Did Netanyahu just endorse the acquisition of territory by force?

As PM asserts Israel can keep land captured in defensive wars, one Israeli legal scholar insists Golan still belongs to Syria, but argues that the West Bank’s status is debatable

Raphael Ahren

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

An Israeli flag flutters above the wreckage of a tank on a hill in the Golan Heights overlooking the border with Syria on October 18, 2017. (AFP Photo/Jalaa Marey)
An Israeli flag flutters above the wreckage of a tank on a hill in the Golan Heights overlooking the border with Syria on October 18, 2017. (AFP Photo/Jalaa Marey)

Celebrating the US administration’s recognition of Israeli sovereignty over the Golan Heights, Prime Minister Benjamin Netanyahu on Tuesday made a dramatic statement that not only appeared to contradict a core tenet of international law, but also could foreshadow a potential Israeli annexation of the West Bank.

“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,” he said, referring to the 1967 Six Day War, during which Israel captured the Golan from Syria.

The subtext was clear: States are allowed to annex territory gained in defensive wars.

A few hours later, a senior Israeli official reaffirmed that point, hinting that US President Donald Trump’s Golan recognition supports Israeli claims to other territories Israel captured in defensive wars — such as the West Bank.

Everyone insists that “it’s impossible to hold onto occupied territory, and behold — it is possible,” the senior official said. “If it was captured in a defensive war, it is ours.” The speaker was identified by The New York Times as Netanyahu himself.

This statement is dramatic: the Israeli prime minister appears to negate one of the central pillars of modern diplomacy — the absolute rejection of acquisition of territory by force.

In condemning Israel’s de facto annexation of the Golan in 1980, UN Security Council Resolution 497 — which was adopted unanimously, including by the US — reaffirmed “that the acquisition of territory by force is inadmissible, in accordance with the Charter of the United Nations, the principles of international law.”

According to the UN charter, member states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” This has generally been interpreted to mean that countries’ boundaries cannot be redrawn by military means, but by agreement only.

The Golan is Syrian territory, and you don’t acquire territory from another state in a defensive war

That’s why even some Israeli legal experts were taken aback by Netanyahu’s statement.

“The Golan is Syrian territory, and you don’t acquire territory from another state in a defensive war,” said Robbie Sabel, a scholar of international law and former legal adviser to Israel’s Foreign Ministry. “The fact that you’re acting in defense gives you the right to occupy enemy territory. It doesn’t give you the territory.”

Prof. Robbie Sabel (YouTube screenshot)

In World War II, the US was attacked by Japan and subsequently occupied the country — but it did not acquire sovereignty over it, Sabel noted by way of example. Similarly, the Allies defeated Nazi Germany in a defensive war and their occupation of the country afterwards was entirely legal, but no one dreamed of annexing Germany, or even parts it, against Germany’s will.

“Germany agreed after the Second World War to transfer some of its territory to Poland and Czechoslovakia. That’s perfectly valid. But the actual act of occupation doesn’t grant you sovereignty over the territory,” said Sabel. “Therefore 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 this photo released by the Syrian official news agency SANA, Syrians hold national flags and portraits of President Bashar Assad during a protest against President Donald Trump’s move to recognize Israeli sovereignty over the Golan Heights, in the coastal city of Tartus, March. 27, 2019. (SANA via AP)

As powerful as the US may be, it has no power to grant Israel sovereignty over Syrian territory, he stressed. “The situation, legally, is still that we’re occupying Syrian territory. It’s perfectly legal until we reach a peace agreement. That could last for a long time. But it doesn’t give us sovereignty. He [Netanyahu] didn’t consult a lawyer before he said that.”

Other experts disagreed with that analysis.

“The relevant international law only prohibits taking territory in a war of aggression,” said Eugene Kontorovich, the director of international law at the Jerusalem-based right-wing think tank Kohelet Policy Forum.

“Indeed, if international law does not allow attacked countries to make border changes in some circumstances, it would actually invite aggression, because the attacking country would be [insured] against losses to the defender.”

Kontorovich also noted that Israel made “multiple good-faith peace efforts to return the territory” and that Syria “lost all legitimacy by committing mass atrocities.” Furthermore, he noted that the US has previously recognized “forcible territorial changes” — for instance in 1995, when president Bill Clinton extended full diplomatic recognition to Vietnam.

But few in the international community are buying these arguments.

On Wednesday, the 28 member states of the European Union, citing “international law and UN Security Council resolutions 242 and 497,” unanimously declared that they do not recognize Israeli sovereignty over the Golan.

The EU — whose members states last Friday voted against a resolution condemning Israel’s occupation of the Golan at the UN Human Rights Council — thus joined UN Secretary General Antonio Guterres, Syria, Russia, Iran, and the Organization of Islamic Cooperation and others who had previously denounced Trump’s move.

Austrian Ambassador to Israel Martin Weiss expressed some understanding for Jerusalem’s desire hold onto the Golan, yet rejected Trump’s unilateral recognition of Israel’s annexation.

