by Eugene Kontorovich
Hat tip: Dr. Jean-Charles Bensoussan
The same rules apply.
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.
Eugene Kontorovich teaches constitutional law at Northwestern University and heads the
international law department of the Kohelet Policy Forum in Jerusalem.
Source: https://www.commentary.org/articles/eugene-kontorovich/crimea-international-law-and-the-west-bank/
Follow Middle East and Terrorism on Twitter
