Protesters outside of the White House, March 2022. Photo credit: Victoria Pickering/Flickr. Creative Commons license.
Russia’s war against Ukraine and its military occupation of parts of Ukrainian territory have rightfully evoked a groundswell of grassroots opposition to Russia’s aggression and a forceful policy response by Congress and the Biden administration. The United States has taken rapid action to hold Russia accountable for its aggression, military occupation, and alleged war crimes; however, in the case of Israel’s more than half-century military occupation of the Palestinian West Bank, including East Jerusalem, and the Gaza Strip, the United States has been directly complicit in enabling Israel’s aggression, reinforcing its military occupation through publicly funded weapons transfers, and shielding Israel from accountability in international forums.
ISSUE: On February 24, 2022, Russia invaded Ukraine–an illegal act of aggression. This invasion followed Russia’s recognition of the Ukrainian provinces of Donetsk and Luhansk as independent states earlier that week. In March 2014, Russia illegally annexed the Crimean Peninsula, which is sovereign Ukrainian territory. Russia’s aggression against Ukraine and its challenges to Ukrainian territorial sovereignty have been met with unequivocal denunciations by almost all Members of Congress and the Biden administration.
In June 1967, Israel militarily occupied the Palestinian West Bank, including East Jerusalem, and the Gaza Strip and remains the belligerent Occupying Power of these Palestinian territories today. Although Palestine did not exercise sovereignty over these territories when Israel began its military occupation, its territorial integrity has been recognized under international law since the League of Nations conferred a mandate over Palestine to Great Britain in 1922.
Furthermore, the UN recommended Palestinian independence and sovereignty over 45 percent of historic Palestine in its partition plan of 1947 (the West Bank, including East Jerusalem, and the Gaza Strip constitute only 22 percent of historic Palestine). And since 2012, the UN has granted Palestine, defined territorially as the West Bank, including East Jerusalem, and the Gaza Strip, the status of a non-member state in the international organization.
Of course while there exist many differences between the situations facing Ukraine and Palestine today, their status under international law is similar. In the case of Palestine, Israel is also guilty of infringing upon Palestine’s territorial integrity. It has formally and illegally annexed Palestinian land (Israel de facto annexed East Jerusalem in 1967 and de jure annexed it in 1980), in addition to de facto annexing large swathes of additional Palestinian land in the West Bank through the construction of an illegal wall (discussed further below) and its illegal colonization of Palestinian land.
In addition, Israel systematically violates its commitments under the Fourth Geneva Convention and routinely commits grave human rights abuses, some of which have been meticulously documented by UN agencies as potentially amounting to war crimes and crimes against humanity.
However, most US policymakers differ in their responses toward Russia’s aggression toward Ukraine, its violation of Ukrainian territorial integrity, and Russian war crimes as compared to their responses toward Israel’s aggression toward Palestine, its violation of Palestine’s territorial integrity, and Israeli war crimes.
This memo will analyze differentiated US policy responses in four areas: 1) the non-acquisition of territory through the use of force; 2) the right to resist military aggression; 3) the use of boycotts, divestment, and sanctions to achieve policy change; and 4) accountability for violations of human rights and the laws of war.
As President Eisenhower stated in 1956: “We cannot—in the world, any more than in our own nation-subscribe to one law for the weak, another law for the strong; one law for those opposing us, another for those allied with us. There can be only one law—or there will be no peace.”
US policymakers must work to reorient US policy so that these double standards are done away with. Palestinian lives are as valuable as Ukrainian lives, and the United States cannot legitimately defend human rights and international law in Ukraine while it simultaneously backs Israel’s violations of human rights and international law.
States Cannot Acquire Territory through the Use of Force
Article 2(4) of the UN Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” From this prohibition on the threat or use of force, customary international law rejects the admissibility of the acquisition of territory through the use of force.
