By Alfred de Zayas, former UN Independent Expert on International Order
As more and more politicians and scholars recognize that the Ukraine conflict cannot be solved militarily, that there will be no winners but only losers, we should concentrate on stopping the slaughter. This is the only rational policy we can follow, and should be advanced by all United Nations agencies, notably the General Assembly, the UN High Commissioner for Human Rights, the UN High Commissioner for Refugees, the World Health Organization, etc.
My blueprint for peace is simple. 1. Ceasefire based on the UN Charter, 2. A ban on deliveries of weapons to the belligerents, 3. UN organized international assistance to all populations suffering because of the war, lack of energy, lack of food, 4. UN organized and monitored referenda in Crimea and Donbas, 5. Lifting of sanctions that have nullified the benefits of globalization, broken supply chains, upset international trade, endangered food security, 6. Drafting of a new security architecture for Europe, 7. Coordinated efforts by States and UNHCR to facilitate the repatriation of Ukrainian refugees “in safety and dignity”, 8. A Global fund for reconstruction of infrastructures in all regions affected by the war, 9. Establishment of a Truth and Reconciliation Commission to hear grievances from all sides, 10. Investigation and punishment of war crimes by the respective governments as stipulated in the 1949 Geneva Conventions and 1977 Protocols: Ukrainian crimes to be prosecuted by Ukrainian judges, Russian crimes to be investigated prosecuted by Russian tribunals.
There is a pre-history of this catastrophe. If we want to arrive at a viable peace settlement, we must understand the root causes and create an atmosphere of mutual trust. We must also analyse the conflict not only from the US, Western European or Eastern European perspectives, but also take into account the views of 1.5 Billion Chinese, 1.5 Billion Indians, 240 million Pakistanis, 170 million Bangladeshis, 280 million Indonesians, 220 million Nigerians, 220 million Brazilians, 140 million Mexicans etc. The stakes are too high, and we Americans and Europeans have no right to risk the survival of the planet because of an internal European dispute. Indeed, for the average African, Asian or Latin American, it is wholly irrelevant whether Crimea is in Russia or in Ukraine.
African leaders have come forth with a 10-point roadmap to peace[1], and China has issued its own 12-point proposal[2]. Both initiatives are balanced and neutral.
What is crucial is to agree NOW on a cease-fire and bring in mediators like Pope Francis to make concrete proposals. Professor Jeffrey Sachs[3] has given numerous lectures urging a negotiated end to hostilities and warning about the danger of a nuclear war. He quotes a 1963 speech by John F. Kennedy:
“Above all, while defending our own vital interests, nuclear powers must avert those confrontations which bring an adversary to a choice of either a humiliating retreat or a nuclear war. To adopt that kind of course in the nuclear age would be evidence only of the bankruptcy of our policy–or of a collective death-wish for the world.”[4]
A realistic blueprint for peace in Ukraine cannot expect to go back to the world before 24 February 2022. The unipolar model is no longer viable. A new order is emerging in which the Global South will be having greater influence than before.
Crimea, Donetsk and Lugansk will never go back to Ukraine, because after the shelling of these territories by the Ukraine since 2014, a considerable level of hatred toward the Ukrainian authorities has emerged. It is not a matter for NATO to decide, but exclusively a matter of self-determination and the decision of the populations concerned.
The right of self-determination of peoples (arts. 1, 55, Chapters XI and XII UN Charter) is solidly anchored in article 1 of the International Covenant on Civil and Political Rights. It is for the UN to organize referenda, which would be monitored internationally. But the UN failed the Ukrainian and Russian peoples, when it failed to organize and monitor referenda in these Russian-populated territories in 1991, when the Ukraine unilaterally split from the Soviet Union, or in 2014 following the Maidan coup. A referendum 2014 would have prevented the tragedy we are witnessing today.
As the Kosovars will never consent to be reincorporated into Serbia, the Russian populations of Crimea, Donetsk and Lugansk would rebel against any such proposal. A new European security architecture should be built that takes into consideration the legitimate security concerns of all persons living in the area. The independence of Ukraine must of course be guaranteed, as indeed the independence of Russia. As Austrian Foreign Minister Alexander Schallenberg recently said, Russia exists and will not go away: “We cannot cancel Russia. We cannot do ghosting on it”.[5]
War in Ukraine was eminently avoidable. Russia’s two draft treaties of December 2021[6] deserved honest discussion, but they were rejected out of hand by Jens Stoltenberg. Peace would have been possible if the mediation of Turkey and Israel had not been torpedoed by those who really believed that “victory” over Russia was at hand.
