Irreconcilable Differences

A guide to plans for negotiations between Ukraine and Russia.

Ukrainian and Russian representatives during the third round of peace negotiations in 2022.

Since the start of the Russo-Ukrainian War ‘realists’ have warned that Ukrainians are foolish to resist Russian aggression and should instead agree a compromise peace that might still leave them with the bulk of their country at the cost of conceding a chunk to Russia. How much independence the rump Ukraine could then enjoy would depend on what had also been agreed on its future security arrangements. These same realists would expect Ukraine to accept that it could never join NATO.

A recent example of such ‘realism’ can be found In a letter in the Financial Times signed by individuals who have long taken this position, including former UK and US Ambassadors to Moscow. They do not expect concessions from Russia other than a possible promise that it would not try to take even more territory. They urge that the US should start talks with Moscow ‘on a new security pact which would safeguard the legitimate security interests of both Ukraine and Russia’ without explaining how that would work.

This announcement, they argue, ‘should be immediately followed by a time-limited ceasefire in Ukraine.’ This would ‘enable Russian and Ukrainian leaders to negotiate in a realistic, constructive manner’, but they do not say what they can negotiate after such a long and bitter war or for that matter what will happen if the negotiations fail and the time on the ceasefire runs out. They claim to care for Ukraine but their underlying message is Russian – give up now or you will lose more and if you keep fighting ‘the more the pressure for escalation up to a nuclear level is likely to grow.’ (For a robust response see a letter signed by James Sherr and others).

Elsewhere on 5 July, 51 Nobel Laureates posted an appeal in the Russian opposition newspaper Novaya Gazeta, urging immediate cease-fires in both Ukraine and Gaza so that world leaders can turn to the urgent task of saving the planet from climate change. (Because it is published in Russia and so subject to censorship the word ‘war’ had to be removed from the opening sentence). Their case is that war is wasteful and the efforts expended on it would be better spent on climate change. ‘While killing each other, people are also destroying our planet.’ Their call - Cease fire! End the loss of human life! Prevent a nuclear disaster! – is somewhat short on details, as if the thought that peace is preferable to war hadn’t occurred to anyone before.

No doubt people in Ukraine and Russia would also be pleased if the war ended and so would welcome negotiations to that effect. The problem, as with all non-substantive calls for diplomatic initiatives to end the war, is that the Ukrainian people are not keen on abandoning their territory to cruel occupiers while Russians do not question Vladimir Putin’s war goals of taking more territory. So while both sides regularly insist that they would prefer to achieve their goals by peaceful rather than violent means, and do not rule out negotiations, when they set out their proposals describing desirable outcomes, they turn out to be totally incompatible.

Interest in negotiations is currently growing not because political leaders have read letters in the Financial Times but because it now seems entirely possible that Donald Trump will become President again and he has previously claimed to have a plan for bringing an end to the war. Against this backdrop, and perhaps because of the stresses and strains of the war and the lack of clear routes to a military victory, there is now much more international chatter about the possibility of new negotiations.

It will be a big enough challenge to agree a venue, format and agenda for talks, let alone to find the compromises that would make it possible to call a halt to the war.  To explain the challenge here is a guide to what was talked about in the past, the current stated positions of the two sides, and what is known about a supposed ‘Trump Plan’.

The 2022 Negotiations

The most substantial negotiations took place during the first weeks of the war. They appeared to be making progress in mid-March 2022 but they soon stalled and by May had fizzled out completely. Russia regularly claims that a workable deal was very close and that Zelensky was somehow persuaded to abandon it by Boris Johnson, then UK Prime Minister, and fits in with their general view that the Ukrainians are puppets of the West and are unable to reach their own conclusions. (The claim flows from a comment by David Arakhamia, who had been involved in the talks, and reported that when Johnson visited Kyiv in April 2022 he told Zelensky not to ‘sign anything’ with Russia and ‘just fight.’)

