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U.S. Recognition of Israeli Sovereignty over the Golan Heights: Some Legal Observations

 
Filed under: International Law, Israel, U.S. Policy
Publication: Jerusalem Issue Briefs

U.S. Recognition of Israeli Sovereignty over the Golan Heights: Some Legal Observations
U.S. President Donald Trump recognizes Israel’s sovereignty of the Golan Heights in the presence of Prime Minister Benjamin Netanyahu (White House)

Institute for Contemporary Affairs

Founded jointly with the Wechsler Family Foundation

Vol. 19, No. 6

  • In his presidential proclamation dated March 25, 2019, President Trump listed two basic factors underlying the U.S. decision to recognize Israel’s sovereignty over the Golan Heights:

    • Ongoing security threats and acts of aggression against Israel by Syria since prior to the 1967 war, including Syria’s use of the Golan Heights to launch an offensive armed attack against Israel, which resulted in Israel taking control of the area in the exercise of its inherent right of self-defense.
    • Israel’s continuing need to protect itself from Syria and other regional threats emanating from current, ongoing aggressive actions by Iran and Hizbullah in southern Syria, constituting a potential launching ground for offensive attacks on Israel.
  • Rejecting the various calls for negotiation of a peace settlement, and obstructing any attempts at genuine negotiation, Syria has continued to use its territory as a platform for terrorist attacks against Israel and has neither been prepared to genuinely negotiate peace with Israel nor to acknowledge Israel as a sovereign state bordering Syria. Recently, Syria has enabled emplacement of Iranian and Hizbullah weapons platforms and their use against Israel.
  • A long-term continuation of belligerency, an ongoing threat of aggression by the state concerned, and a lack of any foreseeable chance of peace negotiations all generate a unique situation facing the state controlling the territory of the offensive state, with no foreseeable chance for a peace settlement.
  • Stephen Schwebel, former judge in the International Court of Justice, wrote: “[Regarding] the Golan Heights, it follows that no weight shall be given to conquest, but that such weight shall be given to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel.”
  • With this background, the proclamation by the U.S. President serves as a message to Syria and the international community that aggression and obstinate refusal to settle an international dispute should not be rewarded.
  • An aggressor state that loses its territory after an offensive war and consistently refuses all efforts to make peace for over half a century cannot expect to maintain a bona fide right to claim back the territory. Thus, the power controlling the territory becomes entitled to a better claim and title to the territory.

In his presidential proclamation dated March 25, 2019,1 President Trump listed two basic factors underlying the U.S. decision to recognize Israel’s sovereignty over the Golan Heights:

  • Ongoing security threats and acts of aggression against Israel by Syria since prior to the 1967 war, including Syria’s use of the Golan Heights to launch an offensive armed attack against Israel, which resulted in Israel taking control of the area in the exercise of its inherent right of self-defense.
  • Israel’s continuing need to protect itself from Syria and other regional threats emanating from current, ongoing aggressive actions by Iran and Hizbullah in southern Syria, constituting a potential launching ground for offensive attacks on Israel.

As indicated by the President in his proclamation, he is empowered by the U.S. Constitution to declare recognition of foreign sovereigns.

This prerogative to recognize foreign sovereignty was reaffirmed in a recent Supreme Court judgment in the case of “Zivotofsky v. Kerry, Secretary of Statein which the U.S. Supreme Court held that:

Judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate…2

The proclamation by President Trump reaffirms a previous assurance given by President Gerald Ford in his letter to Israeli Prime Minister Rabin, of September 1, 1975, according to which:

The U.S. will support the position that an overall settlement with Syria in the framework of a peace agreement must assure Israel’s security from attack from the Golan Heights. The U.S. further supports the position that a just and lasting peace, which remains our objective, must be acceptable to both sides. The U.S. has not developed a final position on the borders. Should it do so, it will give great weight to Israel’s position that any peace agreement with Syria must be predicated on Israel remaining on the Golan Heights.3

Syrian Continued Belligerency vis-à-vis Israel

The factors underlying the respective U.S. presidential proclamations are amplified by an extensive and consistent timeline of Syrian belligerency, hostility, and threats vis-a-vis Israel over the years, including:

  • Syria’s participation, together with the other Arab states neighboring Israel, in the 1948 offensive war intended to eliminate the new Israeli state.4 Since then, Syria has maintained and continues up to the present day to maintain an official state of war with Israel.
  • Between 1949 and 1967, in clear violation of its commitments in the 1949 Syria-Israel Armistice Agreement to refrain from acts of aggression against Israel and from “any warlike or hostile act against the military or para-military forces of the other Party, or against civilians in territory under the control of that Party,”5 Syria fortified the Golan Heights. It used the high ground as a launching pad for ongoing aggression and violation of its commitments in the 1949 Armistice Agreement and against Israel’s sovereignty, including by hosting and sponsoring terrorist groups and committing acts of violence and bombardment of Israel’s northern towns, villages, and farming communities.
  • In addition to the bombardment of Israeli towns and villages in northern Israel, such Syrian hostility has included actions sanctioned by the Arab League in 1964-5 to divert the headwaters of the Jordan River flowing into Israel.

According to a decision by the Arab League:6

The establishment of Israel is the basic threat that the Arab nation in its entirety has agreed to forestall. And since the existence of Israel is a danger that threatens the Arab nation, the diversion of the Jordan waters by it multiplies the dangers to Arab existence. Accordingly, the Arab states have to prepare the plans necessary for dealing with the political, economic and social aspects, so that if necessary results are not achieved, collective Arab military preparations, when they are not completed, will constitute the ultimate practical means for the final liquidation of Israel.

