A Ukrainian victory would be a fine thing, but can it help prevent future wars?

In a few days’ time, we will mark the first anniversary of Russia’s re-invasion of Ukraine. It will be a sad occasion, as fighting is almost certain to go on for a long time with tens of thousands of soldiers and civilians losing their lives and the devastation of Ukraine proceeding apace. Neither Moscow nor Kyiv are anywhere close to achieving their strategic objectives in the war. Despite talk of imminent spring offensives by both sides, it doesn’t seem likely that these will prove decisive enough to end the conflict on terms that are acceptable to either side. Putin will want, at the very minimum, to occupy the four Ukrainian provinces that he has illegally annexed to Russia. Kyiv, for its part, is committed to pushing the Russian forces entirely out of Ukraine and then starting peace negotiations that will include war crimes trials for the Russian civil and military leadership, as well as Russian reparations for the destruction inflicted by the Russian army, which is rapidly approaching the $1tn mark.

The anniversary on 24 February will generate a good deal of debate among Western policymakers and strategists as to how the war is likely to unfold in its second year. Will the new weapons that have been promised to Ukraine, such as tanks, infantry fighting vehicles, long-range artillery and air defence, arrive on the battlefield in time and in sufficient quantity to enable the Ukrainians to punch through the fortified defence lines that Russia has been built this past winter in Donetsk and along the Dnieper river south of Kherson? Do the Ukrainians need Western fighter jets to achieve tactical air superiority in areas where they are engaging their heavy armour? Most analysts of warfare would argue that control of the skies is the precondition to achieving success on the ground. Can the NATO countries train the Ukrainian army in the skills of combined arms operations so that all its incoming equipment can be used in the most integrated and optimal way? Can these same countries also establish a training, supply chain and equipment repair system to ensure that the tanks, artillery and air defence batteries are kept functioning for as long as possible? Is the West so committed to a Ukrainian victory that it will supply Kyiv with everything it needs and for as long as it needs it, despite the risks of a further escalation with Russia? Or will the West lose faith in an ultimate Ukrainian victory and decide to cut its losses, push Kyiv towards a compromise peace with Putin and keep its military capabilities back for the defence of its own NATO territory? The military and financial support that Kyiv has received from its Western partners, as well as the sympathy and solidarity shown by vast swathes of Western public opinion, have been remarkable in this first year of the war. But which factors might cause the mood to change? President Volodymyr Zelensky’s firm crackdown on corruption in recent days, with the sacking of numerous ministers, provincial governors and officials, demonstrates his concern not to give any pretexts to Western governments or parliamentarians to question their support for his country.

While these issues will most certainly be hotly debated in innumerable TV reports and newspaper op-eds around 24 February, there is another, even more important question that should be on the agenda: how can we use the lessons of the war in Ukraine to prevent future wars?

Wars and great power rivalries were the common lot of humanity for centuries until the end of the Cold War in 1990 seemed to mark the ‘end of history’, ushering in a Kantian vision of perpetual peace in which economic interdependence and globalisation based on the internet would seem to make notions of territorial conquest archaic and even irrational. As new states were created across the globe with different ethnic or religious groups vying for power, conflicts within states would continue, but hope remained that the massively destructive existential wars between states of the 20th century would gradually fade away. The end of the Cold War resembled the end of long, destructive conflicts that blighted European history in previous centuries. Determined to prevent another expansionist power like Napoleonic France from disrupting the traditional balance of power, the 1815 Congress of Vienna constructed a Concert of Europe to spare the continent from the egalitarian upheavals and nationalism engendered by the French Revolution. Democracies claimed that they were fighting in the Great War to defeat militarism and for ‘the war to end all wars’ between 1914 and 1918. Afterwards, they looked to US president Woodrow Wilson’s Fourteen Points for a liberal international order free of conquests and annexations, as well as to the Covenant of the League of Nations to preserve the peace. Collective security exercised by the major powers would deal with disrupters and troublemakers. In the 1930s, the Peace Pledge Union led by the Reverend Dick Shepherd drew thousands to its anti-war rallies in London; it had its counterparts on the European continent. In 1935, the French foreign minister, Aristide Briand, and the US secretary of state, Frank B. Kellogg, signed their famous pact to outlaw war altogether. The members of the Oxford Union voted in 1938 that under no circumstances would they fight for ‘King or Country’. After humanity’s most destructive war from 1939 to 1945, the newly minted United Nations Charter proclaimed that the purpose of the new UN was “to rid mankind of the scourge of war”. The responsibility for achieving this was vested in the UN Security Council.

