Symposium: Use of force, territorial integrity, and world order: continuing the debate
Reflections on the Ukraine Moment and Western Selectivity:
A Response to Ingrid (Wuerth) Brunk and Monica Hakimi
by Dr Ardi Imseis
Published on 27 March 2023
In their recent Americal Journal of International Law editorial on the war in Ukraine and the future of the international legal order, Ingrid (Wuerth) Brunk and Monica Hakimi offer some interesting thoughts on Russia’s invasion and associated annexations of Ukrainian territory. I do not disagree with their affirmation that the invasion and annexations lack validity under international law. The swift and robust response of many Western states in reply to Russia’s unlawful acts has been a welcome reminder of the importance of the law governing third state responsibility where serious breaches of peremptory norms occur. But to the extent to which Professors Brunk and Hakimi join the chorus of many Western states in framing the Ukraine moment as uniquely threatening to the international legal order, questions remain. In their words, Russia’s aggression in Ukraine ‘will reshape … the world that we all inhabit. There is no going back to the status quo ante. A war of territorial conquest, with incalculable losses, has again been initiated, and much will turn on how things unfold from here.’ In the Western rush to rightfully condemn Russia’s criminal aggression, we are now meant to believe that Moscow alone has placed the world at a crossroads of legal history, that Russia’s actions portend something of a paradigm shift for international law and world order. But is this really the case? What of the West’s own record in this regard?
To their credit, Brunk and Hakimi acknowledge that the West’s hands are not clean. They cite US-led interventions in Kosovo, Iraq (2003), Libya, and Syria as examples, ‘the legality of each of which was seriously in doubt.’ However, they curiously attempt to distinguish these Western transgressions from Russia’s actions in Ukraine. Russia’s war is ‘unlike the others’, they say because, first, it is ‘a clear repudiation’ of the principle prohibiting the acquisition of territory through force and, second, because ‘it does not have, baked within it, a limiting condition to explain why the use of force might be justifiable.’
This rationale rests on questionable grounds for at least two reasons. First, it treats the lack of a justification, however plausible, for the annexation of foreign territory taken by force as evidence of greater culpability for violating the relevant prohibition. Second, and more importantly, it inexplicably fails to account for the obvious comparators against which Russia’s invasion and annexation of Ukrainian territory should be measured when it comes to the actions of major Western powers elsewhere. The result is to argue a distinction without a difference. I take each of these in turn.
Brunk and Hakimi are correct in their affirmation of the two core principles relevant to Russia’s war on Ukraine. First, we have the prohibition on the acquisition of territory through force. Second, there is the obligation to respect the right of peoples to self-determination. The normative force of these two principles, both peremptory norms, is expressed in the general rule that governs the law of belligerent occupation: that occupation of enemy territory is meant to be temporary and that an occupying power may not rightfully claim sovereignty over such territory, including through acts of purported annexation.
Brunk and Hakimi assert that, strained and illegal though the US justifications for invading Iraq in 2003 were, those justifications impliedly respected the norm prohibiting territorial conquest. ‘By contrast’ we are told that ‘Russia’s invasion of Ukraine is—and is meant to be—an attack on that core norm.’ For support, they cite Russian justifications that, in their view, can only be understood as animated by rejections of Ukrainian statehood, territorial integrity and self-determination. But nowhere do they cite other justifications proffered by Russia, available in the public record, that mirror those employed by the US and its partners in places like Iraq, Kosovo and elsewhere—whether it be Moscow’s purported ‘responsibility to protect’ ethnic Russians in Ukraine from alleged genocide, or the need to frustrate the placement of weapons of mass destruction on Russia’s border, or the recognition of the right of self-determination of the people in eastern Ukraine. None of this is to suggest that these Russian justifications (or, to use Brunk and Hakimi’s term, ‘limiting conditions’) are legitimate. What it is to say, is that these justifications were and still are being advanced by Russia as a basis for its aggression against Ukraine in a similar manner that other great powers have done before them.
In the end, the justifications proffered for the violation of Article 2(4) of the United Nations (UN) Charter, no matter their content and who makes them, are normatively irrelevant if that content cannot reasonably sustain legal scrutiny. Once such justifications fall away, the only thing that matters is the normative result with its attendant consequences under the law of state responsibility. Any other approach places unwarranted weight on the creativity and relative ability of the wrongdoing (usually hegemonic) state to project and legitimise its ‘limiting conditions’ in multilateral fora, global media and other tools and mechanisms of soft power, regardless of their intrinsic merit.
Which takes us to another, more important, problem. Strained though it may be, Brunk and Hakimi’s attempt to factually distinguish the Ukraine war from Western actions in Kosovo, Iraq, Libya and Syria is easy. This is because although those cases did involve violations of the general prohibition on the use of force, none of them involved an attempt by Western countries to annex the territory invaded. This might be one of the reasons why the West feels it can assume its morally superior approach on Russia. For example, in the UN Security Council debates of 30 September 2022, the US permanent representative affirmed that ‘any annexation of a state’s territory by another state resulting from the threat or use of force is a violation of the principles of the UN Charter and international law’ and, as such, Russia’s annexations ‘have no place in the modern world.’
