Biden can’t denounce Russia’s annexations and ignore Israel’s

An Israeli flag is seen placed on Mount Bental in the Israeli-annexed Golan Heights (Jalaa Marey - AFP)

Brian Finucane 

Foreign Policy  /  December 6, 2022

From the Baltic Republics to Crimea, Washington has opposed forcible annexation—and the Golan Heights should be no exception.

The United States has repeatedly stated that it will not recognize Russia’s annexation of Ukrainian territory. U.S. President Joe Biden vowed that “[t]he United States, I want to be very clear about this, will never, never, never recognize Russia’s claims on Ukraine sovereign territory.” U.S. Secretary of State Antony Blinken pledged that the “United States does not, and will never, recognize the legitimacy or outcome of these sham referenda or Russia’s purported annexation of Ukrainian territory.”

These promises of non-recognition regarding Russia’s attempted land grab in Ukraine reflect the long-standing U.S. position on the acquisition of territory through the use of force. The credibility of such commitments, however, was undermined by the Trump administration’s abandonment of these principles in its recognition of the annexation of the Golan Heights. The Biden administration should act now to reverse former U.S. President Donald Trump’s decision.

The U.S. position on forcible annexation crystallized in the years before World War II. As Oona Hathaway and Scott Shapiro chronicle in their book, The Internationalists, what became known as the Stimson Doctrine—the non-recognition of territory acquired by force—was articulated by U.S. Secretary of State Henry Stimson in 1932 in response to Japan’s seizure of Manchuria.

The United States reiterated this principle of non-recognition in response to the Soviet Union’s annexation of the Baltic states in 1940. Acting Secretary of State Sumner Welles promulgated what would later be called the Welles Declaration. Welles asserted that the United States is “opposed to predatory activities no matter whether they are carried on by the use of force or by the threat of the use of force” and thus refused to accept the legitimacy of the Soviet conquest.

The prohibition on the use of force, including “against the territorial integrity … of any state,” is also codified in the U.N. Charter, of which the United States was a principal drafter. The United States has repeatedly voted with the U.N. Security Council to reemphasize the non-recognition of forcible annexation. Following the June War in 1967 and Israel’s seizure of adjacent territories (including the Golan Heights), the United States joined a unanimous Security Council to emphasize “the inadmissibility of the acquisition of territory by war” in Resolution 242.

In 1981, after Israel’s application of its jurisdiction to the occupied Golan, the United States again voted with a unanimous Security Council to reaffirm in Resolution 497 “that the acquisition of territory by force is inadmissible, in accordance with the Charter of the United Nations, the principles of international law and relevant Security Council resolutions.” The Council decided “that the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect.”

In response to Russia’s occupation and annexation of Crimea, the United States under both former President Barack Obama and the Trump administration refused to recognize the annexation as legally effective. The Obama administration adopted the language of occupation to refer to Crimea in order to rebut Russia’s claims of sovereignty. In 2018, the State Department issued a statement under Secretary Mike Pompeo’s name invoking the United States’ prior stance toward the Soviet seizure of the Baltic states: “As we did in the Welles Declaration in 1940, the United States reaffirms as policy its refusal to recognize the Kremlin’s claims of sovereignty over territory seized by force in contravention of international law.”

An October 2022 U.N. General Assembly resolution endorsed by the United States and 142 other states denounced Russia’s declared annexation of Ukrainian territory and reaffirmed “the principle of customary international law … that no territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

United Nations personnel stand at a lookout point as they monitor the Israel-Syria border in the Golan Heights, on January 21, 2019.

Against this backdrop, Trump’s recognition of Israeli sovereignty over the Golan Heights sticks out like a sore thumb. Consistent with an administration that was indifferent at best to international law, the legal justifications accompanying this decision were thin and inconsistent.

Trump announced his decision on the Golan via Twitter on March 21, 2019. “After 52 years it is time for the United States to fully recognize Israel’s Sovereignty over the Golan Heights, which is of critical strategic and security importance to the State of Israel and Regional Stability.” The recognition was formalized in a presidential proclamation that cited the “unique circumstances” of the Golan.