Despite these noble intentions, history has sided with the Russian revolutionary, Leon Trotsky, when he famously stated that “you may not be interested in war, but war is interested in you.” Liberal orders and European security systems have proved powerless to stop authoritarian states from resorting to war to achieve their strategic, economic or territorial ambitions. Collective security by the liberal democracies has been able to respond, as when a US-led coalition evicted Iraq from Kuwait in 1991 or when NATO drove Slobodan Milošević’s Serbia out of Bosnia in 1995 and Kosovo in 1999, but it has not been able to prevent these aggressions. As a result, we may be resigned to accept war as a tragic but unavoidable feature of international politics and even learn to live with it, provided that our own territories and way of life are not immediately threatened.

Ukraine has been a salutary reminder that wars do not stay in convenient self-contained boxes. Beyond the terrible loss of life and destruction that Putin has inflicted on Ukraine, as well as upon his own conscripted compatriots, his war has displaced over ten million people, exacerbated a food crisis in Africa, threatened nuclear power plants and provoked spiralling energy costs and inflation across the industrialised world. Russia has also directly threatened NATO and repeatedly gesticulated with nuclear weapons. NATO has had to strip its own armed forces and expose itself to risk in order to help Ukraine to defend itself. Viewed from this perspective, Ukraine is truly a global war. Our lives are all the worse for it, whether we are on the frontline or far away. We would all be massively better off had the war not started or if Ukraine could end it successfully by liberating its territory in the near future.

Analysts of the war in Ukraine usually start from the negative perspective. The assumption is that a Russian victory would open the floodgates for other authoritarian leaders to conclude that ‘Might is Right’ and that the use of force is a risk well worth taking to right a historical wrong or bring to heel a recalcitrant neighbour. China’s pressure on Taiwan, the enduring tensions between India and China in the Himalayas or with Pakistan over Kashmir, or Azerbaijan’s quest to regain control of Nagorno-Karabakh from Armenia are often cited in this connection. What of the converse, more positive perspective? Is it possible to exit the Ukraine conflict with deterrence restored and more robust guardrails against Putin or other authoritarians resorting to aggressive war again? Which instruments are available to Western democracies to rein the authoritarians back in, and which outcome of the Ukraine war could help to achieve this goal? The chances of success may be slim, but war is so unacceptable as a means of settling disputes that diplomats and politicians are morally obligated to try to identify and test the best options. Here are some ideas, which hopefully will elicit better solutions. At the very least, NATO and EU summits in coming weeks and months need to start the debate.

1. The terms of a peace agreement between Ukraine and Russia

We cannot yet foresee what the terms of a peace agreement will look like and if Russian troops will still be on Ukrainian territory. The key requirement will be to prevent future Russian aggression. In this respect, we need a Dayton, not a Minsk. Certainly, the 1995 Dayton Peace Agreement had its flaws. It rewarded ethnic cleansing to some extent by giving the Bosnian Serbs their own distinct entity, the Republika Srpska. It saddled Bosnia with too many layers of government and public administration, which is always a recipe for paralysis in implementing decisions and carrying out policy initiatives. Moreover, it left some issues, like the status of the city of Brčko, unresolved. Yet, Dayton got the security equation right. Borders were secured, Serb and Croatian forces departed and the remaining entity armies were divested of their heavy equipment and reduced in size. A NATO-led force of 60,000 – Implementation Force (IFOR)/Stabilisation Force (SFOR) – with heavy armour and total control of airspace oversaw the demobilisation, kept the peace and integrated the Bosnian entity forces into a new multi-ethnic national army before handing it over to the EU in 2004.

Of course, Dayton is not a blueprint that will fit Ukraine precisely. Following a peace agreement, the Ukrainian army will hardly be demobilised but kept in place as a deterrent to future Russian attacks. The point here is that the Dayton agreement contained a very lengthy annex covering military implementation: it obligated the parties to take a series of steps overseen by a credible international peace implementation force; it provided for a ten kilometre zone of separation between the forces and put heavy military equipment into internationally supervised cantonments; it denied the parties the military use of airspace; it also built military parity between the entity forces so that no one could achieve the local superiority to carry out a successful attack. So, something similar but adapted to Ukrainian conditions will be needed to give Kyiv the security guarantees that it insists upon before signing a peace agreement with Moscow. What must be avoided is another Minsk-style agreement with vague clauses that can be interpreted in different ways by the parties, no concrete or sequential timetable for implementation and no robust international military force to enforce compliance. Minsk made it too easy for Moscow to demand elections in the Russian-occupied Donbas and a special status for the region with constitutional changes before it made any moves of its own, such as the withdrawal of Russian forces and the respect of Ukraine’s international borders.