However, among the much more apt comparators against which to measure Russia’s occupation and annexation of Ukraine are the three paradigmatic cases of foreign military occupation and annexation of occupied territory in the post-World War II era, none of which the authors of the learned editorial care to mention. The first two of these cases concern Israel’s 55-year occupation and annexation of Arab territories since 1967, otherwise known as the State of Palestine or occupied Palestinian territory (OPT) (full disclosure: I served as a UN official in the OPT for 12 years), and the Syrian Golan Heights. The third concerns Morocco’s 47-year occupation and annexation of Western Sahara. I shall take each of these in turn.
Since 1967, Israel has been in belligerent occupation of the OPT. During this unusually prolonged period, it has pursued a policy of altering the status of the territory, with the open aim of annexing, de jure or de facto, most or all of it. As an occupying power, Israel does not have any legal basis to claim sovereignty over any part of the OPT, which is the recognised self-determination unit of the Palestinian people and territorial base of the State of Palestine, itself now recognised by 139 states and a non-Member Observer State of the UN. Yet Israel’s assertions of exclusive sovereignty over Palestinian territory have been done in violation of the very bedrock principles purportedly underpinning Brunk and Hakimi’s argument and the West’s position on occupied Ukraine, namely the inadmissibility of territorial conquest and the right of peoples to self-determination. Israel’s violations of these principles is most clearly manifested through its policy of transferring its civilian population into the OPT in violation of the Fourth Geneva Convention, the Rome Statute of the International Criminal Court, and customary international law. According to a 2013 UN Fact-Finding Mission, each Israeli government since 1967 has ‘openly lead and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements’ in the OPT through various political, military, and economic means. According to the Michael Lynk, the previous UN Special Rapporteur on Human Rights in the OPT, in 2019 the number of Israeli settlers was 680,000. Today that figure is upward of 700,000 and growing.
Immediately after its conquest of the OPT in 1967, the Israeli Cabinet unilaterally and illegally annexed East Jerusalem and parts of the West Bank, amalgamating them with West Jerusalem. The UN Security Council immediately affirmed the ‘inadmissibility of the acquisition of territory by war’ in Resolution 242 (1967) and declared through Resolution 252 (1968) that all ‘legislative measures and administrative measures and actions taken by Israel…which tend to change the legal status of Jerusalem are invalid and cannot change that status.’ In August 1980, when the Israeli parliament formally annexed East Jerusalem through its Basic Law on Jerusalem, the UN Security Council in Resolution 478/1980 censured Israel ‘in the strongest terms’, stating that ‘the enactment of the “basic law” by Israel’ constituted ‘a violation of international law’ and was ‘null and void and must be rescinded forthwith.’ In the Resolution, the UN Security Council called upon ‘all Member States to accept this decision’; and ‘[t]hose States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.’
In view of the purported respect paid by the Western powers, the US in particular, to the principles prohibiting territorial conquest and respecting self-determination in Ukraine, one would think that there would be no trouble adhering to these principles respecting Israel’s actions in the OPT, including East Jerusalem. Unfortunately, this is not the case. In 2017, the Trump administration recognised Israeli sovereignty in occupied East Jerusalem. Unfortunately, the Biden administration, who is now leading the charge against Russia’s illegal annexation of occupied Ukraine, has not reversed the US position on Jerusalem.
All of the same legal principles apply when it comes to the Israeli occupied and annexed Syrian Golan Heights. According to the UN, of the 90,000 Syrians that were living in the Golan Heights on 1 June 1967—just before the 1967 six day war—one month later that number stood at 6,396. According to the International Committee of the Red Cross, most of the Syrian refugees had been expelled by the occupying power. Like its colonisation of the OPT, Israel has since 1967 settled the occupied Golan Heights with its own civilian nationals, now approximately 25,000 in number. In December 2022, the occupying power approved a plan to add 7,300 housing units in the Golan Heights over the next five years, with the aim of doubling the current number of its settlers. Two new settlements will also be established as part of this plan. Israel has been consistent and very open about its position since 1967, despite the requirements of international law: it vows to never return the occupied Golan Heights to Syria. In former Israeli PM Naftali Bennett’s words: ‘The Golan is Israeli. Full stop.’
The law of course is as clear as day. Thus, in Resolution 497 (1981), the Security Council affirmed ‘that the acquisition of territory by force is impermissible, in accordance with the Charter of the United Nations, the principles of international law and relevant Security Council resolutions’, and decided that Israel’s attempted annexation of the occupied Syrian Golan Heights was ‘null and void and without international legal effect.’ This position has been affirmed by the General Assembly on multiple occasions, most recently in Resolution 76/81 of 15 December 2021, in which the Assembly called upon the occupying power ‘to desist from changing the physical character, demographic composition, institutional structure and legal status of the occupied Syrian Golan.’ Importantly, it also called upon all Member States not to recognise any of the legislative or administrative acts taken by Israel that purport to alter the status of the territory.