In the following months, the Trump administration offered varying legal justifications for the annexation of the Golan. During a Senate hearing, Democratic Sen. Richard Durbin pressed Pompeo on the distinction between Russia’s annexation of Crimea and Israel’s annexation of the Golan Heights. Pompeo referred cryptically to “international law doctrine on this very point” that justified Israel’s annexation. However, in subsequent answers to senators’ questions for the record, the State Department omitted any reference to this purported doctrine. Further, the State Department avoided any legal (as opposed to policy) justifications for the Golan’s annexation and incongruously asserted that “[o]ur policy continues to be that no country can change the borders of another by force.”

Two months after Trump’s recognition of the annexation, Pompeo and then-U.S. Ambassador to Israel David Friedman published an op-ed in the Wall Street Journal entitled “International Law Backs the Trump Golan Policy.” Their argument turned Resolution 242 on its head, suggesting the resolution allowed unilateral annexation by Israel despite the clear statement of “the inadmissibility of the acquisition of territory by war.”

They failed to mention Resolution 497 and the Security Council’s decision that the imposition of Israeli jurisdiction in the Golan was a legal nullity. Nor did they address the baseline prohibition on acquiring territory through force. In lieu of a strong legal argument, the op-ed casts the annexation as a clash between good (Israel) and evil (Syria/Iran). “If Israel doesn’t maintain control of the Golan, Iran, the world’s largest state sponsor of terror, or one of its proxies, will gain the strategic high ground. The world, and especially the EU, faces an easy choice: a dictator of a non-functioning state or a peaceful and democratic ally.” These characterizations amount to legally irrelevant table pounding.

These shifting justifications leave the impression that the Trump administration was making them up on the fly.

Biden has the constitutional authority to rescind his predecessor’s recognition. Biden’s de-recognition of this territorial change would target two major audiences, one international and one domestic.

Externally, the United States would be on firmer footing to assail Russia’s annexations of Ukrainian territory if its own actions on non-recognition matched its rhetoric.

My organization, the International Crisis Group, has urged the United States and others to frame their opposition to Russian territorial conquest in Ukraine on the principled terms of sovereignty and territorial integrity, rather than casting its efforts as a struggle between Russia and the West—a struggle in which many states do not wish to get caught. By reversing Trump’s decision, Biden could demonstrate that the United States’ commitment to the prohibition on forcible land grabs applies to friend and foe alike.

Domestically, de-recognition of this territorial change could send a signal to the national security bureaucracy and the broader U.S. foreign-policy community that international law, particularly the rules governing the use of force, is indeed law that the president takes seriously. Currently, legal limits on the unilateral use of force by the president, including those imposed by international law, are mainly enforced within the executive branch itself, as such matters rarely see the inside of a courtroom.

Repudiating Trump’s recognition of annexation could help strengthen norms relating to the use of force within the U.S. executive branch and inform the national security bureaucracy that this rule of international law is not a laughing matter. It would be all the more powerful if the Biden administration reexamined highly controversial uses of force by the United States itself, such as the 2003 invasion of Iraq, which is widely seen as a violation of the U.N. Charter as well as catastrophically unwise. In practice, by buttressing these legal norms, the renunciation of Trump’s decisions could help encourage officials within the national security bureaucracy to shelve proposals for unlawful uses of force long before they reach the president’s desk.

Russian President Vladimir Putin’s denunciations of Western imperialism may be risible given his war of conquest. But the United States could do more to undercut such arguments and also remove Moscow’s capacity to wield “whataboutism” arguments in its defense if the United States distances itself from past positions that are, frankly, indefensible.

The United States should match its righteous rhetoric on non-recognition with concrete action that demonstrates that the principle applies equally outside of Europe and even with respect to close U.S. partners. Biden should renounce Trump’s recognition of the Golan annexation and revert to the United States’ historic position that it will not recognize the acquisition of any territory through the use of force.

Brian Finucane is senior advisor in the U.S. program at the International Crisis Group. He is also a non-resident senior fellow at the Reiss Center on Law and Security at NYU School of Law and a member of the editorial board of Just Security. Prior to joining Crisis Group in 2021, he served as an attorney advisor in the Office of the Legal Advisor at the U.S. State Department