Detailed accounts of the negotiations have now appeared, including this one in Foreign Affairs by Sam Charap and Sergey Radchenko The most substantial, based on the negotiations record and the final state of draft as reached in April 2022, was published last June in the New York Times. I have drawn extensively on this account in the following paragraphs.

The issues at the heart of those negotiations would be the same in another round, although both sides have since hardened their positions and the experience of the war has added new issues. The core topics were then Crimea, Eastern Ukraine and membership of NATO. There were also other questions raised by the Russians on ‘denazification’, including the status of the Russian language in Ukraine, which the Ukrainians said were irrelevant, but presumably would some up again.

Crimea

Russia initially wanted Ukraine to recognize Crimea as part of Russia. Ukraine refused but did propose that the two countries agree to ‘resolve issues related to Crimea’ through 10 or 15 years of diplomacy. This would come with a pledge to avoid seeking a resolution through ‘military means.’ In the end the draft treaty excluded the issue. Crimea would be left under Russian occupation but without Ukraine recognizing it.

The Enclaves

Russia demanded that Ukraine give up the entire Donbas. Its draft language stated:

‘Ukraine recognizes the independence of the Donetsk People's Republic and the Luhansk People's Republic within the administrative boundaries of the former Donetsk and Luhansk regions of Ukraine and, in this regard, shall introduce comprehensive changes to the national legislation.’

Ukraine appeared ready to accept that the enclaves established in 2014 in the Donbas might remain under Russian occupation but no specifics were agreed. It was assumed that this would be sorted out in a meeting between Presidents Zelensky and Putin, which of course never happened.

Neutrality and Membership of NATO

Russia demanded that Ukraine never join NATO or other alliances, host foreign military bases or weapons, or conduct military exercises with other countries without its consent. Ukraine offered to become a ’permanently neutral state’ and to ’terminate international treaties and agreements that are incompatible with permanent neutrality.’

The key problem was what would replace it. Ukraine wanted an arrangement binding other countries to come to Ukraine’s defence if it were ever attacked again. It proposed a security mechanism that would be triggered ‘in the event of an armed attack on Ukraine.’ Yet Kyiv had been burned before. They were given assurances about sovereignty and territorial integrity by the US, UK, and Russia contained in the Budapest Memorandum, signed when Ukraine agreed in 1994 to give up its nuclear arsenal inherited from the Soviet Union. These had already been ignored by Russia when it decided to annex Crimea in 2014 and then again in the full-scale invasion. Charap and Radchenko suggest that the Ukrainian calculation was that by signing up as a guarantor with Western powers, ‘Moscow accepted that any future aggression against Ukraine would mean a war between Russia and the United States.’

According to the Treaty language, the ‘guarantor’ countries that signed on to the treaty would hold ‘urgent and immediate consultations’ for no more than three days. Then, they would take ’individual or joint action as may be necessary’ to protect Ukraine, including

‘…closing airspace over Ukraine [a non-fly zone], providing necessary weapons, using armed forces in order to restore and subsequently maintain the security of Ukraine as a permanently neutral state.’

Russia agreed to much of Ukraine’s language on security guarantees but with exceptions. It balked at the idea of other countries establishing a no-fly zone or providing Ukraine with weapons. In April, in a move that finished off the negotiations, it sought to insert a clause that would require all guarantor countries — including Russia itself — to agree on military intervention. 

‘The Guarantor States and Ukraine agree that in the event of an armed attack on Ukraine, each of the Guarantor States … on the basis of a decision agreed upon by all Guarantor States, will provide … assistance to Ukraine, as a permanently neutral state under attack…’

Russia would therefore be able to veto any international response if it invaded Ukraine again.

Who actually would provide the guarantees? The United States, the UK, France, China and Russia itself were all listed in the draft of the treaty as guarantors. Russia also wanted to include Belarus, while Ukraine wanted to add Turkey.

