We have increasingly reached the view that Ukrainian membership of NATO, and the presence of NATO troops along the bank of the River Dnieper as a means to deter the continuation of Russian aggression, is a prerequisite to bringing the war in Ukraine to an end. The question therefore arises, assuming the collective political will exists to achieve this outcome because contemporary Russia is perceived as such a threat, as to how to achieve the permeation of NATO troops into Ukrainian territory consistently with international law and NATO legal instruments and what the mandate of a NATO occupying force in Ukraine ought to be.
Certain trite observations about Ukraine’s participation in NATO that it is worth rehearsing if only to explain why they are not to point. One point heard is that if NATO troops entered Ukraine without Ukraine first being admitted as a NATO member state then the collective obligation of self-defence as and between NATO member states would not be triggered under Article 5 of the NATO Treaty in the event that those NATO troops came under attack by the Russian Armed Forces while in Ukraine. That is because the Article 5 obligation of collective self-defence is triggered only by an attack upon the territory of a NATO member state or by an attack upon the troops of a NATO member in a jurisdiction in which those troops were present in 1949 (upon the inception of NATO). The latter provision was designed to cover the situation of Germany, where western troops had arrived at the end of World War II; nevertheless East Germany was not of course a member of NATO but the collective obligation of self-defence would be triggered were the Soviet Armed Forces to launch an attack upon western armed forces located for example in divided Berlin. The second point that is made by some in this connection is that Ukrainian accession to NATO can take place only with the unanimity of NATO member states and Turkey and/or Hungary might veto Ukraine’s accession. Therefore, the imagined inference goes, NATO is not relevant to procuring the security and stability of Ukraine.
This line of argumentation is entirely specious and ignores the fact that virtually all NATO operations throughout its history have been conducted not pursuant to Article 5 but rather pursuant to Article 4 of the North Atlantic Treaty, which has been consistently interpreted to permit individual NATO member states to cooperate in the interests of collective self-defence or in the pursuit of international peace and order provided that this is consistent with the objectives and principles set out in the Charter of the United Nations (see Article 7 of the North Atlantic Treaty). Therefore individual NATO members, and indeed NATO as a whole as an international organisation with legal personality, are free to enter into an agreement with Ukraine as a sovereign and independent state under international law to enter Ukraine for the purposes of upholding international law and the principles of international peace and security pursuant to the United Nations Charter by stabilising the military situation in Ukraine, with Ukraine’s consent which consent would surely be forthcoming. In other words, Ukraine may invite NATO troops to enter her territory pursuant to an agreement and there is nothing Hungary or Turkey or any other NATO member states who might be against this move could do about it (if indeed those countries were in fact against such a move - everything would presumably turn upon the terms of the proposed intervention). Turkey or Hungary might conceivably decline themselves to contribute troops but they are not in a position to prevent other NATO member states from using the NATO command structure and alliance to enter Ukraine upon that country’s sovereign invitation in order to maintain the peace.
It is our tentative view that the best way this might proceed would be to grant NATO member states an initially defensive, peace-keeping mandate upon entrance to Ukrainian theatre rather than an explicit mandate to engage the Russian Armed Forces in their occupying positions. The NATO troops’ mandate might be to serve as peacekeepers; to assist in and facilitate the reconstruction of civilian and military infrastructure; to train and support the Ukrainian Armed Forces (something they are already doing but from outside Ukrainian theatre); and to occupy a zone of say 30 kilometres from the established front line which they would have a mandate to demilitarise in its entirety in combination with the Ukrainian Armed Forces. These would a series of nonviolent mandates the details of which may be specified in an appropriate agreement between the NATO Secretariat and member states and with Ukraine pursuant to international treaty. This would be entirely consistent both with the North Atlantic Treaty and with the United Nations Charter and international law more generally.
