Peace and Security for Ukraine and Europe are not Created on the Drawing Board of the West
“Liebe westeuropäische Intellektuelle: Ihr habt keine Ahnung von Russland” (Dear Western European Intellectuals: You have no idea about Russia) is the headline of an article by Szczepan Twardoch in the Neue Zürcher Zeitung. The next provocation follows in the subtitle: “Niemand im Westen kann verstehen, was es heisst, im russischen Machtbereich leben zu müssen.” (No one in the West can understand what it means to have to live in the Russian sphere of power) Twardoch holds up a mirror to the “Westplainers”. The image that it reflects is not flattering. Some might even say it is too distorted. But to turn away from it would be wrong. Twardoch is not alone with his concerns.
If Ukraine is on the agenda, then Ukraine is at the table
What do Twardoch’s statements have to do with the development of a National Security Strategy for Germany? – A lot, because since 24 February 2022 all discussions about strategies for freedom, peace and security on the European continent have been closely linked to the course of the Russian war of aggression against Ukraine and parallel negotiations between the warring parties. Looking at current debates in the ‘West’ on how talks between the parties could lead to a lasting peace agreement is like looking through a magnifying glass at Ukraine’s struggles not only for state sovereignty but also for its ‘intellectual sovereignty’. Discussions about the on-going negotiations have developed a tendency to put aside Ukraine’s subjectivity both as a negotiating party and as a state. They give way to perspectives and argumentations with an – undeniably justified – focus on internationalized conflict regulation between the West and Russia. Ukraine thereby becomes the ‘place’ and ‘object’ of negotiations and security strategies and the much-cited ‘end game’. Viewing Ukraine as an object rather than a subject of negotiations is not an unfamiliar pattern of international security policy. It goes hand in hand with the dangerous tendency to turn Russia’s ‘Near Abroad’ ultimately into a ‘buffer zone’ even in Western political and academic discourses. This pattern has been at work in the course of the annexation of Crimea and the armed conflict in Donbas over the past eight years. It also shaped the context of the international negotiations and shuttle diplomacy in view of the concentration of Russian troops on the Russian-Ukrainian and Belarusian-Ukrainian border last winter. The fact that, in December 2021, a White House senior administration officer emphasized “if Ukraine is on the agenda, then Ukraine is at the table” did not lead to changes.
From ‘off-ramp’ to ‘slippery slope’ – If you want to build stable bridges you have to measure the abyss first
Current discussions about the Ukraine Peace Settlement Project are exemplary for the legal dimensions of the outlined debates and struggles. The Ukraine Peace Settlement Project is a joint project of the University of Cambridge, the Lauterpacht Centre for International Law, the Opinio Juris blog, and the Harvard Law School Program on Negotiation. The prediction of the Vice-Chancellor of the University of Cambridge that “the ideas put forward through the Project will need to be discussed by Ukraine, Russia and all states seeking to promote peace as soon as the situation on the ground in Ukraine makes that possible” has come true. However, the discussions are now taking place before this ‘moment of ripeness’ has occurred. They might have taken also a different form than originally intended by the renowned individual and institutional initiators of the project. In the focus of the discussions are primarily a draft of a possible framework agreement – as a non-binding template – as well as the related blog-posts “An Off-Ramp for the War in Ukraine” and “Ukraine: How to End the War”. Since the comment function for these posts is no longer opened, the discussions are taking place in the social media. This is very unfortunate, as Twitter threads are no substitute for formulated comments and lines of arguments and responses. Lauri Mälksoo, for example, states on Twitter: “What are the area studies credentials of the project? The cultural-linguistic-historic knowledge of Russia, Ukraine, Eastern Europe; having spent sufficiently time in the region. Without strong background in this, universalist solutions on negotiations might not be successful.” Ukrainian lawyers responded inter alia with a list of Ukrainian experts with whom the Ukraine Peace Settlement Project could have gotten in touch within the course of editing or publishing its blog post and draft framework agreements. Hence, next to the issues of Ukraine’s potential neutrality, security guarantees, and the status of various areas of the country, which have been discussed in detail elsewhere, the criticism has been clearly directed at questions of the inclusion of regional expertise and the participation of regional experts. The prominent and experienced architects of this peace project seem to have been oblivious to an important point: The military asymmetry of the warring parties is admittedly undeniable. Yet, to remain in the terminology of warfare, both are quite highly equipped legally. For some time now, Ukraine’s Ministry of Foreign Affairs and Ministry of Justice, for example, have maintained a website on Ukraine’s ‘lawfare’ against Russia; it goes without saying that this site is currently less often updated than before the war. However, unlike many asymmetric conflicts and negotiations between state and non-state parties after the end of the Cold War, in this case it is two states facing each other that both have an apparatus of qualified lawyers who also have external expertise at their disposal.
So who should be the addressees or clients for the currently emerging scenarios and templates? – Governments and foreign ministries in Western Europe and North America, or international organizations that could intervene as ‘mediators’ in negotiation processes?
