Jerusalem Center for Security and Foreign Affairs (JCFA)

• Critics of the U.S. decision to recognize Israeli sovereignty over the Golan Heights misread the legal significance of the preamble to UN Security Council Resolution 242, from November 1967, which contains a reference to the principle of the “inadmissibility of the acquisition of territory by war.”
• Legal scholars have drawn a distinction between the seizure of territory in wars of aggression, which is illegal, and the seizure of territory by a state exercising its lawful right of self-defense.
• Writing in the American Journal of International Law in 1970, Stephen Schwebel, who became the legal adviser to the U.S. Department of State and then President of the International Court of Justice in The Hague, wrote about the legal significance of this difference. He also cited the great British scholar Elihu Lauterpacht, who argued that “territorial change cannot properly take place as a result of the unlawful use of force.”
• What about cases of the lawful use of force? In the aftermath of the Second World War, significant territorial changes were implemented in Europe. For example, Germany lost considerable land to Poland and to the Soviet Union. It was clear that the UN Charter recognized the right of states to use force in self-defense, which is the case of Israel’s entry into the Golan Heights.
• In 1967, when the Soviet Union undertook to obtain condemnation of Israel in the UN Security Council as the aggressor in the Six-Day War, it failed, losing the vote by 11 to 4. The Soviets then went to the General Assembly and failed yet again. It was clear for the member states of both UN bodies that Israel had acted in self-defense.
• It is also not true that the Golan decision represents a major shift in U.S. policy. In 1975, President Gerald Ford wrote to Prime Minister Yitzhak Rabin that the U.S. “will give great weight to Israel’s position that any peace agreement be predicated on Israel’s remaining on the Golan Heights.”
• In 1991, Secretary of State James Baker wrote a new letter to Prime Minister Yitzhak Shamir reconfirming the Ford letter. In 1996, Secretary of State Warren Christopher wrote to Prime Minister Benjamin Netanyahu recommitting the U.S. yet again to the Ford letter.

There are two main arguments frequently used to criticize President Trump’s decision to recognize Israeli sovereignty over the Golan Heights. The first focuses on whether Israel’s capture of the Golan Heights from Syria in the 1967 Six Day War and its subsequent decision to extend its law to the area were legal. Israel’s critics argued that Israel had violated international law. By extension they say that the US move had the effect of legitimizing an unlawful situation. They arm themselves with a misreading of the legal significance of the preamble to UN Security Council Resolution 242, from November 1967, which contained reference the principle of the “inadmissibility of the acquisition of territory by war.”

This position leads to a second common assertion by those critical of the US decision to recognize Israeli sovereignty over the Golan Heights. It is said that President Trump’s move represented a sharp break in US policy on this issue. Thus a Washington Post columnist wrote on March 22: “No president has recognized Israel’s control of the Golan Heights. Trump changed that with a tweet.” Really?

The fact is that legal scholars have drawn a distinction between the seizure of territory in wars of aggression, which is illegal, and the seizure of territory by a state exercising its lawful right of self-defense. That is how diplomats agreed to the phrase “the inadmissibility of the acquisition of territory by war” – they meant aggressive war, not defensive war. Writing in the American Journal of International Law in 1970, Stephen Schwebel, who later went on to become the legal adviser to the US Department of State and then the President of the International Court of Justice in The Hague, wrote about the legal significance of this difference. He also cited the great British scholar Elihu Lauterpacht, who argued that “territorial change cannot properly take place as a result of the unlawful use of force.”

What about cases of the lawful use of force? In the aftermath of the Second World War, significant territorial changes were implemented in Europe, as Axis territories went over to the side of the Allies. For example, Germany lost considerable land to Poland and to the Soviet Union. Schwebel refers to the decision of the UN at the end of the Korean War to support South Korean claims to “substantial territory” north of the 38th parallel. Ultimately those claims were not realized. But it was clear that the UN Charter recognized the right of states to use force in self-defense, which is the case of Israel’s entry into the Golan Heights, and that this had implications for modifications of pre-war boundaries.

How do we know that Israel was not the aggressor in 1967? At that time, the Soviet Union undertook to obtain condemnation of Israel in the UN Security Council as the aggressor in the Six Day War. It failed, losing the vote by 11 to 4. The Soviets then went to the General Assembly and failed yet again. To use an American expression, how did Moscow get taken to the cleaners? It was as clear as day for the member states of both UN bodies that Israel had acted in self-defense.

As noted earlier, the critics of the Trump administration’s Golan decision also say that it represents a major shift in US Middle East policy. However that is not true. Starting in 1975, with the letter by President Gerald Ford to Prime Minister Yitzhak Rabin, the US wrote a series of letters in which it expressed its policy on the Golan Heights. Thus Ford wrote: “The US 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 be predicated on Israel’s remaining on the Golan Heights.”

The US kept the Ford commitment alive. In 1991, in the context of preparations for the Madrid Peace Conference, Secretary of State James Baker wrote a new letter to Prime Minister Yitzhak Shamir reconfirming the Ford letter. There was a third letter as well. During the Clinton administration’s work on negotiating the Hebron Protocol, Secretary of State Warren Christopher wrote a letter of assurances to Prime Minister Benjamin Netanyahu dated September 19, 1996, which recommitted the US yet again to the Ford letter.

These letters did not constitute formal recognition by the US of Israeli sovereignty over the Golan. But they did indicate that at some point in the future when it has “developed a final position in borders,” it could decide to give that recognition. That time has come. Sure it would have been nice if all this was happening in the context of an Israeli-Syrian peace treaty. But it has now been revealed the extent to which Syrian President Assad committed mass murder of his own citizens. Real peace is not in the offing. But the idea that the US would eventually recognize Israeli sovereignty on the Golan Heights survives. Under the Trump presidency, “Eventually” became today. In sum, Trump’s declaration was not a sharp break in US policy, but rather a fulfillment of that policy forty-four years after it was first articulated.

Perhaps the most important aspect of the US decision to recognize Israeli sovereignty over the Golan Heights emanates from its contribution to stability. Historically, Syria abused its Armistice Agreement from 1949 to 1967, by pounding Israeli farms and towns in the Galilee which were situated 1,700 feet below the Golan. Syria joined the Arab war coalition in 1967, further bankrupting the old Armistice system. It launched a surprise attack on Israel in 1973.

Today, the Syrian regime has allied itself with Iran, and has invited the Iranian armed forces and Shiite militias under its command to deploy themselves opposite Israel and the Golan Heights. General Qassam Suleimani, commander of the Qods Force of the Revolutionary Guards, has proposed that this force reach up to 125,000 men. The deputy commander of the Islamic Revolutionary Guards Corps stated in the summer of 2018 that he was awaiting orders to eradicate the “evil regime” of Israel. There is clearly an aggressor in Israel’s north with hostile intentions, called Syria, and a state that may be forced to defend itself – namely Israel.

Given these conditions, US recognition of Israeli sovereignty over the Golan is a diplomatic way of punishing the aggressor and rewarding the party who has been a victim of aggression. States that refuse to make that distinction are not only undermining Israel’s security, but are also weakening a key foundation stone of a future world order.