By Dr. Matthijs de Blois, Senior Fellow, thinc.

Executive summary

President Trump’s recent proclamation recognizing Israeli sovereignty over the Golan Heights has attracted much criticism. This criticism is often simplistic and unrealistic. The prohibition on the use of force to acquire territory is an important foundation of modern international law, but it does not mean that wars of aggression against a neighbouring state cannot have territorial consequences. A state, like Syria, that repeatedly uses force that infringes the territorial integrity of a neighboring state like Israel, should be subject to the risk of losing sovereignty over that territory used to perpetrate the aggressive acts or use of force against that neighboring state.

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Introduction

On 25 March 2019, US President Donald Trump signed a proclamation that the United States recognizes that the Golan Heights, a plateau separating Israel from Syria, Lebanon and Jordan in Israel’s north, are a part of the State of Israel. The text reads as follows:

“The State of Israel took control of the Golan Heights in 1967 to safeguard its security from external threats. Today, aggressive acts by Iran and terrorist groups, including Hizballah, in southern Syria continue to make the Golan Heights a potential launching ground for attacks on Israel. Any possible future peace agreement in the region must account for Israel’s need to protect itself from Syria and other regional threats. Based on these unique circumstances, it is therefore appropriate to recognize Israeli sovereignty over the Golan Heights. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim that, the United States recognizes that the Golan Heights are part of the State of Israel”.[1]

This step – a departure from previous US policy – was immediately met with fierce criticism from Syria, Iran and Russia.[2] It was also condemned by 14 of the 15 members of the UN Security Council, including the UK and Germany[3], and by Mrs. Federica Mogherini, the High Representative for Foreign Affairs and Security Policy of the EU, on behalf of all EU Member States.[4] A common element in these reprovals is that the Israeli claim to sovereignty over the Golan Heights (and therefore US recognition of that claim) is contrary to international law – the main argument being that, under the UN Charter, it is forbidden to acquire territory through the use of force. Below, we will subject this allegation to further scrutiny.

Russia’s and Iran’s objections to Israel’s alleged use of force are remarkable, to say the least, given that, together with Turkey, these states are using massive amounts of illicit force to gain control of territory and prop up a regime that is responsible for countless killings and millions of refugees – for which it  has been condemned by the international community –  and to secure expanded influence in the region of the Iranian regime – one of whose goals is the annihilation of Israel. Israel’s control of the Golan Heights since 1967, on the contrary, has resulted in relative stability and well-being for the civilian population.

Writing in late 2018 (i.e. before President Trump’s proclamation), Colonel Richard Kemp described the context of Israel’s control of the Golan Heights as follows:

“Syria is now and will remain for the foreseeable future under the domination of Iran. Through both actions and words, we know the Iranian ayatollahs are intent on aggression against the Jewish State. They are establishing a land corridor from Iranian territory through Iraq and Syria to Israel’s border and plan to link their forces in that area with Hezbollah’s strong offensive forces, including 100,000 rockets, in southern Lebanon. They have positioned their own forces and their proxies where they can threaten Israel and are intent on building these up and maintaining them in position for the long-term.

The Syrian government, as the civil war dies down and it reconstitutes its forces with Russian assistance, will itself threaten Israel at Iran’s behest; and Hezbollah and other Iranian proxy militias will also continue to do so. If these — or any other — malignant entities gain possession of the Golan Heights, the threats of cross-border indirect fire could well escalate, leading to the deaths of Israeli civilians and forcing Israel into an overwhelming response that would cause significant bloodshed. This would potentially draw southern Lebanon into a conflict that could easily explode into a regional war”.[5]

For Israel, control of the Golan Heights is thus of existential importance. This case raises fundamental questions as to how far the international law prohibition on the acquisition of territory by force – undoubtedly an essential foundation of the modern world order – is able to take account of the complex security issues raised by asymmetric conflict situations.

Of course, neither President Trump’s proclamation of 25 March 2019 nor Israel’s (implicit) acquiescence of that proclamation can of itself change the legal status of the Golan Heights. The real question raised by President Trump’s proclamation is whether (a) Israel’s acquisition of control over this territory in 1967, and/or (b) its subsequent retention of control of the territory and extension of Israeli law and jurisdiction to it were (or are) contrary to international law. That, as we shall explain, is a complicated question. First we will put the Golan Heights in context.

