U.S. Recognition of Golan Heights Annexation: Testament to Our Times

VICTOR KATTAN

On 25 March 2019, U.S. president Donald Trump signed a proclamation recognizing the occupied Golan Heights as part of Israel. The Golan Heights proclamation, which endorses Israel’s annexation of the territory captured from Syria in the 1967 war, was issued two weeks before the Israeli general election in a photo-op with Prime Minister Benjamin Netanyahu at the White House. Undermining internationally agreed-upon norms prohibiting states from recognizing the annexation of territory by force, the proclamation could have detrimental consequences for the international legal order, providing a precedent for other states to take steps to annex territory they claim is necessary for their defense.

ON 25 MARCH 2019, U.S. president Donald Trump signed a proclamation recognizing the Golan Heights—captured from Syria in the 1967 war—as part of the State of Israel.1 The decision to recognize the annexation was justified in the following words: “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 [Hezbollah], 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.”2 At a press conference the following day, Secretary of State Michael Pompeo was asked whether he was disappointed by the reactions of the United Nations (UN) secretary-general, Canada, Turkey, and the Gulf States, all of which condemned the U.S. decision. Pompeo responded: “Well, I’m saddened by that but not surprised. I remember the move to Jerusalem of our embassy as well. In each case, we’re simply recognizing facts on the ground and the reality and doing the right thing. We hope those nations will join us to understand how important that is, how right it is, and we are continuing to have conversations with—you mentioned a handful of countries—with each of them about this issue, about our decision and why we believe this is fundamentally the right decision as well.”3 After expressing his disappointment at the reaction of other countries, Pompeo took another question from a reporter who asked whether the United States was setting a precedent for powerful countries to take over land in violation of international law. The secretary of state appeared taken

Journal of Palestine Studies Vol. XLVIII, No. 3 (Spring 2019), p. 79, ISSN: 0377-919X; electronic ISSN: 1533-8614. © 2019 by the Institute for Palestine Studies. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press’s Reprints and Permissions web page, http://www.ucpress.edu/journals.php?p=reprints. DOI: https://doi.org/10.1525/jps.2019.48.3.79.

Spring 2019 || 79 U.S. Recognition of Golan Heights Annexation: Testament to Our Times aback by the question, but his response was as illuminating as it was disturbing: “Yes, ma’am, that’sa good question. The answer is absolutely not. This is an incredibly unique situation. Israel was fighting a defensive battle to save its nation, and it cannot be the case that a UN resolution is a suicide pact. It simply can’t be, and that’s the reality that President Trump recognized in his executive order yesterday.”4 Pompeo did not identify which UN resolution he was referring to, but only three resolutions are germane to the Golan: UN Security Council resolutions (UNSCR) 242 and 338 (of 1967 and 1973, respectively), calling for the withdrawal of Israeli armed forces from East Jerusalem, the West Bank, the Gaza Strip, and the Golan Heights, which Israel occupied in 1967; or UNSCR 497 (1981) calling on states not to recognize Israel’s annexation of the Golan that year. Describing any of these resolutions as a “suicide pact” is disturbing not only for what that implies, but also because the United States voted in favor of all three resolutions. U.S. recognition of the occupied Golan Heights as Israeli territory (and the argument advanced to support it) also sets a dangerous precedent that could have consequences for other territorial disputes. Just think of China’s claim to the islands in the South China Sea or to Aksai Chin in Jammu and Kashmir. How can President Trump square his decision to recognize the Golan Heights as part of Israel when the U.S. government strongly condemned Russia’s annexation of the Crimea? How would the United States or the European Union react were the Arab states to recognize the independence of the Turkish Republic of Northern Cyprus and establish diplomatic relations with it—despite UN Security Council (UNSC) condemnation? The decision to recognize Israel’s annexation of the Golan Heights is one of a series of Trump administration reversals of long-standing U.S. policies, including those regarding Jerusalem and Palestinian refugees.5 Together with other punitive measures directed against the Palestinians and the Palestinian Authority, the decision makes a mockery of any pretense of evenhandedness in U.S. policy on the Arab-Israeli conflict. The move has already encouraged annexationist tendencies in Israel, where calls to annex parts of the West Bank are growing ever more strident and were used as election bait in the run-up to Israel’s general election on 9 April.6 This commentary begins by revisiting the reaction of the international community to Israel’s seizure of the Golan in June 1967 and its annexation in 1981 before examining the UNSC debate that condemned Trump’s declaration.