These principles animated US opposition to Russia’s invasion and annexation of the Ukrainian Crimean Peninsula in 2014, its opposition to Russia’s recognition of the Ukrainian provinces of Donetsk and Luhansk as independent states, and its opposition to Russia’s current war against Ukraine.
After Russia vetoed a UN Security Council resolution on February 25, 2022, calling for its unconditional withdrawal from Ukrainian territory, the United States and other countries issued a strong denunciation of Russia’s violation of the UN Charter’s prohibition on the use of force. “Russia has abused its power today to veto our strong resolution…Russia cannot veto the UN Charter. Russia cannot, and will not, veto accountability.”
On March 2, 2022, however, the UN General Assembly overwhelmingly passed a resolution demanding “that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders,” and “that the Russian Federation immediately and unconditionally reverse the decision related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine.”
Compare this assertive response to Russia’s use of force to acquire territory, fully backed by the United States, to the ways in which the United States has enabled Israel to acquire Palestinian territory through the use of force.
As mentioned above, in 1947, the UN General Assembly recommended–against the wishes of the majority, indigenous Palestinian population, it must be stressed–to partition Palestine into two states (roughly 55 percent for a Jewish State and 45 percent for an Arab State). While the Zionist movement welcomed the recommendation, it did not accept the proposed boundaries of the states. Even before the establishment of Israel in May 1948, Zionist militias engaged in a premeditated campaign of ethnic cleansing to drive Palestinians out of their homes and conquer as much territory as possible.
The Israeli military continued this campaign beginning in May 1948 and lasting until armistice accords were signed with neighboring Arab countries in 1949. The United States encouraged these armistice agreements, which established Israeli sovereignty over 78 percent of historic Palestine. Thus, even if one accepts the validity of the partition resolution, which violated Palestinians’ self-determination, the United States still acquiesced in Israel’s acquisition of territory through the use of force and its ethnic cleansing of Palestinians from this territory.
Compare, also, the difference between the UN demanding Russia’s immediate and unconditional withdrawal from Ukrainian territory with UN Security Council Resolution 242, passed in November 1967. In June 1967, Israel acquired additional Palestinian territory when it became the belligerent military occupying force in the West Bank, including East Jerusalem, and the Gaza Strip.
The United States played a primary role in the construction and adoption of this resolution, which ambiguously called for the "Withdrawal of Israel armed forces from territories occupied in the recent conflict,” rather than explicitly demanding Israeli unconditional and immediate withdrawal from all occupied territories. This ambiguity has enabled Israel to maintain its military occupation of Palestinian territories for nearly 55 years to date.
Even worse yet is the fact that the United States recently has recognized Israel’s illegal annexation of occupied territory. In 2017, the Trump administration recognized Jerusalem as Israel’s capital, effectively condoning its illegal annexation of East Jerusalem (mentioned above). In 2018, the Trump administration moved the US Embassy to Israel from Tel Aviv to Jerusalem, locating it in the former no-man’s land between Israeli and Jordanian armistice lines that existed from 1949 to 1967. This move overturned 70 years of bipartisan US policy not to recognize any country’s sovereign claims in Jerusalem in advance of a peace settlement, much less any Israeli sovereign claims to territory in Jerusalem that was illegally annexed.
And in 2019, the Trump administration also recognized Israeli sovereignty over the Syrian Golan Heights, which was annexed illegally by Israel in 1981. To date, the Biden administration has failed to overturn the Trump administration’s moves to recognize Israeli sovereignty over illegally annexed lands.
The Right to Resist Military Aggression
Across the board, US policymakers have unambiguously supported the right of Ukrainians to engage in armed self-defense against Russian military aggression. And the Biden administration has fast-tracked the delivery of lethal US weapons to Ukraine, including most recently $800 million in weapons, comprised of 800 anti-aircraft systems to shoot down Russian planes and helicopters, 9,000 anti-armor systems to destroy tanks and armored vehicles, 7,000 small arms, including machine guns and grenade launchers, and 20 million rounds of ammunition.