The Golan Heights prior to 1948

The Jewish people have historically had a close connection with the Golan Heights. They are situated in what the Bible refers to as the Bashan region, which in the time of Joshua and during the period of the kingdoms of Israel, was home to (part of) the tribes of Dan and Manasseh.[6] The region was ruled by the Hasmoneans in the 2nd century BCE and it was the theatre of the battle of Gamla during the Jewish uprising against the Roman empire in 67 CE. Jews continued to live there until the end of the Talmudic period (6th century CE). Under the Ottoman Empire (1517-1917), the Golan Heights, as well as Palestine, were part of the vilayet of Damascus. [7]

At their meeting in San Remo in 1920, the Allied Powers intended the Golan Heights to be part of the Mandate for Palestine, which, in turn, was intended for the reconstitution of the Jewish homeland. The Golan Heights were deemed to be part of the Mandate for Palestine, pursuant to the 1920 Franco-British Convention on Mandatory Borders, dated 23rd December 1920, establishing the boundary between the Palestine and Syrian mandates. This 1920 Convention was however, pursuant to its Article 2, subsequently amended by the “Paulet-Newcombe Agreement” in 1923 which placed the Golan Heights within the Syrian Mandate territory.[8] The Paulet-Newcombe agreement was an “Exchange of Notes” between the British and French dated March 1923, but containing the terms of the Franco-British Boundary Commission’s designation of the boundary on 3rd February 1922. These terms were therefore agreed upon before the adoption (in July 1922) by the League of Nations of the text of the Mandate for Palestine which, in its Preamble, referred to “boundaries as may be fixed by [the Principal Allied Powers]”. The Golan Heights were therefore, it would seem, finally excluded from the Mandate for Palestine and included in the Mandate for Syria. This means that, pursuant to the international law principle of uti possidetis juris under which the presumption is that the administrative boundaries of colonies, mandates and the like become the borders of the emerging state, the Golan Heights became a part of the State of Syria upon its independence in April 1946.[9]

Syrian aggression against Israel since 1948

On the very day Israel declared its independence on 14th May 1948, when the British Government ended its stewardship over the Mandate of Palestine, seven Arab states (Egypt, Iraq, Transjordan, Lebanon, Saudi Arabia, Syria and Yemen) simultaneously invaded the newly-created state.

The Syrian attacks within the borders of Israel began already in the night of 15th/16th May 1948, when, using the advantage afforded by the Golan Heights, it launched swift attacks on kibbutzim Ein Gev, Dagania, Sha’ar HaGolan and other areas west of the Sea of Galilee.  This represented the first military engagement between Israel and Syria and aggression initiated by Syria squarely within Israeli territory. The Syrian attacks were eventually repelled.

This first stage of the 1948 Arab-Israeli War, referred to generally as the 1947–1948 Civil War in Mandatory Palestine (though Israel named it its Independence War), ended with an Armistice Agreement creating a “no-man’s” land separating the two countries. Syria, however, controlled the Golan Heights, made up of a 480-square-mile volcanic (basalt) rock plateau perched above the Hula Valley to the west and Jordan Valley to the south. It rises gently from 600 feet in the south to 3,000 feet in the north, with abrupt escarpments dominating the valleys to the west and south.

Syria quickly turned the plateau into a huge network of bunkers and artillery positions. Ever since 1948, Syrian gunners, shooting at random and without provocation, would fire on Israeli fishermen plying their trade on the Sea of Galilee or at Israeli farmers in the Hula Valley below.[10]

Fast forward to almost twenty years later. In 1967, when Israel was attacked by Egypt, the Egyptians “lured” Syria into that war. As historical archives recall, “false Egyptian reports of a crushing Egyptian victory against the Israeli army and forecasts that Egyptian forces would soon be attacking Tel Aviv influenced Syria’s willingness to enter the war”.[11]

Syria started massive shelling and bombing again on Israel’s side of the Armistice Lines. Israel was forced by the difficult geography to fight a near-impossible war making it necessary to climb through canyons and valleys up the hills of the Golan Heights. “Israel continued its advance against the routed Syrians in 1967 until a defensible line was reached – a string of extinct volcano cones that commands strategic views of Damascus on one side and of all northern Israel on the other”.[12]