The June 1967 War and the Nonacquisition of Territory by Force

The claim that Israel’s actions were “defensive” in June 1967 has, of course, never been accepted by most countries, and is perverse, as the war began with a preemptive Israeli strike on air bases in Egypt prior to the widening of the conflict with Syria and Jordan.7 In any event, the annexation of territory, even in a war of self-defense, is contrary to international law. Self-defense is an exculpatory plea that may be invoked to respond to an attack. It is an exception to the prohibition on the use of force in Article 2 (4) of the UN Charter. It cannot be invoked to acquire territory, only to hold it temporarily, until the attack has been repelled. In June 1967, when Israel occupied East Jerusalem, the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula, the UNSC adopted a score of resolutions, including 242.8 In the

80 || Journal of Palestine Studies U.S. Recognition of Golan Heights Annexation: Testament to Our Times debate on the adoption of that resolution, numerous member states insisted that the acquisition of territory by war was contrary to international law.9 Some states, like India, went further and demanded “total withdrawal of Israel forces from all the territories . . . occupied by Israel as a result of the conflict which began on 5 June 1967.”10 The argument was additionally made that Israel could not use the words “secure and recognized boundaries,” contained in the draft “to retain any territory occupied in the recent conflict.”11 Shortly after the representative of India made this statement, the UNSC unanimously adopted resolution 242, which emphasized “the inadmissibility of the acquisition of territory by war.” The resolution called for the withdrawal of Israel’s armed forces and for the termination of all claims or states of belligerency, as well as respect for and acknowledgment of the sovereignty, territorial integrity, and political independence of every state in the area, including the right to live in peace within secure and recognized boundaries free from threats or acts of force. After the resolution was adopted, several officials elaborated on the vote they cast for their countries. The representative of France expressed his government’s view that the withdrawal of Israel from “des territories occupés” was an essential part of the text and left little room for ambiguity.12 The permanent representative of the Soviet Union said his country had voted for the United Kingdom draft resolution, as interpreted by the representative of India, whose views it shared.13 He added:

In the resolution adopted by the Security Council, the “withdrawal of Israel[i] armed forces from territories occupied in the recent conflict” becomes the first necessary principle for the establish- ment of a just and lasting peace in the Near East. We understand the decision taken to mean the withdrawal of Israel[i] forces from all, and we repeat, all territories belonging to Arab States and seized by Israel following its attack on those States on 5 June 1967. This is borne out by the pre- amble to the United Kingdom draft resolution [which became resolution 242] which stresses the “inadmissibility of the acquisition of territory by war.” It follows that the provision contained in that draft relating to the right of all States in the Near East “to live in peace within secure and rec- ognized boundaries” cannot serve as a pretext for the maintenance of Israel[i] forces on any part of the Arab territories seized by them as a result of war.14

The representative of Brazil affirmed “the general principle that no stable international order can be based on the threat or use of force, and that the occupation or acquisition of territories brought about by such means should not be recognized. The validity of this rule cannot be contested and is not being challenged by anyone around this table.”15 With the latest U.S. decision to recognize Israel’s annexation of the Golan Heights and declare it Israeli territory, the validity of the rule that the acquisition of territories cannot be brought about by the threat or use of force is now being challenged by the Trump administration.

