Picture: Handout / Ukrainian Presidential Press Service / AFP / Dated July 8, 2023 – Ukraine's President Volodymyr Zelensky lays flowers and candles during his visit to Snake Island (Zmiinyi Island), Odesa region. More than $200 billion in US funding and arms transfers has achieved nothing, with the overall cost of Nato’s 'war of attrition’ resolve amounting to more than $2 trillion to date, the writer says.

By André Thomashausen

Most analysts today believe that the use of military force in Ukraine will continue for many years to come. It may take decades for the West to accept that the war in Ukraine, just like other modern wars, will not be won on the battlefield.

In my opinion piece in this paper on March 20 last year, I was the first to predict a “war of attrition”. I ended my piece by saying that the “only moral winner in this conflict will be the one who has the courage to end it”.

The Western war effort in Afghanistan lasted from 2001 until 2021. It accumulated a total cost of $2.313 trillion, that is $300 million a day, every day, for two decades. The war achieved nothing inside or outside Afghanistan.

Today, after 592 battle days in Ukraine, the new breakaway republics in the Russian Federation – Donetsk, Kherson, Luhansk, Zaporizhzhia and Crimea – are recovering from more than a decade of oppression, discrimination and attacks with military weapons by the government in Kyiv. The military counter-offensive by Ukraine, to re-occupy the territories, has not moved the new borders nor changed the reality of their secession and incorporation into the Russian Federation.

More than $200 billion in cumulative US funding and arms transfers achieved nothing. The overall cost of the Nato resolve that “Putin may not win this war” amounts to more than $2 trillion to date, if the decline of the EU’s economies is factored in. US intelligence sources are adamant that more than 270,000 Russian soldiers lost their lives, with about a tenth of that number having been officially counted in Russia. The Russian records of Ukrainian losses show a total close to 500,000.

Media audiences are turning away from the grim accounts of the battlefields in Ukraine. President Volodymyr Zelenskyy’s nationalism and vitriol against voices of reason have worn off. Voters are withdrawing support and funding from the proposition that the war must continue “for as long as it takes”. Most of humanity, living in China, India, Eurasia, the Middle East, Africa, South America and Russia reject more arms supplies to Kyiv.

The emerging consensus is that no degree of perceived justice or injustice can justify the continuation of the carnage. Seeking ways to end the conflict will focus on the socio- political reality in Ukraine. The 2010 election illustrated the divisions in the country. Candidate Yulia Timoshenko was ferociously anti-Russian and her opponent Victor Yanukovich defended a balanced policy that wanted to safeguard Ukraine’s preferential trade relations with Russia and the other CIS states (Commonwealth of Independent States).

The mapping of the 2010 votes shows support in many regions close to 100 percent for the moderate candidate Yanukovich in the south-eastern territory, and nearly 100 percent votes for the anti-Russian candidate Timoshenko in the western half of Ukraine. Such a social reality cannot be accommodated by a centralist constitution and the repression of diversity.

Modern-day Spain overcame its 42-year fascist rule under General Francisco Franco in 1978 by adopting a constitution that allowed for varying degrees of autonomy for its provinces and many different peoples. Federalism and cultural freedoms and autonomy are the European model for living with diversity.

It is astonishing how the Europe led by Josep Borrell and Ursula von der Leyen could forget the separatist violence and instability experienced in the Basque, Catalan, Tirol and Flemish, as well as Northern Irish conflicts. The successful implementation of equal language and regional representation rights in Belgium, Spain and Switzerland have set a global standard for best constitutional practices. “Federalism” is the foundation of statehood and the national identity of the US.

Why was Ukraine never held to these successful principles of nation-building? Zelenskyy’s “peace plan” sees the restoration of all borders that existed at the onset of Ukrainian statehood in 1991, without reforms or concessions. It is a maximalist position implying military victory and the defeat of Russia.

Peace is always the result of comprise, and a “victor’s peace” is never a lasting solution. No principle of international law can be invoked in isolation from other principles of equal force and standing. The principle of territorial integrity is conditioned by the constituent elements of statehood, namely the existence of an uncontested power of administration over a defined territory and people. Morocco, for instance, will be able to claim rights of territorial integrity over the Western Sahara only when it can demonstrate that it exercises effective control over the population in that part of Africa.

The Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States ruled in 1970 that everyone must respect the sovereignty and territorial integrity of those countries whose governments respect the principle of self-determination of peoples and, therefore, represent all the peoples residing in that territory. The resolution famously linked statehood to the legitimacy of representation. It opened international law to the recognition of legitimate state secessions, as has occurred in South Sudan and in many other cases.

The universal prohibition of the use or threat of force is also conditioned. It applies subject to the right of self-defence. This includes the right to pre-emptive self-defence and self-defence in aid of another, under Article 51 of the UN Charter. The cultural, religious and language divisions in Ukraine must be acknowledged and accommodated in a new constitution, inspired by the Belgian and Spanish models. The alternative risk that a Ukraine-at-war would be integrated into the EU, resulting in the EU entering into a continental war with Russia.

Ukraine today is a country stifled by a war economy and levels of corruption ranked worst in the world. Dissident political parties and the opposition media are forbidden. Russian language institutions and the Russian Orthodox churches have been closed. Elections are cancelled and the fundamental human rights to vote, to the freedoms of information, religion and opinion, the choice of occupation and movement, are all suspended and denied.

What would South Africa’s internal peace look like if the ANC had prohibited the use of the Afrikaans language, closed Afrikaans-language schools, universities and churches in 1994? The reflection on the future of Ukraine must start in Kyiv. The law that has declared advocating for peace a criminal offence must be revoked to allow for an open debate and re-engagement of intellectuals and civil society.

André Thomashausen is Professor Emeritus of Comparative and International Law at Unisa

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