{"id":5746,"date":"2025-12-01T15:44:43","date_gmt":"2025-12-01T14:44:43","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=5746"},"modified":"2025-12-01T15:51:00","modified_gmt":"2025-12-01T14:51:00","slug":"part-ii-architecture-of-the-unenforceable-putin-trump-peace-plan","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2025\/12\/01\/part-ii-architecture-of-the-unenforceable-putin-trump-peace-plan\/","title":{"rendered":"Part II — THE ARCHITECTURE OF THE UNENFORCEABLE: Points 2\u201321\/26 & the Fantasy of Amnesty in the Putin-Trump \u201cPeace Plan\u201d \u00a0"},"content":{"rendered":"

<\/div><\/p>\n

The International Criminal Court Statute is explicit on certain challenges to accountability such as superior orders, head of state immunity, and statute of limitations, but is silent both as to any duty to prosecute and with regard to amnesties. Although the issue was raised during the Rome Conference at which the Statute was adopted, no clear consensus developed among the delegates as to how the question should be resolved. This too suggests that customary international law had not crystallized on this point, at least not in 1998. \u2014<\/p>
\n

Leila Nadya Sadat<\/em>,\u00a0Exile, Amnesty and International Law, 81 NOTRE DAME L. REV. 955, 1022 (2006)<\/span><\/p><\/blockquote><\/p>\n

My initial reaction to Trump\u2019s 28-point \u201cpeace plan,\u201d created (or adopted, see Part I) by his inexperienced negotiation team, was not outrage or surprise but disbelief. I was genuinely astonished that four lawyers could produce (or claim ownership of) a document so legally incoherent, so fatally flawed, so flabbergasting, that it fails the laughing test. Steve Witkoff and Jared Kushner are not just real estate magnates; they are lawyers in one of the most contract-heavy industries globally. Surely they understand the basics of their contractual arrangements: words matter, ambiguity is dangerous, contradictions are disastrous, and legal terms must be enforceable. When they step outside their expertise, they know to get advice from someone who isn\u2019t. This isn\u2019t advanced public international law; it\u2019s basic ethics and professional responsibility.<\/p>\n

\"BuildThe same indictment applies to Vice President J.D. Vance and his Yale Law confidant, Secretary of the Army Daniel P. Driscoll\u2014an enthusiastic supporter of Vance\u2019s anti-Ukraine, unapologetically narrow-minded, and uninformed isolationist worldview. For two men who fancy themselves as having serious gravitas, neither seems to have noticed \u2014 or more likely, noticed and didn\u2019t care \u2014 that they were pressuring Ukraine to accept what amounts to an international contract binding parties who never negotiated, never consented, and could not legally be bound even if they had. The negligence is shocking. The cynicism is worse. But this assumes any of them were genuinely trying to create a lawful, lasting peace rather than pushing a private, ideologically convenient agenda.<\/p>\n

Witkoff\u2019s profound incompetence was evident when he showed up for his first meeting with Vladimir Putin without an interpreter. Embarrassing as that was (even if it was just a ceremonial greeting), it\u2019s nothing compared to the farce of drafting, co-drafting, or endorsing a framework filled with contradictions, legal impossibilities, and provisions void from the start. The document reveals exactly what this \u201cpeace initiative\u201d has always been: Trump\u2019s envoys running an off-the-books foreign policy that is openly pro-Russian and shockingly inept.<\/p>\n

Setting aside Article 2(4) of the U.N. Charter, which bans the threat or use of force to seize territory, and Article 52 of the Vienna Convention on the Law of Treaties, which invalidates any agreement obtained through coercion\u2014both directly involved in a plan that demands Ukraine to cede territory, including areas Russia does not occupy, under the threat of losing U.S. support if it does not accept the entire package within six days\u2014what follows is a closer look at the flaws, contradictions, and structural issues embedded in the remaining provisions.<\/p>\n

\"ThumbThis so-called peace plan is partly a Russian wish list and partly American capitulation. It is also deeply flawed and profoundly amateurish. Point 26 \u2014 the broad amnesty clause \u2014 clearly indicates coerced compromise, the natural result of its underlying logic. But it\u2019s not the only sign. The same pattern of capitulation runs through Points 2\u201321, with many provisions subtly (and sometimes blatantly) tilting the scales toward an outcome where Ukraine makes concessions while Russia retains its gains. It\u2019s a coercive setup, a diplomatic farce\u2014one that normalizes Ukrainian concessions while completely ignoring Russia\u2019s actions.<\/p>\n

