Getting to Negotiations

Why it's so hard to find a route to a diplomatic resolution in Ukraine

The regular calls for negotiations to end Russia’s war with Ukraine tend to be more directed at Kyiv or Washington than Moscow, as if they are the main stumbling blocks. Yet it is Vladimir Putin that is demanding that this war leads to a fundamental change in borders and political arrangements, that on any reading of international law he has no right to demand. Vladimir Putin does not preclude talks, but only so long as Russia is allowed to hold on to occupied territory, and even territory from which it has had to retreat. Volodymyr Zelensky demands withdrawal, and while at the start of war he might have been ready to go back to position of 23 February 2022 he now expects to go to the position of eight years earlier before Russia annexed Crimea.

The problem is not just that this gap looks, for the moment, to be unbridgeable but also that Putin has so far refused to scale down his demands to meet his diminished power. His past duplicity undermines any confidence Ukraine might have that a deal once reached would be honoured. Not only are the two sets of demands incompatible but there is no trust. There are any number of proposals around describing ‘deals’ that might end the war, as if this was equivalent to a business transaction that could be settled with a handshake. Ending this war in a way that leads to as stable a relationship that is possible between these two countries, after one has been viciously attacked and the other humiliated in battle, will require addressing issues that would be complex under the best of circumstances, and these are the worst.

Those who urge a ‘deal’ based on mutual concessions that has any chance of being turned into treaty language need to recognise that this will not stop the war in short order because nothing can be agreed or even implemented in short order. We need to think in terms of a two-stage process (and possibly more). This requires separating the fundamental territorial issue, which is now the main driver of the fighting, from all the other and consequential issues that will have to be addressed in a proper peace process. When we get to that stage the main factor influencing process may well be the sanctions imposed by the West and this will therefore require a direct role for the US, EU, UK and other interested parties. The first stage may well require mediation and devices such as international observers and even peacekeepers but it will need to be kept as simple as possible if it is to be linked to a cease-fire.

The Early Negotiations

In a recent press conference after a meeting of the Collective Security Treaty Organisation in Kazakhstan Putin answered a question on negotiations. First, he acknowledged that he was being pressed by India and China on the ‘importance of dialogue and peaceful resolution.’ While respecting their position as ‘our close allies and partners’, he also commented on Kyiv’s position:

‘they kept saying they wanted talks, and even sort of asked for them, but have now passed an official decision that bans such talks. Well, what is there to discuss?’

He also repeated a claim that has become something of a theme of Russian propaganda on the subject of negotiations:

‘We have always said that we are open. We reached certain agreements in Istanbul, after all. These agreements were almost initialed. But as soon as our troops withdrew from Kyiv, the Kyiv authorities lost any interest in the talks. That is all there is to it.’

This claim needs examining, not only because it is relevant to the question of who is to blame for the failure of negotiations thus far. More importantly, it can also help us understand some of the issues that would emerge should negotiations resume.

Direct talks between Ukraine and Russia began a couple of days after the Russian invasion. The gap in objectives was soon evident. Russia claimed that it was ready to stop its military campaign ‘in a moment’, but that would require not only that Ukraine halt hostilities but also acknowledge Crimea as Russian territory, accept Donetsk and Luhansk as independent states, and change its constitution to preclude entry into NATO or the European Union. The demands for Ukraine’s ‘de-militarisation’ and ‘de-Nazification’ were never quite withdrawn.

During this early period It is clear that Zelensky assumed that the main concession needed by Putin was a promise not to join NATO. On 8 March, when explaining that he was ready for dialogue, Zelensky explained that

‘I have cooled down regarding this question a long time ago, after we understood that … NATO is not prepared to accept Ukraine. The alliance is afraid of controversial things and confrontation with Russia.’

He also sounded conciliatory on the question of  Donetsk and Luhansk.:

‘I think that items regarding temporarily occupied territories and pseudo-republics not recognized by anyone but Russia, we can discuss and find a compromise on how these territories will live on …. What’s important to me is how the people in those territories who want to be part of Ukraine are going to live.’

When it came to Crimea  he added that he could ‘not recognize it as the territory of Russia but that it will be difficult for Russia to recognize that this is the territory of Ukraine.’ This implied some form of joint sovereignty or shared citizenship.

