Ukraine peace talks reveal a world slipping back into an acceptance of war

Dublin, Dec 5 (The Conversation) Ukraine is facing two scenarios, and both look bleak. For any peace agreement to be accepted by Russia, Ukraine will almost certainly have to give up some of its territory. This would confirm that, in the 21st century, European borders can be redrawn by military force once more. If no deal is reached, the war will drag on.

Whichever outcome emerges, it appears that no position rooted in the defence of core international legal principles can prevail. This position would be the denial of territorial gains achieved through warfare and the prosecution of crimes committed during the conflict. International relations appear to have reverted to raw state power.

The peace negotiations have revealed that parts of the US government are willing to hand Moscow major concessions, including impunity for war crimes. Europe, including neutral countries like Ireland and Austria, now faces a growing obligation to stop what could be the biggest setback for international law since the cold war.

To understand the current state of international law, it is useful to look at the longer historical arc of how warfare has been regulated. Hugo Grotius, a Dutch lawyer born in 1583, became one of the most influential European thinkers on the laws of war.

He argued that only “just” wars – where one side resorts to violence to defend itself or enforce property rights – should be legal.

But after years of work on a list of just and unjust causes for war, Grotius came away disillusioned. He concluded that any state would always claim its wars were just and that such determinations might increase violence overall.

From the outside, other states couldn’t easily judge the real reasons behind a war. And if they chose a side, they would feel obliged to back the state they believed was in the right. Grotius warned that this would only drag more countries into conflict.

Grotius ultimately came to believe that societies had little choice but to accept conflict and treat its results as justified. As Yale University law professors Oona Hathaway and Scott Shapiro show in their 2018 book, The Internationalists, Grotius’s position remained dominant for centuries.

The late-19th and early-20th centuries did bring attempts to regulate warfare. This included the creation of organisations such as the International Committee of the Red Cross that provided medical aid to soldiers. But the fundamental idea that war was legitimate persisted.

Later initiatives seemed to overturn Grotius’s logic. These included the Kellogg-Briand pact of 1928 in which 15 ratifying states promised not to use war to resolve disputes, the UN Charter of 1945 and the establishment of the International Criminal Court (ICC) in 2002.

Despite its obvious later failure, the Kellogg-Briand pact declared that war should be renounced as an “instrument of national policy”. And in 2018, the ICC criminalised the “planning, preparation, initiation or execution” of aggressive wars. The hope was that this definition would deter future invasions, including actions like Russia’s assault on Ukraine.

The return of Grotius Does the current state of peace negotiations between Russia and Ukraine signal a return of Grotius’s view that military gains, once consolidated, will ultimately be recognised? And might this view even be the wiser position as it acknowledges Russia’s military strength instead of prolonging – and possibly widening – the war in Ukraine? For a time, such conclusions seemed unnecessary. As Hathaway argued one year into the war, there was no doubt that Russia had blatantly violated international law. But she emphasised that law was not powerless.

The imposition of sanctions, widespread military support for Ukraine and ICC arrest warrants for Vladimir Putin and other senior Russian officials showed that international law can fight back. While conflict could not be prevented, coordinated international action could inflict heavy costs on states like Russia for waging aggressive wars.

However, this argument is now hard to uphold. The Trump administration’s original 28-point peace plan, which was unveiled in November, included not only the acceptance of Russian territorial gains but also the lifting of sanctions and the granting of amnesty for perpetrators of war crimes.

In such a form, it would constitute a Grotian outcome: less powerful states can be attacked with impunity and, without risking wider war, there is little Europe and its partners can do about it. Such a deal would reward perpetrators without inflicting any costs and would be a dangerous signal in a volatile world.

Whatever the outcome of the peace negotiations, Ukraine will need continued European support to defend the remaining parts of its territory. And if a peace deal is signed, Europe must build enough deterrence to ensure that Russia will not attempt another major push to extend its borders.

In the face of the growing detachment of the US, it will also be up to Europe to inflict costs on Russia over its war of aggression when a peace deal is reached. This may include using frozen Russian assets to support the rebuilding of Ukraine and insisting on legal accountability.

Whether a deal is reached or not, these scenarios will require a major overhaul of European security and defence policy – something Europe repeatedly aspired to do after 1945 but failed to implement. As part of this, EU countries like Ireland and Austria that maintain military neutrality need to articulate a clear position regarding what they are willing to contribute.

While there can be space for neutral states within a wider European security framework, the starting point should be unity across European countries about a rejection of the idea that Russia’s actions should go unpunished and that international legal principles can simply be set aside.

With waning US support, Ukraine is pinning its hopes on Europe. In his recent speech to the Irish parliament, Ukrainian president Volodymyr Zelensky emphasised legal accountability and called on Ireland to support “all efforts to make the tribunal for Russia’s aggression a reality”.

Europe should use its weight to keep this point on the agenda. It is in the interest of all European countries to stop the return to the world of Grotius. (The Conversation) AMS