October 1973 War, Nonacquisition of Territory by War, 1981 Golan Annexation

During the October 1973 war, the UNSC responded to the attempt by Egypt and Syria to recover the Sinai Peninsula and the Golan Heights, which they had lost in June 1967, by demanding the

Spring 2019 || 81 U.S. Recognition of Golan Heights Annexation: Testament to Our Times implementation of resolution 242 “in all its parts.”16 Following that war, Israel withdrew from additional Syrian territory its forces had captured beyond the 1967 armistice lines, including the devastated town of Qunaytra, and a UN Disengagement Observer Force was established to maintain the ceasefire.17 However, Israel refused to withdraw from the rest of the Golan Heights. It insisted that it would only do so following the conclusion of a peace treaty with Syria. Eight years later, on 14 December 1981, the Israeli Knesset adopted the Golan Heights Law, extending Israeli law to the region, which was annexation in all but name.18 Three days later, the UNSC adopted resolution 497, which determined that Israel’s decision “to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect.”19 The resolution also called on Israel to rescind the law that purported to annex the Golan. The resolution was adopted unanimously. Significantly, during the 1981 debate on UNSCR 497, Israel’s representative, a learned international lawyer who authored a leading text on historic titles in international law,20 did not advance a legal justification for the adoption of the law extending Israeli sovereignty to the Golan. He merely said that given Syrian hostility toward its existence, Israel was entitled to remain in the Golan.21 In contrast, the U.S. representative expressed his government’s opposition to the action taken by Israel’s legislature purporting to extend permanent Israeli control over the occupied Golan. The official made clear that his government did “not accept as valid unilateral acts designed to alter the status of the territories occupied by Israel in the 1967 conflict.”22

Nonrecognition of Trump’s Golan Annexation Proclamation

Much water has passed under the bridge since 1981: Israel completed its withdrawal from the Sinai Peninsula in the context of a peace treaty with Egypt; it recognized and reached an interim agreement with the Palestine Liberation Organization in 1993 but has yet to withdraw from the occupied Palestinian territories (oPt); and it signed a peace treaty with Jordan in 1996. The regime of Saddam Hussein was overthrown during the U.S.-led invasion of Iraq in 2003. Muammar Gaddafi was killed during the North Atlantic Treaty Organization intervention in Libya in 2011. Uprisings have shaken the regimes in Egypt and Bahrain. Syria has been engulfed, since 2011, by a horrific civil war that has killed hundreds of thousands of civilians and soldiers, while Yemen is the scene of a bloody civil war and extensive external military intervention. And in December 2017, President Trump upended decades of U.S. policy by recognizing Jerusalem as Israel’s capital. During the 27 March 2019 UNSC debate, fourteen of the fifteen members expressed their opposition to President Trump’s recognition of the Golan Heights as Israeli territory.23 The Russian Federation made short shrift of the U.S. security justification for its decision by pointing out that the situation in the Golan Heights had been “stabilized” since the summer of 2018 as a result of measures taken by the Russian (and Syrian) governments near the demilitarized zone.24 Yet despite the welcome criticism of President Trump’s recognition of the Golan Heights as Israeli territory, it was strange to see Russia taking the moral high ground in the UNSC, in light of its government’s annexation of the Crimea in a move that was universally condemned. In a further twist, days after President Trump issued his proclamation, Russian president Vladimir Putin invited Israeli prime minister Benjamin Netanyahu to Moscow for a publicity boost a week before