The first high-level meeting between the two foreign ministers – Ukraine’s Dmytro Kuleba and Russia’s Sergei Lavrov - took place in Turkey on 10 March. Kuleba described the Russian proposals for ending the war as a demand for surrender. Nonetheless soon the Ukrainians, including Zelensky, began to sound more optimistic, noting that Russia had moved away from ‘ultimatums’. There was then a brief moment of optimism, with stories in a numbers of newspapers, including the Financial Times and the Washington Post about a 15 point peace plan. The aim appeared to be to draft a document for Zelensky and Putin to sign.

The core deal was one in which in return for a cease-fire and full Russian withdrawal Ukraine would abandon plans to join NATO, although the Ukrainian side of this deal appeared to be more developed than the Russian. Zelensky repeated on 15 March his previous point:

‘It is clear that Ukraine is not a member of NATO. We understand this. For years we heard about the apparently open door, but have already also heard that we will not enter there, and these are truths and must be acknowledged.’

Tellingly (and contrary to claims that he opposed the potential deal) then UK Prime Minister Boris Johnson, one of Ukraine’s strongest supporters in NATO, observed that:

‘Everybody has always said — and we’ve made it clear to Putin — there’s no way Ukraine is going to join NATO anytime soon. But the decision about the future of Ukraine has got to be for the Ukrainian people.’

The concession from Russia was apparently that neutrality, while precluding membership of NATO and foreign bases, would not require full demilitarisation. Nonetheless the Ukrainians also wanted security guarantees from other foreign states to prevent attacks on Ukraine. These might not come from NATO and instead from a pool of allies, it would still offer the main benefit of NATO –security guarantees – without actual membership.

One problematic aspect of these discussions was that while Russian withdrawal was envisaged it was not clear how, if at all, this would include Luhansk and Donetsk, and most importantly whether this would be integral to any deal or could be taken as a separate matter for discussion once a cease-fire was in place.

One part of the optimism at this time, in addition to the assumption that NATO really was the big issue for Russia, was that Russian forces would be obliged to leave Ukrainian territory soon anyway because Ukrainian forces were fighting back so effectively. Russia had failed to take any cities, suffering heavy losses in equipment and personnel, and was experiencing unexpectedly severe economic sanctions.

The optimism did not last long. The regular talks failed to make progress. Zelensky proposed direct talks with Putin to end the war: Lavrov  said the two sides would need to be much closer to a settlement before there could be direct talks. Moreover there would be procedural issues even if a deal could be reached on neutrality. Any security guarantees, once agreed, would need to be ratified by the guarantors’ parliaments. In addition, Zelensky promised that any deal would be put to a referendum. If agreed it could take up to a year before Ukraine’s constitution could be amended.

It soon became apparent that Ukraine needed to sort out the big territorial questions as part of any deal. Once a cease-fire had been agreed there would be few incentives in Moscow to discuss the return of any newly occupied territory. The Russians were also pushing for agreements on restoring Crimea’s water supply, pledging not to try to retake the peninsula by force, and the protection of the Russian language in Ukraine. All of this would add to the complexity of any negotiations and the time required for implementation.

Despite the Russian Ministry of Defence’s announcement of 25 March that it would be leaving the area around Kyiv and elsewhere in the north as a ‘goodwill gesture’ to support the peace talks, as opposed to a concession to military realities, the Ukrainians were now disillusioned with the effort. Chief negotiator Mikhail Podolyak wrote that: ‘Any agreement with Russia isn't worth a broken penny.  Is it possible to negotiate with a country that always lies cynically and propagandistically?’ Zelensky said the only person worth talking to was Putin, since he made all the decisions. ‘It doesn't matter what their foreign minister says. It doesn't matter that he sends some negotiating group to us ... all these people are nobodies, unfortunately.’ Discussions continued, with Russia conceding that it was no longer demanding ‘denazification’ (though only Russia thought that Ukraine was ‘nazified’) and allowing membership of the EU.

When it came to a treaty on neutrality and security guarantees the Russians lost interest when the Ukrainians brought forward their own draft which diverged significantly from the one which they had tabled. By mid-May the talks were effectively over. Lavrov now claimed that the West was using the conflict for its purposes and did not want it to end. More to the point, Ukrainian attitudes were being re-shaped and hardened by Russia’s brutal conduct of the war and the evidence of war crimes revealed with the liberation of areas previously occupied by Russian forces near Kyiv. Russia’s focus on taking all the Donbas and not just the two enclaves, highlighted the territorial issues. On 25 May, Zelensky stressed that ‘Ukrainians are not ready to give away their land, to accept that these territories belong to Russia.’

