Alfred de Zayas: A Blue­print For Peace in Ukraine

There is a human right on peace

By ALFRED DE ZAYAS – As more and more poli­ti­cians and scho­lars world­wide reco­gnize that the Ukraine war cannot be solved mili­ta­rily, that there will be no winners but only losers, we must concen­trate on damage control, which means an imme­diate cease-fire.  This is the only rational policy we can follow, and should be advanced by all United Nations agen­cies, notably the General Assembly, the UN High Commis­sioner for Human Rights, the UN High Commis­sioner for Refu­gees, the United Nations Deve­lo­p­ment Program, the United Nations Envi­ron­mental Program, the World Health Orga­niza­tion, etc.  There is indeed a human right to peace, which all UN member states have an erga omnes obli­ga­tion to respect.  It is crucial for our survival that govern­ments discard the outdated para­digm of uncon­di­tional surrender and “winner takes all”.  The current war-monge­ring by poli­ti­cians and the drums of war orchestrated by the main­stream media are anything but “patriotic”.  In the nuclear age every measure must be taken to reduce tensions and build bridges for dialogue.

My blue­print for peace is simple.

1. Ceas­e­fire based on the UN Charter,
2. A ban on deli­veries of weapons to the belligerents,
3. UN orga­nized inter­na­tional assis­tance to all popu­la­tions suffe­ring because of the war, lack of energy, lack of food, etc.
4. UN orga­nized and moni­tored refe­renda in Crimea and Donbas,
5. Lifting of sanc­tions that have nulli­fied the bene­fits of globa­liza­tion, broken supply chains, upset inter­na­tional trade, endan­gered food security,
6. Draf­ting of a new secu­rity archi­tec­ture for Europe and the world,
7. Estab­lish­ment of a Truth and Recon­ci­lia­tion Commis­sion to hear the grie­vances from all sides, 8. Punish­ment of war crimes by the respec­tive govern­ments, e.g. Ukrai­nian crimes to be inves­ti­gated and prose­cuted by Ukrai­nian judges, Russian crimes to be inves­ti­gated and punished by Russian tribunals.

The stakes are too high: The survival of the planet

There is no valid binary analysis or divi­sion of the world into “good guys” and “bad guys”.  There has always been good in the bad and bad in the good.  A binary analysis is only possible if one refuses to consider the opinions of all belli­ger­ents, and of the rest of huma­nity — as it watches this tragedy unfold.  There are root causes of the cata­strophe that we are witnessing, and if we want to formu­late a viable blue­print for peace, we must not look at it exclu­si­vely from the “Western” perspec­tive, but also take into account the views of 1.5 Billion Chinese, 1.5 Billion Indians, 240 million Paki­stanis, 170 million Bangla­deshis, 280 million Indo­ne­sians, 220 million Nige­rians, 220 million Brazi­lians, 140 million Mexi­cans etc.  The stakes are too high, and we Ameri­cans and Euro­peans have no right to risk the survival of the planet because of an internal Euro­pean querelle.  For the average African, Asian or Latin American, it is wholly irrele­vant whether Crimea is in Russia or in Ukraine.  A nuclear war must not be fought over this.

What is crucial is to agree NOW on a cease-fire and bring in media­tors like Pope Francis to make concrete propo­sals.  Former US Secre­tary of State Henry Kissinger has just published an essay in the Spec­tator, where he urges a nego­tiated end to hosti­li­ties and warns about the danger of a nuclear war.  He mentioned that in 1916 the US govern­ment had the oppor­tu­nity to end World War I through diplo­macy, but that the much-revered Woodrow Wilson squan­dered the chance because of dome­stic politics.