The next Syrian aggression against Israel occurred six years later. On 6th October 1973, during Yom Kippur, the holiest day of the Jewish calendar, a Syrian armoured force of 1,400 tanks backed by more than 1,000 artillery pieces and supporting air power began a coordinated assault along the 36-mile-long Israeli-Syrian border in the Golan Heights in the north of Israel. Israel had not provoked Syria nor threatened it. The aggressive attack coincided with a similar onslaught by Egyptian forces along the Suez Canal, suddenly forcing Israel to fight a two-front war. As military historians commented in real time: “Defeat seemed to be imminent for the state of Israel. The Syrians’ Soviet-style massive frontal assault was too much to bear, and the Israeli front lines had already collapsed”.[13]

On the Egyptian front there was still some geographic depth provided by the Sinai desert. In the north, however, it became clear that if Israel had not held on to the Golan Heights, Israel would in all probability have been destroyed in 1973.

Following the 1973 Yom Kippur War, Israel agreed to return about five percent of the territory to Syrian civilian control. A de-militarized zone was created, which extends eastward from the cease-fire lines and today remains under the military control of UN peacekeeping forces (UNDOF).

Construction of Israeli settlements began in the remainder of the territory held by Israel, which was governed under military administration until 14th December 1981, when Israel passed the Golan Heights Law, extending Israeli law and administration throughout the territory. It would appear that Israeli law considers the Golan Heights to be part of Israel.[14]

International Law and the Golan Heights

Days after the promulgation of the Golan Heights Law, it was condemned by the UN Security Council in Resolution 497 (1981), according to which, “the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect”. The Council observed that “the acquisition of territory by force is inadmissible, in accordance with the United Nations Charter, the principles of international law, and relevant Security Council resolutions”. The principle of the inadmissibility of the acquisition of territory by force was earlier mentioned in Resolution 242 (1967), adopted by the Security Council after the Six-Day War, in which Israel brought the Golan Heights under its control.

The High Representative of Foreign Affairs of the EU mentioned both Resolutions (242 and 497) in her response to President Trump’s Proclamation referred to above. This principle of the inadmissibility of the acquisition of territory by force was also at the heart of the fierce criticism of President Trump’s Proclamation (to recognize Israel’s sovereignty over the Golan Heights). For example, in an article published in Haaretz, pro-Palestinian advocate and former PLO adviser Victor Kattan accuses the US President of “[legitimizing] Israel’s illegal conquest of occupied territory”[15]. This title reflects a deep-seated belief that Israel’s acquisition of control over territory in 1967 was somehow “illegal”. As we shall see, that is an unfounded allegation.

A number of international lawyers have objected to President Trump’s recognition of Israeli sovereignty over the Golan Heights.[16] The core argument is that the acquisition of territory as such, even in defensive wars, has been prohibited by international law since 1945 as expressed in the UN Charter of 1945 and in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970).[17] “The Golan is Syrian territory, and you don’t acquire territory from another state in a defensive war”, said Professor Robbie Sabel, Professor of International Law at the Hebrew University and former legal adviser to Israel’s Foreign Ministry, as quoted in an article by Raphael Ahren in Times of Israel on 28th March.[18] “The fact that you’re acting in defence gives you the right to occupy enemy territory. It doesn’t give you the territory… The only way to get sovereignty over the Golan Heights is via an agreement with Syria, or if time passes and nobody objects to it. But people do object to it”.

In our view, the position of Israel and the US on the Golan Heights deserves a more nuanced approach. We need to distinguish between the acquisition of sovereignty over territory, and the acquisition of control of territory. Focusing first on sovereignty, let us assume – for the sake of argument – that international law today does not permit acquisition of sovereignty over territory even in a defensive war. That does not mean that the question of the legitimacy of the extension of Israeli sovereignty over the Golan Heights is thereby decided. Under international law, the question of whether Israel acquired sovereignty over the Golan Heights has to be judged by international law as it stood in 1967, when Israel acquired control over the Golan Heights. Did international law at that time categorically rule out the acquisition of territory by force? Indeed then, as it is the case today, the general framework was provided for by the UN Charter. It is clear from its Article 2(4) that aggression against the territorial integrity or political independence of another state is prohibited. As a consequence, the acquisition of conquered territory by an aggressor state is clearly contrary to international law.