82 || Journal of Palestine Studies U.S. Recognition of Golan Heights Annexation: Testament to Our Times the Israeli elections. When two superpowers go out of their way to court Israel, a rap on the knuckles from some members of the UNSC hardly amounts to a stern rebuke. Although on the face of it the debate reinforced the fundamental principle that the annexation of territory is contrary to international law and that states should not recognize the fruits of conquest, there was a palpable sense that the mood in the UNSC had changed. The change was not in regard to the law, which is clear when it comes to the prohibition of annexation, but because some states’ representatives were clearly uncomfortable about having to uphold this basic rule when it meant that they had to defend the sovereign rights of the Syrian regime that they viewed as a pariah.25 It would appear that the conflicts in the Arab world since 2011, combined with the continued neglect of the Middle East peace process, are having a disturbing impact on international relations, imperiling an international legal order that can only be as healthy as the policies of the governments tasked with upholding it. If governments pay the UN Charter only lip service, there is the danger that complaints about its violation will increasingly be seen as insincere. In many ways, President Trump’s recognition of the Golan Heights as Israeli territory was even more dangerous than his equally problematic decision to recognize Jerusalem as Israel’s capital.26 Hitherto, Israel had never articulated a legal basis—beyond self-defense—for retaining the territory. Unlike the oPt, the Golan Heights was never part of the British Mandate for Palestine. It was never promised by the League of Nations to the “Jewish people” as part of a national home. It was never mentioned in the UN’s 1947 partition plan. It was part of the Syrian Arab Republic before it was captured, and prior to that it had been under the jurisdiction of the French Mandate for Syria. Perhaps this explains why Israel’s representative introduced a new argument in respect of retaining the Golan during the 27 March UNSC debate. “The Jewish people’s roots in the Golan Heights go back thousands of years,” he said. “The Golan is mentioned in the Tanakh—the Bible—multiple times.”27 To articulate such a view in the twenty-first century is disconcerting: biblical scripture is now being invoked by Israel as a justification not only for its annexation of Jerusalem and prospective annexation of all or part of the West Bank, but also its annexation of the Golan Heights. And why stop there? Once upon a time, an argument this far-fetched would have been dismissed out of hand. That it is now being openly made by Israel and entertained by the Trump administration is a testament to the times we live in. Another is the fact that shortly after President Trump issued his proclamation recognizing the Golan Heights as part of Israel, Secretary of State Pompeo expressed agreement with his interviewer on the Christian Broadcast Network that God had “raised” Donald Trump to be president in order to protect Israel.28 We live in strange times indeed when a senior U.S. official can say such a thing publicly. We live in even stranger times when a pusillanimous “international community” can only issue a minor rebuke regarding something so serious as the flouting of a fundamental tenet of the international legal order that (despite all its defects) has successfully prevented the outbreak of a third world war since 1945.

About the Author Victor Kattan is a senior research fellow for the Middle East Institute at the National University of Singapore (NUS) where he heads the Transsystemic Law Cluster. He is also an associate fellow of NUS Law and a member of Temple Garden Chambers in London.

