Russia’s attack on Ukraine stretched into its sixth day Tuesday, as a massive armored convoy advanced toward the capital, Kyiv, and major cities were hit by heavier shelling.
The International Criminal Court said Monday it would open an investigation into whether Russia has committed war crimes and crimes against humanity in Ukraine. The decision was announced hours after peace talks in Belarus ended without any clear progress.
Ukrainian President Volodymyr Zelenskyy implored the European Union to accept Ukraine’s application to join the bloc in a speech before the European Parliament on Tuesday that was met with a standing ovation.
In retrospect, Short of these outcomes, a poor resolution of the crisis can have other, less immediate but ultimately wholly corrosive impacts on the modicum of normative order that currently prevails. Following Biden’s January 19 press conference, the New York Times reported: “Putin may … be trying to redefine what the West considers unacceptable behavior… By making an invasion seem possible, Putin can try to win other concessions, such as a freer hand in Eastern Europe. “This is going to require very creative diplomacy to resolve if it can be resolved.”
Representatives with knowledge of what international law classically requires and what the institutions of international law offer must be engaged with the parties in negotiations. The natural venue for talks is the Organization for Security and Cooperation in Europe (OSCE) based in Vienna. Lieven wants such negotiations to aim at expanding the existing Minsk II treaty reached among Russia, Ukraine, France, and Germany in 2015. Minsk II has languished without sufficient support by the participants or the main non-participant—the United States. Ukraine, the US, its allies, and Russia can revisit the agreement and avoid war. Talks aimed at Minsk III should be ambitious, resolving not just the current border issues but Crimea and other regional conflicts. The important provisions of Minsk II to retain are a cease-fire in Eastern Ukraine certified by the OSCE, de-militarization of the border region, and autonomy for the Ukrainian provinces of Luhansk and Donetsk. I would add autonomy for Crimea but recognition of Ukrainian sovereignty and a United Nations peacekeeping force.
Instead, the US can agree with Russia to a re-set and re-commitment to the peremptory norm against the use of force as codified in the United Nations Charter. They can mutually agree to reject claims respecting humanitarian intervention and self-defense on less than the strict requirements of the Charter. This means ending targeted killings by any means. The two sides can agree to a re-commitment to the OSCE as the natural institution to mediate relations in Eastern Europe. Promoting this organization will provide a face-saving way to avoid the NATO expansion issue, which the US should wish to avoid as much as Russia. Washington clearly does not want a war with Russia to defend Ukraine as a NATO member.
Here is where Germany and the EU come in. The OSCE can take up its role of monitoring any new agreement, providing early warning of violations that will trigger sanctions. Germany holds the key to the most important, lawful, and effective sanction—cutting off natural gas purchases from Russia. It is targeted and less likely to have global, disruptive impacts. It will create hardship in Germany, but German leaders should be regretting not taking on this hardship in 2014, in the first week of the crisis.
President Obama should have insisted on this step in 2014 when Russia unlawfully took control of Crimea. Sacrifice then could well have avoided the far more dangerous situation the world faced today. It would have been a sacrifice not only to restore Crimea to Ukraine but in support the international rule of law in the world.
Failing to act eight years ago, means the need to act now is more urgent. Resolving the ultra-dangerous Russia-Ukraine crisis requires the “rules-based order” as the U.S. officials like to term it these days. The rules-based order is the international legal order. It is from international law that the concepts at the heart of the crisis come—territorial integrity and the rest. Russia and the United States have done much to weaken this law, especially the prohibition on the force in their conflicts from Afghanistan to Crimea to Yemen. Rebuild the rules and institutions of peace and turn to the other crises that also require law, organization, knowledge, and sacrifice.