Before addressing Point 26, here are some quick, rough observations on Points 2\u201321\u2014not a comprehensive list of the document\u2019s flaws, but a focused look at the provisions relevant for those not involved in drafting, endorsing, or selling this plan.<\/p>\n

The Unenforceable Architecture of Points 2\u201321<\/strong><\/p>\n

Point 2 binds \u201cEurope\u201d to a non-aggression pact. Who, exactly, is \u201cEurope\u201d? The European Union? Every country on the continent, regardless of its political stance? The UK, which is no longer part of the EU? The European Economic Area? Microstates like Andorra, San Marino, Monaco, and the Vatican? The plan doesn’t specify\u2014because the authors didn’t know. They never defined their parties because they didn’t understand the basic legal framework they were trying to establish. A contract that doesn’t identify its parties is invalid from the start, yet the authors treat \u201cEurope\u201d as if it were a single legal entity that could be bound arbitrarily. This kind of careless conceptualization not only shows ignorance but elevates negligence to an art form.<\/p>\n

Point 3 binds NATO \u2014 an alliance that neither helped create this plan nor agreed to it \u2014 to oppose expansion. It\u2019s impossible to overstate how legally indefensible this is: non-member states cannot unilaterally change the obligations of member states regarding a multilateral treaty organization from outside, especially through an informal political document written as if it were sketched over drinks on a cocktail napkin by a couple of Americans with a few others insisting on its acceptance.<\/p>\n

Point 4 goes even further by anointing the U.S. as a \u201cmediator\u201d between Russia and NATO to resolve \u201call security issues.\u201d This is fundamentally impossible. The U.S. is part of NATO. It\u2019s not just a member; it\u2019s the alliance\u2019s leading military and political force. A party cannot simultaneously claim to be a neutral arbitrator and a key stakeholder. The Trump quartet either didn\u2019t see this contradiction \u2014 which reveals their incompetence \u2014 or, more likely, they deliberately included it to manipulate the process\u2014to create a false appearance of legitimacy for a predetermined, skewed outcome.<\/p>\n

Point 7 instructs NATO to amend its founding treaty to guarantee Ukraine will never be admitted. This alone would require unanimous consent from all NATO members\u2014something the authors either overlooked or never understood.<\/p>\n

Point 8 prohibits NATO from deploying troops in Ukraine, as if the alliance could be externally bound by operational constraints it did not negotiate, does not accept, and has no incentive to follow. The plan repeatedly treats NATO as a subordinate administrative agency rather than a sovereign collective of 32 states.<\/p>\n

Point 9 reaches new heights of incoherence by requiring Poland to host unspecified \u201cEuropean fighter jets,\u201d without clarifying who \u201cEurope\u201d refers to (again), who owns the jets, under what authority Poland is purportedly bound, or how this arrangement aligns with the fundamental principles of sovereignty. Trump cannot simply impose obligations on a sovereign state. Yet that is precisely what the Witkoff negotiating team pressured Ukraine to accept \u2013 as if Ukraine and Russia have the right to dictate to Poland peace and security terms for ending the Russo-Ukraine war.<\/p>\n

Point 14 is not just incoherent; it is a farcical grift. \u201cEurope\u201d is asked to unfreeze its Russian assets, contribute another $100 billion to reconstruction, and accept that $100 billion in frozen Russian assets will be transferred into a U.S.-led investment fund that allocates half the profits to the U. S. This is a geopolitical Ponzi scheme\u2014a real estate syndicate disguised as statecraft, where the architects treat sovereign nations like limited partners in a distressed-asset acquisition.<\/p>\n

Point 21 reveals the profound ignorance and incompetence of Witkoff, Kushner, Vance, and Driscoll. It states that Crimea, Luhansk, and Donetsk should be \u201crecognized as de facto Russian, including by the United States.\u201d But recognition is inherently a de jure act; recognizing a de facto situation is not a category of international law. This is not hair-splitting; it\u2019s a fundamental principle of state recognition doctrine. One would expect four lawyers \u00a0\u2014 three with Ivy League backgrounds \u2014 to understand this. This is not just an embarrassing mistake; it\u2019s another sign of total ignorance, a damning indictment of amateurs pretending to be ready-for-primetime statesmen of grand-strategic statecraft.<\/p>\n

