Opinion Creative diplomacy is needed to end the Ukraine war
Upendra Baxi writes: Further loss and widespread suffering must be prevented.
President Vladimir Putin has made clear his intentions to Ukraine and the world. (Illustration: C R Sasikumar) 
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The famous Jewish theologian and eminent philosopher Emmanuel Levinas began his immortal book Totality and Infinity (1967) by describing war and hostilities as acts of ultimate moral “obscenity” of power, entailing the “suspension of the ethical”. He rightly said: “War is not only one of the ordeals — the greatest —of which morality lives; it renders morality derisory. The art of foreseeing war and of winning it by every means — politics — is henceforth enjoined as the very exercise of reason.”
However, one is not, as Levinas says in the very first sentence of the book, “duped by morality” when international law moves to the moral rearmament of the conduct of wars and hostilities. The ancient and modern doctrines of just war and the just means of pursuing these remain the cornerstones of the international regulation of armed conflict. Merely having a justification for armed conflict (for example, self-defence, individual or collective) is not enough. Even when such armed conflict is justified as self-defence, unjust means make it unlawful. The defence of the military necessity of hurting and harming civilian sites or persons is not permitted in war, although some unavoidable “damage” may be occasionally permitted, if so proved. However, non-combatant civilians have to always be respected, and wounded combatants and prisoners of war have healthcare rights. It is indubitable that, as we get to the 20th day of the Ukraine war, the Russian forces have violated the laws of armed conflict by massively shelling civilian sites — schools, hostels, and apartment buildings — in Ukraine.
Wars have several dimensions. Propaganda and media wars precede, and accompany, the real wars of devastation, damage, destruction and death. The shelling and tank fire have intensified the mass evacuations (the sight of children and senior citizens walking for miles will continue to haunt us). And the alleged genocide against Russians in the Donbas (between February 19 and February 20, 2022, by the so-called “People’s Republics” of Donetsk and Luhansk) does not warrant the massive Russian invasion because, as Stanford law professor Allen S Weiner rightly says, “these entities do not have the right, under international law, to invite Russian military forces onto the territory of what, as an international law matter, remains the territory of Ukraine.”
And like all human actions, conflicts will have multiple intended and unintended consequences. Already nearly 2.7 million women, children and men have marched to Poland, Hungary, and Moldova and the EU estimates that the number of refugees could eventually be about 5 million. These residues of a colossal human tragedy will continue to accentuate our responsibilities to refugees, and experiences of world hunger will rise substantially.
The Russian forces will still occupy much of the newly-seized Ukrainian territory, especially in the country’s south along the Sea of Azov and the Black Sea. They will continue to possess Crimea and claim the breakaway regions of Donetsk and Luhansk. On the other hand, President Volodymyr Zelenskyy will want to retake Ukrainian territory and restore the borders promised to it in the 1994 Budapest Memorandum.
President Vladimir Putin has made clear his intentions to Ukraine and the world. A reversion to a form of the 19th century capitulation treaty (where state A was made to allow State B to exercise extraterritorial jurisdiction within state A’s boundaries) is no longer permitted by the law and jurisprudence of the UN Charter. Domestically, all Ukraine-related internal dissent in Russia is now legally banned. Despite ceasefires, humanitarian corridors and peace talks, Putin insists that the armed conflict will cease only when Ukraine undertakes to renounce all intentions of joining the EU or NATO. And the NATO alliance stands unequivocally threatened with nuclear action by the Kremlin in case of apprehension or breach of Russian security or strategic interests.
A slew of potent sanctions by Western states (as well as powerful multinational and global civil society groups) stands reinforced while the promised military armaments (especially the Javelin anti-tank missiles and Stinger missiles) enhance Ukraine’s determination to defend itself against the Russian invasion. More determined efforts such as the imposition of no-fly zones or even NATO boots on the ground could risk starting a major European, if not a world, war. One only hopes that a nuclear winter for the whole world will somehow be avoided.
Must the “open-door” NATO policy — or, put more forbiddingly, the “new security architecture for Europe” — remain beyond diplomacy? Is a chilling human future to be read into Putin’s lament about NATO’s eastward march being littered with the “broken promises” of peace? Mary Sarotte, a post-Cold War historian, has clarified in Not One Inch (2021), that the NATO expansion question did not arise so pugnaciously with the addition of “the Czech Republic, Hungary and Poland; then seven more countries even farther east, including the former Soviet republics of Estonia, Latvia, Lithuania, Albania and Croatia in 2009”. Why should Ukraine joining the EU or NATO, if it so wishes, be different, even granting that there exists between the two nations a “historical unity” constituted by a “single people, unified by language, culture and religion” (as Putin wrote in July 2021)? How does this justify war?
The precious beginnings of a quiet diplomacy are overrun by war propaganda. Recently, the Kremlin clarified that Putin had told the French president that his main goal was “the demilitarisation and neutral status of Ukraine.” Noam Chomsky rightly says that this statement would have been welcome “in a rational world” and would have been “headlined”. He says that “commentators would be calling on Washington to seize what may be an opportunity to end the invasion”. Instead, the media hawks helped create a situation that could end in “terminal war if Putin is not offered an escape hatch from the disaster he has created”.
A just end to the hostilities demands sane and swift creative diplomacy to avoid further social and moral loss and widespread suffering. India, given her close ties with Russia (which has notably helped in the repatriation of Indian students) and international prominence, stands uniquely poised to nudge both sides, through creative strokes of diplomacy, to an expeditious and equitable peace.
This column first appeared in the print edition on March 17, 2022 under the title ‘A time for creative diplomacy’. The writer is professor of law Emeritus, University of Warwick, and former vice-chancellor of Universities of South Gujarat and Delhi
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