Toward a Diplomatic Solution in Ukraine

None of the parties involved in the ongoing crisis in Ukraine have entirely clean hands, but that does not signify equivalence. Had Russia taken action to ensure just the security of its military bases and fleet amid the uncertainties in Ukraine in late February and used that leverage to get guarantees both from Kiev and the international community regarding these bases and the autonomous status of Crimea, most governments would have understood the Realpolitik calculus. The situation could have been resolved diplomatically in accordance with the integrity of Ukraine and the national security interests of the Russian Federation. Russia, however, claimed to annex territory of another UN member state and did so under duress. This act and the declaration of an unrecognized right to intervene in other states whose citizens speak Russian undermines the very terra firma on which the post-World War II system is based and threatens further instability from Astana to Vilnius. Europe cannot allow this affront to the security and prosperity on the continent that has existed for sixty-nine years as of May 7-9. A solution—a diplomatic solution—must still be found. That goal will require Europe to form a consensus and make sacrifices that will belie the charges of irresolute softness with which it is sometimes charged.

Let’s stand back and review the recent untidy chain of events:

On February 21, 2014 then Ukrainian President Viktor Yanukovych signed an interim agreement with opposition leaders in a deal brokered by the foreign ministers of Germany, Poland, and France. Russian President Vladimir Putin had urged Yanukovych to sign the arrangement which, in addition to attempting to end the riots in the street, provided for:

• Formation on a national unity government;
• National elections to be moved up to December 2014, which allowed time for a full national debate and national expression on such contentious issues as closer ties between Ukraine and the European Union (EU).

The very next day President Yanukovych vacated Kiev followed by a flurry of actions that resul/ted in:

• The impeachment of President Yanukovych in a manner inconsistent with the terms of the Ukrainian Constitution;
• His replacement by an unelected new government dominated by ministers from the former Hapsburg provinces in Western Ukraine that are heavily pro-EU;
• Passage of a law that downgraded the status of the Russian language (later rescinded);
• Uncertainty about the autonomous status of Crimea and the security of long-term leases for the naval base, which is the home port of Russia’s Black Sea fleet;
• Rapid execution of an Associate Agreement with the EU by the “transitional” government without waiting for national elections that were to be held in less than two months.

The perception that the same European powers that brokered the deal might have encouraged the protestors to overturn the compromise caused insecurity in Moscow. In fact, given similar activities employed elsewhere and the transcript of the infamous tape by Assistant Secretary of State Victoria Nuland—wife of neocon Robert Kagan—one does not have to view Moscow as overly paranoid to understand its suspicions that covert actions might have been at work in inciting the Maidan protesters in the first instance and the ouster of the president as its culmination. The fact that these outcomes occurred and were quickly endorsed by the United States and the EU—who vocally champion democratic processes and the rule of law—was particularly galling to the Kremlin.

Of course, there is an alternative interpretation that, seeing he was playing a losing hand, President Putin put into play a series of events of a defensive Plan B that allowed Russia to claim that it needed to protect its interest and ethnic Russians who wanted to exercise “self-determination” and join the Russian Federation. Under this view Yanukovych left the capital and withdrew security from government buildings precisely in order to create a vacuum that set a backdrop of chaos, disorder, and—according to Russian spin-meisters—a “putsch.” The effective use of special forces—the so-called little green men wearing no insignia, but sporting Russian military equipment—was augmented by presumably paid domestic strongmen to orchestrate an apparent groundswell of public support for annexation by Russia backed by tens of thousands of Russian troops on the border to exert maximum leverage. Although the finesse of these special forces and the much improved logistical mobility since the Georgia war of the conventional military of the forces on the border caught Western security experts off-guard, the Crimean annexation referendum was so clumsy and illegitimate that not even Belarus recognizes it. The referendum was hastily arranged, carried out under conditions of duress, did not offer saying “no” as an option, and violated both Ukrainian and international law, including international agreements in which Russia itself guaranteed the territorial integrity of Ukraine.

What could a diplomatic solution to this schweinerei—this “mess”—look like?

The status of Crimea. The central issue at stake is the forced annexation of Crimea from Ukraine, an original member state of the United Nations, by another member state that sadly, is also a permanent member of the Security Council. At the time that Ukraine became a UN member state (1945), however, it did not include Crimea. Crimea was granted to Ukraine by Nikita Khrushchev in 1954 as essentially an internal transfer within the USSR. In 1991, at the time Boris Yeltsin dissolved the USSR by the creation of the Commonwealth of Independent States (CIS)—in conjunction with Ukraine and Belarus—this internal transfer should have probably been undone given the long history of Crimea and the fact that Crimea is the location of numerous important Russian military bases, not the least of which being the home port of the Russian Black Sea fleet in Sevastopol.