The European Union

In the 2022 talks, in its main concession, Russia pledged not to stand in the way of Ukraine’s possible membership in the European Union, though preventing this had been at the heart of the initial dispute between them in 2013-14.

‘The Parties to this Treaty share the understanding that Ukraine's status as a permanently neutral state is, subject to the provisions of this Treaty, compatible with Ukraine's possible membership in the European Union.’

A Ceasefire.

The Ukrainian view was that Russia could stop fighting and withdraw at any time. It regularly requested an early ceasefire but, as it noted in a March 2022 treaty draft: ‘The Russian side has ignored Ukraine’s numerous requests for a ceasefire.’

Russia added an annex to the April 2022 draft about how a ceasefire would be applied. It would begin when the treaty was ‘provisionally applied’ — defined as the day it was signed by Ukraine and most of the guarantor countries, including Russia. Both sides would not ‘carry out actions that could lead to the expansion of the territory controlled by them or cause a resumption of hostilities.’ Ukraine would be required to withdraw immediately: Russia’s withdrawal would be the subject of separate ‘consultations.’ Not hard to see the problems in that formulation.

International organizations could also be involved. Russia proposed that the United Nations monitor the cease-fire and that the Red Cross participate in the exchange of prisoners of war, interned civilians, and the remains of the dead.

Demilitarisation

Along with ‘denazification’, when announcing the invasion Putin had also spoken of ‘demilitarization’. In the negotiations it sought to limit the size of Ukraine’s military, allowing it no more than 100,000 people, with small quotas for different types of weapons (for example 147 mortars and 10 combat helicopters) and the firing range of Ukraine’s missiles restricted to 25 miles.

Ukraine was willing to accept some caps but put them much higher -  an army of up to 250,000 people, 1,080 mortars and 60 combat helicopters, and missile range restricted to 174 miles. Nothing was agreed. The Ukrainian armed forces have moved on since this point.

Economic Sanctions

Russian wanted Ukraine and every other treaty signatory to cancel economic sanctions:

‘Ukraine shall cancel and henceforth not impose, and also shall publicly call on all states and international organizations to cancel and henceforth not impose, any and all sanctions and restrictive measures imposed since 2014 against the Russian Federation.’

Next Steps: Ukraine

Although the impetus was taken out of the talks by the revelations in April about Russian atrocities against civilians in Bucha, which made it hard to imagine how a deal could ever be struck, this did not actually bring them to a conclusion. As noted it was the Russian attempt to disable the security guarantees that Ukraine was seeking as an alternative to NATO membership that persuaded the Ukrainians that the talks were not going anywhere. No agreement had been reached at all on the territorial issues.  The idea that this was a ’lost peace’, still encouraged by Russian propagandists and Western fellow travellers, doesn’t add up.

In future negotiations the neutrality/security guarantees issue will return, with the same issues present. But in three respects the discussions will have changed. First, the territorial issues will be to the fore although both sides positions have hardened. Ukraine now wants the return of all its territory while Russia is now wants to take more than before. Second, Ukraine wants reparations for all the devastation caused to its country by the Russian invasion and the cost of clearing it up. Third, all the issues surrounding future security arrangements have moved on and become more simplex.

Ukraine now insists that any peace deal must invalidate the September 2022 annexations of its territory (when Putin claimed for the Russian Federation the oblasts of Donetsk, Luhansk, Kherson, and Zaporizhzhia) , and that the Crimean Peninsula, which Putin annexed in 2014, must once again be considered part of Ukraine.

Zelensky’s ten point ‘peace formula’, announced in November 2022, had these headings:

1)      Radiation and nuclear safety;

2)      Food security.

3)      Energy security.

4)      The release of all prisoners and deportees.

5)      Implementation of the UN Charter and restoration of Ukraine’s territorial integrity and the world order.

6)      Withdrawal of Russian troops and cessation of hostilities.

7)      Justice.

8)      Ecocide, the need for immediate protection of environment.

