Crimea,
International Law, and the West Bank
Secretary
of State John Kerry spent the spring shuttling between his two major
foreign-policy concerns-Russia's control over Crimea and Israel's control over
the West Bank-entirely unaware that he was engaged in a world-historical irony.
Both these situations turn on identical international-law principles. Indeed,
the failure of the United States to apply these principles consistently has led
to the long-standing failure of its Middle East initiatives, while inadvertently
opening the door for Russian aggression.
The
legal principle that explains why Crimea was and remains under Ukraine's
sovereignty also validates Israel's presence in the West
Bank.
Let
us start with the less controversial case. The international community agrees
that, despite Russia's annexation, Crimea remains sovereign Ukrainian territory.
On March 27, the UN General Assembly voted 100 to 11 to continue to recognize
Crimea as part of Ukraine. Russia cannot rewrite Ukraine's frontiers at
will.
But,
as many foreign-policy realists argued while Vladimir Putin was making his move,
it is not all that clear why Crimea should belong to Ukraine in
the first place. The substantial majority of the population is ethnically,
linguistically, and religiously Russian. The majority of its population probably
prefers to be ruled from Moscow rather than Kiev (though not by the 90-plus
percent margin of the recent shotgun referendum). The territory is adjacent to
Russia and has been part of Russia historically.
So
why Ukrainian sovereignty over Crimea? The answer: Nikita Khrushchev's caprice.
In 1954, the first secretary of the Central Committee detached Crimea from the
Russian Soviet Socialist Republic and gave it to the Ukrainian Soviet Socialist
Republic. He did not consult the Crimeans, but it did not much matter, as
everyone was ruled from the Kremlin anyway. From that moment on, official
internal Soviet borders included Crimea in Ukraine.
Thus,
all Ukraine has for its claim of title to Crimea is a dead dictator's whim. But
for international law, that is more than enough. When new countries emerge from
old ones or from colonial empires, the last official international borders
constitute the new boundary lines. This doctrine is known as uti
possidetis iuris (meaning "you possess under law"). It has been applied
to the borders of new states around the world and recognized as a basic
principle of international law by the International Court of Justice. Even when
several states emerge from one, as Russia and Ukraine did from the USSR, the
prior internal administrative divisions become the new international
frontiers.
Most
striking, this principle applies in full when the old borders were colonial or
otherwise undemocratically imposed. If it were not so, new countries would be
born with all their borders in dispute, and endless frontier conflicts between
neighbors would ensue. That is why international law sets the last official
boundaries, even colonial provincial boundaries, as the permanent ones.
Subsequent aggression cannot change them, as the reaction to Russia's Crimean
conquest shows.
Now
let us apply these principles to Israel.
The
disintegration of the Ottoman Empire in World War I led to the division of its
territories in the Middle East. The core of the Ottoman Empire became the new
country of Turkey, which, in turn, surrendered all Turkish sovereignty over
Ottoman territory in the rest of the Middle East (not just Israel, but also
modern-day Iraq, Syria, Lebanon, and Jordan). Instead of imposing their own
sovereignty on the parts of the Ottoman Empire they conquered, Britain and
France allowed the newly created League of Nations to transform these
territories into "mandates." The European states were committed to shepherding
the mandates into new independent nation-states. The League did so pursuant to
an explicit clause in its charter that authorized it to create such mandates out
of the lands "formerly belonging to the Turkish Empire."
In
1922, the League of Nations established a new "country" to serve as the Jewish
national home. This was the Mandate for Palestine. Under certain provisions of
the Mandate, Palestine was partitioned at the Jordan River to create the country
of Transjordan (now called Jordan) on its eastern bank. After that,
international frontiers of Mandatory Palestine ran from the river to the sea.
The League of Nations Mandate for Palestine provides the legal basis not only
for Israel's borders, but for those of Jordan as well, and indeed for Jordan's
entire existence.