While armed Ukrainian resistance to Russia’s aggression and military occupation has been lionized and valorized by the media and policymakers, armed Palestinian resistance to Israel’s aggression and military occupation–even when that resistance targets only Israeli troops, which is legitimate under international law–is vilified and demonized.
Not only is armed Palestinian resistance to Israel’s aggression and military occupation viewed very differently than armed Ukrainian resistance. In addition, while the United States is providing weapons for armed Ukrainian resistance, it arms Israel to commit its aggression and sustain its military occupation of Palestinian territory. In fact, by providing Israel with $3.3 billion in Foreign Military Financing (not to mention $500 million in anti-missile systems through Department of Defense appropriations as well), in a regular year, the United States provides more FMF to Israel than to all other countries in the world combined!
Thus, not only does the United States deny Palestinians their right to armed resistance against Israel’s aggression and military occupation, but it also bankrolls this Israeli aggression and military occupation, making the United States complicit in Israel’s violations of human rights and international law.
Economic Pressure Is a Legitimate Strategy to Affect Policy Change
Everyday people and US policymakers alike have spontaneously and wholeheartedly adopted a comprehensive, blanket approach to boycotting Russian products, urging divestment of corporate interests from Russia, and sanctioning its government as legitimate forms of economic pressure to induce policy change.
It is worthwhile to note that some of these calls–for example, to deny medicine to Russia or refuse medical care to a Russian person based on their nationality–are clearly designed to harm innocent Russian civilians and would be blatant violations of international law if implemented.
Other boycotts cross over into the realm of performative absurdism, such as banning books by Fyodor Dostoevsky and music by Pyotr Tchaikovsky, both of whom died during the Romanov Tsarist reign. And denying Russians the ability to access grammar apps has no discernible connection to or bearing on Putin’s aggression against Ukraine.
Contrast this enthusiasm for engaging in comprehensive economic pressure tactics in the case of Russia with the hostility of most US policymakers toward much more targeted and limited forms of economic pressure called for by Palestinian civil society organizations to end Israel’s aggression and military occupation.
In 2005, more than 170 Palestinian civil society groups united to call on people of conscience around the world to engage in targeted campaigns of boycott, divestment, and sanctions (BDS) against the Israeli government, institutions that partner with the Israeli government, and corporations that profit from Israel’s oppression of the Palestinian people.
In contrast to the boycott campaign against apartheid South Africa and in contrast to many calls to boycott Russia for its aggression toward Ukraine, the Palestinian civil society-led BDS movement has never called for boycotts against individual Israelis due to their nationality nor for boycotts that would cause harm to Israeli civilians.
In addition, BDS campaigns are time-limited: when Israel ends its military occupation of Palestinian land, treats Palestinians citizens of Israel equally, and enables Palestinian refugees to exercise their right of return, BDS campaigns for Palestinian rights end because its goals have been achieved. (For more details, please see the Palestinian BDS National Committee’s statement issued on March 15, 2022, entitled “West’s Response to Russian Invasion Demolishes Excuses for Rejecting BDS against Apartheid Israel.”)
By boycotting for Palestinian rights, American churches, unions, academic institutions, student governments, and cultural workers are engaging in freedom of expression and exercising their First Amendment right to freedom of speech. Attempts by the government to punish and even criminalize such boycotts constitute unconstitutional viewpoint discrimination.
Despite these freedoms guaranteed under both international law and the constitution, Congress, state legislatures, and governors have either attempted to or have passed legislation or signed executive orders to penalize and even criminalize people who boycott for Palestinian rights.
Not only has the House of Representatives passed a resolution condemning people who boycott for Palestinian rights; Members of Congress have also introduced legislation–the so-called Israel Anti-Boycott Act–which originally proposed 20 years imprisonment for people who provided information to the UN to further any boycott of Israeli settlement products.