Yes, while it is true that was not done and that Russia in 1994 acted as a guarantor of Ukrainian territorial integrity and renounced claims to Crimea, what is being suggested here is that Ukraine and the international community reconsider that decision. Although there is no moral equivalence between Kosovo’s unilateral declaration of independence and, unlike Crimea, Kosovo was not annexed by another country and its people had been subjected to ethnic cleansing and genocide, the International Court of Justice’s (ICJ) argument that the sudden dissolution of Yugoslavia created a special situation applies to the rapid and almost chaotic dissolution of the USSR—notwithstanding the ICJ’s statement that its decision had no precedent value. On the other hand, in resolving this matter Russia cannot be allowed to benefit from its use of special forces and the wholly illegitimate manner in which the referendum was carried out. Russia gave up that claim when it failed to pursue a diplomatic resolution in February. Such a resolution could have possibly included a request by the government of the Autonomous Republic of Crimea to negotiate its status, possibly to include an orderly secession—which is exactly in the form of Russia’s objection to the secession in Kosovo. Instead, Crimea would be established as a protectorate of the United Nations. Russia and other powers would have to agree not to interfere in the internal operations of the region. Ukraine would agree not to cut off power or water to Crimea and Russia would provide Ukraine a similar guarantee with regard to energy. Russia would also return the seized naval ships to Ukraine. After five years an internationally sanctioned referendum would be held in which the people of Crimea would be given three options: (a) gain independence, (b) become part of Russia, or (c) rejoin Ukraine as an autonomous region. Russia would be given a ninety-nine year lease on the naval base in any event. President Putin would have to renounce the self-proclaimed annexation, just as Ukraine would have to renounce its 1994 boundary that had been guaranteed by Russia. A reasonable exchange. And President Putin should simultaneously be cautioned on his implied doctrine that actions taken by a “weak” Boris Yeltsin should be undone, as his selection as Yeltsin’s successor was one of those very decisions.

Other provisions. The other centerpiece of a diplomatic resolution would be a declaration of neutrality and non-interference. Although Ukraine would continue as an Associate Member of the European Union, it would agree not to seek full membership within ten years and then would do so only with the approval by national referendum by some supermajority provision to be included in a new Constitution. Ukraine would agree to conduct trade with the Russian Federation on a nondiscriminatory basis. As part of the neutrality declaration Ukraine would foreswear participation in NATO or other military alliances. Ukraine would begin work on a new national Constitution, which would send more powers back to the provincial governments, but the central government would retain responsibility for foreign affairs, the military, trade, and treaties within a modified unitary system. All powers would commit to non-interference in the internal affairs of Ukraine. Russia would agree not to station troops in Crimea or within 150 kilometers of the Ukrainian border in numbers or complements above what it had maintained there in the period 2010-12. Separately, Ukraine and Romania would agree to the continued jurisdiction of the International Court of Justice to any further disputes concerning Snake Island, which was also not part of Ukraine in 1945.

Diplomatic Leverage. President Putin is clearly not going to respond to any diplomatic proposals merely by saying “please.” A diplomatic resolution will require concerted action by Europe—in recognition of the continued peaceful development of the continent—and might require some discomfort in the short run in order to avoid much greater pain in the long run. The history of Europe over just the last century provides an unfortunate choice of such examples. As a first step, Germany should reject being neutralized by Russia via Nord Stream, and Europe should create an energy union once and for all. The initial sanctions imposed to date are just a start. If necessary, stricter sanctions on access of the banks and national energy firms to international markets would be implemented. The delivery of two Mistral amphibious assault ships ordered from French shipyards should have already been cancelled. The freeze on visas and access to the financial system in the West should be imposed. Although Ukraine should not be further militarized, NATO should do more to bolster the Baltic states and Poland. Exercises in Poland and Germany near Kalingrad Oblast should be evaluated. And finally, public diplomacy—hitherto unemployed—should be scaled up. The Russian people should understand that President Putin, the ruling inner circle, and the oligarchs’ great wealth has come at their expense and the expense of modernizing and diversifying the Russian economy, which, in spite of the great talents of its people, is run as a petrostate. Finally, the Russian people should be helped to understand that no one paid a larger price for the new international order that emerged from the victory in World War II than Russia, which sacrificed tens of millions of its citizens in that cause.

David W. Wise is a graduate of The Fletcher School of Law of Diplomacy at Tufts University and is a member of The International Institute of Strategic Studies.