The Golan Heights and the Perils of “Defensive Annexation”

Weeks before dramatic national elections, and hampered by possible corruption charges, Israeli PM Benjamin Netanyahu received a significant political push from President Donald Trump. Breaking with longstanding US policy and interpretations of international law, President Trump signed, on March 25, a proclamation recognizing Israel’s sovereignty in the Golan Heights – a territory taken from Syria in the 1967 war, to which Israel extended its “law, jurisdiction and administration” in 1981.

The President’s proclamation reads as follows:

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.

The text of the proclamation raises many questions. First, it is unclear what the “unique circumstances” of this case are, and specifically, why these would not apply to other situations where states face security challenges from a neighboring or contested territory. One can only speculate that this caveat was inserted – likely in the last moment – by lawyers seeking to limit the precedential value of this declaration. Additionally, the fact that there might be legitimate security considerations for Israel to hold the Golan Heights at this time does not necessarily lead to the conclusion that it is appropriate to recognize its sovereignty there. It is also worthwhile to note that President Trump’s proclamation contradicts a UN Security Council Resolution that the United States previously supported. Indeed, it is a significant departure from the bedrock legal prohibition of unilateral annexation – whether resulting from an aggressive or defensive war – long recognized by the international community.

Netanyahu – not one to miss opportunities such as these – quickly declared that the proclamation reflects an “important principle of international life.” According to this principle, “[w]hen you start wars of aggression, you lose territory, do not come and claim it afterwards. It belongs to us.” He further generalized that “everyone says you can’t hold an occupied territory, but this proves you can. If occupied in a defensive war, then it’s ours.”

I will set aside the underlying assumption that Donald Trump acting on behalf of the United States has the power to unilaterally create international norms, whether in law or politics. He obviously can’t. This is especially so considering the diminishing global power of the US in the emerging multipolar international system. I will, however, focus on the more principled argument here: that defensive war is a justification for annexation. In this context, I will assume the Golan Heights were indeed taken in 1967 in a war of self-defense, without getting into possible historical or legal debates about this.

The Prohibition of Unilateral Annexation in International Law

In an informative op-ed,Victor Kattan recently highlighted the status of the prohibition on unilateral annexation as a cornerstone of the post-WWII international legal order. Likewise, Oona Hathaway and Scott Shapiro demonstrate in a recent book that this norm has roots preceding the UN Charter itself. In real political terms, Scott Anderson has pointed out that a norm that would permit annexation for Israel would surely be utilized by Russia, China, and other states in contentious situations. I will not repeat these arguments. In the remainder of this post, I will do two things: first, I’ll address a rather sophisticated argument, advanced by supporters of President Trump’s proclamation, that even if today all annexation is prohibited, there was no customary norm against defensive annexation in 1981. Second, I will discuss the catastrophic implications of adopting a norm that would permit defensive annexations.

The first argument cannot stand. Already in 1967 – several months after the war –  UNSC Resolution 242 emphasized to all parties the “inadmissibility of the acquisition of territory by war.” In 1970, the General Assembly declared, in its famous Declaration on Friendly Relations – a resolution relied upon by the International Court of Justice to ascertain customary international law – that the “territorial integrity of the State … is inviolable;” and furthermore, “[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.” Significantly, neither resolution limits the application of this principle to unlawful force, or to wars of aggression; rather, they refer to any “war” or “force.” It’s unsurprising, therefore, that shortlyafter Israel’s extension of jurisdiction to the Golan Heights, the UNSC unanimously adopted Resolution 497, in which the general norm against annexation was repeated.

This view was known in Israel long before Resolution 497. In 1970, Yoram Dinstein – by then already a central figure in Israeli international legal circles – argued, concerning Israel’s annexation of East Jerusalem, that customary international law allows annexation in only cases of debellatio, or following a peace treaty. Remarkably, some argue nowadays that the legality of defensive annexation was a valid doctrine at the time, by relying on a 1970 editorial comment penned by Stephen Schwebel in the American Journal of International Law. Yet, that comment actually said the exact opposite: it referred to the Golan as a territory in which “Arab” sovereignty was undisputed, and therefore “no weight shall be given to conquest” there – at most, Israel may control the territory for defensive purposes (i.e., hold it under belligerent occupation) (p. 347).

Indeed, in its justification for annexing East Jerusalem in 1967, Israel’s main argument was that the West Bank was not de jure occupied, because it never belonged to a sovereign state. Problematic as that argument was,  it did not go as far as to invoke the idea of defensive annexation as a separate legal basis. Quite possibly, the argument on the absence of a previous sovereign was developed precisely to circumvent the norm against annexation. Significantly, when Israel decided in 1981 to extend its “law, jurisdiction and administration” to the Golan Heights, it purposefully avoided the use of the term “annexation” to describe its actions.

