Six obstacles for a negotiated settlement between Kyiv and Moscow

Frontline near Kharkiv in April 2023. Photo: Jose Hernandez / Shutterstock

There is a consensus among observers of the Russo-Ukrainian War that it should end as soon as possible. Most Ukrainians could not agree more. Today, also many Russians, one suspects, would not mind ending the carnage. Why then is there still no, and there likely will not be one anytime soon, a negotiated finale to the war?

There are, at least, six issues that hamper compromise between Kyiv and Moscow. These are the current Ukrainian and Russian constitutions as well as domestic landscapes, Crimea’s peculiar needs and role for Russia, as well as East-Central European historical memory. Each of these six hindrances to a quick truce are important by themselves. Their combined impact on decision shapers and makers in Moscow and Kyiv is very high.

Pushing, at this moment in time, for a negotiated ceasefire of some durability – not to mention sustainable peace – between Ukraine and Russia is thus futile. Following this strategy would not only bring about an inconclusive outcome. It also absorbs energy needed to pursue more promising paths towards a solution to the conflict.

Ukraine and Russia’s constitutions

Russia’s continuing violations of the most elementary foundations of international law, i.e. the inviolability of borders and territorial integrity of states, are frequently mentioned obstacles to compromise between Kyiv and Moscow. Disregard for basic global norms is not, however, the highest legal hindrance for successful Russian-Ukrainian negotiations and compromise. In the past, post-Soviet Russia had been engaged in creating or supporting separatist movements, sparking or fanning allegedly “civil” wars, as well as establishing so-called “republics” in its claimed backyard. However, ten years ago, Moscow went beyond this informal strategy of destroying independent states that appeared out of its former empire.

In March 2014, Russia formally annexed Crimea and made it an official part of its pseudo-federation. In September 2022, Moscow repeated this extraordinary move, and declared four south-east Ukrainian mainland regions also to be part of the Russian Federation. Russia’s internal legislation was changed to fully incorporate them. As a result, there are now five administrative units of Ukraine claimed by Russia’s constitution and scores of related lower level Russian legal acts including laws, decrees, resolutions, etc.

Obviously, Moscow’s claim is null and void, according to Ukrainian and international law. Contrary to popular belief in Russia and among some misled outside observers, Russia’s self-announced entitlement to the five occupied Ukrainian regions is also historically dubious. These territories were colonized by the modern tsarist and Soviet empires rather than owned by a primordial Muscovite state. Nevertheless, Moscow’s illegal and ahistorical pretense to the five Ukrainian regions is now fully enshrined in Russian basic law, as well as its federal legislation and state structure. Especially on Crimea, this has already had deep material and psychological effects on the daily economic, social, cultural and private lives of the captured local people.

Neither Ukraine nor Russia’s constitutions can be easily changed. Theoretically, the Ukrainian constitution can be quickly amended by a two-thirds majority of Ukraine’s unicameral parliament, the Verkhovna Rada (Supreme Council). Yet, such a constitutional reform will never pass.

Under pressure from Berlin and Paris, former President Petro Poroshenko tried, in August 2015, to change Ukraine’s constitution marginally and temporarily, in order to fulfil the infamous Minsk Agreements. Yet, the scheduling of a parliamentary vote on this minor and arguably inconsequential constitutional reform led to a violent clash in front of the Verkhovna Rada. Several people died and dozens were injured in Kyiv’s city centre. The proposed temporary special status for the Russian-occupied parts of the Donbas did not pass parliament. Against this backdrop and in view of other factors, a Ukrainian renunciation of its legitimate state territory will never happen.

In contrast, the prospect of a Russian reversal of the 2014 and 2022 constitutional reforms implementing the annexations is politically more likely than a Ukrainian cessation of its claim to its temporarily occupied territories. Any Russian fulfilment of its obligations under international law – if and when such an intention emerges – would not be easy to implement, however. Politically it is easier to annex territories than to cede them. Russia’s procedure of constitutional revision is also more complicated than that in Ukraine.