Notwithstanding these clear resolutions of the Security Council and General Assembly, on 25 March 2019, the US recognised Israel’s annexation of the occupied Syrian Golan Heights. At the time, the move was portrayed as an attempt by the Trump administration to assist Benyamin Netanyahu’s bid for re-election (he was then facing corruption charges domestically). Like the Jerusalem recognition, however, the Biden administration has done nothing to reverse this move, making the US the only country in the world to recognise the occupied Syrian Golan Heights as the sovereign territory of its occupying power. For his part, the UN Secretary General has affirmed that ‘the status of Golan has not changed’ as set out in relevant Security Council resolutions.
A third case that highlights Western selectivity respecting the illegal annexation of occupied territory is the case of Morocco’s prolonged occupation and annexation of Western Sahara. In a 1975 Advisory Opinion, the International Court of Justice (ICJ) affirmed the right of the population of Western Sahara to self-determination. By agreement later that year, Western Sahara’s colonial power, Spain, handed administration over the territory to Morocco and Mauritania, who subsequently partitioned it between themselves. Morocco took control over all of Western Sahara in 1979, when Mauritania withdrew on the strength of an agreement with the representatives of the Sahrawi people, the Polisario Front. Since then, the Polisario Front has attempted, to no avail, to resist Morocco’s purported annexation of the territory, which it asserted in 1976. In line with the ICJ’s Advisory Opinion, General Assembly and Security Council resolutions have repeatedly affirmed, both expressly and impliedly, the right of the Sahrawi people to self-determination (for e.g. see here and here). The General Assembly has also affirmed the fact that Morocco is in ‘continued occupation’ of the territory, and has urged Morocco to ‘terminate the occupation.’ For its part, Morocco has illegally settled some 200-300,000 of its civilians in it who now form the majority of the population in violation of the Fourth Geneva Convention. It continues to harvest and illegally trade in Sahrawi natural resources—principally the territory’s rich phosphate and fishing reserves[1]—and it maintains the position that occupied Western Sahara is in fact the sovereign territory of Morocco.
On 10 December 2020, the US recognised Morocco’s annexation of occupied Western Sahara. This followed years of US provision of military and other aid in support of Morocco’s occupation, brought to a crescendo when the US promised recognition as part of a quid pro quo involving Moroccan normalisation of diplomatic relations with Israel. Notwithstanding the erga omnes obligations of the US to respect the right of the Sahrawi people to self-determination over their territory, the US proclamation of recognition of Morocco’s annexation made it clear that Washington ‘believes that an independent Sahrawi State is not a realistic option for resolving the conflict and that genuine autonomy under Moroccan sovereignty is the only feasible solution.’
While the US is the only state in the world that has recognised Moroccan sovereignty in occupied Western Sahara, such recognition has been implied by the European Union (EU). On 29 September 2021, the European Court of Justice ruled against continued attempts by the Council of the EU and the European Commission to apply the EU-Morocco agricultural and fishery agreements to occupied Western Sahara despite its obligation to differentiate in its relations with Rabat between the territory of Morocco and occupied Western Sahara. Under these rulings, the Court held that EU registered boats and nationals could no longer operate within Western Saharan waters and Moroccan agricultural exports coming from occupied Western Sahara would no longer be allowed access to preferential EU tariffs. As expected, the Court based its ruling on the obligation of EU member states to respect the right of the Sahrawi people to self-determination. Notwithstanding these judicial pronouncements, key European states such as Spain, Germany and France, continue to endorse to varying degrees Morocco’s plan to extend some form of limited autonomy to the Sahrawi people, which is shorthand for endorsing Rabat’s position that it alone holds sovereignty over occupied Western Sahara.
In conclusion, it should be self-evident that international law is only as strong as the willingness of states to ensure its universal application. Unfortunately, when one scratches away at the surface of current claims of that Russia’s illegal actions in Ukraine are normatively different than those undertaken by the West and their allies, one is hard pressed to take such claims seriously. The very same legal principles that some Western powers purport to be driving their foreign policy agenda on occupied Ukraine, are being blatantly violated by them elsewhere in the world. As the late Edward Said once put it: ‘If you wish to uphold basic human justice you must do so for everyone, not just selectively for the people that your side, your culture, your nation designates as okay.’[2]
[1] Zunes, S. & Mundy, J. Western Sahara: War, Nationalism and Conflict Irresolution (Syracuse, 2010) at 34-35.
[2] E.W. Said, Representations of the Intellectual (New York: Vintage Books, 1994), at 93.