At the same time, the UN Charter does not forbid all acts of force. For example, Article 51 of the Charter confirms the inherent right of States to self-defence. The Charter itself clearly makes a distinction between a war of aggression and a defensive war. It seems that it was more easily accepted in 1967 that this could have consequences for the legal status of the territory concerned. As former International Court of Justice (ICJ) President Stephen Schwebel noted, a few years after the Six-Day War, the principle of the inadmissibility of acquisition of territory by war must be seen in light of the general principle of international law, which states that rights cannot be obtained through injustice (ex iniuria non oritur).[19] More specifically on the Golan Heights (and Sinai) as a territory under unquestioned Arab sovereignty in 1949, he observes 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”.[20]

Professor Eugene Kontorovich observes that there are good reasons to assume that, in 1967, under international law, defensive conquest was not against the prohibition of the acquisition of territory by war, or at least that there was no consensus on that point.[21] It is common knowledge that after the Second World War the acquisition by Poland and the USSR, for example, of substantial parts of the territory of the aggressor State, Nazi-Germany, was not criticised as being in violation of international law as expressed in the UN Charter (of 1945). On the contrary. In the International Law Commission, these annexations were seen “as evidence of, rather than violations of, international law”.[22]

Kontorovich observes: “There is evidence … that the U.N. Charter-based principle against conquest, at least as understood within the U.N. before 1967, did not prohibit the acquisition of territory in a non-aggressive war”.[23] He also notes that there was diversity of opinion on the issue among the leading authors of international law in those days: Sir Hersch Lauterpacht[24] maintained that lawful force could lead to lawful territorial change, while Sir Robbert Jennings[25] disagreed with him.[26] Maybe only after the adoption of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations in 1970, a rule of international law began to emerge. This law provides that: “No territorial acquisition resulting from the threat or use of force shall be recognized as legal”.

Applying the foregoing to the case of the Golan Heights: After the armistice agreement between Israel and Syria, concluded in 1949, the Golan Heights had been fortified by Syria. Between 1949 and 1967, attacks were launched from there continuously on villages and kibbutzim in the north of Israel. Syrian presence on the Golan Heights appeared to be a permanent threat to the security of Israel. In June 1967, Israel was the victim of aggression by Arab states, among them Syria, and it had to defend itself. Israel emerged victoriously from the Six-Day War and captured the Golan Heights. This is a clear example of a defensive conquest. Kontorovich even notes that the Golan Heights case is “one of the only examples of colourable [i.e. unambiguous – ed.] defensive conquest since World War II”.[27] And as we explained, under the international law as it stood in 1967, it was not ruled out that this could lead to a legitimate acquisition of territory.

This view is supported by one of the principles referred to in Resolution 242 (1967) adopted by the UN Security Council after the Six-Day War, namely the right of every State in the area to live “in peace within secure and recognized boundaries”. History has made it abundantly clear that neither the 1922 Palestine/Syria boundary nor the 1949 Israel/Syria Armistice Line is a “secure boundary”, nor would Syrian control of the Golan Heights, in the foreseeable future, result in peace. In the light of this, it is arguable that Israel has a potentially valid claim to sovereignty over the Golan Heights and that recognition of that sovereignty by the US is therefore justified.

But does international law, today, prohibit any acquisition of sovereignty involving use of force? This raises a fundamental issue that seems largely to be ignored in the academic discussion. Application of the principle prohibiting acquisition of territory by force indiscriminately to territorial acquisitions in both aggressive and defensive wars, without adequate regard for the context, would arguably have an absurd and highly-undesirable result. Instead of promoting peace and friendly relations, it would effectively amount to an encouragement of aggression, as the ‘cost’ of aggression would in any case not be the loss of territory. Countries, like Syria, that launch successive but hitherto unsuccessful aggressive wars against their neighbours with the intention of annihilation, and lose part of their own territories in the process, would be encouraged to maintain their state of belligerence in order to regain the lost territory. This rule would also incentivize them to refuse any compromise in negotiations for final-status agreement on the status of those territories. Such a consequence would surely be at odds with the Charter of the UN[28], and therefore such a rule would be of questionable authority.