9)      The prevention of escalation.

10)  Confirmation of the end of the war.

These formed the basis of a process set in motion in June when 92 countries met at a summit in Switzerland. Most (80) but not all of the participants called for the ‘territorial integrity’ of Ukraine to be the basis for any peace agreement. Some queried the lack of Russian participation. The next step is for the working groups to look in more detail at points in the plan in different capitals. Zelensky has now promised a full plan to be ready in November (with a possible Trump victory in mind?) that would be addressed at a second international summit. He suggests that Russia would be invited: Russia says it won’t attend. His basic aim is to create a narrative around what a just peace would look like.

Next Steps: Russia

As Zelensky’s peace conference was about to start, Putin restated his demands. Ukraine must surrender the entirety of four annexed regions (including territory that its forces currently hold) and abandon its bid to join NATO. He still insists that Ukraine must demilitarize and that all sanctions on Russia must be lifted.

‘As soon as they declare in Kyiv that they are ready for such a decision and begin the real withdrawal of troops from these regions – and also officially notify about the abandonment of plans to join NATO – our side will immediately, at the same minute, make the order to cease fire and begin negotiations.’

This came with a promise to ‘guarantee the unhindered and safe withdrawal of Ukrainian units and formations.’ These terms would be cemented in international agreements.

These are essentially surrender terms. Instead of the normal presumption that a ceasefire would be followed by substantive negotiations, the big issues would have to be agreed in Russia’s favour before a cease-fire would be implemented. This would be an unlikely sequence. Even if there was a proper negotiation and the headings of an agreement could be reached there would be far too many questions of interpretation to allow it to be the basis of a lasting ceasefire. Attempting to sort out the details of the final deal as a first step is a recipe for prolonged and unsuccessful talks.

It is also worth noting a coda to Putin’s statement from Dmitry Medvedev, if only because he is a former president and prime minister. In a post on his Telegram channel, he said that even if Zelensky agrees to Putin's most recent conditions for peace, this would not constitute the ‘end of the Russian military operation’ in Ukraine.

‘Even after signing the papers and accepting defeat, the remaining radicals, after regrouping their forces, will sooner or later return to power, inspired by Russia's Western enemies. And then the time will come to finally crush the reptile. To drive a long steel nail into the coffin lid of Bandera's quasi-state.’

Russia will eventually return ‘remaining [Ukrainian] lands to the bosom of the Russian land.’

As we have learned to discount Medvedev’s comments on other matters, including his routine threats to do terrible things to all Russia’s enemies, we can probably discount this as well, but it hardly provides a reason for Ukraine to take any Russian promises seriously.

Victor Orban

Hungarian Prime Minister Viktor Orban has embarked on his own peace mission. He has done this on the basis that for six months he will be chairing the EU Council of Ministers. This has no foreign policy role. The EU’s leadership have disavowed and disparaged his efforts. Orban has met with both Zelensky (who was unimpressed) and Putin (more impressed) before discussing his ideas with Donald Trump.

After a three-hour meeting with Putin, Orban acknowledged that Ukraine and Russia’s stances were ‘very far from one another’. Putin appeared to confirm in private what he had said in public about his ambitious demands. Orban promised that he would continue to work to end the war for the rest of this year. ‘There are almost no countries left that are in contact with both sides. Hungary is one of them.’

In a letter to EU leaders Orban claimed that Trump had ‘well-founded plans’ for Russia-Ukraine peace talks. This led him to propose that the EU should reopen direct diplomatic communication with Russia and start ‘high-level’ negotiations with China to find a peaceful solution to the war in Ukraine. This got a frosty response, not least because all this suggested an imposed peace on Ukraine.

According to Orban,

’We can expect no peace initiative coming from [Trump] until the elections. I can however surely state that shortly after his election victory, he will not wait until his inauguration, but will be ready to act as a peace broker immediately. He has detailed and well-founded plans for this.’