Israel
is the state created in Mandatory Palestine. Thus under uti possidetis
iuris, it inherits the Mandatory borders. The only question is whether
anything has happened since the 1920s that legally modified these
frontiers.
Three
events are commonly cited as justifying the non-application of the uti
possidetis doctrine. First was the UN General Assembly's 1947 partition
proposal, Resolution 181. Second was the partially successful 1948-49 Arab
attempt to prevent the establishment of a Jewish state in Palestine, which led
to the Green Line of 1949. Third was the UN Security Council's response to
Israel's retaking of these territories in the Six-Day War.
The
Partition Proposal
Resolution
181 did not, as many seem to think, "create" the Jewish state. That had been
done on paper 25 years earlier by the League of Nations Mandate, and later
through Israel's declaration of independence and War of Independence-a struggle
in which the UN did nothing to promote the survival of the fledgling
state.
Resolution
181 proposed an elaborate seven-sector division of Mandatory Palestine, an idea
the Jewish leadership was willing to accept, but that the Arabs rejected. The
General Assembly Resolution did nothing to alter the Mandatory borders because
the GA is not a world legislature: It has no legal power to make any binding
rules, let alone redraw the borders of nations.
Indeed,
the resolution itself explicitly recognizes that the Assembly has no power to
legislate its recommendations. If the GA were to vote today to "partition"
Ukraine, it would be similarly ineffectual. The 1947 plan was a proposal for a
compromise that, if accepted by both sides, would have been binding, but which
had no force in itself.
Israel
declared independence on May 14, 1948, with a document that "proclaim[ed] the
establishment of the Jewish State in Palestine, to be called the Medinat
Israel." Under the uti possidetis iuris principle, the borders
of the new state were those of Mandatory Palestine. The new state was
immediately invaded by all its neighbors, who succeeded in occupying much of its
territory. But the 19-year-long occupation of parts of the Mandate by Egypt and
Jordan did no more to change its borders than has Russia's equally unprovoked
aggression against Ukraine today. Indeed, if Jordan's occupation changed
Israel's borders, surely Russia's 20 or so years of controlling Transnistria
should change Moldova's borders and Turkey's 40-year occupation of Cyprus should
change that country's borders.
The
Green Line
Israel
concluded armistices with its neighbors in 1949. These were not peace treaties.
They were temporary agreements to stop shooting. The "Green Line" of 1949 was
simply the demarcation of the separation between Israeli and Arab forces.
Without establishing any sovereign border, it thereby preserved the Mandatory
boundary. All of Israel's armistice agreements reflected this, including the
Israeli-Jordanian one: "The provision of this Agreement shall not in any way
prejudice the rights, claims and positions of either Party hereto in the
ultimate peaceful settlement of the Palestine question, the provisions of this
Agreement being dictated exclusively by military considerations." Other
provisions also made clear that both parties recognized the Mandatory boundaries
as the only international borders for Palestine. The only dispute was who would
ultimately control it.
Thus
the very document that formalized the Green Line specifically said it was not to
be construed as a border, or anything other than a temporary line of separation
between Israeli and Arab forces. When Israel expelled the Jordanian occupation
forces after King Hussein attacked across the Armistice line during the Six-Day
War, the need for such a separation came to an end.
President
Barack Obama and his secretary of state, like so many others, use the phrase
"1967 borders" to describe the Green Line; but it was explicitly not a border,
nor was it created in 1967. Indeed, with the exception of Britain, no nation
recognized Jordanian sovereignty over the territory of Mandatory Palestine
during its 19-year occupation. When Jordan and Egypt signed peace treaties with
Israel in 1979 and 1994, both nations expressly referred to the Mandate boundary
as the current international border of Israel, demonstrating its continued
relevance.