Among the many obstacles to peace are lack of imagination and trench mentality. Whether we in the West agree or not with this assessment, NATO’s eastern expansion was perceived by Russia as an existential threat. Sooner of later Russia would react, as George F. Kennan[7] and John Mearsheimer[8] warned.. Let us not forget that from 2014 to 2022 Russia participated in the Minsk Accords, in OSCE meetings, in the Normandy Format. Russia acted in conformity with article 2(3) of the UN Charter and spent 8 years trying to solve by peaceful means the issues arising from the 2014 Maidan coup. Alas, it was Ukraine, supported by the US and UK, who refused to implement the Minsk agreements.
As a UN official, I had the opportunity to learn the Russian language and obtain my proficiency certificate. I had the chance to use Russian at OHCHR during numerous missions to the Baltic states and Russia, and in 1994 during missions to Ukraine to monitor the parliamentary and presidential elections. Doubtless, the vast majority of the people in Donbas and Crimea feel Russian.
Punishment
There is no doubt, that Russian soldiers have committed atrocities in Ukraine, and that Ukrainian soldiers have committed crimes, NATO forces in Afghanistan, Iraq, Abu Ghraib, Guantanamo as well. It is unhelpful to prepare war crimes trials, because experience shows that such trials can only take place if there has been unconditional surrender, as 1945 when Germany and Japan capitulated.
Today’s scenario is different, because there is zero chance that Russia would surrender. If the escalation of tensions continues, there is a danger that someone at NATO will propose a “pre-emptive” nuclear strike against Russia. This would trigger a nuclear response from Russia. Let us remember that the oceans are alive with NATO and Russian submarines all equipped with nuclear warheads. Thus, we should not provoke a nuclear confrontation that could very well terminate human (and animal) life on the planet.
Common sense tells us that we must reduce tensions and try to reach a compromise, a modus vivendi, even though it will take many years before relations between NATO countries and Russia can be restored to a respectful co-existence. What we need is reconciliation, not the continuation of the war by war crimes courts.
There are many historical precedents of major wars ending with amnesties[9]. The Thirty Years War (1618-48) that wiped out some 8 million Europeans did not envisage retribution. The 1648 Treaties of Münster and Osnabrück stipulated in common Article 2: “There shall be on the one side and the other a perpetual Oblivion, Amnesty, or Pardon of all that has been committed … in such a manner, that no body …shall practice any Acts of Hostility, entertain any Enmity, or cause any Trouble to each other.”[10] The Peace of Westphalia of 1648 has gone down in history as a milestone of international law[11].
We can refer to article 3 of the Treaty of Rijswijk (1697), which ordained amnesty for the soldiers of the French and British monarchies. Article XI of the Final Act of the Congress of Vienna (1815) stipulated amnesties notwithstanding the atrocities of the Napoleonic wars. In the Brest-Litovsk treaty of 3 March 1918, a treaty imposed by the Central powers on Russia, the parties renounced any claims for their costs of warfare as well as any compensation for war damages. No war crimes trials were envisioned. More recently, Chapter II of the Evian Accords of 1962, which ended the ferocious Algerian war of independence, ordained an amnesty for both sides. The idea of reconciliation was behind article 6 of the 1977 Second Additional Protocol to the Geneva Conventions of 1949, which stipulates in part: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict.” Admittedly, today’s world does not like the concept of “amnesty” and seems to be hooked on revenge. This is dangerous, as we dance on the rim of the precipice.
[8] The Great Delusion, Yale University Press, New Haven, 2018.
[9] Alfred de Zayas, “Amnesty Clause” in Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, vol, I, North Holland, Amsterdam, 1992, pp. 148-151.
[11] Alfred de Zayas, “Westphalia, Peace of” in Bernhardt, Encyclopedia of Public International Law, vol. IV, pp. 1465-1469, North Holland, Amsterdam,.2000.
Ukraine Army Largely Destroyed, Battlefield Losses, Mobilised with Mental Illness, Cancer, Forever War Crippling West, The $61bn Farce, Novorossiya Peace Basis
Ukraine has suffered troop losses of between 400 and 500,000 and Russian troops are advancing with increasing rapidity on all fronts. Arkhangelskoye and Kotlyarivka have been taken by Russian troops and the critical strategic town of Chasov Yar is about to fall. Even where Ukrainian troops had some success in breaking through at Rabotino in the Zaporizhzhia region they are now in retreat.
