Military contingents of the following states could be acceptable to both sides: Austria, Brazil, Egypt, France, Germany, India, Ireland, Italy, Pakistan, Switzerland, Turkey.
17 In its position paper on the negotiations in Istanbul on 29 March 2022, Ukraine named the following states as its favored guarantors: Russia, Great Britain, China, USA, France, Turkey, Germany, Canada, Italy, Poland, Israel.
18 On the basis of the text of the treaty as annexed to the initialed Istanbul text and its listed ceilings.
19 Ukraine could make the entry into force of the treaty dependent on a nationwide referendum.