U.S. recognition of Israeli sovereignty over the Golan Heights: Some legal observations
By Amb. Alan Baker
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:
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 State” in which the U.S. Supreme Court held that:
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:
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:
According to a decision by the Arab League:
UN Security Council Resolutions 242 (1967) and 338 (1973)
UN Security Council resolution 242 (1967) 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) 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”.
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.
This legislation was accompanied by an assurance, conveyed in Israel’s Knesset by Prime Minister Begin, as well as by Israel’s UN ambassador in a communication to the Secretary-General of the UN, according to which:
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:
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.
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.
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.