A Diplomatic Option To Avoid Endless War In Ukraine

(Photo by Chris McGrath/Getty Images)
Credits

A. Dirk Moses is the Anne and Bernard Spitzer Professor of International Relations at the City College of New York.

Jessie Barton Hronešová is the Marie Sklodowska-Curie Global Fellow at University of North Carolina-Chapel Hill and at Ca’ Foscari University, Venice.

The time has not come for Ukraine to negotiate peace with Russia. So long as Ukraine gains ground and its allies are united, no useful purpose is served by peace talks with Russia, which would certainly seek to keep as much of Ukraine’s territory as possible.

But such a time may come if and when a stalemate ensues or a prolonged war of attrition commences. Then the elephant in the room will need to be addressed: how to administer Crimea, and potentially parts of Donbas, if they remain mostly in Russian hands but neither side is able to fully control or conquer them. For such an eventuality, Ukraine and diplomats on all sides can consider an option tested in the past, with varied results, and learn from its lessons: international territorial administration. 

The Russian invasion of Ukraine is reaching a new, critical stage, with a confluence of developments that could lead to a number of possible scenarios. Currently, Russia is pummeling Ukraine — especially its electricity and water infrastructure — with missiles and Iranian drones because it is losing militarily. As the war drags into winter, Ukrainian battlefield advances may slow while its economy is increasingly devastated and more lives lost. Shortages of weapons are threatening Ukrainian progress, too. Russia wants to soften support for Ukraine by having Europe shiver this winter and experience its own economic woes, while hoping that U.S. support will weaken if Republicans win power in 2024. By Spring 2023, it plans to have replenished and reequipped its forces for the next push. Playing a waiting game, too, the West is calculating that its sanctions may, in time, weaken Russia’s will or capacity to wage war.

Then there is Russia’s vaguely issued but unmistakable nuclear threat, alarming some but dismissed by others, which adds an apocalyptic dimension to this conflict. While not caving into blackmail is preferable, the possibility of nuclear warfare needs to be taken seriously. Putin may not be a rational actor after all, and Russia has over 4,000 nuclear warheads at its disposal, many of which are designed for tactical use in battlefields. Meanwhile, rising food prices and hunger stalk large parts of Africa that are dependent on Ukrainian and Russian grain, leading to the possibility of widespread political destabilization. If the war persists through 2023, it could have catastrophic regional and international consequences beyond Europe.

But both Ukraine and Russia maintain their aims: for the former to regain its illegally annexed territory, and for the latter to control the very same territory and, though Putin may deny it, to destroy Ukraine. Naturally, the territories Ukraine wants to liberate include not only those invaded since February 24, but also Donbas in the eastern part of the country (the proclaimed Donetsk People’s Republic and Luhansk People’s Republic), and Crimea, the peninsula illegally annexed by Russia in 2014.

“If and when a stalemate ensues … the elephant in the room will need to be addressed: how to administer Crimea and potentially parts of Donbas.”

Donbas, but especially Crimea, represent the nub of the security predicament. In crude terms, leaving aside rival historical — and, for Ukraine, legal — claims, possession of valuable industrial assets and mineral resources in Donbas, as well as access to the Black Sea and vital trade routes, is at stake. Crimea is also home to the cherished Russian Black Sea fleet. If Ukraine wins the 2022 war by regaining most, if not all, of its territory lost this year, the next aim will be winning the 2014 war too: vanquishing Russian forces in Donbas and Crimea, in particular.

Given the stakes, the difficulty of regaining and keeping Crimea and the chances of Russia tolerating defeat there without disastrous escalation — need to be considered. So does the possibility of an enduring conflict, with all its global consequences.

In light of these scenarios, we suggest that, while Ukraine is undoubtedly entitled to reclaim all of its territory and should be supported as much as possible to do so, internationalizing Crimea and, if necessary, Donbas, under UN-led administration (with the assistance of other organizations) is a diplomatic option that should be considered as a least-worst-case-outcome of an unhappy peace. It could be a temporary solution that prevents the escalation and/or prolongation of violence before a more workable option is accepted by both parties (e.g. a carefully conducted plebiscite or an arbitration).

Considering this solution, we believe, is not to give in to Russia’s illegal warfare or impose a solution on Ukraine, but to give diplomats and Ukraine an alternative to the zero-sum scenario of looming endless warfare. Otherwise, the risk is great of repeating the open sore of Nagorno-Karabakh, the region of Azerbaijan that neighboring Armenia claims the Soviet Union illegitimately awarded its rival but that is historically, and rightfully, Armenian territory. The two states have been engaged in military conflict over it for some 30 years, most recently this year.

