Common Sense about Negotiations

For Americans about Ukraine

As Ukrainian and European leaders travel to Washington for discussions in the White House this Monday about ending Russia’s illegal war of aggression, Americans would do well to remember ten principles of negotiation.

1.  Outsiders should be aware of their information deficit.  Americans tend to think that we know everything.  This is never the case, and such a belief is especially harmful when we are outsiders to a horrendous war.  Both Ukrainians and Russians know things that we either do not know or tend to forget.  The Russians work put our knowledge gaps to good use.  For example, Russians have trained Americans to talk about “four oblasts,” as if the war were only taking place in four Ukrainian regions.  The number of regions currently under occupation or threat is seven.  Russia’s main war aim is to destroy Ukrainian sovereignty as such. And of course any obligations placed on Russia have to concern all of Ukraine and all of Russia.  When Ukrainians and Europeans point such things out, it is important for Americans to listen rather than be irritated.  If we allow our information deficit to become a Russian weapon, we will be both unjust and ineffective as negotiators.

2.  Outsiders should be aware of their emotional deficit.  The fact that Americans might prefer that the war end does not mean that they have access to the emotions that made war possible.  On the one side, Vladimir Putin is fighting a war of choice.  It matters to him in a certain way.  He wants to be remembered as a great imperial leader, like Catherine the Great, someone who took land for Russia.  As an enormously wealthy man with no political rivals, these posthumous stakes are all that matter to him.  The war is an oligarchical pet project, a personal immortality quest.  He has brought his people along through propaganda and payments to soldiers, but there was little organic popular support for a war.  In order to get Putin to negotiate, Americans have to understand where he is coming from, and create a situation where he worries that he will be remembered not as the man who enlarged Russia but as the man who brought about its disintegration.  The only way to move him to that place is to implement policies that make it easier for Ukraine to win, such as enforcement of sanctions, secondary sanctions, use of seized Russian assets, and the supply of arms to Ukraine.  On the other side, on the Ukrainian side, people are fighting a war of necessity.  They are fighting for their lives, and for a way of life.  We use such language so often ourselves that we trivialize it or make it cinematic, and so we may not recognize an actual existential situation when it is before our eyes.  There is no oligarchical whimsy at play here, unlike in the Kremlin.  Unlike Putin, Ukraine’s President Zelens’kyi is not fighting a war of choice.  He was elected in a free election and is doing what his people expect him to do.  Because Ukrainians have been attacked by Russia and then subjected to Russian murder campaigns, mass torture, and the kidnapping of children, they cannot simply stop fighting because they are asked or told to do so.  This is all the more true since Russia has violated every single pertinent agreement it has ever made with Ukraine.  Filling the emotional deficit means understanding that peace for Ukrainians has to include more than just assurances from Moscow that Russia will not attack (these assurances have been given multiple times and always been violated) nor for that matter just assurances that we will help next time (we gave such assurances in 1994 when Ukraine gave up its nuclear weapons and they meant nothing when the time came).  Ukrainians want to join NATO because that is a meaningful security guarantee.  Russia attacks countries that are not NATO members.  It does not attack countries that are NATO members.

3.  Outsiders should be aware of their linguistic deficit.  Russians and Ukrainians know English, but Americans do not know Russian or Ukrainian (generally).  When compounded with the informational and emotional deficits, this can create a situation in which Americans, as outsiders, repeat the language that they have been given, usually to the advantage of the aggressor, Russia.  The country defending itself, Ukraine, can generally only explain how things are.  If Americans are hungry for a quick solution, we may not listen, because the facts on the ground demand attention and then policy.  The aggressor is generally practiced at abusing language because the aggression itself begins with a lie: in this case genocidal lies about Ukraine not really existing, not really having a culture, or whatever.  As the aggressor Russia has years of practice now in generating formulae in English which are meant to be repeated, either to somehow justify its illegal invasion or to justify its gaining something from its illegal invasion.  The notion of “land swaps” is a topical example.  Americans are told by Russians to say "land swaps” and then they do: not just American negotiators but American reporters.  But Russia is not offering to swap any of its territory.  It is demanding to keep the land it has illegally invaded and to take more land that it has not even occupied.  That is not a “swap.”  When we repeat propaganda tropes, we make it harder to sensibly negotiate.

These three deficits would be best addressed by visits of high administration officials to Ukraine. It is hard to negotiate the end of a war without personal knowledge.

