Published: 01 April 2019 Author: Stefan Talmon DOI: 10.17176/20220113-123733-0
During the Six-Day War in June 1967 Israel captured the western two-thirds of the Golan Heights from Syria and has occupied them ever since. Some 90,000 Syrians and some 17,000 Palestinian refugees registered with UNRWA fled or were driven from the territory. Over the years some 23,000 Israelis settlers moved to the territory and now live alongside the remaining Druze Arab population of roughly the same number. On 14 December 1981, the Knesset, the Parliament of Israel, passed the Golan Heights Law which provided, inter alia, that “the law, jurisdiction and administration of the state shall apply to the Golan Heights, as described in the Appendix.” The law amounted to the annexation of the territory by Israel which was not recognized by the international community.
On 17 April 2016, the Israeli cabinet held its first meeting on the Golan Heights since 1967. The cabinet published a communiqué of the meeting which read in part as follows:
“[…] The Golan Heights have been an integral part of the Land of Israel since ancient times; the dozens of ancient synagogues in the area around us attest to this. The Golan Heights are an integral part of the State of Israel in the new era. […]
I chose to hold this festive Cabinet meeting on the Golan Heights in order to deliver a clear message: The Golan Heights will forever remain in Israel’s hands. Israel will never come down from the Golan Heights. […]
[…] The time has come for the international community to recognize reality, especially two basic facts. One, whatever is beyond the border, the boundary itself will not change. Two, after 50 years, the time has come for the international community to finally recognize that the Golan Heights will remain under Israel’s sovereignty permanently.”
After the meeting, the Israeli Government intensified its lobbying activities, especially in the United States, to have the Golan Heights recognized as part of Israel. In response to the Israeli communiqué the Federal Government declared:
“It is a fundamental principle of international law, and in particular the Charter of the United Nations, that no State can claim for itself the right to acquire the territory of other States against their will. In its resolution 497, adopted in 1981, the United Nations Security Council decide – it should be noted – unanimously that the Israeli seizure of the Golan Heights is null and void under international law. That is the international legal status quo. […]
One thing is clear: if State borders are to be changed at all, this can only be brought about by peaceful agreement between all the parties involved; one-sided steps are rejected by the Federal Government.”
Germany has always considered Israeli settlements on the Golan Heights to be contrary to international law.
At the end of 2018, changes in US Government policy on the Golan Heights could be detected. When the media enquired about the German position, the spokesperson of the Federal Government stated during the government press conference on 7 January 2019:
“The position of the Federal Government on the Golan has not changed. Like the rest of the international community, we do not recognize this annexation in terms of international law.”
This position was restated several days later by the spokesperson for the Federal Foreign Office who declared:
“What we have said is that we do not recognize a unilateral change of borders, and therefore, like the rest of the international community, we do not recognize Israel’s annexation of the Golan Heights.”
On 21 March 2019, US President Donald Trump indicated a change of US policy on the status of the Golan Heights. In a tweet he wrote:
“After 52 years it is time for the United States to fully recognize Israel’s Sovereignty over the Golan Heights, which is of critical strategic and security importance to the State of Israel and Regional Stability!”
The new US position was also confirmed by US Secretary of State, Michael R. Pompeo, while on a visit to Jerusalem. At a press conference with the Prime Minister of Israel he stated:
“As a cadet, I studied the battles of the Golan. There’s a famous battle called the Battle of the Valley of Tears, and it was Israeli heroism at its most amazing, saving this great nation at a time of enormous challenge, a threat that came from east of the Golan, from Syria, a tank battle of epic and historic proportion, of amazing Israeli bravery.
Tonight President Trump made the decision to recognize that that hard-fought real estate, that important place, is proper to be a sovereign part of the state of Israel. President Trump made a bold decision to recognize that, an important decision for the people of Israel. It will truly be historic, and the people of Israel should know that the battles they fought, the lives that they lost on that very ground, were worthy and meaningful and important for all time.”
In a first response the Federal Foreign Office tweeted on 22 March 2019:
“We have taken note of US President Trump’s Tweet on the Syrian Golan Heights occupied by Israel. The position of Germany and the EU on the Golan Heights is unchanged and in line with relevant UN Security Council resolutions.”
