As Trump Mulls Recognizing Golan Heights, Archives Reveal How Israel Avoided It

Since passing Golan Heights Law in 1981, Israel didn't admit it annexed the area. Secret opinion penned by top legal adviser sounds warning against legislation

Menahem Begin (center) in debates over the Golan Heights Law in the Knesset, Jerusalem, 1981.
Nino Herman/GPO

In 1981, Israel passed the Golan Heights Law, a legislation that applies Israeli law over the northern territory. The law was passed after Israel annexed the area in the 1967 war, but seeing as Israel's move to conquer it stirred controversy worldwide, the law didn't do much to settle the issue. 

In fact, it complicated matters further, causing an immense challenge for Israeli legal advisers in their attempts to reconcile the Israeli law with international law. It also posed a hurdle for the Foreign Ministry, which had to explain the situation to the world. 

>> Read more: Trump's Golan tweet brings U.S. to Syria through the back door | Analysis ■ Trump's declaration: What does it mean and what happens now | Explained ■ How Secret Netanyahu-Assad backchannel gave way to Israeli demand for recognition of Golan sovereignty 

The solution that was reached at the time was to use strategic language: Instead of admitting explicitly that Israel was annexing the territory and applying sovereignty over the Golan Heights, the law stated that Israel was "applying law, jurisdiction and administration." 

On Thursday, U.S. President Donald Trump tweeted that it was time for his country to recognize Israeli sovereignty over the Golan Heights. If Trump indeed makes good on this statement, he will be backing a move Israel went to great lengths to avoid acknowledging.

A document recently found in the State Archives by Akevot, an institute researching the Israeli-Palestinian conflict, proves Israel made conscious attempts to avoid referring to "annexation" in the Golan Heights Law.

An opinion written by Elyakim Rubinstein, who was the Foreign Ministry's legal adviser at the time, attempts to explain how Israel should describe the change on the ground in legal terms without admitting that it was breaching international law. 

In the document, entitled "Golan Heights Law: Is the Golan Now Part of Israel?," Rubinstein writes to then-Director General of the Foreign Ministry David Kimche: "This is a seemingly simple question, which requires a yes or no answer. But, from a legal and political standpoint alike, the answer is more complicated and is treading the line between 'applying law, jurisdiction and administration' and the explicit act of annexation." 

In the opinion, which was classified confidential and is dated December 17, 1981, Rubinstein compared the complexity of the situation concerning the Golan Heights to the question of Jerusalem's status.

"In terms of domestic law, we can answer without hesitation that there is no difference between the Golan Heights and the rest of Israeli territory," he wrote. However, Rubinstein noted that in terms of international law there are issues with the definition and sought to resolve them.

According to his assessment, "not every act of applying the law [to a territory] necessarily means annexation unless there is intention to apply sovereignty."  

Rubinstein determined that for this reason, "the international legal situation is not point-blank. The question of the legislation status has to be examined in light of the political circumstances revolving the law and whether [Israel] had an intention to exercise sovereignty or not."

The answers to this question could be found, in Rubinstein's opinion, "in the statements of the leaders of Israel and the intention of the government, including the one it wishes to convey as a message to the world." 

Rubinstein concluded that the instruction entities doing advocacy for the country and Israeli representatives around the world should receive is to speak of the issue in the same terminology used in the law, without mentioning annexation or sovereignty. Those speaking about the law were also expected not to confirm that "it isn't annexation," in order to avoid "unnecessary criticism."

Therefore, he ruled, the law must stand "without adding or omitting" anything from the text.