The Ukraine “war in which two nuclear powers contest a conven­tio­nally armed country” is clearly a proxy war in which NATO count­ries are follo­wing a play­book to weaken Russia, in the vain expec­ta­tion to induce regime change.  The US and NATO have failed to under­stand that Russians are very patriotic, and that when they feel threa­tened, they will fight no matter what the odds.  No level of sanc­tions will ever induce the Russian popu­la­tion to rebel against Putin and put a US-friendly Tsar in his place.  We already have the expe­ri­ence of 62 years of draco­nian sanc­tions against Cuba, which have failed to bring the commu­nist govern­ment to its knees.  40 years of sanc­tions against Nica­ragua, 23 years of economic war against Vene­zuela have not taken the Chavez and Maduro govern­ments down.  In fact, to this day these left-wing govern­ments enjoy considerable popular support.  As I learned during my offi­cial UN mission to Vene­zuela, the vast majo­rity of the Vene­zuelans do not blame Maduro for their trou­bles – they blame the U.S.

The propo­sals of Henry Kissinger

Of course, we cannot simply go back to the world before 24 February 2022.  Too much blood has been shed.  Accor­ding to Kissinger any “peace process” would “link Ukraine to NATO, however expressed”, as he no longer sees Ukrai­nian neutra­lity as an option, which was the preferred solu­tion when Turkey nego­tiated a peace agree­ment back in March 2022, which was torpedoed by the US and UK, who insisted in pursuing the war until “victory” against Russia, that is, misu­sing the Ukrai­nians as cannon fodder.

Kissinger proposes that Russia with­draw to the lines before 24 February, while the terri­to­ries Ukraine claims – Donetsk, Lugansk and Crimea – could be the subject of a nego­tia­tion after a ceas­e­fire.  Perso­nally, I have my doubts about this, because after the shel­ling of these terri­to­ries by the Ukraine since 2014, a considerable level of hatred toward the Ukrai­nian autho­ri­ties has emerged, so that it would be incon­ceivable for these terri­to­ries to be rein­cor­po­rated into Ukraine.  It would then be a civil war, even a guer­rilla war.  Essen­ti­ally it is a matter for the popu­la­tions there to decide, pursuant to their veri­fiably deter­mined wishes.

The right of self-deter­mi­na­tion of peoples (arts. 1, 55, Chap­ters XI and XII UN Charter) is solidly anchored in article 1 of the Inter­na­tional Covenant on Civil and Poli­tical Rights, and both Ukraine and Russia must respect it.  Of course, the UN could now orga­nize self-deter­mi­na­tion refe­renda, which would be moni­tored inter­na­tio­nally.  But the UN failed the Ukrai­nian and Russian peoples, when it failed to orga­nize and monitor refe­renda in these Russian-popu­lated terri­to­ries in 1991, when the Ukraine unila­te­rally split from the Soviet Union, or in 2014 follo­wing the anti-Russian coup d’état in Maidan, which over­threw the legi­ti­mate, demo­cra­ti­cally elected presi­dent of Ukraine, Victor Yanu­ko­vich.  A refe­rendum 2014 would have prevented the tragedy we are witnessing today.

By now it should be clear to ever­y­body that, as the Koso­vars will never consent to be rein­cor­po­rated into Serbia, the Russian popu­la­tions of Crimea, Donetsk and Lugansk would rebel against any such proposal.  What is not clear is how the popu­la­tions of Kherson and Zapo­rozhe would vote, terri­to­ries where the Russian majo­rity is less prono­unced.  Russia will never retreat to the 24 February 2022 line, because Russia considers with good reason that the people in these terri­to­ries are in grave danger and that they are entitled to protec­tion.  Perso­nally I do not adhere to the so-called doctrine of “Respon­si­bi­lity to Protect”[1].  But if R2P had any legi­ti­macy, then the Russians could also invoke it.

In need of a  new global secu­rity structure

A new Euro­pean (or world-wide) secu­rity archi­tec­ture should be built that would take into conside­ra­tion the legi­ti­mate secu­rity concerns of all persons living in the area. The inde­pen­dence of Ukraine must of course be guaran­teed, as indeed the inde­pen­dence of Russia.