International territorial administrations (ITA) have long featured in peace agreements in the past, as an option to manage conflicting sovereignty claims — most recently in the territories of ex-Yugoslavia, which have produced some of the most far-reaching and consequential ITAs. Difficult as it is to imagine now, it would be prudent to consider this option for the eventuality of a stalemate that changes the war’s dynamics.

Designating this disputed territory as an autonomous ITA region within Ukraine or as a self-standing ITA would mean it is demilitarized and controlled by neither Russia nor Ukraine, allowing both countries to credibly commit to a political settlement.

To be sure, this would be an unhappy solution for all sides — but this is an intractable conflict with global consequences in extraordinary times. Our aim here is to offer historical lessons that will become useful if and when the war dynamics pushes all parties to sit down to envisage an endgame.

Lessons From History

The history of ITAs offers varying lessons about peacemaking. Their historical roots can be traced to condominiums of great powers governing disputed territories to stop wars and/or keep the peace. For example, the “Free City of Cracow” was governed by an Austrian, Prussian and Russian supervisory authority after 1815. Thereafter, Shanghai, Crete and Tangier were also governed by multinational administrations.

While a vestige of European imperialism cannot serve as a model today, these cases teach two lessons: internationalization can work if all parties are in agreement or incentivized to do so, and the denationalization of a territory with a diverse population fosters remarkable hybridity and cultural freedom, for which Tangier became renowned.

The first formal ITA was the League of Nations’ administration of disputed territories after World War I. For the first time, an organization with an independent legal personality governed territory directly on behalf of the international community. The challenges faced by the League of Nations demonstrate the difficulties of ITA when dealing with expansionist or revisionist states, especially if they feel their co-nationals are “stranded” in neighboring territory.

Since the organizing principle of the League of Nations was the nation-state and self-determination, the purpose of ITA was transitional: governance until the popular will could be determined and/or the diplomatic dispute could be resolved. Thus the Saar region of Germany was governed by the League of Nations for 15 years, until a plebiscite would decide its fate. In the 1935 referendum, more than 90% of the population voted to rejoin Germany over joining France or being subject to permanent League of Nations administration.

Such permanence animated the solution for the disputed Danzig (today’s Gdańsk), a German city that found itself in the newly constituted state of Poland in 1918. To appease Germany, the Allies at Versailles made it and surrounding territory a semi-autonomous free state. However rancorous relations between Danzig and Poland might have been, the city was governed peacefully by a League of Nations High Commissioner until the Nazi invasion in 1939.

“To be sure, this would be an unhappy solution for all sides — but this is an intractable conflict with global consequences in extraordinary times.”

Such experiments were unsuccessful when the League of Nations lacked the political will or means to enforce them. The Treaty of Versailles established the former German sea port of Memel (Klaipėda), which the new states of Lithuania and Poland claimed, as a League of Nations-administered territory that French forces governed. It contained a majority of Lithuanians, a sizable population of Germans, as well as Poles, Jews and Russians. When, in 1923, Lithuanian forces marched in, the French did not resist them. League of Nations protests and ensuing negotiations led to a compromise: the annexation was recognized, but Memel enjoyed autonomous status in Lithuania. This solution had parallels to the League of Nations Mandates and minority protection treaties by gesturing to minority rights and local administration: The layered sovereignty of minority rights needed to be considered in territory where populations did not match the national aspirations of the state.

The UN did not plan for ITA when it was founded in 1945. Instead, it envisaged an international trusteeship system to oversee the administration of territories until they could be independent. However, the UN can institute ITA under Article 24 of its charter, which confers “primary responsibility” on the United Nations Security Council (UNSC) for “the maintenance of international peace and security.” The immediate aftermath of World War II called for such UNSC involvement in the mixed city of Trieste and in the UN Partition Plan for Palestine. Both failed because none of the parties bought into the ITA.

Later, the UN gathered other forms of ITA in transitional arrangements, through which it administered disputed territory in preparation for plebiscites, like in West New Guinea in 1962-63 and later in Cambodia, East Timor, Croatia and Kosovo. The latter three, along with other post-Yugoslav cases, represent the most recent UN experiences with ITA and warrant more detailed consideration.

The Case Of The Former Yugoslavia

Ending wars in ex-Yugoslavia included seemingly unsolvable disputes over territories that repeatedly derailed peace. While Ukraine’s situation would be different in many ways — especially as one of the UNSC members is an aggressor — these first complex attempts of international governance present useful scenarios with many international organizations involved (e.g. NATO, UN, European Union, Organization for Security and Co-operation in Europe) that teach us various lessons.