Resolution
242
The
United Nations Security Council responded to the Six-Day War with its famous
Resolution 242, which has set the basis for all subsequent action by the
council. Before turning to the resolution's text, we should note that, as was
true of the General Assembly in 1947, the Security Council does not have the
power to redraw preexisting national borders. Though the council has power under
its charter to take certain "binding" decisions, those are limited to
authorizing economic and military means to respond to breaches of the
international peace; it cannot alter the underlying dimensions of UN member
states.
No
less important, Security Council practice requires the Council to refer
explicitly to the textual source of its authority as Chapter VII of the UN
Charter in order to make resolutions binding. The resolution does not include
such a reference, showing that the Council understood its resolution to be
nothing more than a recommendation.
Resolution
242 famously calls for "withdrawal of Israeli armed forces from territories
occupied in the recent conflict." This language was deliberately chosen by its
drafters to reject demands that Israel withdraw from all territories it
occupied, and instead leaves the scale of the withdrawal up to future diplomacy.
The wording of 242 was drafted by the British delegation as a replacement for
other versions that would have required leaving "all" the
territories.
A
vast literature has arisen to cope with the fact that the
word the does not precede the
word territories in that sentence, but like much discussion of
the Arab-Israeli conflict, it puts questions concerning Israel in
a unique legal universe. In fact, it is fairly easy to see whether using the
language of territories would be a standard way for the
Security Council to require complete withdrawal. I have identified 16 other
resolutions demanding military pull-outs, of which four were prior to 1967. In
each case, the demand for complete withdrawal is explicit, with language such as
"withdraw from the whole territory" and "the territory" and with references to
particular antebellum positions. The language of 242 is unique in the Security
Council's history, but consistent with its own drafting history and the
document's intentions. Thus reading 242 to require a complete
withdrawal not only misreads the resolution, but also makes nonsense of 16 other
important resolutions.
Some
argue that 242 compels Israel to return to the Green Line, relying on the
resolution's preamble, which stresses the "inadmissibility of the acquisition of
territory by war." But that would be a strange way to require Israel to return
their territorial seizures of 1949 to Jordan and Egypt. The next operative
paragraph in 242, moreover, describes a withdrawal to "recognized boundaries."
The 1949 Armistice Lines were not "recognized boundaries" in any legal sense.
They constituted nothing more than a stand-off.
So
to recap: The League of Nations, acting pursuant to powers in its charter,
established the territory of Mandatory Palestine in 1922, much as the Mandate
system established the borders of most other Middle Eastern states. The UN
General Assembly did not have the power to modify that territory with its 1947
Partition proposal. Nor did the pan-Arab aggression of 1948-49 and its
subsequent reception by the international community.
To
be sure, international sentiment has turned sharply against Israel's control
over much of this territory. But international law is not a popularity contest;
if it were, Israel would have long ago been voted off the
island.
None
of this undercuts the common arguments for the creation of a Palestinian state.
Those arguments are rooted in diplomatic and demographic considerations. But
even if one accepts the idea that the Mandate gave Israel borders too large for
the Jewish population, it does not therefore follow that the pan-Arab aggression
of 1948-49 established presumptive or default borders. In fact, those can and
should be defined only by mutual agreement between Israel and the
Palestinians.
If
one believes, moreover, that the vague doctrine of self-determination-which is
generally not thought to entitle a people to an independent
state-made an inarguable case for a Palestinian Arab state somewhere between the
Jordan River and the Mediterranean Sea, uti possidetis would
still be relevant. The doctrine make clear that the relevant boundaries have
nothing to do with the 1949 Armistice Lines unless both parties agree they
should.
Recall
that when new states emerge, the doctrine dictates that their borders follow the
last prior internal administrative division, such as state or provincial
borders. Under the Mandate, Palestine was divided into six districts, no
combination of which closely approximates the 1949 Armistice Lines. (For
example, Gaza was lumped into one district with the entire Negev, while the area
now called the West Bank straddled three different districts.) The 1993 Oslo
Accords create three administrative divisions (Areas A, B, and C)-two under
Palestinian jurisdiction and one under Israeli jurisdiction. Those lines make
more sense under international law than the sum of the noncontiguous, illegal
conquests by Egypt and Jordan in 1948-49.
