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The IBA’s response to the situation in Ukraine
In early November, as Moscow announced its retreat from the Ukrainian city of Kherson, General Mark Milley, the Chairman of the US Joint Chiefs of Staff General, saw an opportunity for negotiations. ‘When peace can be achieved, seize it,’ he told an event in New York. In separate remarks, General Milley suggested there’s the possibility that Ukraine could negotiate for a withdrawal of Russian forces, given the latter’s military failures.
The US Biden administration stated in mid-November that it wasn’t pushing Ukraine to seek an immediate diplomatic resolution to the conflict and there wasn’t a change in the US position. In respect of the potential for talks, US President Joe Biden told reporters that it’s ‘up to the Ukrainians. Nothing about Ukraine without Ukraine’. Biden later indicated to a press conference in early December that he’s prepared to speak with the Russian President, Vladimir Putin, if he’s ‘looking for a way to end the war.’ However, Milley’s words may have broken a taboo. ‘That’s the first time that the press is talking about peace in the US,’ says Richard Rubenstein, Professor of Conflict Resolution and Public Affairs at George Mason University's Carter School for Peace and Conflict Resolution.
‘The question of whether and under what circumstances to conduct peace negotiations is a political one,’ says Dr Xavier Favre-Bulle, Senior Vice-Chair of the IBA Arbitration Committee and Head of Arbitration at Lenz & Staehelin in Geneva. ‘While international law can provide mechanisms for the peaceful resolution of international disputes – [including] international adjudication, arbitration or mediation, commissions of enquiry – applying these mechanisms to achieve a solution that will be accepted by the relevant parties requires a readiness to submit to these mechanisms in the first place.’ He adds that this is particularly true for mechanisms based on negotiation and agreement.
Dr Hanno Wehland, a counsel in arbitration, also at Lenz & Staehelin in Geneva, doesn’t currently see a genuine possibility that arbitration proceedings will begin in respect of the Ukraine conflict. ‘As long as the political willingness to submit to these mechanisms is lacking, and one party rather pursues its political aims in clear breach of international law, there is little that can be done at the purely legal – as opposed to political and economic – level beyond highlighting the internationally wrongful character of Russia’s aggression,’ he says.
This aggression led the UN General Assembly to exclude Russia from its Human Rights Council in April, for example. ‘It is an appropriate response to its criminal conduct. It does not preclude diplomatic solutions to put an end to the war,’ says Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute Council and first chief prosecutor of the UN International Criminal Tribunal for the former Yugoslavia.
Justice Richard Goldstone
Honorary President, IBA’s Human Rights Institute Council
‘The war in Ukraine is claiming the lives of tens of thousands of civilians and members of the military, many more tens of thousands have been injured, and the material damage runs to billions of dollars,’ says Justice Goldstone. ‘No efforts should be spared to prevent such an outcome. A diplomatic solution should always be sought whether publicly or discreetly outside of the public arena. Having said that, we have a permanent member of the UN Security Council committing acts of aggression that are in blatant violation of the Charter of the United Nations. It is highly unlikely that any diplomatic efforts would have stopped Russia from its further invasion of Ukraine in February.’
Rubenstein outlines the process of negotiations that could begin if the moment, as highlighted by General Milley, is now seized upon. There will likely be two rounds of negotiation, one track involving Ukraine and Russia, and the other one involving other parties, including the US and NATO. ‘There are signs that the Biden administration is being split, with some wanting to go for negotiations and others not. So the second track diplomacy could start at any time,’ says Rubenstein. Possible mediators could include Brazil, China, India, South Africa and Turkey. In terms of what both future Ukraine and future Russia would look for, ‘The original demand that Putin made for a discussion of the security architecture in Europe is something to be dealt with,’ says Rubenstein.
In June, Rubenstein attended a meeting of the Science and Ethics Study Group, which functions under the auspices of the UN Sustainable Development Solutions Network, at the Pontifical Academy for Social Sciences in Vatican City. The participants, including academics from the field of peacemaking and also the President of the UN Sustainable Development Solutions Network, Jeffrey Sachs, signed a statement that was later delivered to Pope Francis. The document suggested a peace solution based on the neutrality of Ukraine; security guarantees for its sovereignty; Russian control of Crimea for a period of years, after which the parties would seek through diplomacy a permanent de jure settlement; autonomy of the Lugansk and Donetsk regions within Ukraine; guaranteed commercial access for both Ukraine and Russia to the Black Sea ports within both countries; the gradual removal of Western sanctions on Russia in conjunction with the withdrawal of the Russian military; a multilateral fund for reconstruction and development in which Russia would also participate; immediate access for humanitarian relief; and a UN Security Council Resolution to support the peace agreement through international monitoring.
Rubenstein highlights that Putin is ‘not going to live forever. He’s going to be [in] power for a few more years. And we need to think about how peacebuilding could take place after this conflict is over.’ At the Pontifical Academy event, Rubenstein examined how Ukrainians and Russians can learn to live with each other again after the bitterness created by the war. In this respect, Rubenstein is working with leaders of the international humanitarian organisation Rotary International. ‘There are thousands of Ukrainian Rotarians and thousands of Russian Rotarians. Organisations like that make it possible for people from both countries to work together again. This sort of initiative can establish decent relations between them over a period of years’ – a period, Rubenstein hopes, that is shorter rather than longer.
Image credit: Monument of Independence of Ukraine in Kiev. AdobeStock/maksym.com