Croatia offers one of the most instructive cases of an effective ITA. The small border region of Eastern Slavonia was successfully placed under an ITA in 1995. The U.S.-backed Croatian Operation Storm in 1995 that recaptured most of the Serb secessionist territories did not advance into Eastern Slavonia. Yet Belgrade continued making claims to it, threatening to derail peace attempts in neighboring Bosnia.

An ITA was negotiated in 1995 that guaranteed security of Serbs and oversaw the transfer of Eastern Slavonia into Croatia (in 1998). Belgrade recognized that Eastern Slavonia was no longer part of Yugoslavia, and Croatia rescinded its rights to control it. The territory was administered by a special UN mission, later deemed “the most successful of all post-Cold Wat UN- or U.S.-led.” Although Eastern Slavonia was easier to resolve, as Croatia was its main destination, the ITA defused conflict as Belgrade kept making claims to it.

A similar solution presented itself in the case of the Prevlaka Peninsula, which was placed under temporary ITA in 1992 and is now disputed in courtrooms (as Croatia and Montenegro seek a resolution of its status) rather than on battlefields. A temporary ITA again proved effective.

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While peace was achieved through diplomacy in Bosnia and Herzegovina, unworkable governance was incorporated into the so-called Dayton peace agreement of November 1995. Dayton, which ended the 1992-95 war, was accompanied by disputes over territories, some of which were negotiated during the war and then inserted into Dayton (e.g. the 1994 Washington agreement settled the Croat-Bosniak conflict and placed the disputed Mostar under a temporary EU administration). It also reflected the then military situation, but questions remain as to whether Bosniaks could have been in a more favorable negotiating position, had they been “allowed” to fight on. This is a consideration with Ukraine today.

Dayton stopped the war, but it weakened Bosnia and Herzegovina’s democratic development. It divided the territory into two semi-autonomous entities, the Croat-Bosniak Federation and Republika Srpska, and introduced extensive power-sharing. These measures undermined governance by assuming that group-based identities are rigid, effectively giving the three belligerent groups superior rights to individual citizens. By inserting group-based rights into the Bosnia and Herzegovina’s constitution (Annex IV of Dayton) and creating a highly decentralized territory, the central state became weak and inefficient.

“The Dayton peace agreement stopped the war, but it weakened Bosnia and Herzegovina’s democratic development.”

The issue of negotiating with orchestrators of atrocities was already polarizing at the time of Dayton. Serbian leader Slobodan Milošević represented Bosnian Serbs, some of whom were already under international indictments (Milošević was indicted in 1999). In Dayton, peace prevailed over justice. For many, this delegitimized Dayton, as Serbs were “rewarded” for their war crimes.

Dayton was indeed a “compromised peace” that made no one happy, riven with contradictions and bargains for the sake of stopping the war. In Ukraine, much would hinge on the military situation on the ground, and negotiating with the Kremlin will likely tempt diplomats with many possible compromises. Dayton teaches us lessons on the potential costs of some peace bargains: governance, imperfect justice and slow development.

Within Bosnia and Herzegovina, the town of Brčko, a strategic port on the Sava River, holds more instructive lessons for the tricky status of Crimea. Once dubbed the “mother of all difficulties in Bosnia,” the Brčko area is now surprisingly forgotten. Located on the border with Serbia and close to Croatia with links to the Danube, it also divided the secessionist Republika Srpska in two, leading to fierce violence and brutal atrocities. At Dayton, a postponement of Brčko’s status through internationalization and multi-partied arbitration was agreed upon. It was overseen by the U.S. but negotiated by both entities within a year (through three arbitrators — one from Republika Srpska, one from the Croat-Bosniak Federation and one international, if need be chosen by the International Court of Justice).

Gradually, by 1999, the arbitrators unified Brčko in a “neutral” and multi-ethnic “district” as a condominium. Its territory was de facto under both entities, but Bosnia and Herzegovina’s state authorities had the dominant jurisdiction. It seemed a Solomonic judgment as both entities gained territory but lost governance. The U.S. Supervisor (with British and Russian deputies) remained tasked until 2012 with turning Brčko into a single unit through multi-ethnic governance and institutions.

“Brčko presents a general model of innovative international administration that has proven surprisingly effective, though not perfect.”