But there is another important reason why Israel’s continued control of the Golan heights is justified. The US President in his March 2019 proclamation did not refer to defensive acquisition as the argument for a legitimate title to Israel’s sovereignty over the Golan Heights. Rather, his core argument was that “aggressive acts by Iran and terrorist groups, including Hizballah, in southern Syria continue to make the Golan Heights a potential launching ground for attacks on Israel”. In other words, President Trump argued that the reason Israel’s sovereignty should be recognized is that Israel’s security, and maybe even its very existence, would be seriously threatened in the event that control of the Golan Heights would be returned to Syria.

Even if the claim that the Golan Heights are part of the sovereign territory of Israel is at odds with international law, there can be little doubt that Israel’s continued control and administration of the territory is justified under international law. Under international law, in exceptional cases, a breach of international law will not lead to responsibility of the State concerned. This includes cases where a ‘state of necessity’ can be invoked[29]. For example, in the most recent formulation by the International Law Commission, this is the case when the way the State acts: “(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole”[30].

Israel’s decision to extend its law and jurisdiction to the Golan Heights should be seen in this perspective. Having regard to both the historical developments since the establishment of the State of Israel and the present situation, there can be no doubt that Israel’s control of the Golan Heights is essential to protect itself against a grave and imminent peril. Recent events in Syria, including the growing influence and military presence of Iran – a State that deliberately aims for the destruction of Israel – only underline the existence of a ‘state of necessity’.

Moreover, it cannot reasonably be argued that Israeli control of the Golan Heights impairs the essential interests of Syria, or of the international community as a whole. On the contrary: the continuation of Israeli control of the Golan Heights will only serve the interests of stability and security in the region. It can even be argued that the continued protection of the rights, security and well-being of the inhabitants of the Golan Heights – not only the Jews but also the Druze, who live in constant fear of the regime in Damascus – will be much better guaranteed under Israeli rule than it would be under the Syrian government.

Respecting Israeli jurisdiction over the Golan Heights is, to use the words of Schwebel, necessary in order to give “such weight … to defensive action as is reasonably required to ensure that such Arab territory will not again be used for aggressive purposes against Israel”[31]. Given Syria’s consistent history of aggression against Israel since 1949, and the current complex balance of powers in the region, those words are even more true today than they were in 1970. As Ambassador Alan Baker observed: “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”[32]. Therefore, the criticism of both the Israeli claim and the recognition thereof by US President Trump can be refuted.

Conclusions

The question of whether Israel validly acquired territorial sovereignty over the Golan Heights in 1967 has to be assessed in light of international law as it stood in June 1967. It appears that the law at that time was indeterminate, and it is therefore not possible to state categorically whether or not Israel acquired sovereignty over the Golan Heights at that time. There are, however, good arguments to support the view that international law in 1967 did not rule out the possibility of a state acquiring sovereignty over territory as a result of a defensive war. This defensive war erupted after a thirty-year period of recurring shelling from Syria on the civilian population of northern Israel; Israel sought to reach and maintain defensible borders, and had no territorial expansion aspirations per se.

A “one size fits all” rule prohibiting the possibility of a defensive state acquiring sovereignty over territory – to any extent, in any circumstances – conflicts with the UN Charter’s objective of “maintaining peace and security” and “developing friendly relations between nations”. On the contrary, it only encourages countries, like Syria, that launch aggressive wars against the territorial integrity of their neighbours to maintain their state of belligerence in order to regain lost territory. It also incentivizes them to refuse any compromise in the negotiations for resolution of the status of those territories. That is surely not what the UN Charter intended. A state that gains control of territory in a defensive war should be entitled to gain sovereignty of that territory to the extent that such a transfer of sovereignty is necessary to ensure that the aggressive state does not continue to threaten or use force against the territorial integrity of the defensive state.