2. Prosecute Russia for waging a war of aggression in an international court

The International Criminal Court (ICC) established under the Rome Statute in 2002 has no jurisdiction over the crime of war of aggression. Its mandate is restricted to war crimes, crimes against humanity and violations of international humanitarian law; in other words, crimes against individuals rather than entire states. The charge of a war of aggression was successfully brought against the Nazi regime at the Nuremberg trials in 1946. Admittedly, Germany’s unconditional surrender, the allied occupation of Germany and the capture of most of the Nazi civilian and military leadership made it easier to move ahead with the prosecutions and the associated punishments. At the time, the Soviet Union was part of the prosecution team rather than in the dock. It will not be as easy this time round, as the Russian civilian and military leadership would need to be tried in absentia and might never face justice. Obtaining compromising materials such as documents, proof of the decision-making command chain and records of meetings from inside the Kremlin will also be a significant challenge – absent a change to a different form of Russian government. The same scepticism was expressed back in the mid-1990s when the International Tribunal for the Former Yugoslavia was established and yet all of the surviving 161 indicted war criminals from that conflict, including the Serbian head of state, Milošević, eventually had their day in court.

Believing is doing. Last week, in Kyiv, the EU took a decisive step forward by announcing the establishment of a special investigative bureau co-located with Eurojust in The Hague, which will start to gather the evidence to meet the legal standards for the crime of war of aggression. The British barrister, Philippe Sands KC, who has published extensively on genocide and crimes against humanity, is leading an expert group, with the support of the United Kingdom and other governments, to identify the best form of tribunal, whether a permanent stand-alone court, an ad hoc mixture of a Ukrainian and international tribunal or a sub-structure of the current ICC. Going via the UN may not be easy, given the vetoes that Russia and China, and perhaps with the support of other, non-permanent members, will exercise in the Security Council. Yet, to use the phrase of Nathan Cummings: “Nothing will ever be attempted if all possible objections must first be overcome.” The mere existence of a tribunal and the possibility of convictions are bound to create a political dynamic of their own, produce damaging material, delegitimise further the civilian and military leadership of Russia and provide the basis for further sanctions. In this way, they can have a deterrent effect on other, aspiring aggressors.

3. Bring the International Criminal Court fully into play

The ICC’s reputation has taken a hit in recent times as it has been accused of focusing unduly on African leaders and failing to get those it has indicted, such as Omar al-Bashir, the former president of Sudan, or Saif al-Gaddafi, the son of the former Libyan dictator, to The Hague to face trial. It also dropped charges against the former president of Kenya, Uhuru Kenyatta, having moved to indict him for whipping up widespread electoral violence in the country. This is a golden opportunity for the ICC to redeem itself. The Ukrainian government has registered so far 88,000 individual war crimes committed by Russian forces against the Ukrainian population. Forensic teams from EU member states, the UK, the United States and Canada have spent time on site in places like Bucha to help the Ukrainian Ministry of Justice gather evidence and identify the perpetrators in a way that can substantiate future indictments. Never before has the social media and the witness statements of innumerable Ukrainians furnished so much material for prosecutors to pore over. A precedent has been set by the excellent work that the Dutch investigative team has done to unmask the two Russians and one Ukrainian who were behind the shooting down of Malaysia Airlines Flight 17 over the Donbas in July 2014, in which 297 people lost their lives. The detective work took seven years but ultimately provided conclusive evidence of the involvement of the three individuals, enabling a trial to go forward in a Dutch court. Subsequently, the Dutch investigative team has been seeking to resume its probe into those actually operating the Russian Bug anti-aircraft missile battery that shot down the civilian airplane.

