Peace on What Terms?

by Michael C. Dorf

Since the beginning of Russia's criminal war against Ukraine, I have mostly been writing about other matters. That choice reflects the limits of my own expertise, rather than a judgment about the importance of the issues. Obviously, the war crimes Russia is committing in Ukraine are orders of magnitude more important than undergraduate admissions at elite U.S. colleges, the best characterization of causes of action in federal court, and the other relatively mundane matters I've addressed in the last few weeks. But having resisted the temptation to step outside my lane to this point, today I'll succumb to it. I want to offer a thought about the possible terms of a peace "deal" with Russia.

Russian representatives to the diplomatic talks with Ukraine have lately begun to make noises suggesting some amenability to a negotiated resolution to the current conflict. It is too soon to know whether these statements signal a genuine shift. As we have already seen in Ukraine and, consistent with its pattern in Chechnya and Syria, Putin's Russia often uses diplomatic maneuvers to stall or divert attention from intensifying attacks on both military and civilian targets. A country that bombs civilians in hospitals, sheltering in a theater, and fleeing a conflict through agreed-upon humanitarian corridors is hardly to be trusted to speak honestly in negotiations. The main reason to think that the Russians might be serious that they "hope that a certain compromise can be reached" is that while Russia has had great success in murdering pregnant women, infants, the infirm, and the elderly, from a strategic perspective the war is not going very well for its ill-equipped, under-trained, and poorly motivated forces. Accordingly, there is some cause for very cautious optimism that a diplomatic way out might be available.

What would a deal look like? Less like an agreement than like paying ransom.

If hackers install ransomware on your firm's computers and you pay the ransom, you encourage further ransomware attacks from those same hackers and, if the payment becomes widely known, others as well. Nonetheless, if the stakes are high enough, you might pay the ransom notwithstanding the incentive effects. In recent years, the most prominent example was Colonial Pipeline, which paid $5 million to DarkSide to restore its data. (DarkSide is believed to be based in Russia, of course, and is tolerated if not directly controlled by the Kremlin.)

A firm that pays hackers ransom presumably concludes that it simply cannot afford to withstand the attack and will respond going forward by hardening its defenses. Similar logic could apply to victims of kidnappings, piracy on the seas, and terrorism. Insofar as Russia's atrocities in Ukraine are effectively state-sponsored terrorism, negotiating a resolution is a lot like negotiating with pirates, hostage-takers, and terrorists in other contexts. It goes without saying that the counter-party to the negotiations--whether DarkSide or Putin--does not deserve any reward, indeed, should be severely punished. But given the practical limits on providing any punishment in the short run and the vital need to stop the pain in the moment, one swallows the bitter pill and makes a deal if possible.

Saying that Ukraine should be willing to negotiate leaves numerous questions open. Here I'll address just one of them: What steps can be taken to harden Ukraine against future attacks?

Any deal to which Ukraine agrees is by definition profoundly unjust. A fair deal would have Russia: (a) return Crimea, Luhansk, and Donetsk to Ukraine: (b) pay billions of dollars in reparations; and (c) send its leadership to the Hague to be tried for war crimes. Russia will agree to none of that and will instead demand some form of "neutrality" from Ukraine that involves at least a pledge not to join NATO. Suppose Ukraine swallows hard and pays that ransom to the Kremlin criminals. What then?

A firm that falls prey to a ransomware attack and pays the ransom will invest heavily in cyber-security to avoid a future successful attack. But the one thing that Ukraine could do that would be most effective at deterring a future attack by Russia would be to join NATO, which is the very thing that Russia will demand it not do. It would be as if part of the ransom that the firm must pay to the hackers is giving them a perpetual backdoor into the firm's computers.

Perhaps, however, the NATO umbrella would prove unnecessary. By making Russia pay an enormous military price for its invasion, Ukraine has made itself into an undesirable target for future attempts at conquest. Even a demilitarized Ukraine, if invaded again by Russia, would likely become the site of a long insurgency that would bleed Russia for as long as it lasted. Ukraine would be a poison pill.

That should be enough, but perhaps it isn't. Imperial powers are, by their nature, arrogant. The Soviets were fools to try to conquer and subdue Afghanistan, already known at the time of the invasion as the graveyard of empires. And then, with the Soviet example fresh in our minds, we made the same blunder just a couple of decades later. Accordingly, if I'm right that any deal likely to be available will preclude Ukraine from steeling itself against a future Russian attack, relying on the poison pill strategy carries risks, because it assumes a level of rationality of future Russian leadership that may be unwarranted.

If this were a conflict involving other powers--Eritrea and Ethiopia, say, or even Israel and Palestine--an international peacekeeping force might be used as a tripwire against a future invasion. But the same factors that lead Russia to demand Ukrainian demilitarization will likely lead it to reject any credible peacekeeping force.

Hope springs eternal, of course, but from my vantage point, a just peace is completely out of the question and even a lasting but unjust peace is a huge gamble. The only reason to take that gamble is that the status quo of Russian mass murder of Ukrainian civilians is intolerable.