By 2003, Brčko had similar ethnic composition to its pre-war population — a rare occurrence in Bosnia and Herzegovina — and is currently run as a multi-ethnic, self-governed area by a mayor and an assembly. There is no denying that Brčko’s future depends on Bosnia and Herzegovina’s development and is by no means decided. But it presents a general model of innovative international administration that has proven surprisingly effective, though not perfect.

Kosovo provides a final set of lessons that should be generally unlearned. Part of Yugoslavia as a province (not a republic as Croatia and Bosnia and Herzegovina), Kosovo’s pursuit of non-discrimination and self-rule throughout the 1990s resulted in violence. The 1998-99 war saw atrocities mostly committed by the Serb forces, leading to NATO’s air campaign over Serbia in March 1999, which was controversially labelled “humanitarian.” It did not receive UN backing, as it was opposed by Russia. (Moscow still sees it as a humiliation, and NATO’s involvement in disputed territories would certainly have to be kept off the table in Ukraine.)

While independence was not foreseen, after regional violence in 2004, the UN commissioned a report that in 2007 proposed a supervised independence without true negotiations with Belgrade. As a result, Kosovo declared independence in 2008, later recognized by over 100 UN members, including the U.S. — though Serbia, Russia and five EU states rejected the declaration. To this day, the legality of the independence remains disputed, although the International Court of Justice deemed it as not in violation of international law.

While peace was reestablished through NATO intervention and presence, extensive foreign funding and administration by the UN, EU, and other organizations, Kosovo is the most legally problematic of all the ex-Yugoslav cases — many international principles were broken, justifiably leading to accusation of western hypocrisy. While placing Kosovo under a protectorate stopped bloodshed, the flawed western treatment of the Kosovo-Serbia dispute has hindered Kosovo’s development.

The former Yugoslavia offers lessons on what is feasible (demilitarization, security, and international arbitrations with set deadlines) and what is not (complex rigid power-sharing under international supervision).

Undoubtedly, the Yugoslav cases would have failed under different geopolitical circumstances. In the mid-1990s, Russia was re-opening and cooperating with the West. The rump Yugoslavia was militarily and economically on its knees, crushed by economic sanctions and continuous fighting, and short on allies.

Both in Bosnia and then in Kosovo, negotiating a compromised peace was Belgrade’s preferred option. It allowed it to claim a pretend victory, when in fact it was on the brink of defeats that eventually precipitated Milošević’s fall in 2000 (another lesson the Kremlin may have learned). The compromised peace also kept several issues open — Kosovo is in political limbo and Republika Srpska keeps derailing Bosnia with secessionist threats. It is also important to note that regime change in Belgrade took over a decade. There were many flaws in these examples of ITA, but they were all effectively deployed to stop fighting.

How This Could Be Applied To Crimea And Donbas

There is no doubt: an ITA of Crimea and, if needed, Donbas may sound radical to consider or even unworkable to some. The degree of radicalism turns on the question of sovereignty: whether it is a transitional, peace-keeping operation until a transparent plebiscite is held or an arbitration takes place; or an autonomous region within Ukraine; or an internationally administered Free State of Crimea with a new international legal personality, independent of Russia and Ukraine. None of these would be as costly as waging indefinite warfare.

While risk is unavoidable, we have enough experience from a raft of historical cases to draw important positive and negative lessons. The primary one is that a resolution can be found with sufficient international determination to commit to Donbas and Crimea as an ITA, if equipped with significant resources and military backing for the long haul, if Ukraine engages with it, and if Russia agrees to give up its conquest (indeed, the biggest challenge for this plan but if it were up to Russians, pre-war polling suggest they are willing to entertain many options).

The ITA would have to balance competing UN principles: the democratic wishes and human rights of locals if they wished to join Russia or belong to Ukraine, versus the imperative of international peace and security. This clash of principles would come to the fore practically if Russian-speakers in the occupied territories agitate to join Russia (and there are justifiable fears that many would), just as the majority Lithuanian-speakers in Memel agitated to join Lithuania, which invaded the territory to give effect to their will. Yet there are innovative ways to organize plebiscites — for example, accounting for the wishes of the population that forcefully left the occupied territories after 2014.

But how could such an agreement come about in the first place? Negotiations will not begin in earnest until both sides believe a stalemate has been reached. We do not know what circumstances will produce a battlefield stalemate, but the exhaustion of both sides — and of their supporters — in the course of 2023 is not too difficult to imagine.

“An international territorial administration becomes thinkable precisely when Russia is weakened.”