In sum, it was generally clear, at least until last week, that unilateral annexation is prohibited –  regardless of the cause of the war. Israel’s own state practice seemed to recognize this by avoiding an explicit transgression of that norm. It is unsurprising, therefore, that President Trump’s proclamation has so far been met with criticism from many states, including the EU and the majority of the UNSC members.

Systemic Dangers of a Norm Permitting Unilateral Annexation

Beyond this analysis of positive international law, there are very good reasons for international lawyers to strongly resist revivalism of the doctrine of defensive conquest. To be sure, this is not because there is something especially urgent in requiring Israel to withdraw from the Golan Heights at this time, in light of the general situation in Syria and the tensions between the parties. Furthermore, paradoxically, the annexation of the Golan has arguably lessened the concerns for violations of individual rights there, as the territory is not under military administration. Rather, international lawyers should be concerned with the systemic ramifications of a norm permitting any form of unilateral annexation.

Arguably, a norm permitting defensive annexation would flip the modern international law on the use of force on its head. The norm against annexation, to a certain extent, follows the logic of the separation between jus ad bellum (the laws on the resort to force) and jus in bello (the law of armed conflict). This longstanding separation – with us since the days of Grotius – holds that regardless of the justness of one’s cause, the laws of war apply equally to all parties to a conflict. The logic is simple: since all parties claim to be just, all would quickly appropriate any extra rights that would be reserved to the just party.

The same logic undergirds the norm against annexation. If the defending party would be permitted to annex territory, ultimately, all parties would do so. Since no state is likely to accept this form of justice when it’s on the receiving end, defensive annexation would only create, in its eyes, a new just cause for war. The limitation of annexation only to defensive wars would therefore be both ineffective and destructive.

But there are other reasons why such a doctrine would be extremely dangerous. Among them, perhaps the most important concerns the moral hazard that this idea generates. One of the achievements of modern jus ad bellum is its clarification that nobody would stand to benefit from war – clearly not aggressors, but also not defenders. This is one of the reasons why proportionality under international law limits self-defense to halting and repelling the attack, and no more. Indeed, if defenders would be able to benefit from self-defense, they might want to be attacked. Since those making jus ad bellum decisions are generally not those suffering their direct consequences – these are suffered, most of the time, by soldiers and civilians who suffer the effects of war – leaders might be tempted to tip-toe their way into a “defensive” war for broader political gains.

The effects on such dynamics of a norm permitting defensive annexations are straightforward. If defensive war could entail acquisition of territory, the temptation would be far too great. To see this, it’s sufficient to imagine a situation in which apowerful state neighbors a weaker state, rich with natural resources. States in such situations have ample methods to provoke an attack: border provocations, actions by proxies, cyber operations, or any other form of harassment. Alarmingly, states do not have to go that far: Doctrines such as preemptive self-defense can also be deployed as a pretext in order to launch a war of “defensive annexation.”

The last problem emanating from the idea of defensive annexation concerns self-determination. Arguably, unlike violations of jus in bello, annexation doesn’t necessarily violate basic humanitarian rights. In the specific case of the Golan, one can probably posit that at least currently, the people living there are better off than if they would have been under Syrian control. Yet, annexation, by unilaterally subjecting people to a different sovereign, still violates the principle of self-determination. Significantly, this remains true even when annexation is defensive. Since the right to self-determination attaches to peoples, rather than to states, we can’t deduce any forfeiture of that right from the fact that the state engaged in an aggressive war. Indeed, this is partly why the law of occupation limits the occupying power’s authority to change the status quo ante in the territory.

Returning to the specific case, as important as the Golan Heights might be this is clearly not the end game. In 1967, in the same war, Israel also occupied the West Bank. It is clear that the same argument from defensive wars can be deployed to attempt to unilaterally annex the West Bank. As some groups in Israel demand annexation in increasing intensity, applying this doctrine can set the stage for a new, and even more dangerous, era in the Israeli-Palestinian conflict.

 

IMAGE: WASHINGTON, DC – MARCH 25: U.S. President Donald Trump (L) and Prime Minister of Israel Benjamin Netanyahu (R) show members of the media the proclamation Trump signed on recognizing Israel’s sovereignty over Golan Heights after a meeting outside the West Wing of the White House March 25, 2019 in Washington, DC. (Photo by Alex Wong/Getty Images)

 

About the Author(s)

Eliav Lieblich

Associate Professor at Tel-Aviv University’s Faculty of Law Follow him on Twitter (@eliavl).