There are many obsta­cles to peace in Ukraine, mostly attri­bu­table to the intran­si­gent atti­tude of most NATO count­ries that to this day fail to acknow­ledge the fact that NATO’s eastern expan­sion, contrary to agree­ments made in 1989/91, was perceived by Russia as an exis­ten­tial threat and that sooner or later Russia would react.  Let us not forget that from 2014 to 2022 Russia parti­ci­pated in the Minsk Accords, in OSCE meetings, in the Normandy Format.  It must be reco­gnized that Russia acted in confor­mity with article 2(3) of the UN Charter and spent 8 years trying to solve the problems created by the 2014 Maidan coup d’état by peaceful means.  Alas, it was Ukraine, supported by the US and UK, who refused to imple­ment the Minsk agree­ments and the right of self-deter­mi­na­tion of the Russian popu­la­tions of Ukraine.  The two trea­ties proposed by Foreign Minister Lavrov in December 2021 were mode­rate and a good basis for discus­sion.  These trea­ties would have given Russia the national secu­rity guaran­tees it was entitled to have, and would have enabled a sustainable peace between Russia and Ukraine. Unfort­u­na­tely, these propo­sals were arro­gantly rejected by NATO Secre­tary General Jens Stoltenberg.

One problem is that many in the West imagine that “a Russia rendered impo­tent by war” would be desi­rable. These people do not know Russia, the Russian people of their history. They are prey to the anti-Russian propa­ganda that has always been present in the Western media, which abated a bit during the Gorba­chev years late 1980s and early 1990s, but picked up quickly after NATO decided it needed an “enemy” to justify its exis­tence.  This happened under US Presi­dent Bill Clinton, and we are seeing the conse­quences of rampant Russo­phobia today in the main­stream media, in talk shows, in Holly­wood.  This kind of xeno­phobia is prohi­bited in Article 20 of the Inter­na­tional Covenant on Civil and Poli­tical rights, but most people do not know of the exis­tence of ICCPR.  I remember the anti-Russian agita­tion at the time of the Geor­gian inva­sion of South Ossetia, the hateful articles against Russian sportsmen and sports­women during the Socci Winter Olym­pics early in 2014, just before the Maiden coup d’état.  It is as if the media were already prepa­ring the American and Euro­pean public to hate Russians, so as to be able to better justify the putsch and the subse­quent anti-Russian measures adopted by the putsch Parliament.

As a UN offi­cial, I had the oppor­tu­nity to learn the Russian language and obtain my profi­ci­ency certi­fi­cate.  Ever since I have been grateful for the newly acquired ability to read Pushkin, Lermontov, Tolstoy, Dostoyevsky, Turgenev in the original.  I also had the chance to use Russian at the Office of the UN High Commis­sioner for Human Rights during nume­rous missions to the Baltic states and Russia, and in 1994 during two missions to Ukraine to monitor both the parlia­men­tary and presi­den­tial elec­tions.  I am happy to know a considerable number of Russians in Russia and in the diaspora, as well as Ukrai­nians in Ukraine and in the diaspora, some of whom I call friends.  As a histo­rian, I have made an effort to under­stand the Russian psyche, to put myself in their shoes.  Kissinger reminds us of Russia’s “histo­rical role” in Europe and warns that the chimera of “dismant­ling” Russia would turn its vast terri­tory into a “contested vacuum” and endless wars by compe­ting socie­ties would follow.  In the presence of thou­sands of nuclear weapons in the area, this would be a recipe for universal Apocalypse.

All sides committed war crimes

The main­stream media in the West  conti­nues to pour fuel on the fire by maxi­mi­zing reports – whether veri­fiable or not – of alleged Russian war crimes.  There is no doubt, that Russian soldiers have committed atro­ci­ties in Ukraine, as NATO forces have committed atro­ci­ties in Afgha­ni­stan, Iraq, Abu Ghraib, Guan­ta­namo, and else­where.  In my book The Wehr­macht War Crimes Bureau (Univer­sity of Nebraska Press, 1980[2]) I docu­mented atro­ci­ties committed by both Russian and Ukrai­nian soldiers on Yugo­slavs, Poles, Hunga­rians, Germans, during World War II.  Of course, Russians commit crimes.  But  all sides have committed them, and we should not be focu­sing on the primacy of punish­ment and war crimes trials, because expe­ri­ence shows that war crimes trials can only take place if there has been uncon­di­tional surrender by the vanquished, as 1945 when Germany and Japan capitulated.