Certainly, Russia will never allow Donbas and Crimea to be internationalized short of losing the war outright. After all, Germany had no choice but to accept the League of Nations administrations of the Saar and Memel because it lost the war. Yet similarities could also be drawn with the situation in Yugoslavia that was losing the wars, and diplomacy turned out less costly for the various regimes. Similarly, the Kremlin’s position will be weak if it opts for an internationalization and may play hard. After all, Milošević paid for his military losses and his regime fell. This will need to be factored in but should not be used to prevent peace.

As for Ukraine, internationalization would only come if it is unable to regain all of its territory militarily, or if human and economic losses prove to be too much to bear for Ukrainians (and there is little sign of that now, as Ukrainians are as resilient as ever). Any ITA will need to be fully endorsed or even planned by Ukraine. In which case, would Russia relinquish control?

The answer to these questions lies in the hands of the supporters of both sides. Russia needs to be made to realize that Ukraine’s allies will arm and support it until Ukraine can prevail. This is where diplomacy needs to be wielded with sticks as well as carrots, for the Russian party could well have recourse to nuclear weapons at this point. But just as premature peace talks are naïve, so is talk of total defeat of a powerful nuclear state.

To be sure, it is unlikely that Putin would readily agree to an ITA, interpreting it as weakness. But the point is that an ITA becomes thinkable precisely when Russia is weakened. The international community needs to give any Kremlin faction seeking de-escalation an option that does not entail handing over to Ukraine territories that the Kremlin and the majority of Russians consider a national patrimony, especially with regard to Crimea. If Russia relents, Ukraine’s allies can signal that the arms fall silent, and the UN can step in. A potential 15-year plan for Crimea was already proposed during the first round of peace talks, so it is hardly unthinkable.

Such a plan needs to be developed by UN agencies and fully endorsed by Ukraine after authorization by the UN Security Council (Russia having signaled its consent) and General Assembly, and in consultations with all parties involved at the UN level. The UN has the necessary agencies and machinery at its disposal. Chapters VI and VII of its charter govern peace keeping missions, which would be the first step. It has established a peace building commission, and peacemaking and peace enforcement is the purview of the UNSC.

The plan would need to consider how to administer a territory. The experiences we analyze above indicate some ways forward: a (temporary) international commissioner, possibly with Ukrainian and Russian deputies (though they should not have veto rights); an independent international police that trains local forces; a locally run administration; options for a future plebiscite (or arbitration) that will address forceful changes of demography; proportional representation with some reserved seats for underrepresented minorities, as well as concessions for multilingual and religious education, especially for the indigenous Crimean Tatars (whose dwindling population of just around 13% is the result of Russian and Soviet deportations and colonization since the last eighteenth century). To be sure, any plebiscite to determine ultimate sovereignty would have to reckon with Russification policies instituted since 2014, in Crimea in particular. Basing the local governance structure on rigidly defined identities is also a danger if one party contests the spirit of the ITA, as we saw in Bosnia.

Who pays for the running costs would require negotiation as well. We know that committing to peace will be costly but certainly not as costly as the continuation of the war. UN peacekeepers of sufficient capacity with a Chapter VII mandate will need to be deployed to deter revisionism —Russia or Ukraine (or both) deciding to “liberate” the territory, as we saw in the case of Memel or even Fiume.

The composition of such a force would require serious consideration. Demilitarization would be the priority, in the sense of the withdrawal of Russian forces and demobilization of local militias. The question of the Russian Black Sea fleet in Sevastopol is an obvious major sticking point. Another one is the prosecution of Russian war crimes. It is hard to see Russia agreeing to an ITA if it entails handing over its personnel (let alone its president) to an international tribunal. However, Russia would not do so even if it were pushed out of all Ukrainian territories. Some of these issues can, in fact, be left for later negotiations — in situations like these, peace can come before justice. Justice delayed is not always denied. The question of reparations is another stumbling block, but, again, one best left for future negotiations.

What we do know is that an ITA is preferable to continuous conflict or revisionism, and that no other viable peace proposals have been put on the table. Ukrainian President Volodymyr Zelenskyy’s peace plan is a plan of victory that may be possible, but may also prove to have catastrophic consequences. While we hope it is possible, we also want to suggest that there are other options that would not result in Ukraine losing its territory. In reality, Ukraine might be asked to accept Russian annexation of Donbas and Crimea in exchange for peace. This would be a disastrous outcome: the 2014 annexation violates the UN Charter and the basis of the international order. It cannot be accepted. Given the stakes, we believe an ITA is an important option to consider as way out of an impossible predicament.