Taken together, these provisions reveal a clear, unmistakable pattern. Trump\u2019s envoys drafted the document as if representing Russia\u2014not the U. S., its allies, or the shared legal order they claim to protect. They do not understand treaty law, the limits of state consent, or even the difference between political goals and legally binding obligations. All of this acts as a prelude. The contradictions, vagueness, and unenforceable obligations imposed on third parties naturally lead to Point 26\u2014the plan\u2019s broad amnesty clause\u2014which is not only legally questionable but also structurally unenforceable. The entire framework leans toward that outcome: coerced concession wrapped in the language of peace.<\/p>\n

Point 26: The Fantasy of a Universal Blanket Amnesty<\/em><\/strong><\/p>\n

Point 26 proposes that \u201call parties involved in this conflict will receive full amnesty for their actions during the war and agree not to make claims or consider complaints in the future.\u201d In one sentence, the plan attempts to wipe clean every atrocity, every unlawful order, every act of aggression, and every crime committed by political and military actors on both sides. It is not a peace measure; it is a mechanism of erasure. A universal, retroactive, and prospective amnesty that dissolves accountability not only for the past but for anything that might occur after its signing.<\/p>\n

Reading Point 26 forced me back to a post<\/a> I wrote on amnesties in 2016, in which I noted:<\/p>\n

The vexing issue \u2014 one that has both legal and political implications \u2014 is the extent to which amnesties are valid and binding both domestically and internationally: counterbalancing accountability with reconciliation, peace, and stability. Legality co-existing with realpolitik<\/em><\/strong>.<\/p>\n

Eight years later, the issue remains vexing. The prohibition on amnesties for jus cogens<\/em> crimes has not yet crystallized into a universally accepted norm of customary international law. Technically, the legal terrain has not dramatically shifted. But politically, institutionally, and normatively, everything has. The post-Bucha landscape has hardened global expectations: blanket impunity is no longer viewed as a pragmatic compromise, but as an abdication of principle. States, international institutions, and even previously cautious jurists now treat unconditional amnesties with deep suspicion, bordering on rejection.<\/p>\n

Against this backdrop, Point 26 stands out not for its ambition but for its anachronism. It is a universal amnesty stripped of every element that might ground it in legality or legitimacy. No truth-telling. No demobilization. No vetting. No timeline. No exclusions. No transitional justice framework. No mechanism for victims\u2019 participation. No obligations for reparations, reform, or even acknowledgment. It does not balance accountability with peace; it dispenses with accountability altogether. It even purports to prohibit \u201ccomplaints\u201d\u2014a term so sweeping it could conceivably bar victims from civil claims, international petitions, or even public expression.<\/p>\n

The question, then, is not whether such an amnesty is morally objectionable; that much is obvious. The real question is whether Point 26 is legally<\/em> valid and enforceable under contemporary international law. The answer, in short, is: barely, if at all. And even that overstates its prospects.<\/p>\n

Before turning to why Point 26 collapses under doctrinal, institutional, political, and structural analysis, it is worth setting out some general principles on amnesties themselves\u2014though anyone wanting a deeper dive should revisit the more detailed analysis in my earlier post<\/a>.<\/p>\n

Amnesty in International Law: A Baseline<\/em><\/strong><\/p>\n

Christian Wolff, the 18th-century German philosopher\u2013jurist, offers what remains one of the clearest classical formulations of amnesty:<\/p>\n

Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. \u2026 consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.<\/em><\/strong><\/p>\n

Wolff was not advocating collective historical amnesia, nor was he suggesting that human beings should simply forget events that demand moral reckoning. His point is more technical\u2014and more enduring. Amnesty is a legal fiction: a deliberate act of forgetting for the sake of moving forward, not a moral judgment that the underlying conduct was trivial or undeserving of accountability. From antiquity to the present, that fiction has carried a specific purpose: enabling societies to transition out of conflict without requiring every atrocity to be litigated before peace can be built. In that sense, Wolff\u2019s definition remains an accurate description of how amnesties function in contemporary international law.<\/p>\n