International law seems to be clearer when it comes to Israel’s right to administer the Golan Heights on the basis of its legitimate security needs. Syria’s consistently aggressive attitude towards Israel, together with recent events in Syria, including the growing influence and military presence of Iran, and the unabated arming of terrorist groups to use Syria as a launching pad for attacks, only underline the existence of a ‘state of necessity’. Israel’s full control of the Golan Heights is necessary in order to ensure that this territory will not be used for aggressive purposes against Israel – neither by Syria itself nor by the various foreign proxies “hosted” by that country. This conclusion is, in our view, consistent with international law as it currently stands, and constitutes good legal policy.

Acknowledgement

The author acknowledges the valuable contributions of Andrew Tucker[33], Gabriele Kuchenbecker[34] and Chaim Even-Zohar[35].

References

[1] Proclamation on Recognizing the Golan Heights as Part of the State of Israel, March 25, 2019.

[2] https://www.cufi.org/syria-russia-and-iran-condemn-us-recognition-of -israeli-sovereignty-over-golan/

[3] https://www.ynetnews.com/articles/0,7340,L-5485826,00.html

[4] https://www.consilium.europa.eu/en/press/press-releases/2019/03/27/declaration-by-the-high-representative-on-behalf-of-the-eu-on-the-golan-heights/

[5] Colonel Richard Kemp, “In the name of peace, it is time to accept Israel’s possession of the Golan Heights”, 2nd October 2018 https://richard-kemp.com/in-the-name-of-peace-it-is-time-to-accept-israels-possession-of-the-golan-heights/

[6] Joshua 13:29-30, 17:1 and 19:47-48.

[7] Efraim Inbar, Israeli Control of the Golan Heights: High Strategic and Moral Ground for Israel, Mideast Security and Policy Studies No. 90, The Begin-Sadat Center for Strategic Studies, September 2011, p.6

[8] Agreement between His Majesty’s Government and the French Government respecting the Boundary Line between Syria and Palestine from the Mediterranean to El Hamme, 7 March 1923. League of Nations Treaty Series No.56 (1924). For the argument that this Agreement was in breach of the Mandate for Palestine, pursuant to article 5 of which “no Palestine territory” was to be transferred to or placed under the control of a foreign power, see Howard Grief, The Legal Foundation and Borders of Israel under International Law, Jerusalem: Mazo Publishers, 2008, pp. 45-66.

[9] See Malcolm N. Shaw, “The Heritage of States: The Principle of Uti Possidetis Juris Today” British Yearbook of International Law, Vol. 67, No.1, January 1997, pp. 75-154.

[10] See https://www.historynet.com/yom-kippur-war-sacrificial-stand-in-the-golan-heights.htm

[11] See https://idf-armor.blogspot.com/2012/01/golan-heights-1967-six-days-war.html

[12] See https://www.historynet.com/yom-kippur-war-sacrificial-stand-in-the-golan-heights.html

[13] See https://www.historynet.com/yom-kippur-war-sacrificial-stand-in-the-golan-heights.htm

[14] Asher Maoz, Application of Israeli Law to the Golan Heights is Annexation, Brooklyn Journal of International Law, Volume 20, 1994, Issue 2, 355-396; Louis René Beres and Zalman Shoval, On Demilitarizing a Palestinian “Entity” and the Golan Heights: An International Law Perspective, Vanderbilt Journal of Transnational Law, Volume 28, November 1995, Number 5, 959-971. See for a different opinion Leon Sheleff, Application of Israeli Law to the Golan Heights is not Annexation, Brooklyn Journal of International Law, Volume 20, 1994, Issue2, 333-353.

[15] Victor Kattan, ‘Donald Trump Has Just Legitimized Israel’s illegal conquest of occupied territory’, Haaretz 25 March 2019.

[16] See Noa Landau, Legal Experts Debunk Netanyahu’s Golan Heights Claim: Annexation Can’t Be Excused by Defensive War, Haaretz 31 March 2019.

[17] UN General Assembly Resolution 2625 (XXV) of 24 October 1970.

[18] https://www.timesofisrael.com/?p=2045340

[19] Stephen M. Schwebel, Justice in International Law. Selected Writings of Judge Stephen M. Schwebel, Cambridge University Press 1994, p. 523. The article was originally published in the American Journal of International Law (1970) 64.

[20] Ibidem, 524.

[21] Eugene Kontorovich, ‘Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal’, Chicago Journal of International Law, Vol.16, 2015: No. 1, Article 6, 127-150.