“We call upon all parties to refrain from taking unilateral steps which make it more difficult to resolve the Israeli-Palestinian conflict and further endanger the foundations of a two-state solution.”
Later the same day, the deputy spokesperson for the Federal Government declared during a press conference in Berlin that the Government had taken note of President Trump’s tweet. She continued:
“I would like to say that the position of the Federal Government on the Golan Heights is unchanged and thus in accordance with the relevant UN resolutions, in particular Resolution 497 which was adopted unanimously in 1981. In this resolution, Israel’s annexation of the territory is declared null and void and without legal effect. This is still the status quo under international law. If national borders are to be changed at all, this can only be achieved by peaceful agreement between all those concerned. The Federal Government rejects unilateral steps.
The Federal Government is, however, well aware of the role that the Golan Heights played before Israel assumed control there. We must not forget that various actors have used the area repeatedly to launch attacks on Israeli territory, and even today the border area is used as a launchpad for attacks by the Syrian military and Iranian militias, most recently in January of this year, when a rocket was fired on a nearby skiing region.
A peace settlement would have to take into account the very legitimate security interests of Israel and, of course, would have to end once and for all any danger posed to Israel emanating from the Golan Heights. At present, however, the existing tensions should not be exacerbated to avoid rendering a peaceful solution of the conflict impossible.”
The Federal Government also reiterated that it considered the Golan Heights to be “occupied territory.”
On 24 March 2019, Foreign Minister Maas commented on President Trump’s tweet stating that “in accordance with the relevant resolutions of the UN Security Council, we do not recognize the annexation. The concern is clear: unilateral steps will make a solution of the conflict more difficult and will endanger the bases for a negotiated two-State solution.”
President Trump followed up on his earlier tweet on 25 March 2019 and, in the presence of the Prime Minister of Israel, signed a “Proclamation on Recognizing the Golan Heights as Part of the State of Israel” which reads:
“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 Hizballah, 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.
NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim that, the United States recognizes that the Golan Heights are part of the State of Israel.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of March, in the year of our Lord two thousand nineteen, and of the Independence of the United States of America the two hundred and forty-third.”
On the next day, US Secretary of State, Michael Pompeo, stated that the United States were “simply recognizing facts on the ground and the reality and doing the right thing.” He rejected the suggestion that the United States were setting a precedent that powerful countries could take land in contravention of international law, stating:
“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.”
This view was not shared by Germany. On 26 March 2019, during the regular Security Council meeting on the Situation in the Middle East (Including the Palestinian Question), the German representative stated:
“This body was created […] for the maintaining of peace and security; and as an instrument for maintaining peace and security international law is there and this body, the UN, for the maintenance of peace and security, has created the instrument of UN Security Council resolutions – binding law. What we heard today […] was all about the violation, the violation of international law, the violation of resolution 2334 […]. And we have today an additional element, just a few days before the Israeli elections, we heard our American colleague telling us that the U.S. is now violating UN Security Council resolution 497 by recognizing Israeli sovereignty over the Golan Heights. This follows up a year and a half after the violation of Security Council resolution 478 on Jerusalem and on the embassy move there.”
Germany also joined the four other EU members on the UN Security Council – Belgium, France, Poland, and the United Kingdom – in a statement on the occupied Golan Heights which was read by the Belgium representative at the Security Council stake out:
“Our position on the status of the Golan Heights is well-known, and we would like to make clear that this position has not changed. In line with international law, and relevant Security Council resolutions, notably Resolutions 242 and 497, we do not recognize Israel’s sovereignty over the territories occupied by Israel since June 1967, including the Golan Heights, and we do not consider them to be part of the territory of the State of Israel.
Annexation of territory by force is prohibited under international law. Any declaration of a unilateral border change goes against the foundation of the rules-based international order and the UN Charter.
We raise our strong concerns about the broader consequences of recognizing illegal annexation and also about the broader regional consequences.”
In addition to the public statement at the United Nations, it was reported that the ambassador of Germany to the United States, together with his colleagues from France and the United Kingdom, delivered a harsh rebuke of President Trump’s decision to recognize Israeli sovereignty over the Golan Heights at two separate meetings at the White House and the U.S. State Department on 26 March 2019. The ambassadors pointed out that the recognition of the annexation of the occupied Syrian Golan was a violation of international law and UN resolutions and that it legitimized taking over land by force.