Historically, amnesty operated in lieu of prosecution. Its etymology\u2014\u1f00\u03bc\u03bd\u03b7\u03c3\u03c4\u03af\u03b1, \u201camnestia,\u201d meaning \u201cforgetfulness\u201d\u2014captures its ancient origins: a societal reset button intended to stop cycles of retribution. No trial, no conviction, no punishment. Guilt, even if widely understood, is neither adjudicated nor expunged; it is simply placed beyond the reach of the courts for reasons grounded in political necessity.<\/p>\n

Modern practice retains that function but has layered it with far more complexity. Contemporary amnesties typically emerge in two contexts: civil wars and transitions from authoritarian rule. Yet even in those settings, the international appetite for broad or unconditional amnesty has narrowed. When the 1999 Lome Peace Agreement<\/a> sought to end Sierra Leone\u2019s civil war, the UN Secretary-General famously advised in para. 54 of his report to the Security Council to reject any amnesty for genocide, war crimes, or crimes against humanity\u2014even while acknowledging that amnesty can be \u201cvery useful in promoting peace,\u201d as reflected in Article 6(5) of Additional Protocol II to the Geneva Conventions:<\/p>\n

[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained<\/em><\/strong>.<\/p>\n

So, may a State grant amnesty? Absolutely.<\/strong> Under international law, the validity of a domestic amnesty within the granting State\u2019s own legal system is fundamentally a matter of sovereignty<\/strong>.<\/strong> It is squarely within a State\u2019s purview to decide whether to prosecute, pardon, or politically negotiate its way out of violence.<\/p>\n

But what about amnesties for jus cogens<\/em> crimes\u2014those universally prohibited norms, like torture or genocide, identified in Article 53 of the Vienna Convention on the Law of Treaties?<\/p>\n

This is where doctrine becomes uncomfortable. States may not commit<\/em> such crimes, but it does not automatically follow that they are obligated to punish<\/em> them. Customary international law has not yet crystallized into a firm rule requiring States to prosecute every perpetrator of genocide, war crimes, or crimes against humanity. There is a widely accepted duty to prosecute or extradite<\/strong> (<\/strong>aut dedere aut judicare<\/em>), but that duty tolerates exceptions\u2014particularly when peace, stability, or political transition is at stake. Even if human rights advocates find this normatively unsatisfying, the law still grants States discretion in fashioning remedies for victims and pathways out of conflict.<\/p>\n

As Professor John Dugard puts it:<\/p>\n

[S]uccessor regimes are now told by the high priests of public opinion \u2013 NGOs and scholars \u2013 not only that they ought to prosecute but that they are obliged under international law to prosecute. \u2026 The implication of this argument is that international law prohibits amnesty. \u2026 State practice hardly supports such a rule as modern history is replete with examples of cases in which successor regimes have granted amnesty to officials of the previous regime guilty of torture and crimes against humanity, rather than prosecute them.\u00a0 <\/em><\/strong><\/p>\n

In plain terms: <\/strong>national jurisdictions can and do grant amnesties for jus cogens crimes<\/strong>,<\/strong> and international law has not yet rendered such amnesties per se invalid. The UN cannot compel national courts to void them without violating State sovereignty under Article 2(7) of the UN Charter. Practice\u2014from South Africa to Latin America to West Africa\u2014demonstrates that the international community has repeatedly accepted (even endorsed) amnesties that reach conduct amounting to jus cogens violations.<\/p>\n

The bottom line is straightforward: amnesties remain legally permissible under certain conditions<\/strong>, <\/strong>even for the gravest crimes, because international law has not fully closed the door on them. It is a doctrine built on tension\u2014between justice and peace, accountability and stability, principle and realpolitik.<\/p>\n

And this is precisely why Point 26\u2019s sweeping, unconditional, unstructured amnesty is not merely controversial. It is anachronistic<\/strong>, <\/strong>detached from how amnesty is understood today, and fundamentally misaligned with the legal and political realities it purports to govern.<\/p>\n

Contemporary Challenges to Point 26<\/em><\/strong><\/p>\n

With the classical framework of amnesties in mind, the question becomes whether Point 26 \u2014 a universal, retroactive, prospective, and unconditional amnesty \u2014 could survive scrutiny today. The short answer: almost certainly not. While the prohibition on amnesties for jus cogens<\/em> crimes still has not crystallized into a hard rule of customary international law, the world has changed since 2016 in ways that render a clause like Point 26 not merely controversial but fundamentally untenable. It is out of step with contemporary state practice, incompatible with the ICC\u2019s jurisdictional architecture, discordant with human rights obligations, politically radioactive, and structurally defective. Point 26 is a relic pretending to be a solution.<\/p>\n

