Ukraine War, March 25, 2022 (II): Ceasefire and withdrawal terms

Developing

See,

“Ukraine: Putin’s “red lines” and the “red lines” of the U.N. Charter and international law,” The Trenchant Observer, December 3, 2021.

Dispatches

1) Dominic Nicholls, Gordon Rayner,and Rozina Sabur, “Russians prepare to scale back invasion of Ukraine; Kremlin says it will focus on ‘liberation’ of Donbas region in sign it may be looking to end military campaign after weeks of stalemate,” March 25, 2022 (10:00pm);

2) Gary Kasperov, “A month of Putin’s war: Ukrainians deserve not just to survive, but to win,” New York Daily News, March 25, 2022 (10:00 PM);

3) Clemens Wergin, “Mit „Phase 2“ versucht Moskau, sein Scheitern zu kaschieren,” Die Welt, den 26. März 2022;

Commentary

With Russia’s invasion of Ukraine apparently stalled in its advance on Kviv, and Ukrainian counter-offensives reportedly underway (we must be cautious in evaluating Ukrainian war information (propaganda), it is possible that at some point in the not-too-distant future Russia may want to enter serious negotiations to get what it can from the war, in order to sell any ceasefire or settlement as a victory back home.

Before the politicians and pundits start to speculate about what would be acceptable peace terms, they should consult with their government and independent international lawyers, who like The Observer should have a lot to say about which terms would be acceptable under international law.

Preliminary Draft Terms of agreement

ACCEPTABLE TERMS

1. Safe passage of withdrawing Russian troops, departing the country

The Russian forces currently in Ukraine, particularly in the North, appear to have severe supply problems, and may be running out of fuel, food, and ammunition. In this condition they could become easier targets for Ukrainian forces. The situation could conceivably become once of impending rout or mass surrender. These are scenarios Russia would presumably want to avoid, which could make this term desirable for them in a settlement.

2. Restoration of the military status quo ante in the Donbas

The Ukrainians are unlikely to agree to recognition of the Donetsk and Luhansk People’s Republics, which Russia recognized as independent states shortly before the Russian invasion on February 24. Any such recognition by Ukraine would, in any event, be void under international law (see below).

What might be negotiated, however, could be a return to the military situation as it existed prior to the invasion, and a return to some new iteration of the Minsk II negotiations. It would not be possible to return to the Minsk II negotiations per se, in view of the Russian recognition of the two puppet regimes as independent states.

Some creative temporary solution might be found through negotiations, perhaps, which allowed the Ukraine to treat the territories as temporarily under the control of the “separatist” regimes, while not requiring Russia to rescind its recognition of them as states. This is a thorny issue which would require considerable diplomatic ingenuity to resolve.

Two related issues would also need to be negotiated. The first is the withdrawal from the two provinces of the Russian troops that were introduced shortly before the war, and a commitment not to reintroduce them. The second is the withdrawal of Russian troops from those portions of Donetsk and Luhansk provinces that were under Ukrainian control prior to the invasion.

Some framework for the negotiations would need to be established. Whether the original “Normandy format” approach could be used is unclear. Russia, Ukraine and France could be participants, but whether Germany still would be a desirable candidate is dubious, as Ángela Merkel’s rapport with Putin is no longer at play and the government of Olaf Scholz has taken a hard anti-Russian turn. Perhaps Turkey or Israel could be the fourth member. Or, it might be desirable to come up with an entirely new framework for these negotiations.

3. Postponement of the conflict over the status of the Crimea

Russia has purportedly annexed the Crimea, which it conquered by force in 2014. This annexation is void under international law, and Ukraine is not going to recognize Russian sovereignty over the peninsula.

This issue could make agreement on a ceasefire and withdrawal impossible.

The best approach would be to postpone the issue until some indefinite time in the future. The specific term could provide a Ukrainian commitment to guarantee the water and electricity supply of the territory while it is under temporary  Russian administration. The Crimea could be exempted from the general troop withdrawal provisions, and conceivably Ukraine could undertake not to interfere with the operation of the Russian Black Sea Fleet during the period of temporary occupation.

Provision for negotiation of a long-term solution to the two countries’ differences could also be a part of the ceasefire and withdrawal agreement.

4. NATO Membership

A commitment to never join NATO would be void under international law, as a commitment entered into through coercion by the use of force.

However, Ukraine could undertake that it would remove from its Constitution the obligation to seek NATO membership. The commitment itself in the agreement would be void under international law, as the product of coercion. Nonetheless, Ukraine could make a statement of its intentions, and perhaps actually repeal the corresponding constitutional amendment before the ceasefire enters into force.

5. Reparations (damages)

The ceasefire and withdrawal agreement will have to stipulate clearly that it does not cover the issue of damages or reparations, and is without effect on the future negotiation and resolution of any such issues.

6. Exchange of prisoners and repatriation of remains of dead soldiers

Arrangements and procedures for the exchange of prisoners and soldiers’ remains can be detailed in the agreement.

UNACCEPTABLE TERMS

A number of terms, among the conditions demanded by Russia, are contrary to peremptory norms of international law (jus cogens), from which there can be no exception by agreement. These include:

1. Recognition of the annexation of the Crimea

Such a provision would be void under international law.

2. Recognition of the Donetsk and Luhansk People’s Republics as independent states

Such a provision would be void under international law.

3. Establishment of Neutrality of Ukraine

Such a provision would violate the sovereignty of Ukraine, and also be void under international law as the product of coercion.

4. Commitment of Ukraine to not seek NATO Membership

Such a provision would violate the sovereignty of Ukraine, and also be void under international law as the product of coercion.

With these goalposts clearly in mind, when the time comes for serious negotiations, the negotiators can focus on provisions which are permissible under international law, and therefore likely to contribute to the stability of the agreement.

James Rowles

*James Rowles received a Doctor of Juridical Science in International Law (SJD) from Harvard University, where he was also a Lecturer on Law. He is a graduate of Stanford and Stanford Law School, and a former professor of international law at various American universities.

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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