Russia will react on a pre-emptive nuclear strike

The scenario today is quite diffe­rent, because there is zero chance that Russia would ever surrender.  If the escala­tion of tensions and the propa­ganda continue, there is a growing danger that someone at NATO will propose a “pre-emptive” nuclear strike against Russia, and if Russia were exis­ten­ti­ally threa­tened, it would throw its vast nuclear arsenal against us in the West.  Let us not forget that the oceans are alive with NATO and Russian subma­rines all equipped with nuclear weapons.  Thus, we should not provoke a nuclear confron­ta­tion that could very well termi­nate human (and animal) life on the planet.

Common sense tells us that we must reduce tensions and try to reach a compro­mise, a modus vivendi, even though it will take many years before rela­tions between NATO count­ries and Russia can be restored to a respectful co-existence.

At the Nurem­berg and Tokyo trails 1945–48 the vanquished were at the mercy of the victors (vae victis), and the Nurem­berg and Tokyo trials were held in the arro­gance of power.  Surely many of those convicted were guilty of horren­dous crimes.  But a “victor’s tribunal” never has much legi­ti­macy.  In order to do “justice” a tribunal must punish all who have broken the law, and not focus on the vanquished and let the victors get away in total impu­nity.  If the Nurem­berg tribunal aspired to credi­bi­lity, it should have tried the Soviets for their multiple massa­cres of reli­gious mino­ri­ties, the killing of 15,000 Polish prisoners of war at Katyn and else­where, it would have tried the US and UK for the deli­be­rate terror bombing of popu­la­tion centres, killing an esti­mated 600,000 human beings.  “Bomber Harris” certainly would have been hung. Also the “dambus­ters” would have had a place on the dock. If the Tokyo tribunal would have wanted histo­rical respec­ta­bi­lity, it would have tried the US for its indis­cri­mi­nate naval warfare, for its syste­matic machine-gunning of Japa­nese ship­w­re­cked (as recorded in the UN Navy histo­ries), would have tried British soldiers for killing Japa­nese prisoners of war in Southeast Asia (widely discussed in British Parlia­men­tary Debates), would have tried the crew of the Enola Gay that threw the first atomic bomb on the hapless popu­la­tion of Hiro­shima — histo­ri­cally one of the mega-crimes of the 20th century.

Do we need an inter­na­tional tribunal to try Putin, Zelinsky, Stol­ten­berg, to prose­cute members of the Azov battalion, merce­na­ries and other ruthless comba­tants?  No.  Inves­ti­ga­tions and trials should be conducted only by the count­ries concerned.  The Ukrai­nians have an inte­rest in main­tai­ning disci­pline in their armies.  Ditto the Russians.  An inter­na­tional tribunal would only poli­ti­cize matters.  All States parties to the 1949 Geneva Red  Cross Conven­tions are already obliged to try their own crimi­nals.  Here is where emphasis must be placed.

With wisdom and sere­nity, we might manage to survive

What histo­rical prece­dents do we have for major wars that have ended with amne­sties[3]? Too many to count.  Let me start with the Thirty Years War (1618–48) that wiped out some 8 million Euro­peans.  Inte­res­t­ingly enough, notwi­th­stan­ding the mons­trous atro­ci­ties committed, no war crimes trials were held, no retri­bu­tion was stipu­lated in the 1648 Trea­ties of Münster and Osna­brück. On the contrary, Article 2 of both trea­ties provides for a general amnesty. Too much blood had been spilt. Europe needed a rest, and “punish­ment” was left to God:  “There shall be on the one side and the other a perpe­tual Obli­vion, Amnesty, or Pardon of all that has been committed … in such a manner, that no body …shall prac­tice any Acts of Hosti­lity, enter­tain any Enmity, or cause any Trouble to each other.”[4]  The Peace of West­phalia of 1648 has gone down in history as a mile­stone of inter­na­tional law and a reasonable effort at estab­li­shing a Euro­pean secu­rity archi­tec­ture[5].

