Once upon a time states that emerged victorious from war were entitled to claim sovereignty over any conquered territory. Indeed it was on this basis that the colonial empires of the past, as well as most modern states, were created.
In the reordering of international relationships by the League of Nations after the First World War, the right of conquest was abolished – a determination very quickly flouted by the emerging dictatorships of Italy and Germany. Today, however, following the United Nations Charter signed in 1945, international law in principle no longer recognizes the acquisition of sovereignty by a state as a result of invasion and occupation.
The Golan Heights, which rise steeply from the north-eastern edge of the Sea of Galilee (also known as Lake Kinneret), are a prime strategic control point dominating the huge region beneath. Ever since the establishment of Israel in 1948 the Golan had been a Syrian army encampment whose main purpose was to fire shells and other artillery down on Israeli farmers, fishermen and villagers. The communities surrounding the Kinneret suffered nearly twenty years of incessant attacks. During the Six Day War in 1967 Israel, under attack by the combined military forces of Egypt, Jordan and Syria, fought and overcame the Syrian army on the Golan Heights, and seized the region.
Four years after Israel’s occupation of the Golan, Hafez al-Assad fomented a coup within Syria and seized supreme power. It was as president of Syria that Assad formed an alliance with Egypt and launched what became known as the Yom Kippur war on Israel in 1973, hoping to wrest the Golan Heights back.
He failed in that, and eventually signed a disengagement agreement under which a demilitarized “buffer zone” was established between the two countries, to be patrolled by UN peacekeeping forces. The United Nations Disengagement Observer Force (UNDOF) has been actively monitoring the area from that day to this.
In December 1981, however, Israel’s government, under the premiership of Menachem Begin, sponsored an act of parliament that effectively annexed the Golan Heights, a move instantly condemned by the UN Security Council.
The most recent act in the drama came on 25 March 2019, when President Donald Trump, reversing more than a half-century of US policy, signed a proclamation recognizing Israel’s sovereignty over the Golan Heights.
UN Secretary-General Antonio Guterres declared the gesture meaningless, and it was instantly condemned not only by the Syrian government and its allies, Russia and Iran, but by the Arab League, which designated Trump’s move as “completely beyond international law”, a sentiment echoed also by France, Germany and the European Union.
But is it? Some distinguished exponents of international law think differently.
In the opinion of the former President of the International Court of Justice, Judge Stephan Schwebel, the acknowledged principle in international law that “acquisition of territory by war is inadmissible” must be read together with other principles.
For example, one over-riding Charter principle is that members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.
Another is that “no legal right shall spring from a wrong.”
Yet it was Syria that attacked Israel from the Golan Heights for twenty years, then joined with others in 1967, and again in 1973, to launch military attacks on the country. Aggression against the territorial integrity and political independence of Israel, holds Judge Schwebel, should not be rewarded with legal rights.
He also holds that a country may occupy foreign territory as long as such seizure and occupation are necessary to its self-defence. For as long as returning the territory would continue to pose a threat, the occupying country has better title to keep possession.
These opinions of Judge Schwebel accord with the considered conclusions of the late Professor Julius Stone, recognized as one of the twentieth century’s leading authorities on the Law of Nations. They are set out in his book “Israel and Palestine”, a detailed analysis of the central principles of international law raised by the Arab-Israel conflict.
Lawyer Vivian Bercovici, Canada’s ambassador to Israel from 2014 to 2016, maintains that international law concerning territorial loss during conflict is clear: An attacking nation may not retain permanently land acquired as a result of armed conflict. It is this principle that underlies the world’s condemnation of the Russian occupation of Crimea, for example, and Iraq’s invasion of Kuwait. It was, incidentally, why Britain attacked Argentina, following its invasion of the Falklands.
But Bercovici draws a clear distinction between such examples and Israel’s declaration of sovereignty over the Golan Heights.
Russia invaded Crimea, he points out, and occupies territory in that country. Crimea did not invade Russia.
Iraq invaded Kuwait and occupied territory in that country. Kuwait did not invade Iraq.
In respect of the Golan Heights, however, Israel did not attack Syria in 1967. It was Syria and Jordan that attacked Israel. Bercovici maintains that current international law addresses only the more common situation where the attacker, not the defender, conquers. “International law is silent on this point,” he writes, “and for good reason. Because it was, on a logical basis, incomprehensible.”
Trump’s recent recognition of Israeli sovereignty over the Golan is quite possibly designed to remove this pawn from the chessboard ahead of the unveiling of his long awaited peace plan. Where and how this element fits into the overall “deal of the century” will, presumably, soon be revealed.