That Land Is Their Land
Almost all wars, regardless of what rationales are invoked to legitimize them, wind up being about land. Russia’s horrific war against Ukraine, now almost nine years old, is no exception. The question then becomes one of how claims to land are justified, and here there are two choices: established international norms or brute force. Ukraine stakes its claim on the former, whereas Russia has chosen the latter.
Ukraine’s entitlement to the moral and legal high ground is unimpeachable. David Kramer, writing almost a year ago, made a strong case for the illegality of Russia’s attacks on Ukraine. Yet there is still talk about the need for Kyiv to be “realistic” about negotiated outcomes, to accept some combination of “win/lose” to end the war. In this case, “lose” of course refers mainly to land and the Ukrainian citizens who live on it; the definition of “win” is less certain. Others outline complex scenarios by which an end to the fighting might be brought about, but downplay or outright ignore the very root cause of the conflict in the first place: ground that Russia wants, but with which Ukraine rightfully refuses to part.
It remains clear that Russian aggression and occupation of any Ukrainian territory clearly violates key provisions of the United Nations Charter concerning sovereignty and the central principle of customary international law relating to defining the legitimate territory of all states. That underlying principle, uti possidetis juris (“as you possess under law”), is the basis for demarcating the territory of newly independent countries, either through decolonization or, as in the case of the former Soviet Union, the dissolution of federated states with defined internal units.
Ukraine’s borders antebellum were established in accordance with customary international law and have been mutually agreed with Russia on many occasions. That said, there are complex issues relating to the specific territories involved in this struggle—issues that derive from the manner in which the country’s borders were originally delimited and the ways in which Russia has couched its claims, spurious though they may be, to seize these areas.
For historical context, as the Soviet Union dissolved, Ukraine, Russia, and 13 other post-Soviet states had become independent by December 1991 in keeping with uti possidetis. In the case of Ukraine, the decision by the republic’s legislative body to declare independence in August 1991 was validated by a national referendum in December of that year, in which 92 percent of voters approved an independence resolution, with an astonishing 84 percent turnout. Every region in Ukraine, including the four currently occupied in part by Russia (Donetsk, Luhansk, Zaporizhzhia, and Kherson) voted overwhelmingly in favor, with semi-autonomous Crimea, also presently under Russian control, approving with a smaller majority.
Despite having repeatedly acknowledged the existence of their mutual border, which was delimited officially by 1928—with the exception of Crimea, which was transferred to Ukraine in 1954—Russia still continued to harbor designs on large swaths of southern and eastern Ukraine. Russian President Vladimir Putin’s opening move in his current bid to wrest control of sovereign Ukrainian territory began in the spring of 2014, when Russian troops occupied Crimea and he annexed it into the Russian Federation on March 18, 2014. This dramatic breach of international law and the 1994 Budapest Memorandum guaranteeing Ukraine’s territorial sovereignty, to which Russia was a signatory, was widely condemned and generated a modest round of sanctions against Moscow.
Russia quickly followed its Crimea move by directing and militarily supporting an ostensible “popular uprising” or “civil war” in the Donetsk and Luhansk regions of eastern Ukraine (usually referred to jointly as the Donbas). After initially seizing about two-thirds of the Donbas, the Russians manufactured another scheme by which the two Ukrainian regions became so-called “People’s Republics” which existed only with ongoing Russian military and other support and are not recognized internationally. These two quasi-states have no standing whatsoever when it comes to uti possidetis.
Moscow’s last artifice, at least to date, in its attempt to legitimize its seizure of Ukrainian lands came after Russian troops invaded and captured additional regions in southeastern parts of the country beginning on February 24, 2022. Following what had become its practice, on September 30, 2022, amidst great fanfare, Putin announced that Russia had annexed the two Donbas “republics” as well as the neighboring Kherson and Zaporizhzhia regions, despite the fact that they do not fully control any of these provinces. The purported basis upon which Russia conducted this sleight of hand clearly, yet again, violates international law.
Ukraine’s international legal rights having been clearly established, there remains, of course, the overarching question of how these relate in practice to the present conflict. Ukrainians now overwhelmingly view the sanctity of their territory as a sacred cause, while being mindful of the costs involved. In a poll taken in Ukraine in October, Gallup found that 91 percent of respondents stated that the war against Russia would not be over until all territory lost since 2014 is regained. The amazing response of Ukrainian civilians to do and to endure whatever is necessary to frustrate Russian ambitions on their homeland corroborate that finding.
Should there be any conception that the Russian seizure of parts of Ukraine will in any sense result in “peace,” this is easily dispelled. We already have seen what Russian occupation looks like: random killings, rapes, and torture of innocent civilians by the Russian army (including its so-called elite units) and private military contractors; the imposition of a draconian brutal martial law; theft on an industrial scale; the kidnappings of thousands of Ukrainian adults and children; organized criminality; and a highly corrupted Russian-installed “administration.” Crimea saw thousands of indigenous Crimean Tatars and Ukrainians opposed to Russia’s takeover flee the peninsula as Russia imposed a brutal occupation regime. Ukrainians are well aware of these atrocities and others perpetrated by Russia, such as attacks on civilian infrastructure throughout the country and the displacement of millions of Ukrainians either internally or abroad. Perhaps most importantly, the consequence of successful Russian land-grabs has been more land-grabs: Crimea was first (though it came just six years after Russia successfully swallowed one fifth of Georgia’s territory in a separate war), and was followed soon after by the war in the Donbas. Without control of these territories, Russia’s full-scale invasion of Ukraine in February 2022 would have been much more difficult.
Finally, any territorial outcome favorable to Russia portends serious negative consequences ahead in international affairs and would be a threat to the national security of law-abiding states in the post-Soviet realm and elsewhere, especially if stronger punitive measures against Moscow are not taken. Looking forward, the outcome of this war, should it result in Russian control of Ukrainian lands, could very well have serious negative consequences that might unhinge the geopolitical order in Europe and beyond. At stake in Ukraine are not just the fates of two countries, but the principle of non-aggression itself.
Dealing with Russia as if it were a rule-of-law country that would abide by a negotiated settlement ignores the fact that Russian “guarantees” guarantee nothing.
The way to resolve the territorial issues at the heart of the war is help the Ukrainians as much as possible to roll back Russian gains on the ground. Further, in the event that the terms of a negotiated peace ultimately force Ukraine to yield territory, the illegality of that outcome must generate considerably harsher sanctions against Russia, including serious efforts to seize Russian assets abroad to fund reparations for war damage, war crimes tribunals to name and punish those responsible for these heinous acts, and more ambitious efforts to curb Russian presence and influence in international organizations.
Discouraged observers in the United States, Europe, and elsewhere are insisting Ukraine trade its land and its people for temporary peace. Would they offer the same advice if their own country were invaded?