A hypothetical de-annexation vote by the Russian parliament would only be the first of several steps in the enactment of a new constitutional reform. For such a revision to become true, both the regime in Moscow and the situation on the ground in Ukraine would have to change fundamentally. A Russian formal legal reversion of Putin’s expansionist adventure will, in other words, only come after and not before its material end. The hope that Ukraine and/or Russia can, as a result of a diplomatic process, enact even a temporary abrogation of their currently valid constitutions is unrealistic.

Two hawkish domestic constituencies

Both Ukraine and Russia contain significant social and political groups who are strictly against any territorial and political compromise with the enemy. As a result of the high toll of the war on both countries, even symbolic concessions to the other side would generate domestic political challenges for the Ukrainian and Russian governments. Even minor conciliatory steps in the direction of the other side, as a result of hypothetical negotiations, will be regarded as acts of national treason. More or less large amounts of citizens and entire parties would oppose them. These groups will make their voices heard, as well as become politically and, perhaps, even physically active.

To be sure, the hawkish constituencies of Ukraine and Russia are neither normatively nor politically comparable. Like the two constitutions’ territorial claims, they are fundamentally different in numerous ways – morally, historically, culturally, etc. On one side, Ukraine’s hawkish constituency is merely demanding a restoration of law, order and justice. This group of citizens includes the majority of Ukraine’s population – although the percentage of Ukrainian hawks has somewhat fallen during 2023.

On the other side are various types of Russian hawks who insist that, at least, some territorial and political gains from Moscow’s military intervention in Ukraine since 2014 should remain permanent. The radical wing of Russia’s hawkish camp, including Vladimir Putin himself, thinks that the so-far achieved territorial expansion is actually insufficient. Certain regions not yet illegally annexed by Russia, like Odesa and Mykolaiv, are allegedly also Russian. Moreover, the Ukrainian state’s current non-membership in the EU and NATO should, in this view, become permanent. Ukraine’s sovereignty should also be limited in several other regards – from language to defence policies.

To be sure, the depth and width of hawkishness in Russia’s population is altogether lower than that in Ukraine’s citizenry. A future Russian popular acceptance of the loss of most of the relative gains for Russia from the war is more likely and can become more widespread than a Ukrainian popular acceptance of a written acknowledgement of losses of territory and/or sovereignty. On the other side, however, Moscow’s 2014 annexation of Crimea continues to have overwhelming support among the Russian population. This sentiment reaches far beyond the outspokenly imperialist section of the Russian society.

Such an outlook creates – for the Kremlin, Russian population, and outside actors – a peculiar strategic conundrum. For geographic reasons, Crimea is the least defensible and suppliable, for Russia, of the five Ukrainian regions annexed since 2014. Being the occupied area that is furthest away and most difficult to reach from Russia, the Black Sea peninsula is war booty that is especially unlikely to remain permanently in Russian hands. Yet, Crimea still is and presumably will remain the most popular of Putin’s territorial achievements in the war. (More on the Crimean complication below)

To be sure, the aims, sentiments and visions of ordinary Ukrainians and Russians regarding the war, as measured in opinion polls, have been shifting in content and intensity since 2014. During the last two years, these shifts in one direction or another have, in both countries, been more pronounced. Nevertheless, there remain clear majorities in Ukraine regarding a full restoration of territorial integrity, and in Russia regarding the permanency of Crimea’s capture. Both countries contain vocal maximalist hawkish groups, moreover, who are strictly against even miniscule concessions. Some of these particularly intransigent parts of society contain, in both Russia and Ukraine, members who are experienced in using arms and have access to them.

Even after a hypothetical change of either the Russian or Ukrainian constitution or both, a double domestic political challenge for successful negotiations would thus remain. The Russian and/or Ukrainian governments may become inclined to achieve a negotiated end to the war. Yet, it remains unclear what compromise they would be able to sell to the less dovish parts of their domestic audiences. In view of more or less widespread hawkish sentiments among the Ukrainian and Russian populations, Moscow and Kyiv would both risk civil war at home.