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ENDNOTES

1 Donald J. Trump, “Proclamation on Recognizing the Golan Heights as Part of the State of Israel,” White House statement, 25 March 2019, https://www.whitehouse.gov/presidential-actions/ proclamation-recognizing-golan-heights-part-state-israel/. 2 Trump, “Proclamation on Recognizing the Golan Heights.” 3 Michael R. Pompeo, “Remarks to the Press,” U.S. State Department, 26 March 2019, https://www. state.gov/secretary/remarks/2019/03/290669.htm. 4 Pompeo, “Remarks to the Press.” 5 On Jerusalem, see Victor Kattan, “Why U.S. Recognition of Jerusalem Could Be Contrary to International Law,” 47 no. 3, JPS (Spring 2018): pp. 72–92. On U.S. policy toward the refugees, see Francesca P. Albanese, UNRWA and Palestine Refugee Rights: New Assaults, New Challenges (Washington, DC: Institute for Palestine Studies, 2018). 6 See Victor Kattan, “Annexing the West Bank: Why We Must Take Netanyahu’s Pre-election Stunt Seriously,” Haaretz, 7 April 2019, https://www.haaretz.com/israel-news/elections/.premium- annexing-the-west-bank-why-we-should-take-netanyahu-s-pre-election-stunt-seriousl-1.7090313. See also, Commanders for Israel’s Security, Ramifications of West Bank Annexation: Security and Beyond (New York: Israel Policy Forum, 2019), https://indd.adobe.com/view/acfbc290-e96b-44f9- 8617-58052a785c68. 7 See John B Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War (Cambridge: Cambridge University Press, 2013). 8 UN Security Council, Resolution 242, Middle East (22 November 1967). 9 See, for example, the statement by the representative of the United Kingdom, UN Security Council, Official Records, 1381st meeting, UN Doc. S/PV.138, p. 3, ¶ 20 (20 November 1967). 10 Statement by the representative of India, UN Security Council, Official Records, 1382nd meeting, UN Doc. S/PV.1382, pp. 6–7, ¶ 52 (22 November 1967). 11 Statement by the representative of India, UN Security Council, Official Records, 1382nd meeting, UN Doc. S/PV.1382, p. 7, ¶ 53 (22 November 1967). 12 UN Security Council, Official Records, 1382nd meeting, UN Doc. S/PV.1382, p. 12, ¶ 111 (emphasis in original). On the controversy over the missing definite article before “occupied territories” in the English text of the resolution, see John McHugo, “Resolution 242: A Legal Reappraisal of the Right- Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict between Israel and the Palestinians” in The Palestine Question in International Law, ed. Victor Kattan (London: British Institute of International and Comparative Law, 2008), pp. 357–87. 13 UN Security Council, Official Records, 1382nd meeting, UN Doc. S/PV.1382, p. 12, ¶ 118 (22 November 1967). 14 UN Security Council, 1382nd meeting, Official Records, UN Doc. S/PV.1382, pp. 12–13, ¶ 119 (22 November 1967). 15 UN Security Council, Official Records, 1382nd meeting, UN Doc. S/PV.1382, p. 13, ¶ 127 (22 November 1967). 16 UN Security Council, Official Records, Resolution 338, Cease-Fire in the Middle East (22 October 1973). 17 See Israel-Syria: Agreement on Disengagement, UN Doc. S/11302/Add.1 (5 June 1974). 18 See “Golan Heights Law,” Israel Ministry of Foreign Affairs, 14 December 1981, https://mfa.gov.il/ mfa/foreignpolicy/peace/guide/pages/golan%20heights%20law.aspx. 19 UN Security Council, Resolution 497, Israel-Syrian Arab Republic (17 December 1981). 20 Yehuda Z. Blum, Historic Titles in International Law (The Hague: Martinus Nijhoff, 1965). 21 UN Security Council, Official Records, 2316th meeting, UN Doc. S/PV.2316, ¶¶ 19–46 (16 December 1981).

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22 UN Security Council, Official Records, 2319th meeting, UN Doc. S/PV.2319, ¶ 33 (17 December 1981). 23 UN Security Council, Official Records, 8495th meeting, UN Doc. S/PV.8495 (27 March 2019). 24 See the statement of the Russian ambassador, UN Security Council, Official Records, 8495th meeting, UN Doc. S/PV.8495, p. 7 (27 March 2019). 25 See the statement of the German ambassador and the Syrian and British responses, UN Security Council, Official Records, 8495th meeting, UN Doc. S/PV.8495, p.10, pp. 15–17, and p. 19 (27 March 2019). 26 Victor Kattan, “Donald Trump Has Just Legitimized Israel’s Illegal Conquest of Occupied Territory,” Haaretz, 25 March 2019, https://www.haaretz.com/middle-east-news/.premium-donald-trump- has-just-legitimized-israel-s-illegal-conquest-of-occupied-territory-1.7058983. 27 See the statement of the Israeli ambassador, UN Security Council, Official Records, 8495th meeting, UN Doc. S/PV.8495, p. 18 (27 March 2019). 28 Julie Gallagher, “Pompeo Agrees It’s Possible God Raised Trump to Protect Israel from Iranian Aggression,” CNN, 23 March 2019, https://edition.cnn.com/2019/03/22/politics/mike-pompeo- donald-trump-israel-golan-heights/index.html.

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