Ironically, as momentum grew for a boycott of Russia, Rep. Lee Zeldin reintroduced the bill on March 3, 2002. Although this version of the bill would not imprison Americans for boycotting for Palestinian rights, they could still be subject to a $1 million criminal fine for doing so.
In addition, 35 states have passed laws that either require people to sign a loyalty oath that they will not boycott for Palestinian rights in order to do business with the state or that require state pension funds to divest from any companies that refuse to do business in illegal Israeli settlements. Despite several federal district courts rulings that loyalty oaths like these are unconstitutional, many remain on the books.
If a blanket boycott of Russia is a legitimate response to its aggression against Ukraine, then a targeted and time-limited boycott for Palestinian rights is then all the more legitimate.
Accountability for Russia, Impunity for Israel
In the immediate aftermath of Russia’s aggression against Ukraine, the United States unequivocally supported international judicial efforts to hold Russia accountable for its actions, welcoming the International Court of Justice’s (ICJ) order directing the suspension of Russian military operations, and welcoming the International Criminal Court’s (ICC) investigation into Russian actions.
In addition, President Joe Biden, Vice President Kamala Harris, Secretary of State Antony Blinken, and US Ambassador to the UN Linda Thomas-Greenfield have already definitively concluded either that Putin is a war criminal and/or that Russia is committing war crimes in Ukraine. While Russia’s seemingly deliberate targeting of civilians and civilian infrastructure, and the often indiscriminate and disproportionate use of Russian force in Ukraine do indeed appear to provide ample prima facie indications of war crimes, such definitive conclusions are usually only reached after investigations take place.
Compare the US eagerness to hold Russia accountable for its alleged war crimes in Ukraine with the US effort to systematically oppose and hamstring efforts to hold Israel accountable in international judicial proceedings even after official UN investigations have concluded that it has committed war crimes and possible crimes against humanity.
In 2004, the United States filed a brief with the ICJ, opposing it even rendering an advisory opinion on the legality of Israel’s wall (the ICJ ruled that Israel’s West Bank wall is illegal, must be dismantled, and compensation paid to Palestinians harmed by it).
In addition, the United States blocked Palestine from joining the UN as a full member state in 2011 due largely to Israel’s fears that Palestine’s membership would enable it to join the ICC and initiate criminal proceedings. However, the United States was unable to prevent the General Assembly from voting in 2012 to admit Palestine as a “non-member state” which opened the door to Palestine’s accession to the Rome Statute in 2015. The United States has vigorously opposed Palestine’s membership in the ICC as well as the ICC’s opening of an investigation into Israel’s actions in 2021.
The United States has also opposed investigations conducted under the auspices of the UN Human Rights Council of Israel’s attacks against Palestinians in the Gaza Strip in 2008-2009, 2012, and 2014, Israel’s attack upon a civilian flotilla in international waters attempting to deliver humanitarian aid to the Gaza Strip in 2010, and Israel’s open fire policies against unarmed Palestinian protesters during the Great March of Return in 2018-2019. (For more details, please see IMEU Policy Analysis #4 | Why Israel Must Be Held Accountable for Policies toward the Gaza Strip.)
In the case of the Goldstone Report, which documented war crimes and possible crimes against humanity committed by Israel and armed Palestinian groups during Israel’s 2008-2009 attack, leaked documents even revealed that the United States worked with Israel to “deflect and contain” the report, rather than hold Israel accountable for its actions.
Both the Biden administration and some Members of Congress are taking a similar approach to a UN Commission of Inquiry established in 2021 to create an ongoing venue to review Israel’s human rights abuses toward Palestinians in Occupied Palestinian Territory.
Both Russia in Ukraine and Israel in Palestine have deliberately targeted civilians and civilian infrastructure, employed disproportionate and indiscriminate force, hit residential buildings and hospitals, and utilized banned weapons (cluster bombs) in civilian areas. In Russia’s case, US policymakers have rightfully backed holding it accountable; in Israel’s case, US policymakers have repeatedly shielded Israel from accountability and promoted its impunity.