[22] Ibidem, at 145.

[23] Ibidem, at 140.

[24] Sir Hersch Lauterpacht was one of the leading international lawyers of the twentieth century. He was Whewell Professor of International Law at Cambridge University, Queen’s Council, and Judge at the International Court of Justice.

[25] Sir Robert Jennings succeeded Lauterpacht as Whewell Professor of International Law at Cambridge University, was also Queen’s Council, and Judge (and later President) at the International Court of Justice.

[26] Eugene Kontorovich, ‘Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal’, Chicago Journal of International Law, Vol.16, 2015: No. 1, Article 6, at 146.

[27] Ibidem, at 140.

[28] See also Eugene Kontorovich, International Law and the Recognition of Israeli Sovereignty in the Golan Heights, Prepared written Testimony before the U.S. House of Representatives, Committee on Oversight, Subcommittee on National Security, July 17, 2018.

[29] M.N. Shaw, International Law, Second Edition, Cambridge: Grotius Publications Limited, 1986, p. 419.

[30] International Law Commission, Responsibility of States for Internationally Wrongful Acts, 2001, Article 25 (1).

[31] Stephen M. Schwebel, Justice in International Law. Selected Writings of Judge Stephen M. Schwebel, Cambridge University Press 1994, p. 524.

[32] Amb. Alan Baker, U.S. Recognition of Israeli Sovereignty over the Golan Heights: Some Legal Observations, Jerusalem Issue Briefs, Vol. 19, No. 6, March 31, 2019.

[33] Director, thinc.

[34] Research Associate, thinc.

[35] A retired Israeli investigative journalist, mostly known for covering the international diamond mining, trading and manufacturing industries. Served in his career also as an Economic Officer in the Israeli Embassy in Washington and as executive at AIPAC. Chaim Even-Zohar has published several Israel foreign policy-related analyses and authored books i.a. on terrorist financing and anti-money laundering laws.

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4 Comments

  1. To underscore the security argument, it is worthwhile to note that out of all Israeli left and right-wing prime ministers, it was Benjamin Netanyahu who [if I may quote Ha’aretz columnist Uri Misgav] “made a notable effort to return [the Golan Heights] to the Syrians. He is the only Israeli leader who had contacts with both Assad senior and junior. These were advanced contacts, with American mediation, on the basis of a withdrawal to the June, 4, 1967 lines.”

    “Netanyahu is also the only prime minister who left Assad senior with a detailed, two-page draft agreement for such a withdrawal. The envoy [Netanyahu] dispatched on this mission, billionaire Ron Lauder, confirmed in a letter to President Bill Clinton, that this was the agreement. Netanyahu’s contacts with Assad junior were only halted upon the outbreak of the Syrian civil war in 2011,” writes Misgav in his June 20, 2019 column.

    Irrespective of valid historical claims on the Golan Heights, this further underscore that security interests remain the paramount Israeli argument for keeping it in Israeli hands. President Donald Trump’s “present” to Netanyahu to assure the latter’s continuous “rule” over Israel – an effort that failed in the April 2019 elections – does not change that fundamental reality: if there would be a chance for a lasting peace with Syria, the Golan heights will not be the greatest obstacle.

    There is no ideological motivation: there are no sacred or holy sites to protect. From any perspective, it is quite “undesirable” real estate – and the fact that in well over half a century few Israelis moved to live there, speaks for itself. Except for tourism, there is little economic activity. When news leaked out that Netanyahu was actually considering returning the Golan heights, the opposition to such move came from the left-wing opposition, citing security needs.

    The recently announced “Trump Heights” settlement will undoubtedly remain not much more than a huge name plate. There are no building plans, no funds have been allocated, there is no economic activity for future residents to engage in. To state it bluntly: there is no demand that would justify establishing such a place.

    The huge name-sign will undoubtedly outlast the Trump presidency – and then become a nice tourist attraction and become just a further tale to tell about the history of the Golan Heights. As a peace agreement with Syria, which would involve setting a permanent mutually agreed border, remains as unachievable as ever, the current status quo is likely to continue for many years – and that’s just hoping that Israeli security considerations – and further hostilities — will not require Israel to expand even more eastwards.

    Chaim Even-Zohar

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