What can we conclude from these early talks? First the reason why the talks failed was not simply because Kyiv abandoned a deal close to signature but because the territorial issues had not been resolved and Russia’s conduct of the war made Ukraine determined to liberate all occupied areas.

Second, the ideas canvassed at this time to address some of the issues at the heart of the war might still be relevant. Those on neutrality and security guarantees were the most mature. But these reflected a misapprehension that the only thing that really mattered to Putin was keeping Ukraine out of NATO, and his objectives in Ukraine were in some way secondary. There were ideas from Kyiv on ways to enable those living in Ukrainian territory to identify as Russian if they so wished were less developed, and evinced no interest from Russia, but they might become relevant in the future.

Third, even were these issues addressed in good faith, they could not be settled quickly and any agreements would take a long time to implement. A full peace negotiation would not necessarily be a quick route to end the fighting.

Discussions about Discussions

As it has become clearer that Russia had embarked on a war on conquest it has become even harder to imagine a negotiated solution. If the end-state is to be based on territorial holdings when the fighting stops, both sides have an incentive to keep fighting. Putin has never claimed to be abandoning talks but at all times his terms suppose that he would be negotiating from a position of strength, which he would expect Ukraine to recognise.

The news outlet Meduza, run by Russian journalists now working out of Riga, has been doing some interesting work on current thinking about negotiations in both Moscow and Kyiv. Their articles can be found here and here.

The line taken by Russians in meetings with foreigners, as with Putin at the CSTO, is that they are ready to talk but only if their conditions are met. On 6 October Federation Council Speaker Valentina Matvienko proposed inviting Ukraine’s delegation to a preparatory meeting for next month’s G20 summit and that the two countries begin peace negotiations ‘today.’ She urged that the two sides should ‘try to understand each other, find an agreement.’ Later however she made it clear that she was not expecting to discuss Russia’s annexation of Ukraine’s occupied territories, adding ‘We’re willing to put an end to further military action in Ukraine, but on the terms offered by Russia.’

There have been reports that Moscow is encouraging Turkish President Recep Erdoğan to convince Ukraine to return to negotiations with Russia.  Most intriguingly there has been the so-called Musk plan, proposed by the Tesla billionaire, and short enough to fit into a tweet:

·         Redo elections of annexed regions under UN Supervision;

·         Russia leaves if that is the will of the people;

·         Crimea formally part of Russia, as it has been since 1783 (until Khrushchev’s mistake);

·         Water supply to Crimea assured;

·         Ukraine remains neutral.

It has been alleged that Musk proposed these ideas after speaking with Putin (although this has been denied). Russia expert Fiona Hill has reported that Musk was trying these ideas out at various forums during September. She is convinced that he is ‘transmitting a message for Putin’.

The last three points fit with past Russian demands, and reflects their case for holding on to southern Ukraine in addition to the Donbas. The idea of ‘redoing’ the referendums of the annexed regions is something of a joke given the sham way they were conducted in the first place. It is hard to see how they could be conducted reliably, whatever the UN role, while the Russians were still in occupation (and depopulating the areas), and also fighting to hold on to them. If they were conducted after withdrawal Russia would soon lose interest.

The Ukrainian view now is that any discussions on ‘post-war coexistence’ depend on Russia completely withdrawing troops from all the territory of Ukraine, including the enclaves and Crimea. Defense Minister Oleksiy Reznikov has acknowledged that this is different from the March position when the Ukrainians were only asking for a return to the positions of 23 February. ‘Back then, it was possible. But now they have passed more than one point of no return, and this option has long been impossible.’ Zelensky now refuses to negotiate with Putin, but only with his replacement. The feeling is mutual. Putin does not want to grant Zelensky any legitimacy or status by meeting with him.

All this confirms the conclusion from the earlier talks that even under more propitious conditions there is no obvious basis for a peace settlement and that any attempt to negotiate one will be prolonged and difficult and not provide a quick way to end the fighting.