The
international community has, perhaps in sympathy with Palestinian claims,
selectively forgotten the uti possidetis principle when it
comes to Israel. Putin's actions in Ukraine illustrate the dangers of such
inconsistency. Once the world begins making exceptions to the uti
possidetis doctrine, it opens the door to claims like Russia's. After
all, if an internationally established mandatory border does not continue to
abide for a new country, why should the arbitrary frontier of a totalitarian
dictator?
Russia's
quick takeover of Crimea-and, as of this writing, its incremental invasion of
eastern Ukraine-also has significant political lessons for Israel about any
potential agreement with the Palestinians. Russia's dismemberment of Ukraine
offers a frightening scenario of how a state of Palestine could continue
effective activities against Israel in the wake of a peace
treaty.
One
of the main rewards promised to Israel for the creation of a Palestinian state
in the West Bank and Gaza is that it would also give Israel internationally
recognized borders. While these borders would be narrow, they would, it is said,
enjoy the deep guarantee of international legitimacy. Nations would move their
embassies to (West) Jerusalem. Israel would, as Tzipi Livni has said, be "put on
the world map." The perceived value of this deal stems from the view that in the
21st century, sovereign borders cannot simply be
rewritten.
Crimea
has proven that "19th-century acts," as Kerry called them, are alive and well,
and that the international community will do little to stop them. Consider
Moscow's methods for taking apart Ukraine.
First,
it bided its time, waiting more than two decades. Of course, if a deal with the
Palestinians lasts only that long before it is followed by new demands, it will
have proved to be a disastrous bargain for Israel. Second, Russia focused on
areas with significant concentrations of co-ethnic population. In those areas,
it followed Hitler's Sudetenland strategy of provoking riots and protests, and
then protesting Ukraine's response.
This
is precisely Israel's greatest fear: that after the euphoria of a peace deal, a
newly emboldened Palestinian government, now with all the apparatus of a state,
would begin stoking disorder among Israeli Arabs in the Galilee Triangle and
Negev. Of course, Palestine would not be able to grab these territories in a
single putsch, as Russia did with Crimea. Rather, it would seek to destabilize
Israel, as Russia is now doing in Eastern Ukraine.
The
Machiavellian goal would be to use Israel's response to the fomented unrest in a
kind of diplomatic jujitsu, to make the case that the Jewish state cannot be
permitted to maintain sovereignty over its non-Jewish populace. Then would come
the kinds of demands that have been afforded far too much respect when it comes
to Russian claims in Ukraine-greater federalism, decentralization of power, all
of which would be designed to empower disgruntled minorities who show greater
fealty to the neighboring aggressor than to the state of which they are
citizens. In such a situation, would the world rally to defend the
internationally mandated borders when it showed so little appreciation for them
in Israel's case throughout so many decades?
No
one with a serious understanding of international law asks if it is fair or just
for Crimea to remain part of Ukraine, no matter the wishes of Crimea's
population. Entertaining such a question and making it part of the discussion
would eventually lead to redrawing many of the world's borders. As we have seen,
the same principles that justify Ukraine's claims to Crimea justify Israel's
claims to the West Bank.
Israel
should not be too put out by the international community's failure to apply its
general rules to the Jewish state's rights, for the Ukrainian crisis also shows
the limits of those rules. Ukraine may enjoy international backing for its
claims while Israel does not. But the Ukrainian crisis also shows that when it
comes to action, the international community will be driven primarily by the
exigencies and conveniences of the moment, not by considerations of legality or
past promises. In the end, as has been the case since 1948, Israel will have to
rely on itself.
About
the Author
Eugene
Kontorovich is a professor at Northwestern University School of Law who
specializes in international and constitutional law, a senior fellow at the
Kohelet Policy Forum in Jerusalem, and a Lady Davis Visiting Professor at Hebrew
University.
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