In fact, Moscow has been purposefully trying to transform Russia’s initially delegated and later open inter-state war against Ukraine into a civil war within the Ukrainian political nation since 2014. For eight years, the West oddly supported this Kremlin strategy with its pressure on Kyiv to implement the Minsk Agreements. This shameful policy by especially Berlin and Paris ended only in February 2022.

As the Prigozhin mutiny of summer 2023 illustrated, the prospect of domestic civil unrest has now also become an issue for the Russian leadership. Prigozhin’s armed uprising was motivated, it may be worth remembering, by dissatisfaction with insufficient Moscow aggressiveness and not by pacifism. Given precarious political situations in both the Russian and Ukrainian hinterland, it is unlikely that Kyiv or Moscow will be able to make sufficient concessions to achieve a lasting ceasefire, not to mention a peace deal.

The Crimean conundrum

A fifth hindrance in reaching a negotiated end to the war is the peculiar role of Crimea in the Russian national mind and military expansion since 2014. As indicated, Crimea was the most popular territorial achievement that Putin presented to the Russian nation. It is a far more appreciated acquisition than Transnistria in Moldova, Abkhazia and the Tskhinvali region (“South Ossetia”) in Georgia, or Donetsk, Luhansk, Zaporizhzhia and Kherson in mainland Ukraine. That is in spite of the fact that the 2014 annexation was based on a deeply flawed historical narrative about an allegedly Russian Crimea.

For only 32 years in its previous history – from 1922 to 1954 – Crimea had been administratively linked to the territory of today’s Russian Federation. Before that, it was connected via the Crimean Khanate (until 1783) and the Romanov Empire’s Taurida Governorate (1802-1917) to the territory of today’s south Ukrainian mainland. After its subsequent brief period in the so-called Russian Soviet Federative Socialist Republic (RSFSR), it was linked, via the Ukrainian Soviet Republic (1954-1991) and independent state (since 1991), to the entire territory of today’s Ukraine.

The Russian character of Crimea is partly historical fiction and partly a result of ruthless demographic engineering by pre-Soviet, Soviet and post-Soviet governments. Over the last 240 years, St. Petersburg/Moscow brought down the share of indigenous Crimean Tatars in Crimea’s population from over 84 per cent in 1785 to today’s 12 per cent, according to Russian official statistics (which may overstate the real current percentage of Tatars on the peninsula). The tsars, Bolsheviks and Putin engaged in violent repression, deportation and expulsion to permanently displace hundreds of thousands of Crimean Tatars from their native lands.

St. Petersburg/Moscow’s colonial policies on the Black Sea peninsula also meant the replacement of indigenous people with Eastern Slavs. The share of ethnic Russians rose to over 50 per cent after Stalin’s violent and often lethal deportation of almost all of Crimea’s indigenous people to the Asian part of the Soviet Union in 1944. Thus, Russian demographic dominance in Crimea – achieved via a horrendous mass crime – is less than 80 years old.

Despite this, today most Russians and some outside observers believe that Crimea belongs historically to Russia. When Putin annexed Crimea in 2014, many Russians became outrightly ecstatic: Russia’s corruption perception index, as measured by Transparency International, went temporarily down. In the annexation year of 2014, the sky was bluer, and the grass was greener for most Russians. This makes a Russian return of Crimea to Ukraine as a result of negotiations unlikely.

It also creates a peculiar strategic dilemma for the Kremlin. Moscow may at some point become interested in ending the war. A new Russian leadership may, perhaps, even be ready to “sacrifice” the mainland territories of Ukraine that Russia annexed in 2022. Yet, Crimea always needed these same Ukrainian dryland territories to its north for its own development.

The close geographical and historical connection between Crimea and Ukraine’s mainland was the major reason why, in 1954, the Soviet government collectively (rather than, as is often claimed, Nikita Khrushchev personally) decided to transfer Crimea from the Russian to the Ukrainian Soviet republic. In 2022, a somewhat similar consideration made Putin attack Ukraine full-scale. Having captured the peninsula in 2014, Moscow realized that Russia needed to also occupy the Ukrainian mainland territories to Crimea’s north to make the Black Sea pearl’s economic development sustainable. Between 2014 and 2021, annexed Crimea had been not only the Russian Federation’s most illegal, but also most subsidized, region.