The United States’ decision to recognize Israel’s sovereignty over the occupied Syrian Golan was also discussed at the regular Security Council meeting on the situation in the Middle East on 27 March 2019. Unlike other speakers, the German representative on the Council did not make any further substantive statement on that particular issue apart from emphasizing that “security interests, as pressing as they are, do not justify annexation.” He continued: “However, the presence of Syrian regime troops and Iranian-backed militias close to the border violates the disengagement agreement and constitutes a threat to Israel. These presences should end.” The German representative used the remainder of his time to attack the “Syrian regime’s” record of compliance with international law.
It is one of the most fundamental principles of international law that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. International law does not distinguish between an offensive and a defensive use of force. Therefore there is no room in international law for a theory of “defensive conquest”. The statement by the Israeli Prime Minister Benjamin Netanyahu that “Israel won the Golan Heights in a just war of self-defence” is thus of no relevance at all. International law is equally clear that no territorial acquisition resulting from the threat or use of force shall be recognized as legal. This duty of non-recognition has been confirmed in reams of resolutions of both the UN Security Council and the General Assembly, including the 1970 Friendly Relations Declaration, the 1975 Helsinki Final Act, and the International Law Commission’s Articles on State Responsibility. In the Wall Advisory Opinion in 2004, the International Court of Justice held that the duty of non-recognition of territorial acquisitions resulting from the threat or use of force reflects customary international law.
Both the annexation of the occupied Syrian Golan by Israel and the recognition of that annexation by the United States constitute flagrant breaches of fundamental principles of customary international law. In addition, the conduct of the two States is contrary to more than 50 resolutions of the Security Council and the General Assembly which, beginning with UN Security Council resolution 242 (1967) of 22 November 1967, have applied the principle of the “inadmissibility of the acquisition of territory by war” to the territories which have been occupied by Israel since 1967. In particular, Security Council resolution 497 (1981), which was adopted unanimously with the positive vote of the United States, provides:
“Reaffirming that the acquisition of territory by force is inadmissible, in accordance with the Charter of the United Nations, the principles of international law and relevant Security Council resolutions, […]
1. Decides that the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect; […].”
More recently, on 26 April 2016, the Security Council responded to the statement of the Israeli cabinet that the “Golan Heights will forever remain in Israel’s hands.” China’s UN Ambassador, who held the rotating council presidency for April, told reporters after a closed-door council meeting on the Golan Heights:
“Recalling all relevant Security Council resolutions on the issue, including resolutions 242, 338 and 497, Council members expressed their deep concern over recent Israeli statements about the Golan, and stressed that the status of the Golan remains unchanged. The members also recalled that the resolution 497 decided that the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights was null and void and without international legal effect.”
The UN General Assembly has gone further in non-binding resolutions, declaring that Israel’s decision “to impose its laws, jurisdiction and administration on the occupied Syrian Golan Heights constitutes an act of aggression under the provisions of Article 39 of the Charter of the United Nations and General Assembly resolution 3314 (XXIX)” and that the continued occupation and effective annexation of the territory “constitute a continuing threat to international peace and security.” However, these findings were more controversial than those of the Security Council. For example, General Assembly resolution 37/123A of 16 December 1982 was adopted with 87 votes in favour, with 22 against and 31 abstaining. Germany voted against that resolution. Germany always voted positively for more moderately worded resolutions of the General Assembly which reaffirmed the illegality of the effective annexation of the occupied Syrian Golan and that the acquisition of territory by force was inadmissible under international law, including the UN Charter, and called upon Member States not to recognize the annexation.
It is to be welcomed that Germany found clear words in the face of the flagrant violation of international law by the United States. Not only did Germany expressly reiterate that it does not recognize Israel’s annexation of the Golan Heights; it also confirmed the general principle that annexation of territory by force was prohibited under international law. But it did not rest there. It also clearly labelled the recognition of the annexation of the occupied Syrian Golan by the United States a violation of a binding UN Security Council resolution and international law in general.
Category: Territorial sovereignty