The West's Illegal "Transformative Occupations"

April 2, 2014 Topic: International Law

The West's Illegal "Transformative Occupations"

Crimea was hardly the first case.

The referendum on Crimea’s secession from Ukraine and on the subsequently planned accession to the Russian Federation quickly prompted American and European officials to take positions. As expected, they all rejected the Crimean decision to join Russia; and, as has become customary in international relations in the past few decades, they mainly invoked legal arguments to justify their stance.

One of the central arguments is one based on the notion that a referendum conducted under coercive foreign military presence is not legitimate. In fact, the first White House communiqué on the Crimean situation contained a passage to that effect, affirming that the United States "would not recognize the results of a poll administered under threats of violence and intimidation from a Russian military intervention." European officials used similar terms, mostly claiming that a referendum organized under foreign military occupation could not be acceptable.

If Crimea is indeed under belligerent occupation (a claim that Russia contests), Western officials would have a solid legal point. Their legal argument would be based on a universally recognized principle of law which posits that "coercion nullifies true consent." The U.N. Charter, the international body of laws governing treaties and the law governing armed conflict and military occupation would also support the Western position. “Transformative occupation”, which is defined as making substantial changes in the legal or political infrastructure of a state under occupation, is in fact prohibited by international law. Yet even with this in mind, there are still serious inconsistencies between Western words and Western practice.

Indeed, the Japanese and German Constitutions were both drawn up under American military occupation, as were the public referendums that validated them. The very political, economic and territorial foundations of modern South Korea were also laid during American occupation and under the watchful eyes of the United States Army Military Government in Korea (USAMGIK). The 2004 Afghan Constitution and the 2005 Iraqi Constitution, along with the subsequent referendums and territorial administrative changes that ensued, also occurred during military occupation by Coalition forces. Even the Palestinian Authority (PA), which is mandated to act on behalf of the Palestinian people in peace negotiations with Israel, was established during Israeli military occupation and under duress. Needless to say, the elections that periodically take place in the Occupied Palestinian Territories to renew the PA's legitimacy are also all conducted under occupation and under circumstances where the existence of "true consent" can solemnly be called into question.

Of course, few Western countries have ever contested the legitimacy of these occupation-made institutions and subsequent transformative referendums, even when the military intervention that preceded them (e.g. in the case of Iraq and the Occupied Palestinian Territories) clearly occurred in violation of international law. In fact, if one looks at how Western countries conduct their foreign policies with regard to other major contemporary issues, one could hardly deduct "genuine respect" for fundamental principles of international law such as the one strictly prohibiting the coercion, intimidation and threatening of other sovereign countries. Case in point, while Iran is sitting across the negotiation table over its nuclear program, the American Congress and Western officials still very openly talk of coercing the country into more concessions with more sanctions or even military force as “options on the table.

This persisting double-standard approach to international law and its core principles—with this open disregard for the law when their own interests is at play—is precisely why the Western narrative of events is increasingly more difficult to sell to public opinion. In fact, one can easily—perhaps too easily—detect very serious inconsistencies in Western positions whether they invoke "historical" or "legal" reasons to justify a particular course of action. And as the Ukrainian crisis unfold, this dent in Western credibility seems to become a real challenge for American and European politicians. In fact, they seem to be realizing the hard way that, in the internet age, without public opinion on its side, the Free World has a tough time steering international events.

Reza Nasri is an international lawyer from Geneva's Graduate Institute of International and Development Studies.