The Chief Prosecutor of the ICC, Karim Khan, has argued that his court should be given the job of investigating and prosecuting the war crimes in contrast to others that have advocated an ad hoc tribunal, like those for the former Yugoslavia and Rwanda, the Scottish tribunal set up in The Hague to try the suspects of the Pan Am Flight 103 bombing over Lockerbie in 1988 or, more recently, the Kosovo Specialist Chambers. Naturally, the ICC cannot handle 88,000 cases so, as with the Yugoslav tribunal, there will need to be a division of labour between those tried in The Hague and those tried in Ukraine or other national courts under the ICC jurisdiction. This is the moment for the ICC to step up to the task and progressively issue indictments of both those responsible on the ground as well as their superiors in the chain of command. It is not only a matter of justice for the victims and their families but a matter of clearly establishing the historical facts against the barrage of denial, lies and disinformation that will undoubtedly come forth from Russia and its fellow travellers on the global stage. At first, it may prove difficult to have the indicted individuals extradited to the courts, but the Yugoslav precedent demonstrates that perseverance over time together with sanctions, aid and investment linkages, and other incentives can induce governments to cooperate with international justice.

4. Fund a museum in Ukraine to commemorate the Ukrainian and Russian war dead

The inclusion of Russians may sound curious, but thousands of Russian families have no or little idea of what happened to their sons or where they are buried. The Kremlin and the Russian military will not give accurate casualty figures and treat the Russian conscripts, often from working-class rural backgrounds far removed from the cosmopolitans of Moscow and Saint Petersburg, as cannon fodder. The war in Ukraine is fast becoming a tragedy for a whole generation of Russian men, including the almost one million Russian men who have fled abroad to escape the draft or the sudden decline in business opportunities and career prospects if they stay behind in Russia. Their stories need to be told and their sacrifices on behalf of a disreputable regime in Russia acknowledged. Over time, the museum of the war dead could be relocated to Russia itself. Familiarising Russians with Wilfred Owen’s “pity of War”, which is very different to the mythological version dished up by the Kremlin’s propaganda machine, could hopefully begin to dent the unquestioning patriotism that, according to polling agencies such as Levada, characterises the mood of many Russians compared to the populations of other countries.

5. The aggressor should pay for the damage he has caused

The history of German reparations to be paid to the allies after the First World War reminds us that this is not easy to implement and can stoke resentment in the defeated party. Russia has demonstrated in Syria that it is content to destroy cities and critical infrastructure but then looks to global financial institutions to provide loans and grants to repair them. Yet, being made to pay for the reconstruction of war damage would be a powerful incentive not to start wars in the first place. The European Commission has said that it is looking at the possibility of confiscating the $300bn of Russia’s Central Bank assets that it has frozen since the annexation of Crimea. Last week, the EU set up a task force of member state experts to examine the legal and practical aspects of confiscating the Central Bank assets. The US and other countries have looked at impounding the yachts or other assets such as luxury properties or businesses of oligarchs. In all these cases, there are legal obstacles that need to be addressed, but again, this is not a reason not to pursue the avenues that are feasible.

Another idea would be to introduce a Ukrainian reconstruction levy on all flights in and out of Russia and Belarus, on all Russian credit card transactions, on all trading in Russian stocks, shares and equities, and on financial transfers in and out of Russia to be collected by Western banks and handed over to Kyiv. This idea is based on the Tobin tax that was mooted just a few years back to place a levy on financial transactions to help combat climate change. International supervision of the proper use of this reconstruction levy by Ukraine in terms of stringent anti-corruption measures would be essential to sustain public trust in the scheme. Moreover, it would have the merit of making Russian society, in general, responsible for damage reparations and not allowing the blame to fall uniquely on the shoulders of the leadership in the Kremlin.

6. Constrain the ability of Russia or other war-mongering authoritarians to modernise their armed forces in a way that makes them more confident about using them

Once the war in Ukraine is over, most of the current sanctions against Russia will be lifted. Denying Russia the modern military technology, manufacturing machinery, electronics and components to produce drones, aircraft, armour and missiles will play a key part in preventing war. The West needs to agree on a package of technology denial sanctions against the Kremlin for the long term. It also needs to resurrect a body that existed in Paris in Cold War days called the Coordinating Committee (COCOM), which maintained a list of critical military technologies that were either embargoed or subject to stringent export controls and end-user certificates. The targets then were the Soviet Union and its Warsaw Pact allies. It can be argued that a COCOM-type body would need to be expanded now beyond the NATO orbit to embrace the Asia-Pacific democracies. It would need solid enforcement mechanisms against the sanctions busters within the community, as well as strong political pressures on those outside who facilitate technology transfers to Russia. In an age when many non-Western countries have sophisticated arms industries and research and development facilities, it will not be easy to block comprehensively technology transfers. Major powers such as Russia are adept at evading sanctions and exploiting the loopholes in any international control regime. The latter will inevitably be patchy at first and will need to be built up and improved over time. Yet again, the perfect must not become the enemy of the good. The aim here is not to make aggression impossible but more difficult, risky and problematic for the aggressor. A leaky umbrella is better than none at all. Moreover a COCOM-type organisation, once established, can be useful in containing other potential aggressors, should China, Iran, North Korea or other states launch or threaten to launch unprovoked attacks.

