Legal Experts Debunk Netanyahu’s Golan Heights Claim: Annexation Can’t Be Excused by Defensive War

Trump and Netanyahu declared that the Golan could be annexed because Israel took it in a war of self-defense, but legal experts say this goes against international law – and that the West Bank is another story in any case

Israelis stand on a defunct tank in the Golan Heights, March 2019.
Gil Eliyahu

The Proclamation on Recognizing the Golan Heights as Part of the State of Israel, which U.S. President Donald Trump signed last week during a ceremony at the White House, states its reasoning as: “The State of Israel took control of the Golan Heights in 1967 to safeguard its security from external threats.”

Prime Minister Benjamin Netanyahu underscored this argument during and after the proclamation was signed. In his speech at the ceremony, Netanyahu said: “Israel won the Golan Heights in a just war of self-defense.” Speaking to reporters at the airport in Washington before his return flight to Israel, he said: “There is a very important principle in international life — when you start wars of aggression, you lose territory; do not come and claim it afterwards. It belongs to us.”

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Later, on the prime minister’s plane, a senior diplomatic official told reporters that the U.S. recognition affirmed the principle according to which territory captured in a war of self-defense could be retained.

“Everyone says you can’t hold on to captured territories, but it is possible. If it was conquered in a war of self-defense it’s ours,” said the official, who spoke on the condition of anonymity. Right-wing Israeli activists have seized on the official’s remarks, saying the U.S. recognition of Israel’s rights to the Golan on the basis of this principle could be the foundation for a campaign calling on the White House to recognize Israeli sovereignty over the West Bank.

The argument that international law differentiates between area conquered in a war of self-defense and area that is not conquered in such a war is not new. Israeli officials mention it in international forums from time to time. For example, in a meeting in February 2018 in Warsaw, Dr. Dore Gold, former director general of the Foreign Ministry and now president of the Jerusalem Center for Public Affairs, said that international law makes a clear distinction between land occupied during a war of aggression and land taken in the wake of a defensive war. According to Gold, the international community has realized that the Six-Day War was a war of self-defense and therefore international law is different with regard to the Golan Heights.

To better understand how these statements reflect international law, Haaretz spoke with experts who agreed that even if it is possible to make a case for holding on to the territory of an aggressive entity, when it comes to annexing territory or extending sovereignty over it, the argument of self-defense does not apply to laws of occupation.

Legal expert and former ambassador Alan Baker is the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. The former legal adviser to and deputy director of the Foreign Ministry told Haaretz that contemporary international law does not distinguish between defensive and other wars.

U.S. President Donald Trump and Prime Minister Benjamin Netanyahu hold up a Golan Heights proclamation outside the West Wing of the White House, Washington, March 25, 2019.
AFP

“There is no way to acquire land by force and it doesn’t matter whether it’s defensive or not defensive. Modern international [law] doesn’t recognize it. How can territory be acquired? By agreement and negotiation or takeover of a country that ceases to exist. But not by force. There is a certain flaw here in international law because in fact this is a prize to the aggressor. He does not lose the right to the territory.”

According to Baker, “Trump did not base his proclamation only on the claim of a defensive war but that the Syrian government continues to constitute a threat. This is an interesting point and I think there is justification and a precedent determined by Judge Stephen Schwebel,” referring to the president of the International Court of Justice in The Hague.

Baker noted that this precedent states that as long as that country continues to be a threat to the country that conquered its territory, the right of the occupying country grows more valid to continue to occupy that territory.

“For 52 years Syria has continued to be a threat to Israel, so apparently a special situation gives a more serious status or stronger claim to the territory. Occupation, by the very term, is a legal situation according to the rules of war. The problem is in extending sovereignty, and international law does not recognize this when it is done by force.” International law, Baker added, also does not deal enough with the issue of ongoing aggression.

But Baker said it was “foolishness” to compare the matter of the Golan with a future determination about the West Bank. “Judea and Samaria is another story. It’s not a matter of a defensive war or not a defensive war. There is an agreement with the Palestinians that’s still in force,” he said, referring to the Oslo Accords. This agreement, Baker said, “obligates us and them to resolve the conflict. We have committed to this. Only if we break away from the agreement claiming that the Palestinians breached it, and there were such opportunities that were not taken, then we can justify unilateral moves.”

