Trump’s Golan Policy and Its Threat to the Post-War International Legal Order

In a recent op-ed in the Wall Street Journal, Secretary of State Mike Pompeo and U.S. Ambassador to Israel David Friedman argued that international law backs the Trump administration’s policy on the Golan Heights. It was an attempt to legitimate the once-common but now illegal practice of conquest. That a U.S. Secretary of State and a U.S. ambassador could make such an argument shows how willing the Trump administration is to kick the legs out from under the post-war international legal order that their predecessors fought so hard to build and maintain.

Their argument focuses on the 1967 U.N. Security Council Resolution 242, which emphasized “the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security.” In condemning the Trump administration’s recognition of Israeli sovereignty over the Golan Heights, a number of world leaders cited the same resolution. But Pompeo and Friedman argued that, contrary to the almost uniform view of our allies, Trump’s decision to accept the conquest of the Golan Heights by Israel is entirely consistent with Resolution 242.

Given that Israel came to occupy the Golan Heights during war, Pompeo and Friedman would seem to have an uphill battle.

A little history is helpful here: The Golan Heights was unequivocally part of the territory of Syria when it was occupied by Israel in the 1967 Six-Day War. During the Yom Kippur War in 1973, Syrian forces attempted to retake the Golan from Israel, but they were unsuccessful and, indeed, lost control over additional territory in the process. In 1974, the two countries signed a ceasefire agreement that spelled out a plan for separating the military forces of Israel and Syria. In 1981, Israel made a move to effectively annex the occupied parts of the Golan Heights when it extended Israeli “laws, jurisdiction and administration” to these areas. The U.N. Security Council immediately responded by declaring 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” in U.N. Security Council Resolution 497. It further demanded that “Israel, the occupying Power, should rescind forthwith its decision.” The U.S. joined every member of the Security Council in voting in favor.

When Israel failed to comply, members of the U.N. Security Council proposed a Resolution that called the occupation an “act of aggression;” determined “the continued occupation of the Syrian Golan Heights since June 1967 and its annexation by Israel on 14 December 1981 constitute a continuing threat to international peace and security;” and required all U.N. member states to “consider applying concrete and effective measures in order to nullify the Israeli annexation of the Syrian Golan Heights and to refrain from providing any assistance or aid to and cooperation with Israel, in all fields, in order to deter Israel in its policies and practices of annexation.” But the resolution failed when the U.S. vetoed it. In the years since, the General Assembly has repeatedly condemned the attempted annexation of the Golan Heights, including most recently in December of last year in a resolution supported by 149 states, with 22 abstaining, and only two voting against: the U.S. and Israel.

In making their case, Pompeo and Friedman ignore this entire history. Their argument boils down to “Syria is bad and has broken the rules, so Israel can too.” By refusing to negotiate with Israel over the Golan Heights, Syria has, they claim, “rejected the negotiating framework of Resolution 242.” Syria, they argue, “maintained a state of war with Israel since Israel became independent in 1948.” Syria is, moreover, “a client of Iran and one of the most brutal regimes on earth.” By handing over the Golan Heights to Israel, “the president has afforded Israel the only secure and recognized boundary that can exist under the circumstances—the objective of Resolution 242.”

Their argument demonstrates a dangerous disregard for the fundamental rules of the international legal order. After all, it is not just Resolution 242 that condemns annexation of territory in war. The U.N. Charter’s Article 2(4) (cited in Resolution 242) provides that

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

This prohibition on use of force to seize territory is fundamental to the international legal order. Indeed, the prohibition on use of force is the fundamental principle of the post-war era. That principle has always been understood to prohibit conquest of territory by force, no matter how aggrieved a state may be. It is the reason the U.S. and the United Kingdom retained no acquired territory after World War II. It is the reason that, as we show in our book, The Internationalists, conquest, once common, has become extraordinarily rare.

What should really worry us, however, is not simply the decision to break the most fundamental rules of the international legal order to allow an illegal conquest of territory by force in the Middle East. What is most concerning is that the Trump administration seems prepared to discard the legal principles that have underpinned the modern international legal order since the close of World War II—principles that the U.S. fought to put in place and protect for seven decades. We should all fear what comes next.

 

Photo by Sean Gallup/Getty Images

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Scott Shapiro

Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School. You can follow him on Twitter (@scottjshapiro).