Trump

Trump himself has previously claimed that he would sort out the war in short order, and, as he is now as likely as not to become President, there is interest in how he thinks this can be done. The Kremlin said any peace plan proposed by a possible future Trump administration would have to reflect the reality on the ground but that Russian President Vladimir Putin remained open to talks.

A rudimentary plan has been drawn up Keith Kellogg and Fred Fleitz, who both served in Trump's National Security Council staff, during his 2017-2021 presidency, for a ceasefire based on prevailing battle lines allowing for peace talks to then take place.

The core elements of the plan were outlined in a paper published by their American First institute. In an interview Kellogg said it would be crucial to get Russia and Ukraine to the negotiating table quickly if Trump wins the election. He advocated telling the Ukrainians, 'You've got to come to the table, and if you don't come to the table, support from the United States will dry up.’ Putin would be told: 'He's got to come to the table and if you don't come to the table, then we'll give Ukrainians everything they need to kill you in the field.’ Keeping NATO membership for Ukraine off the table was part of the incentive for Russia to come along; putting it back on would be punishment for holding back.

These coercive measures might possibly get the parties to the table but it does not point to any actual agreed deal. The fact that there is even substantive engagement involving the two leaders will raise expectations that a deal will just be a few conversations away. (Remember the excitement surrounding Trump and North Korea’s King Jong-un, which in the end produced broad principles which could not be turned into a lasting deal).

The Kellogg/Fleitz plan seems to suggest that Ukraine need not formally cede territory to Russia under their plan even if it would have to accept that it would not regain control of it all in the near term, or indeed ever. That would not be enough for Russia. Putin would want the transfer of all the claimed territory confirmed and he would be reluctant to hand back any of the extra oblasts he has added to the Russia Federation.

In a situation where Ukraine is already under pressure to make some concessions Putin’s inclination will be to ask for more. How far would Trump be prepared to go to push Ukraine so that Russia could keep the gains of its aggression? Would he be prepared to offer credible security guarantees as a carrot to Kyiv. If he does, would that make the deal even less attractive to Putin? Part of Russia’s reasoning in the past has been that if a hostile regime remains in Kyiv the situation will remain unstable – which is why it wanted to occupy all of Ukraine in the first place.

In practice, therefore, deal-making will be difficult. Some issues, even with good will, which will be lacking, will still be intractable. Let us assume, for example, that territory is to be ceded to Russia. Where will the new border be drawn and what will be the arrangements for movement across it? If, as in the past, Russia insists on limits on the size of the Ukrainian armed forces how will they be set and verified? What will happen if the Ukrainian parliament rejects any deal. In the past Zelensky has promised to put any agreement to a referendum. At what pace can the economic sanctions imposed on Russia be unravelled, and will this be conditional on Russia meeting its obligations?

This is why detailed ‘peace’ negotiations are rarely a good way to stop a war. The best way to stop a war is a cease-fire and possible disengagement of forces that the two sides can live with, to be followed, if possible, by substantive negotiations of long-term arrangements. But that will not happen if Ukraine believes that the ceasefire line will turn into a de facto border, with the territory lost to Ukraine forever. There might be much more ambitious schemes, for example with contested territory put under international trusteeship, proper referendums to allow residents to state their preferences (but including those that fled as well as those that stayed), peacekeeping forces from other countries to monitor ceasefire lines. Nobody is proposing any of this at the moment.

There would be enormous relief all round if this war could be brought to a conclusion. But the fact that this is yet to happen is not simply the result of a lack of will to do the commonsensical thing but because of what is at stake for both sides. The record of the 2022 negotiations is that positions shifted with developments in the war. The ‘realist’ demands for Ukraine to make concessions start with an assumption that this is a war Russia is bound to win. Ukraine’s view is that if there is to be any hope of Russia giving up on territory that is has tried to take through conquest then it has to be shown that it cannot win and will be pushed back. Sadly this is a war without a quick diplomatic fix.