We can also refer to article 3 of the Treaty of Rijs­wijk (1697), which orda­ined amnesty for the soldiers of the French and British monar­chies.  Article XI of the Final Act of the Congress of Vienna (1815) stipu­lated amne­sties notwi­th­stan­ding the atro­ci­ties of the Napo­leonic wars. Chapter II of the Evian Accords of 1962, which ended the fero­cious Alge­rian war of inde­pen­dence, simi­larly orda­ined an amnesty for both sides.

Admit­tedly, today’s world does not like the concept of “amnesty” and seems to be hooked on revenge.  This is pretty dange­rous, as we dance on the rim of the precipice.

With wisdom and sere­nity, we might manage to survive and someday say with Vergi­lius “forsan et haec olim memi­nisse iuvabit” … “perhaps one day it will be plea­sing to remember these things”.  Espe­ci­ally if our poli­ti­cians exer­cise prudence and wisdom and succeed in saving the world from Arma­geddon. Sure enough, this sounds like an expres­sion of stoi­cism and aesthe­ti­cism, but what options do we have?

[1] See discus­sion of R2P in para. 32 of my 2018 report to the Human Rights Council. undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F37%2F63&Language=E&DeviceType=Desktop&LangRequested=False

See the debate in the General Assembly on 23 July 2009, summa­rized in my 2012 report to the Assembly (A/67/277). Contrary to some trends and percep­tions, the idea of the respon­si­bi­lity to protect, contained in General Assembly reso­lu­tion 60/1 (2005 World Summit Outcome), did not replace the Charter-mandated inter­na­tional law of non-inter­fe­rence in the internal affairs of sove­reign States. The respon­si­bi­lity to protect is not a lex specialis that dero­gates from Article 2 (3), (4) and (7) or any other provi­sion of the Charter. The prin­ciple of non-inter­ven­tion remains very much valid and is confirmed in count­less reso­lu­tions of the Assembly and the Human Rights Council. Ther­e­fore, respon­si­bi­lity to protect cannot circum­vent the Charter or engage in sabre-ratt­ling or propa­ganda for war. At the plenary debate on the respon­si­bi­lity to protect, the Presi­dent of the Assembly iden­ti­fied four bench­mark ques­tions that should deter­mine whether and when the system of coll­ec­tive secu­rity could invoke the respon­si­bi­lity to protect: (a) Do the rules apply in prin­ciple, and is it likely that they will be applied in prac­tice equally to all States, or, in the nature of things, is it more likely that the prin­ciple would be applied only by the strong against the weak? (b) Will the adop­tion of the respon­si­bi­lity to protect prin­ciple in the prac­tice of coll­ec­tive secu­rity be more likely to enhance or under­mine respect for inter­na­tional law? © Is the doctrine of respon­si­bi­lity to protect neces­sary and, conver­sely, does it guarantee that States will inter­vene to prevent another situa­tion like the one that occurred in Rwanda? (d) Does the inter­na­tional commu­nity have the capa­city to enforce accoun­ta­bi­lity upon those who might abuse the right?

[2] See scho­larly reviews on my website www.alfreddezayas.com/books.shtml

[3] Alfred de Zayas, “Amnesty Clause” in Rudolf Bern­hardt (ed.) Ency­clo­pedia of Public Inter­na­tional Law, vol, I, North Holland, Amsterdam, 1992, pp. 148–151.

[4] avalon.law.yale.edu/17th_century/westphal.asp

[5] Alfred de Zayas, “West­phalia, Peace of” in Bern­hardt, Ency­clo­pedia of Public Inter­na­tional Law, vol. IV, pp. 1465–1469, North Holland, Amsterdam,.2000.

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