Cease-fires and Disengagement

An alternative approach to a full peace settlement has always been to agree to a cease-fire. This would mean postponing full talks that might lead to a durable settlement. These could then be undertaken under less pressure and without one eye always on what is happening in the battle. Meduza reports that the Kremlin has been considering a scenario in which Ukraine instead of a ‘full-fledged peace treaty’ Ukraine is persuaded to agree to a temporary ceasefire. ‘Russia’s leaders believe this could be arranged through negotiations between Russian and Ukrainian troops — without the involvement of either country’s president.’

It goes on to note that Putin sees the main benefit of this not as a means of ending the war but as part of a ‘strategy to buy time for training conscripts and replenishing supplies in order to launch a "full-scale offensive" in February or March.’ Unsurprisingly, as this thought has also occurred to Kyiv, Ukraine rejects such proposals as a snare and a delusion. Podolyak is quoted as saying:

‘What does a ceasefire give Ukraine, in the Russian scenario? A chance to fix a de facto new line of separation and hastily dig up Russians in the temporarily occupied territories? Can they really believe we’re going to agree to that? Especially against the backdrop of the counteroffensive…

A clear operational pause for the brutally battered Russian units, so they can at least train a few hastily mobilized soldiers and send a new quantity of death-bound men to the battlefield? What would we want that for?’

The main Ukrainian interest now is in defeating Russia militarily:

‘Because that’s the only thing that will allow us to truly end the war, gain the opportunity to brutally punish the war criminals through legal channels, and indirectly facilitate the launch of a scenario in which the Russian political system of Russia itself is transformed.’

All this explains why Ukraine is unlikely to agree to a ceasefire. At the very least it would allow Russia to freeze the existing lines of contact and continue with its occupation. A truce would allow it to prepare for the next stage of the war.

One thing that might change Ukrainian attitudes might be greater Russian success in holding defensive lines and preventing further retreats. But even assuming continued military success for Ukraine, Kyiv needs to develop its own scenario for ending the war. If Russia pushes for a cease-fire under any circumstances, including fear that it will be pushed back even further, there will be many in the West eager for Ukraine to accept.

Ukraine’s best response to proposals for immediate cease-fires is not to dismiss them out of hand, but to agree that it will cease fire while Russian forces withdraw back to internationally recognised borders, and that all attacks on Ukrainian cities and infrastructure stop.  This could be conducted in principle on a military-to-military basis without Putin and Zelensky being directly involved, when they are unwilling to talk to each other, but also enabling them to reserve their positions on the form a long-term settlement might take.

Even if this approach was accepted in principle, which probably requires that the Russian high command realises that it is facing an even more calamitous defeat, this is still not necessarily something that could be agreed easily or quickly - just more easily and quickly than a full peace settlement. What is decided at this point would have implications for any future deal. The largest and most obvious issue is Crimea. There would also be questions about whether this was a disengagement agreement, which might be easier for Russia to accept if it meant that Ukrainian forces would not move into the land that Russian forces were leaving. The Ukrainians would be worried that this would leave local people feeling unsafe and uncared for, and also that evidence of war crimes would be lost. It would also require a UN force or something equivalent to move in.  There would also be issues about prisoner swaps, which have loomed large in past armistices (although a number of these have already been implemented) and, more difficult, the fate of the many residents, including children, that the Ukrainians believe have been taken from occupied territories.

The next stage would be a proper peace settlement, which would need to define the border between the two countries, agree the status of Crimea, possibly offer measures to deal with residents of Ukraine who might identify more as Russians (far fewer now than before), considers questions of neutrality and security, and address issues of reparations and war crimes. The point about this stage is that other parties would need to be involved simply because it is hard to see how Moscow could agree to much while the many layers of sanctions were still in place. These layers could only be removed with confidence as agreements were being fully implemented. Just stating a possible agenda illustrates the problems facing a conference intended to produce a durable peace.

And that is before the Putin question, the one with which we always seem to end. So long as he remains in power can there be a serious negotiation at all, and will the US, UK and EU feel that they can lift sanctions? The concessions required would probably be too much for Putin to swallow but would that mean Russia was left economically and politically isolated.

None of this is predictive, for how all this works out depends on future military and political developments that will shape the bargaining positions of the two sides and how they approach talks. They are, however, all issues that are worth thinking about now.