7. The question of rules and norms has to be tackled urgently

Those trying to prevent or even outlaw war have pointed to the growth over the past century in the number of international conventions, treaties and agreements that have committed the signatories to humanise warfare by limiting military capabilities or the uses to which they are put. If we cannot abolish war, we need at least to make it less destructive and more accountable. To list all these agreements would run to hundreds of pages. Moreover, the prohibitions have a long history beginning with the Pope outlawing the crossbow in the 12th century. Most readers will be familiar with The Hague Conventions of 1899 and 1907, the Geneva Conventions on the treatment of prisoners of war, the Treaty on the Prohibition of Chemical Weapons, the numerous treaties curbing nuclear weapons, the ban on anti-personnel land mines and the agreements and UN Resolutions on the protection of civilians, including the protection of women in armed conflicts. What we have seen in Russia’s invasion of Ukraine is the example of a country riding roughshod over scores of these international conventions as if they have no power to constrain aggressive behaviour whatsoever.

Russia has used prohibited weapons such as cluster bombs, targeted civilian residences, forcibly deported Ukrainian civilians including children to Russia, tortured prisoners of war, disrupted humanitarian aid, stolen food and grain, militarised civilian nuclear power plants, committed war crimes on a massive scale, used mercenaries not subject to military discipline or codes of conduct, carried out constant cyber-attacks, destroyed civilian and energy infrastructure, including hospitals, and provoked environmental hazards. Most recently, it has refused the US permission to carry out mandatory inspections to verify the START treaty, the last nuclear arms control agreement still in operation between the US and Russia. Moscow has violated Ukrainian sovereignty without provocation and denied Ukraine its legal right to determine its own future.

Any exercise to make war less likely, less profitable and less destructive in the future needs to begin with an honest assessment of why this mounting body of international law has failed to constrain Russia or other budding aggressors. We need a frank stocktake of all the conventions that Russia has violated and then debate in detail how those conventions can be strengthened. There are also conventions that have yet to be adopted, for example, against state-level cyber-attacks, attacks against satellites in space or regarding hypersonic missiles, or attacks against international undersea internet cables and gas pipelines. It is important that the think tank and academic community get behind this effort and produce robust but feasible ideas, solutions and recommendations that Western governments can table at the UN and other multilateral frameworks. Lawfare is one of the best antidotes to warfare in that it exposes the false and mendacious narratives that aggressors use to justify their actions as much to international as to their own, domestic audiences. Lawfare makes it harder for aggressors to win international support and can help rally opposition at home. The edifice of international law will not be fool proof but if there are no norms, there are no violations. If there are no norms, it becomes much harder to form international coalitions to resist aggression and mobilise public support and perseverance. It is norms that give resistance its legitimacy and make it harder for the fence sitters in Africa, Asia or elsewhere to dismiss resistance as just the clash of geopolitical rivalries along the lines of “a plague on both your houses.”

After one year of the war in Ukraine, there has been a good deal of understandable outrage at the sheer destructiveness and irrationality of what Putin has unleashed on his neighbour, but outrage is not a policy any more than hope is a strategy. Beyond the war in Ukraine, there is the spectre of unlimited and prolonged conflicts returning to global affairs at a time when mankind already faces unprecedented challenges from climate change and more frequent and deadly pandemics, to rising income inequality, migrations and hunger on a massive scale. Rather than hope like our ancestors in 1918 or 1945 that the terrible experience of war would all by itself prevent future generations from starting new wars, we need more than noble declarations but rather concrete and effective mutually reinforcing mechanisms to rein in aggressive behaviour and organise collective action against it. The only worthwhile legacy of the war in Ukraine is that we think harder and more effectively about how we can reinforce deterrence and raise the costs to the aggressor.

The ideas presented in this article are not sufficient in number, and there will probably be better and more innovative alternatives. Yet, they are designed to start a debate that we need to resolve before a peace agreement in Ukraine, not afterwards.

The views expressed in this #CriticalThinking article reflect those of the author(s) and not of Friends of Europe.