    \n
  1. \n
      \n
    1. State Practice Is Moving Away from Blanket Amnesties<\/strong><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

      Although international law still allows tailored or conditional amnesties in specific transitional cases, the space for broad, unconditional amnesties has significantly shrunk. International tribunals and regional human rights organizations \u2014 though not universally \u2014 have set clearer boundaries, showing strong skepticism toward blanket amnesties, especially those intended to protect senior political and military leaders.<\/p>\n

      The Inter-American Court of Human Rights has long invalidated broad amnesties, deeming them incompatible with States\u2019 obligations to investigate and provide redress for serious violations. Similarly, the African Commission and African Court have restricted the scope for blanket amnesties, increasingly emphasizing mechanisms that ensure truth-telling and protect victims\u2019 rights. Even in Europe, where the European Court of Human Rights has never outright declared a ban, its rulings on the duty to investigate, access to justice, and procedural rights make complete legal erasure nearly impossible. A provision like Point 26\u2014which bans not only prosecution but also the filing or consideration of complaints\u2014would be quickly struck down in most regional human rights systems.<\/p>\n

        \n
      1. \n
          \n
        1. The ICC Dimension Has Changed Everything<\/strong><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

          Ukraine\u2019s relationship with the International Criminal Court has evolved over time. It is now a State Party under the Rome Statute. What was once a limited, temporary acceptance of jurisdiction has become a fully functioning investigative and prosecutorial process. The ICC Prosecutor is conducting active investigations, has opened cases, and has issued arrest warrants targeting senior Russian political and military leaders. Complementarity \u2014 once a theoretical idea in Ukraine \u2014 is now fully operational. Under Article 53 of the Rome Statute, the Prosecutor cannot refuse to act solely because a domestic amnesty exists; the ICC is not bound by national political deals, peace agreements, or legislative immunities. A domestic amnesty cannot cancel arrest warrants, stop ongoing investigations, dismiss cases, or remove the ICC\u2019s jurisdiction. Ukraine has little leverage to grant broad amnesties\u2014especially for crimes within the ICC\u2019s jurisdiction. This alone makes Point 26 ineffective as a legal tool and unrealistic as a diplomatic strategy.<\/p>\n

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          1. \n
              \n
            1. The Duty to Investigate Has Hardened<\/strong><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

              The requirement for States to investigate allegations of serious violations has evolved from being tentative and inconsistent to a firm expectation. What was once only a goal is now, if not an absolute rule, at least a nearly universal assumption: when war crimes, crimes against humanity, or large-scale abuses are suspected, some form of good-faith investigation is essential. Point 26 contradicts this principle at its core. It blocks all claims and complaints\u2014past, present, and future. It silences victims, denies the right to seek redress, and forbids even initiating investigative procedures. This conflicts with the jurisprudence of the Inter-American system, the African human rights system, the European Court, and emerging global norms regarding victims\u2019 rights.<\/p>\n

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              1. \n
                  \n
                1. The Post-2022 Political and Legal Climate Rejects Impunity<\/strong><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

                  The atrocities committed since the 2022 invasion \u2014 Bucha, Mariupol, forced deportations, filtration camps, torture, sexual violence, deliberate attacks on civilian infrastructure, abductions of children \u2014 have fundamentally shifted global perceptions of Russian accountability. What might have been politically negotiable in the 1990s or early 2000s is now unthinkable. Offering a blanket amnesty to those responsible for aggression, war crimes, crimes against humanity, and systematic abuses would trigger political backlash in nearly every allied country. It would weaken sanctions, hinder ongoing accountability efforts, and jeopardize the stability of existing coalitions supporting Ukraine. The era of permissive amnesties for atrocities is over; Point 26 cannot wish this reality away.<\/p>\n

                    \n
                  1. \n
                      \n
                    1. The Structural Defects of Point 26 Are Severe<\/strong><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

                      Point 26 lacks any of the shared features of effective transitional amnesties that have helped promote peace instead of deepening impunity.<\/p>\n