4, 5, 6.  In effective negotiations, concessions are not made in advance, not made in exchange for nothing, and not made in the name of other people without their agreement.  I am putting three principles in together here, because Americans are violating all three together on major issues, and thereby making the continuation of the war much more likely.  Americans have proposed that concession that Ukraine should not join NATO, have proposed the concession (implicitly, by ignoring the issue) that Russians not be tried for war crimes, have proposed the concession (implicitly, by ignoring the issue) that Russia not pay war reparations, have proposed the concession (implicitly, by ignoring the issue) that Russia’s frozen assets not be used.  All of this has been done in advance, none of it has yielded anything in return from Russia (except mockery of Trump on Russian television and the escalation of attacks in civilians), and all of this involves countries others than ourselves.  Now, these are all proposals, and as such can and should be withdrawn.  It is counterproductive and unjust, in general, to make concessions in advance, to make concessions in exchange for nothing, and to make them of other people.

A Ukrainian farm in Kherson oblast. One of countless examples of Ukrainian resources that Russia claims but does not control. Photo TS

7.  In negotiating the end of a war, it is important to be aware of the traditional means of dealing with aggression and deterring further attacks.  This need not involve a moral judgement; it is simply practical politics.  Traditionally, the country that illegally invades another country and carries out war crimes is held responsible legally and financially for these actions.  Trying war criminals and requiring aggressor states to pay reparations are part of the traditional set of measures used to bring wars to an end.  It is expected that countries return their armed forces to within their own borders.  It would be entirely normal (should Ukraine wish it) for Ukraine’s allies to station troops on Ukrainian territory.  This sort of thing has happened routinely in history.  It is possible to imagine negotiating these away in exchange for other things.  But Americans, negotiators and press alike, should remember that these are entirely traditional measures and not startling new developments.

8.  In negotiating the end of a war, it is important to remember that a war is going on.  This is not a game.  Words in themselves do not much matter.  Successful negotiations rest on policy and institutions and have to lead to structures of incentive and structures of enforcement that directly influence present and future actions.  This begins from knowledge of the battlefield.  So, for example, Russia is demanding that Ukraine concede territory that Russia does not control in the Donetsk region.  This is a historically quite a strange demand on its own, the more so as Russia is offering nothing in return.  Basic knowledge of the battlefield would include the information that Ukraine has built crucial physical defenses in the Donetsk region.  Giving control of this land to Russia makes it much easier for Russia to continue the war.  It cannot reasonably be seen as having any other meaning (except Russia’s desire to control Ukrainian mineral resources in exchange for nothing).

9.  In negotiating the end of a war, it is important to think of the future.  The United States may have the leverage to get Ukraine to do certain things.  But if those are simply things that feel right to us at the present moment, because of our linguistic, emotional, and information deficits, then their realization is unlikely to lead to anything like peace (let alone peace prizes).  Successful negotiators will have to think ahead to the situation (say) six weeks, six months, six years after the notional end of the war.  This means structural incentives for Russia not to attack again.  It means not lifting existing sanctions and indeed applying new measures for as long as necessary.  Going “back to normal” quickly will mean going back to war.  Thinking of the future means, for Ukraine, the concrete prospect of massive reconstruction assistance, which is, incidentally, a far bigger business opportunity than anything Russia can offer.  Ukraine must be supported militarily – and, here again, those who support Ukraine stand to learn from its extraordinary battlefield achievements, something which Russia cannot and would not offer.  But most fundamentally, Ukraine needs long-term aid to its non-governmental organizations, to its regions, and to its central government, as well as membership in the European Union.

10.  In negotiating the end to a war, it is important to keep in mind the fundamental difference between de facto and de jure concessions involving territory.  Troublingly, in our lingo of “swaps” and “deals,” neither American policy-makers or (generally) American journalists are making this distinction.  Failing to do so will be disastrous.  It is one thing for Ukraine to accept, de facto, that Russia is illegally occupying its territory, and agree informally not to take certain steps to regain it.  That is far from an ideal situation, but it has precedents, and does not break the entire international legal order.  It is another thing entirely to demand that Ukraine accept that Russia legally holds Ukrainian territory on the ground that Russia has invaded that territory.  This is not something that Ukrainians can accept.  But, most fundamentally, endorsing the principle that invasions can legally change the borders of countries puts in jeopardy the international order that was built after 1945.  It is an imperfect order, to be sure, but it is far better than what would be created if Russian aggression is legitimated: a world of all against all, with interstate war becoming the norm, and with countries all over the world building nuclear weapons.  This order is not an abstraction.  Although countries may disagree about how to evaluate or end the war in Ukraine, the idea that state borders should not be violated enjoys (as UN votes show) very high support.  Russia has called into question this basic principle by invading Ukraine.  Should the United States thoughtlessly legalize Russia’s war of aggression, it will invite global chaos.

This war can be brought to an end.  The United States has the power to help, but that power must be consciously directed to the benefit of the side that is defending itself, and in accordance with what we know about successful negotiations.  Just talking, especially repeating the propaganda of the aggressor, will not bring peace. 

Negotiations can work when basic principles are kept in mind.  All of them demand self-awareness, attention to the character of the war, knowledge of the difference between aggression and self-defense, and the willingness to make policy.