Crimea is part and parcel of a larger geoeconomic area that also embraces the southern parts of Ukraine’s mainland. In a hypothetical Russian-Ukrainian negotiation on the future of the currently occupied territories, it is thus all or nothing not only for Kyiv but also for Moscow. This is especially so once the 2019 Kerch Bridge is destroyed by Ukraine’s armed forces – an action likely to happen sooner or later.

A deal in which Ukraine regains its currently occupied mainland territories yet leaves Crimea as a consolation prize to Moscow would not only be unacceptable for Kyiv. It would also be an unsustainable solution for the Kremlin. To keep Crimea as an isolated exclave far away from other Russia-controlled lands would neither economically nor strategically make much sense for Moscow.

Nevertheless, many non-Ukrainian observers see Crimea as an object of negotiation and potential instrument of compromise. In fact, the peninsula is neither. A simple glance at the map and a consultation of Crimea’s modern history should make clear that, in negotiations, the peninsula would be a part of the problem rather than a means to its solution. Crimea’s need for close connection to the Ukrainian mainland at its north, i.e. a link to the currently occupied Zaporizhzhia, Kherson and Donbas regions, decreases the likelihood of compromise between Kyiv and Moscow.

East-Central European scepticism towards Moscow

Perhaps the most important political factor holding Kyiv back from premature negotiations with Moscow is its historical experience with Russia, as well as a comparative interpretation of its current dilemma. Ukrainian national history and the past of other East-Central European nations suggest that Russia will not uphold an agreement reached via diplomatic compromise rather than military victory. Independent Ukraine has, over the last 30 years, signed hundreds of agreements with Russia – most of which are today void.

Among them were both political memoranda and accords like the 1994 Budapest Memorandum or 2014-15 Minsk Agreements, as well as fully ratified deals like the 1991 trilateral Belovezha Accords dissolving the USSR signed by Boris Yeltsin, or the 2003 bilateral Russian-Ukrainian Border Treaty signed by Vladimir Putin. Several of these documents explicitly acknowledge Ukraine’s borders, integrity and sovereignty. Yet even those with a signature of Russia’s president and ratified by the Russian parliament turned out to be effectively invalid in 2014 and 2022.

One of the earliest and most instructive post-Soviet examples of how Moscow behaves vis-à-vis its former colonies was its intervention in and negotiation with Moldova in the early 1990s, when Putin was still a low-level bureaucrat in St. Petersburg. In 1992, the commander of the 14th Russian Army, the late Aleksandr Lebed, justified his troops’ intervention in an internal Moldovan conflict with the allegation that Moldova’s new government was behaving worse than the SS did 50 years before that. Lebed thus provided the explanation that Putin would later reapply for his invasions of Ukraine in 2014 and 2022. The Russian military support for pro-Russian separatists in Moldova led to the consolidation of a separatist pseudo-state, the so-called “Pridnestrovian Moldovan Republic” or Transnistria. This unrecognized and oddly shaped entity stretches over hundreds of kilometres between the eastern shore of the Dniester/Nistru river and Moldova’s border with Ukraine.

To solve the issue, Moldova and the West did in the 1990s what many non-Ukrainian observers today advise Kyiv, Washington and Brussels to do. Chisinau entered into negotiations with Moscow and involved international organizations like the OSCE in conflict resolution. The West did not economically sanction Russia or support Moldova with weapons.

In 1994, Chisinau signed a treaty with Moscow on the withdrawal of Russia’s troops from Moldova. Moreover, in article 11 of its new constitution adopted in the same year, Moldova defined itself as a bloc-free country. It thus excluded any future accession to NATO.

During the following years, multiple negotiations were held between Chisinau and Tiraspol – with and without western participation. Economic exchange, people-to-people contacts, the involvement of international mediators and other instruments of conflict resolution were applied in a textbook manner.