  • Between 1951-3, in violation of the Armistice Agreement, Syria conducted several attacks on Israeli territory and in 1953 occupied a strip of land along the northeastern part of Lake Kinneret (Sea of Galilee).7
  • During periods of peace negotiations between Lebanon and Israel in 1982-3 and during the Madrid peace process in 1991-3 Syria actively obstructed such negotiations and prevented Lebanon from signing a peace treaty with Israel and from establishing a common bilateral border between them.

UN Security Council Resolutions 242 (1967) and 338 (1973)

UN Security Council resolution 242 (1967)8 following the 1967 war, affirmed the need for “termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every state in the area and their right to live in peace within secure and recognized boundaries.” To this end, it called for a “peaceful and accepted settlement” to be achieved through the efforts of a special representative of the Secretary-General.

In referring in its preamble to the inadmissibility of the acquisition of territory by war, resolution 242 deliberately refrained from calling for the withdrawal of Israeli forces from all the territories, including from the Golan Heights. To the contrary, in its operative sections, the resolution called for negotiation of an accepted peaceful settlement to include “secure and recognized boundaries,” including between Israel and Syria on the Golan Heights.

Clearly, a peace negotiation process that requires the negotiation of secure and recognized boundaries is an accepted manner by which territory may be acquired, but it is dependent on the willingness of the state concerned to enter into such negotiations.

Despite the call for negotiation in Resolution 242, Syria attacked Israel during the 1973 “Yom Kippur War,” after which Security Council resolution 338 (1973)9 reiterated the call for negotiations.

In the ensuing 1974 “Syria-Israel Agreement on Disengagement of Forces,” Syria obligated itself to “scrupulously observe the cease-fire on land, sea, and air, and … refrain from all military actions against Israel”.10

Rejecting the various calls for negotiation of a peace settlement, and obstructing any attempts at genuine negotiation, Syria has continued to use its territory as a platform for terrorist attacks against Israel and has neither been prepared to genuinely negotiate peace with Israel nor to acknowledge Israel as a sovereign state bordering Syria.

More recently, Syria has enabled emplacement of Iranian and Hizbullah weapons platforms and their use against Israel.

All the above are indicative of a consistent Syrian refusal to recognize Israel as a negotiating partner and a concerted attitude of hostility vis-à-vis Israel.

Israel’s Status on the Golan Heights

In light of the continued and active Syrian threats and hostility vis-à-vis Israel between 1973 and 1981, Syria’s persistent refusal to enter into any serious peace process and faced by a lack of any clear legal infrastructure in the Golan Heights, Israel decided in 1981 to apply Israel’s law, jurisdiction, and administration to the area by legislating the Golan Heights law.11

This legislation was accompanied by an assurance, conveyed in Israel’s Knesset by Prime Minister Begin,12 as well as by Israel’s UN ambassador in a communication to the Secretary-General of the UN, according to which:

The government of Israel wishes to reiterate that it is willing now as always to negotiate unconditionally with Syria as with its other neighbors for a lasting peace in accordance with Security Council Resolutions 242 (1967) and 338 (1973). The Golan Heights Law does not preclude or impair such negotiations.13

While the laws of armed conflict address situations in which a state, in exercising its inherent right of self-defense, takes control of, or occupies territory of the offensive state, the question of the length of time such a situation of control or occupation may last is not addressed. Furthermore, a long-term continuation of belligerency, an ongoing threat of aggression by the state concerned, and a lack of any foreseeable chance of peace negotiations all generate a unique situation facing the state controlling the territory, with no foreseeable chance for a peace settlement.

In his publication “Justice in International Law:” “What Weight to Conquest? Aggression, Compliance, and Development” (1970) Stephen Schwebel, former judge in the International Court of Justice, refers to the situation of the Golan Heights as follows:

…as regards territory bordering Palestine, and under unquestioned Arab sovereignty in 1949 and thereafter, such as Sinai and the Golan Heights, it follows that no weight shall be given to conquest, but that such weight shall be given to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel.14

The recent civil war in Syria, the continued lack of any stable government, the flagrant and willful crimes committed by the Syrian president against those elements opposing his regime and against Syrian civilian population, as well as the emplacement of Iranian armed facilities on Syrian territory directed against Israel, all serve to indicate the utter lack of any hope that Syria will in the near future be prepared to recognize Israel as a legitimate neighbor, accept a common border, and enter into a peaceful relationship with Israel.

These factors are also indicative of a total lack of reliability by the Syrian leadership, and capability of genuinely taking upon itself any international responsibility, especially vis-à-vis Israel.

With this background, the proclamation by the U.S. President recognizing Israel’s sovereignty over the Golan Heights is logical and necessary.

Conclusion

The U.S. proclamation acknowledges the factual situation in which continued Syrian hostility and threats against Israel, and their consistent refusal to recognize and to negotiate peace with Israel undermine any accepted international behavioral norms.

The proclamation serves as a message to Syria and the international community that aggression and obstinate refusal to settle an international dispute should not be rewarded. Syria does not come to the international community with clean hands.

Despite those elements within the international community that reject the U.S. proclamation and claim that it is incompatible with international legal norms, the case of the Golan Heights points to a unique situation. An aggressor state that loses its territory after an offensive war and consistently refuses all efforts to make peace for over half a century cannot expect to maintain a bona fide right to claim back the territory.

Thus, the power controlling the territory becomes entitled to a better claim and title to the territory.

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Notes