“Occupying a strategically decisive position in the course of war is one thing. As is maintaining such a position until a peace agreement — unlikely as it may be,” he told The Times of Israel on Wednesday.

Ambassador Martin Weiss at the President’s residence in Jerusalem, February 1, 2016 (Issac Harari/Flash90)

“However, the problem with [Netanyahu’s] argument ‘When you start a war of aggression and lose territory — it belongs to us’ is the following: it would allow you to change borders unilaterally — and thereby open a Pandora’s box. Who will decide if a war was one of aggression or not? What one country sees as an aggression another might see as legitimate defense,” Weiss went on.

“This is at the end of the day a question for historians to answer. Not for politicians. The law on this question is, however, clear: it keenly protects the territorial integrity of states. This is a core principle of international law — it lies at the foundation of international peace and stability.”

The Golan has officially been a part of Syria since 1923

The Golan has been internationally recognized as part of Syria for nearly a century. The so-called Paulet–Newcombe Agreement, struck by France and Great Britain on March 7, 1923, and later approved by the League of Nations, delineated the borders between the Syrian Federation and Mandate Palestine.

The fact that Israel captured the area in 1967 and formally extended its law to the territory in 1980 does not change Damascus’s valid claim to it, according to Sabel, the Israeli legal scholar.

“The Golan is similar to the Sinai: It is Egyptian territory, and it was perfectly legal for us to occupy it. But you don’t gain sovereignty by the occupation,” he said.

Israel withdrew from the Sinai peninsula in the framework of a comprehensive land-for-peace agreement with Egypt signed 40 years ago.

“The West Bank is a different proposition,” Sabel argued. “There is no former sovereign state in the West Bank; therefore it is in dispute and we can negotiate that with the Palestinians.”

A warning sign of a minefield near the Syrian-Israeli border in the Golan Heights on March 25, 2019. (Basel Awidat/Flash90)

Even US Secretary of State Mike Pompeo, who like others in the administration cheered the president’s Golan decision, stressed that it should not be seen as a negation of the principle that rules out acquisitions of territory by force.

“This is an incredibly unique situation,” he told reporters on Tuesday. “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.”

Israel has been eager to stress that the legitimacy of its rule over the Golan arises not only from the circumstances in which it was captured, but also from Judaism’s deep historical and religious ties to the area.

Interestingly, the US administration only cited Israel’s past and present security concerns in justifying its move, all but ignoring the Jewish connection.

The presidential proclamation cited the fact that Israel captured the Golan in 1967 “to safeguard its security from external threats… 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,” the document stated.

US President Donald Trump (L) and Prime Minister Benjamin Netanyahu hold up a Golan Heights proclamation outside the West Wing after a meeting in the White House March 25, 2019 in Washington, DC. (Brendan Smialowski / AFP)

Even Vice President Mike Pence, who is not usually reluctant to embrace biblical and religious motifs, related to the Golan Heights only in terms of Israeli security.

In a speech at AIPAC’s annual Policy Conference, Pence spoke at some length about the Golan, noting that it’s “critical to the strategic security of the State of Israel” but omitting any reference to Jewish history there.

The Israeli side, by contrast, took great pains to stress the Jewish point.

“Israel won the Golan Heights in a just war of self-defense, and the Jewish people’s roots in the Golan go back thousands of years,” Netanyahu told Trump on Monday.

“When you put a shovel in the ground there what you discover are the ruins of ancient synagogues,” he said on Tuesday.

His spokesman Ofir Gendelman, took to Twitter to provide some details:

President Reuven Rivlin, in his congratulatory statement, also stressed that the “history of the Jewish people on the Golan is thousands of years old.”

But Sabel said that, true as they may be, international law does not takes religious narratives and historical arguments into account.

‘International law is political more than it is professional’

Speaking on condition of anonymity, two Western diplomats said Trump’s recognition of the Golan and Netanyahu’s dramatic statement about Israel being able to hold on to land gained in defensive wars set a dangerous precedent that legitimizes Russia’s annexation of Crimea and may inspire other countries to try to acquire new territory by force.

Former National Security Adviser Major General (ret.) Giora Eiland (photo credit: flash90)
Former national security adviser Maj. Gen. (ret.) Giora Eiland. (Flash90)

On the other hand, Giora Eiland, a former Israeli national security adviser, said “we have to understand that international law is not a real law. There are a lot of double standards, even multiple standards.”

The rule against acquisition of territory by force is applied selectively, Eiland claimed, positing that the international community turns a blind eye to Russia and some smaller countries in Africa when they do things Israel would never get away with.

“International law is political more than it is professional. At the end of the day, the fate of the Golan depends on the relations between powers” and not on what what’s written in the UN charter, Eiland insisted.

Netanyahu’s statement about US recognition possibly opening the door to other Israeli annexations should not be given too much attention, he argued.

“I don’t think that it’s the beginning of a new era” in which Israel believes it could annex the West Bank without international censure, Eiland said. “But naturally, the prime minister is trying to leverage this American announcement. It’s a significant achievement for him, and we can congratulate him on it.”

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