Yet, the remnants of Lebed’s 14th Army, now called the “Operational Group of the Russian Forces”, are still in Transnistria. They continue to uphold the separatist quasi-regime. After more than three decades, the Moscow-supported pseudo-state on Moldova’s internationally recognized territory is alive and well. The Transnistrian “republic” fulfils, for the Kremlin, since 2014 the additional function of creating a security threat for Ukraine from the west.

For thirty years, Moldova has been one of the poorest countries in Europe and a permanently failed state. The fate of Moldova, success of Moscow’s Transnistrian experiment, and behaviour of the West became instructive experiences for the Kremlin. They informed Russia’s behaviour and strategies in Georgia in 2008 and in Ukraine in 2014. The model function of the Transnistrian blueprint went so far that some Moscow-installed functionaries of the pseudo-state’s quasi-government in Tiraspol were transferred to the Donbas in spring 2014. There they helped with creating the so-called “people’s republics” of Donetsk and Luhansk, which were annexed by Russia in September 2022.

This and similar adventures by Moscow in the post-Soviet space do not bode well, from a Ukrainian standpoint, for negotiations with the Kremlin. Ukrainians as well as several other nations and ethnicities of the former tsarist and Soviet empires have, over the centuries, accumulated many bitter experiences with Russian imperialism, which is today again Moscow’s barely disguised ideology. These historical lessons advise not only Kyiv, but also Helsinki, Tallinn, Riga, Vilnius, Warsaw, Prague or Bucharest that Ukraine needs to reach an – at least, partial – victory, before entering any meaningful negotiations with Russia. Only when facing military disaster will Moscow engage in a genuine search for a compromise that may be acceptable to Kyiv and have the potential to survive into the future.

Conclusions

Negotiations will, at some point, start to play a role. Yet, they have to wait until the situation on the ground and in Moscow changes to such a degree that they make sense for Kyiv. An agreement signed before Ukraine has achieved, at least, some salient military advantage and a stronger negotiating position will likely be a charade. At most, it will achieve a postponement rather than an end to the armed conflict.

A quick ceasefire agreement today could, in a worst case, even help to prolong the overall length of high-intensity war, as it would simply provide a chance for Moscow to regroup before attacking again. Such a result would run counter to the security concerns that would have led to the start of negotiations in the first place. The Minsk Agreements did, for comparison, indeed decrease tensions in 2014 and 2015 concerning the ongoing armed confrontation back then. Yet, they did not prevent the massive 2022 escalation, and have arguably helped Russia prepare for it.

Once a meaningful agreement between Kyiv and Moscow is signed, its functioning will have to be ensured. Against the backdrop of Russia’s behaviour in the post-Soviet space over the last 30 years, securing a future peace will only be possible with plausible military deterrence against a repeat escalation. The provision of substantial military support to Kyiv is thus the right strategy in three ways. It will (a) help Ukraine prepare for meaningful negotiations now, (b) ensure an – unlike the Minsk Agreements – sustainable accord between Kyiv and Moscow at some point in the future, and (c) subsequently keep peace intact.

Kyiv tried in Crimea in Spring 2014 to implement some popular pacifist formulas such as “Imagine there is war, but nobody attends” (in German: “Stell Dir vor, es ist Krieg und keiner geht hin”) or “Building peace without weapons” (in German: “Frieden schaffen ohne Waffen”). This Ukrainian behaviour happened, ten years ago, with the explicit approval of, if not active pressure by, the West. The result has been the largest European war since the Second World War. A trivial inference from this strategic disaster is that the West’s behaviour should be guided by empirical analysis of the actual challenges at hand, rather than well-meaning but poorly followed up intentions and irrelevant historical references.

This article summarizes the results of a policy advice series project implemented, within four separate SCEEUS reports, throughout 2023. A different version of this article appeared earlier in The National Interest and a shorter summary of this article’s argument was published on 29 February 2024 by The Kyiv Independent.

Dr. Andreas Umland is an Analyst at the Stockholm Center for Eastern European Studies (SCEEUS) in the Swedish Institute of International Affairs (UI).

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peace process, Russia, Russian foreign policy, Russian invasion of Ukraine, security, Ukraine