The same agreement would then include an irreversible ratchet or trigger whereby if participating NATO member state troops came under attack by hostile armed forces whether the official armed forces of the Russian Federation or of Belarus; or informal or paramilitary or mercenary forces or any other such forces associated therewith, they would be entitled to use “all means necessary” (the phrase characteristic in international law for the the use of military force) to restore peace and order and to enforce international law: that is to say, to dislodge the Russian Armed Forces from the Russian-occupied Ukrainian territories using armed force. Therefore Russia would effectively be presented with an ultimatum: should a single bullet be fired at the troops of a NATO member state as they create a Korea-style “de-militarised zone” buffer zone between the warring parties, the NATO member states would have an explicit legal mandate to engage the Russian Armed Forces and this would entail the use of overwhelming force to expel the Russian Armed Forces from occupied Ukrainian territory.
In this way, by unilateral action on the part of Ukraine and the West, that does not require a UN Security Council vote (that Russia and/or China might veto), NATO might enter Ukrainian military theatre and the presence of NATO troops in Ukraine would be highly likely to cause the Russian Armed Forces to pause and for the conflict to be brought to an immediate conclusion. In this way, the killing, death and suffering incurred by both sides in an otherwise seemingly interminable conflict could promptly be brought to a conclusion and armistice negotiations might colourably be commenced.
None of this might nor should amount to proposals for a peace agreement to partition Ukraine and we are absolutely against such a proposition. The principal reason why this should not happen is that Russia has fundamentally violated the European and international legal order in her invasion of Ukrainian territory that was unwarranted and without a shred of international lawfulness or legitimacy. There can be no international agreement recognising what Russia has done but at the same time we are faced with the urgent need for an armistice given the catastrophic loss of life involved and we are also faced with the need to provide Ukraine and her people with credible reassurances to the effect that NATO troops will occupy her territory and defend themselves and the Ukrainian people indefinitely far into the future, and therefore the risk of further Russian territorial advancement into free Ukraine is permanently precluded. By inserting NATO troops into Ukrainian military theatre in this way we bring peace to a benighted country while exhibiting a clear show of force sufficient to deter further Russian aggression because it is manifest that at the current juncture Russia is not deterred and therefore there must be a fundamental shift in the West’s attitudes towards this conflict in order that Russia understands that the potentially unlimited resources of NATO will be used to expel Russia from Ukraine if Russia does not engage in an immediate cessation of hostilities.
There is no risk of a nuclear escalation because Russia knows she would be annihilated in such an event; this is also the reason why there has been no nuclear escalation so far. Nor is there a risk of a conventional escalation because Russia knows that while her impoverished if giant land army is sufficient to maintain constant battle with the Ukrainian Armed Forces over a series of trenches amounting to the current front line the Russian Armed Forces are simply no match for the combined might of NATO and in particular the United States.
Once NATO troops are in Ukraine, the Ukrainian Armed Forces can be tacitly incorporated into NATO command structures and the form and quality of the Ukrainian Armed Forces might be improved dramatically. In this way one of the world’s largest standing armies can be gradually brought up to NATO standards, a process that Article 10 accession to the North Atlantic Treaty anticipates, and eventually any lingering veto objections to NATO membership would surely be overcome as NATO faces the prospect of becoming ever more powerful an institution with the incorporation of free Ukraine into its command structures.
The fighting over a currently immobile front line would be brought to an end. The Ukrainian Armed Forces would be modernised. The conflict would not be over; Ukraine’s rightful claim to the occupied territories would not be given up and continued military, economic, political and financial pressure could be brought to bear upon Russia on a variety of fronts in a second Cold War to force Russia out of the occupied territories but the current status quo, which is colossally expensive in terms of both life and money, would be brought to an end.
This tentative proposal for an agreement between NATO and Ukraine for NATO troops to enter Ukrainian military theatre upon the invitation of free sovereign Ukraine is one we believe that Ukrainian people would wholeheartedly support, as would her political and military establishment. It is also one we believe the greater majority of NATO member state voters would support to bring this war to a conclusion and to introduce a new if uneasy peace to Europe. Most importantly, it is the only display of power and force sufficient to induce Russia to step back and to silence her guns. This is the route to peace in modern Europe and to the end of what is effectively World War III. We believe China would tacitly if not openly support it and Russia would be ever further isolated in consequence of her aggression which is right and proper. There would be ample legal details to be worked out in negotiation between Ukraine and NATO member states, to be sure; but an agreement of this nature is an imperative next step in winning the war in Ukraine.
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