Scholarly initiatives such as this highlighted example should – if possible – be also turn into a visible exchange with colleagues from academia and practice in the affected states. It is a much needed development that Ukrainian academics and representatives of the media and civil society are increasingly having their say on the war against Ukraine in international debates. It is not about a quota or about a claim that only Ukrainians are qualified to speak about Ukraine, the war, or peace. Rather, in the focus are immanently important questions of inclusion, participation as well as knowledge hierarchies and exchange. Ukrainian experts, some of whom have fled and others who are still in the country, and their professional and academic networks are an important resource when it comes to developing realistic scenarios for peace negotiations and agreements, as well as for transitional justice.
The consequent counter-question is, of course, whether the same should not also apply to Russian legal scholars and practitioners. Already since the annexation of Crimea and the outbreak of the war in the Donbas in 2014, the exchange with Russian scholars and practitioners of international law has been difficult, especially when looking for differentiated opinions that did not belong to the spectrum of the opposition. For example, the illegal annexation of Crimea was not allowed to be publicly named as such. Since then, there have been repeated discussions about whether and how Russian international lawyers now largely follow the line of the Kremlin. Differentiations and variants have disappeared from the lines of argumentation and debate, and the Russian approach to international law has even become – according to some observers – revisionist. Russia’s war of aggression against Ukraine has now further complicated any forms of official (and also informal) direct exchange. How does one talk about ending a war of aggression that may not even be called a ‘war’? What academic partners for such an exchange could be found in view of the fact that the rectors of all leading state-funded Russian universities have signed a joint statement supporting President Putin and his actions? Conference trips abroad and financial and status incentives for international publications in the gratuity system of Russian universities are being scaled down. All those who cannot or do not want to include individual Russian lawyers and legal scholars in a direct dialogue must at least start to read their works carefully and contextualize them alongside the official statements of state institutions and media. This process could also benefit from the collaboration with Russian academics who have already left Russia or are about to do so.
For it is precisely the confrontation with the expertise of the experts of the negotiating parties that reveals the real difficulties and the challenges for pragmatism attuned to them. Those who want to build bridges between the parties to the conflict should begin early to precisely measure the extent of the abyss that has emerged between their interests and positions – including those of their expert communities.
Russia – (no) riddle, mystery or enigma
What can we expect from Russia and its experts in peace negotiations? Will a state that pursues concepts such as ‘Near Abroad’, ‘Russkii Mir’ and that of a ‘Great power’, and speaks of ‘de-nazification’ or even ‘de-Ukrainianization’ of Ukraine as a war goal actually negotiate in good faith and then implement an agreement? – Since the 1990s, the Russian Federation has regarded all the other 14 independent states that belonged to the former Soviet Union as its ‘Near Abroad’, i.e. a strategic space in which it has special interests and where states have only conditional sovereignty. Breaking with the ‘West’, conceptualized as Russia’s antagonist, is a key concept in authoritarian Russia’s foreign policy agenda as well as domestically. Concepts such as the ‘Near Abroad’, ‘Russkii Mir’, and ‘Great Power’ also contribute to the fact that domestic and foreign policy are increasingly inseparable, virtually merging into one another. This is linked to the questioning of sovereignty, territories, borders, and citizenship throughout the post-Soviet area. In this area, the view of the interior and exterior of domestic and international affairs becomes obsolete; rather, it shifts to different conceptualizations and practices of sovereignty: the strong sovereignty of the center, i.e., Russia, versus the limited sovereignty of the ‘Near Abroad’.
Russia’s role in relation to territorial conflicts and non-recognized de facto states in the post-Soviet area in Georgia (Abkhazia, South Ossetia), Moldova (Transnistria), and the Armenian-Azerbaijani conflict over Nagorno-Karabakh also fits into this picture of limited sovereignty. Of course, all of these constellations cannot be lumped together; but for all of the conflict constellations mentioned, internationalized negotiation mechanisms have been established to settle the disputed status of these territories. From an international perspective, all three status conflicts are in a state of legal and political limbo. Russia has been and continues to sit at the negotiating table in all formats. On the one hand, no resolution of territorial conflicts in the post-Soviet space seems possible without Russia’s participation in the various multilateral negotiation and conflict resolution mechanisms. On the other hand, Russia often plays the role of a “patron state” for the supposed internal stabilization of non-recognized de facto states. After recognizing Abkhazia and South Ossetia as independent states in 2008, Russia officially signed an association and integration agreement with Abkhazia and South Ossetia in 2015. According to reports, both “Republics” are sending troops to the war against Ukraine. Moreover, recently, South Ossetia announced its intention to hold a referendum on joining the Russian Federation as soon as possible.
In these conflicts, Russia has developed legal-political instruments and action scripts that it applied in the course of the annexation of Crimea, in the course of the passportization of the Donbas, in the Normandy format negotiations, and last but not least on 21 February 2022, on the eve of its full-scale invasion of Ukraine, with the recognition of the so-called “People’s Republics” of Donetsk and Luhansk. The justifications for this step can be found inter alia in the speeches of the President, his Foreign Minister, as well as in statements of the Permanent Representative to the UN Security Council (see for instance, meeting record of the 9002nd Security Council Meeting on March 23, 2022, available here). The instruments and the scripts of action are coherent but at the same time variable in their application; and Russia currently further extends them with its war of aggression against Ukraine.
