U.S. Recognition of Israeli Sovereignty over the Golan Heights: Some Legal Observations

(Institute for Contemporary Affairs-Jerusalem Center for Public Affairs) 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: Ongoing security threats and acts of aggression against Israel by Syria since prior to the 1967 war, including Syria's use of the Golan Heights to launch an offensive armed attack against Israel, which resulted in Israel taking control of the area in the exercise of its inherent right of self-defense. Israel's continuing need to protect itself from Syria and other regional threats emanating from current, ongoing aggressive actions by Iran and Hizbullah in southern Syria, constituting a potential launching ground for offensive attacks on 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. Recently, Syria has enabled emplacement of Iranian and Hizbullah weapons platforms and their use against Israel. 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 of the offensive state, with no foreseeable chance for a peace settlement. Stephen Schwebel, former judge in the International Court of Justice, wrote: "[Regarding] the Golan Heights, it follows 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." With this background, the proclamation by the U.S. President serves as a message to Syria and the international community that aggression and obstinate refusal to settle an international dispute should not be rewarded. 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. The writer, former legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs, 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.

2019-04-01 00:00:00

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