Can treaties end the war in Ukraine?

When Vladimir Putin invaded Ukraine in 2022, he didn’t declare war. Instead, he called his action a “special military operation” and formally notified the United Nations (UN) that Russia was engaged in self-defence under Article 51 of the UN Charter.

He accused the Ukrainian government of being a “neo-Nazi regime” and  published a long essay online  arguing that Russians and Ukrainians are one people. But why is he going to all of this trouble? Why did he not simply declare that he was going to war  to conquer Ukraine?

The answer is quite simple in concept but has profound implications for how it helps us to understand significant changes in the history of war. It also gives us strong hints about how we should expect wars to play out in the present and future.

People think that some wars are okay, or legitimate, but that other wars are not okay, or illegitimate. They want to know whether a particular war is against the rules, whether it violates general morality or not. But the rules governing war have changed.

War as dispute resolution

The 20th century saw a widespread realisation that war for profit, and for territorial acquisition, was illegitimate. The Pact of Paris in 1928 had states assert that they “condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy.”

The UN Charter states that the purpose of the UN is the “suppression of acts of aggression or other breaches of the peace.” The International Military Tribunal at Nuremberg in 1945 called aggression by one state against another the “supreme international crime” as it “contains within itself the accumulated evil of the whole.”

These sentiments and agreements have not led to a world without war. Wars still occur, and some are seen as good or at least acceptable. For example, the Gulf War of 1990-1 was fought as a defence against Saddam Hussein’s aggression on Kuwait, and was widely supported on the basis that it was preserving peace and security and opposing conquest.

Wars in support of self-determination or decolonisation have also been accepted. The Portuguese first began ruling the enclave of Goa on the west coast of India in 1510. 450 years later, India invaded and annexed this territory, which has been completely accepted by the international community.

Contrast this to Israel’s occupation of Gaza, the West Bank, Golan Heights, and the Sinai in 1967, which was met with significant international criticism. Having your war accepted by the world is immensely valuable, so states try hard to make their actions appear legitimate or obscure whether it should be condemned.

When Russia annexed Crimea in 2014, the soldiers were disguised, with no insignia on their uniforms, and they held a referendum to make it seem as if Crimeans were exercising self-determination. Other states have tried related tactics to avoid being labelled as aggressors.

Conquered territory has become less populated, less garrisoned, and smaller over time as states avoid large, obvious wars against foreign populations. Similarly, no one wants to outright admit that they are engaging in a war that might be seen as illegitimate. Thus, there have been no declarations of war since the Second World War.

Further, winning an illegitimate war no longer gives you the fruits of victory. Peace treaties used to record the bargain struck between the states fighting over the division of the spoils. But, with no spoils to record, peace treaties have become rare. When they do happen, they appeal to processes that the international community finds legitimate, such as a boundary commission or arbitration. No one wants to concede that the opponent may have any rights.

Back when war was a usual and legitimate way to achieve goals, you could sign a peace treaty, but still plan to fight again later to reclaim territory. For example, when Frederick the Great acquired Silesia by defeating Austria in 1742, the Austrian Empress tried to win it back in two subsequent wars.

But today, you can’t win it back by war, making states extremely reluctant to formally give it away in the first place. Consider that the Korean War was functionally over in 1953 after the UN and North Korea signed an armistice “until a final peaceful settlement is achieved.” We are all still waiting for this to happen.

Peacemaking in Ukraine

States act in a world in which the legitimacy of their actions matters. It could mean that the international community accepts and supports you, treating the results of your war as right and good. Or, it could mean that you are called a pariah, and the results of your war remain unrecognised and a source of conflict for decades. This brings us back to Russia’s war on Ukraine. Despite Putin’s ham-fisted attempts at legitimation, the international community has decided that it is unacceptable. This has significant implications for the peacemaking process. If Russia and Ukraine could sign a peace treaty agreeing, say, on the current line of control as the new national border, and have it accepted by the world, the war would likely be over today. But, as it is, Ukraine knows that they will be supported in their claims for restoration of the status quo ante, including territorial sovereignty over its “internationally recognized borders.” On the other hand, Russia’s options are limited. They can settle for indefinite contested de facto control, as Turkey has in the unrecognised Turkish Republic of Northern Cyprus. Or they can keep fighting and hope that battlefield events produce a regime change in Kyiv. Both sides have strong incentives not to negotiate for a long-term resolution in which they sign away their rights.

This is an example of the complex legacy of the illegitimacy of war as a way to resolve international disputes. If we are to understand how wars are fought and ended, we need to consider the international normative dynamics.

Joseph O’Mahoney is Associate Professor of International Relations at the University of Reading. He has held positions in MIT’s Security Studies Program, Seton Hall University’s School of Diplomacy, and at Brown University, and has a PhD in Political Science from George Washington University.  https://sites.google.com/site/jpomahoney

This article was published by the Australian Institute for International Affairs.