All the points and issues raised here are only (simplified) highlights. But they should suffice to serve as a warning not to fall back into outdated patterns: the Kremlin is neither full of space theorists and ‘Schmittians’, nor is it full of offended geopoliticians with a ‘Russian Angst’ neurosis about NATO’s expansion eastwards. The Russian state under its current leadership produces and assimilates concepts and ideas that correspond to its actual or aspired position and goals within the regional and global order. Legal and political concepts related to space, sovereignty, territorial borders, and citizenship are central themes. Worldviews and theories are eclectically combined to form ever more layers of its political agenda, pseudo-ideology, ‘whataboutism’, populism, and propaganda. In combination they form a cohesive and coherent power-pragmatic system that has repeatedly demonstrated its willingness to act and be aggressive, at least since the 2008 Russian-Georgian war.
Einstein once said that it is harder to split a prejudice than an atom; Russia’s negotiating position will be even harder to crack. This is especially true considering that the ‘de-nazification’ of Ukraine has now acquired an ugly twin, the idea of a ‘de-Ukrainianization’ of Ukraine, launched in the public discourse. The RIA Novosti article laying out this idea has the telling title: Что Россия должна сделать с Украиной (What Russia should do with Ukraine).
Thus, whoever sits at the final negotiating table must be aware of the responsibility of what the formulation of this peace agreement entails for Ukraine, Europe, and ultimately the entire world. Yes, negotiations must continue, but it will require all expertise; for Russia will surely come to the negotiating table well ‘equipped’ and well aware of the potential ‘off-ramps’ that the ‘West’ is now so deliberately strategically building.
Knowledge exchange as a chance for peace and security in Germany and Europe
‘Zeitenwende’ means ‘Zeitenwende’ – in the course of the past sixth week of the Russian war against Ukraine, we can only make assumptions regarding the extent of this ‘tectonic shift’ in European history and its challenges for the future.
Yet, in Germany and Western Europe there is research and expertise on Russia and Eastern Europe. The West is not that clueless and will free itself from self-inflicted immaturities. In the coming years, scholarship on Eastern Europe faces the enormous challenge of how it can continue its research and produce knowledge about Russia, Belarus, and also, depending on the state of the conflict, Ukraine, for example. Such research needs to be based on appropriate linguistic and in-depth regional knowledge, since important information is only accessible in the respective national languages and the actions of the actors can only be understood against the background of their world views, their ideological visions as well as their knowledge.
Since the collapse of the former Soviet Union, in the past three decades, area studies expertise on Eastern Europe has been successively reduced rather than expanded, especially in the social sciences as well as in law; this was especially true for university research and teaching. Particularly since 2014, however, there has been a further expansion of non-university area studies-related research. Ultimately, however, it is not just a question of whether and what expertise on Russia and on Eastern Europe – however the regions are defined historically, politically or culturally – is available in Western Europe. It is also a question of how expertise and knowledge production from Eastern Europe can find their way into debates on peace and security on the European continent. This applies not only to processes on the political stage, but also to academic analysis, expertise, and policy advice.
Universities and non-university institutions in Germany are currently taking in refugee scholars from Ukraine and also scholars at risk from Russia and Belarus. If they now continue their work in Europe, in the local context of Germany, their stay also offers new dimensions of knowledge transfer and transnational exchange. It also opens perspectives for a new German security strategy as well as a new peace and security order for Europe so that the European continent does not become a Russian sphere of power. Nevertheless, there is no peace and security order without the inclusion of Russia; a Russia, however, that is in the process of expanding its sphere of power at enormous risk and in an unimaginably brutal manner.
Hmmm, this opinion sounds a little bit „pre-zeitenwende“ to me.
What about the age-old experience „Silent enim leges inter arma“?
Russia is more a kind of Mafia-state, where the „law“ is something to be bought and bend to the will of the filthy rich and the governmental power-brokers.
Ukraine, now, shows a fabulous assertiveness as a country, but this is more about fighting morale and fire power, less about the law.
The problem of the „West“ may be not so coherent as it seems, as the ignorance of the very facts of brutal military power may be not so evently distributed in the EU, not to speak of NATO itself.
In short: at the moment, security for Ukraine will be created on the battlefield, not in seminaries or at universities. Old style national politics, alliances and military prowess show a stark revival, and those western deficits have to be addressed first. The challenge will be: how can we do this, without losing the political cohesion „the West“ is showing to its own surprise?
First we need to know: what is our interest in all this (beyond mere survival)?
Then we will be able to go build a new relationship to our eastern counterparts, and then all kind of legal theories and concepts may come into play once again.
At the moment, nobody knows – and I suggest both sides remember the old „cold war“ wisdoms that helped us to coexist even during the heyday of mutual assured extinction.