Baker said that Israel extended its laws to the Golan Heights. “I was in the military advocate general’s office at the time that Israeli law was extended to the Golan because the internal law there was Druze religious law and it was not written because it is secret. There was no intent for annexation and the word does not appear there. It makes me laugh a little that now Trump recognizes sovereignty that we did not recognize,” Baker said.

According to Prof. Robbie Sabel, an expert in international law at the Hebrew University in Jerusalem, the source of the claim that a defensive war justifies conquest is in positions voiced some 50 years ago that Israel has priority over the Jordanians in areas in Jerusalem and the West Bank, because the Jordanians were the aggressors. But in 1988, “the Jordanians gave up their rights to the Palestinians. Now this is not another sovereign country and international law says come to an agreement, and that doesn’t include extending sovereignty.” The argument of a defensive war is not relevant, Sabel said. “It’s an interpretation from 50 years ago for the question of whether Israel has to give back the territory to Jordan.”

The U.S. proclamation, Sabel said, does not change the legal situation in any case. The international border can change in a future agreement between the parties. In Judea and Samaria it’s more complicated because there was no border there and we also signed in Oslo that neither side would change the legal status. The Palestinians breached this with a declaration of independence and the question is whether we want to breach it,” he said.

Druze residents of the Golan Heights carry a portrait of Syrian President Bashar Assad during a rally in the village of Majdal Shams, February 14, 2019.
AFP

Prof. Aeyal Gross, of the Tel Aviv University Faculty of Law, who writes in Haaretz, agrees that Trump’s declaration has no real legal implication. “President Trump, who is known for his disregard for international law, can’t change it with one declaration and international law is very clear that territory conquered in war must not be annexed unilaterally – it doesn’t matter at all whether you were the aggressor or the defender.”

However, Gross concedes that the law is unclear as to “exactly when temporary possession should end, but on the other hand it’s clear that there are actions that show a lack of temporariness and these are prohibited, for example, settlements and imposing local laws. Trump can’t change this and other countries indeed do not recognize it.”

Prof. Orna Ben-Naftali, who holds the Emile Zola Chair at Israel’s College of Management Academic Studies, spoke with Haaretz from Washington, where she is receiving an award from the American Society of International Law. “The principle that the use of force is not a legal way to acquire sovereignty over territory is a fundamental principle of the laws of conquest in international law,” she said.

“This principle holds whether the use of force was legal at the outset, for example in the framework of self-defense, and without reference to whether the area in question is disputed in terms of sovereignty,” she added.

Trump, Ben-Naftali said, with a few words, “wipes out laws of conquest and disrupts basic principles on which international law was built after World War II. What might be called the Trump doctrine’ is utter foolishness, a legal fiction. The problem is that in a world where fiction is the political culture, a world in which distinction is lacing between scientific fact and political opinion ... the space for truth, which is not political, grows increasingly smaller.”

Prof. Yael Ronen, an expert on international law at the Sha’arei Mishpat Academic Center in Hod Hasharon, agrees that with regard to international law, “the rule is that a country cannot acquire sovereignty over territory the control of which was acquired by force is not restricted by whether this was aggression or self-defense. ... So Israel can’t become sovereign unilaterally,” by this claim, Ronen said.

Prime Minister Benjamin Netanyahu in the Golan Heights, March 2019.
Gil Eliyahu

Regarding Syria, Ronen said, “There is no doubt that it is the sovereign and that Israel never disputed this. The claim that Israel should hold the Golan for security reasons is possible, but not annexation.”

Col. (res.) Pnina Sharvit Baruch, a lawyer who heads the law and security program at the Institute for National Security Studies at Tel Aviv University, said Trump’s proclamation puts him at odds “with the accepted position of international law, enshrined in the United Nations charter, by which a country’s sovereignty and territorial integrity must be respected and that the takeover of territory during an armed conflict does not grant the right of sovereignty in that territory.”

According to Sharvit Baruch, “The concern now in the international legal community is that the U.S. recognition of the annexation of the Golan will further erode the ban on annexation of territories belonging to another country, and as a result also the principle of respecting sovereignty and borders between countries.