The Biden Administration and the Golan Heights

[John Quigley is Professor Emeritus at the Moritz College of Law of The Ohio State University.]

On June 25, the State Department tweeted on its Near East Affairs account, “US policy regarding the Golan has not changed, and reports to the contrary are false.” The tweet came in reaction to a report by the Washington Free Beacon that President Joe Biden intended to “walk back” a 2019 tweet followed by a signed proclamation in which President Donald Trump declared that he did “hereby proclaim that the United States recognizes that the Golan Heights are part of the State of Israel.”

The effect of President Trump’s proclamation was far from clear. Israel took the Golan Heights during the June 1967 war and has held it ever since. In 1981 Israel’s Knesset adopted a statute in which it said it was extending the applicability of Israeli law to the Golan. The statute did not claim sovereignty, however. Since 1981, Israel has taken no further formal action in regard to its status in the Golan.

President Trump evidently thought that Israel had annexed the Golan. But the difference between how Israel has handled the Golan on the one hand, and East Jerusalem on the other, suggests that that it has not. The Knesset knows how to claim sovereignty when it intends to do so. In 1980 it claimed sovereignty over East Jerusalem, adopting a Basic Law declaring that “Jerusalem, complete and united, is the capital of Israel.” To date, it has done nothing similar in regard to the Golan.

Israel had earlier shown that when it applies its legislation to occupied territory, it does not intend to claim sovereignty. A few weeks after the June 1967 war, Israel’s Government declared Israeli law to apply in East Jerusalem, which its forces had just occupied. The Government acted under a Knesset statute, just then adopted, that authorized it to extend the territorial applicability of Israeli law. At the United Nations, Israel was accused of claiming sovereignty. Foreign Minister Abba Eban objected that it had not done so. He replied that the extension of Israeli law to East Jerusalem was aimed at orderly administration of the city but was not a claim of sovereignty. Only in 1980, as indicated, did the Knesset claim sovereignty over East Jerusalem.

The Knesset’s 1981 statute on the Golan violated international law. The UN Security Council reacted immediately, declaring the statute “null and void and without international legal effect.” That Security Council resolution had the affirmative vote of the United States. Other states have respected the Security Council action. That said, the 1981 statute, to repeat, was not a claim of sovereignty.

A claim of sovereignty by a belligerent occupant is a serious violation of law. The Security Council in its famous Resolution 242, after the June 1967 war, stressed the “inadmissibility of the acquisition of territory by war.” That resolution was adopted with reference to the territories Israel occupied in 1967, including the Golan.

Annexation of occupied territory is also a crime, for which officials of the annexing state are responsible. “Annexation by the use of force of the territory of another State or part thereof” qualifies as the crime of aggression, under Article 8bis of the Rome Statute of the International Criminal Court. To repeat, however, it is not clear that Israel has taken this step.

In February, Secretary of State Antony Blinken was asked at a press conference about the 2019 Trump proclamation and whether the Biden Administration would “continue to see the Golan Heights as part of Israel.”

Blinken answered in a way that made it appear that he thinks Israel has claimed sovereignty. “Look,” he said, “leaving aside the legalities of that question, as a practical matter, the Golan is very important to Israel’s security. As long as Assad is in power in Syria, as long as Iran is present in Syria, militia groups backed by Iran, the Assad regime itself – all of these pose a significant security threat to Israel, and as a practical matter, the control of the Golan in that situation I think remains of real importance to Israel’s security. Legal questions are something else. And over time, if the situation were to change in Syria, that’s something we’d look at. But we are nowhere near as that.”

Apart from reflecting confusion over whether Israel has claimed sovereignty, this response reflected confusion between belligerent occupation and sovereignty. If the US concern is instability in Syria, Israel can protect itself while occupying Golan as a belligerent, a status that obtains until Syria and Israel make peace. To continue as occupant, Israel does not need sovereignty. So the security issue has nothing to do with sovereignty.

From the practical standpoint, Blinken’s answer is troubling, because Syria is likely to be unstable for some time. So his answer raises the prospect that the Administration may leave the Trump proclamation in place for some time.

The US view of sovereignty over a piece of foreign territory taken in warfare should not depend, in any event, on instability in a neighboring state. Where territory like the Golan is clearly under a particular sovereignty and is then captured during hostilities, the view should be based on the law relating to warfare.

The most concerning aspect of Blinken’s statement is his willingness to throw legality to the four winds. Trump too avoided the legality issue when he issued his 2019 proclamation, which read,

“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.”

Prime Minister Benjamin Netanyahu, standing beside Trump at the signing of the proclamation, said, “Your decision to recognize sovereignty is a two-fold act of historic justice: Israel won the Golan Heights in a just war of self-defense, and the Jewish people’s connection to that land goes back generations.” This response did little to clarify Israel’s position. A Jewish connection to Golan, which in reality is quite limited, is not relevant to sovereignty in the face of an international consensus going back many years. Netanyahu’s assertion that Israel “won” Golan reflected a direct challenge to international rules on territory. States do not “win” territory by capturing it. That is so regardless of whether the state took the territory while acting aggressively or defensively.

But Netanyahu’s assertion that Israel occupied Golan in an act of self-defense is hard to square with the facts. Israel invaded and occupied the Golan in the days immediately following its 1967 defeat of Jordan and Egypt. When Israel’s troops entered the Golan, Syria was not attacking and showed no prospect of attacking. With Egypt and Jordan out of the military picture, Syria would hardly have attempted to invade Israel by itself.

In response to the flap over the Washington Free Beacon story, Israel’s new Foreign Minister, Yair Lapid, called the Golan “an integral part of the sovereign State of Israel.” That statement does little more than Netanyahu’s to clarify the Israeli stance.

Blinken parroted the Trump rationale by focusing on security. The Biden Administration needs to explain its view of the legal status of Golan, first from the perspective of international law. Is it repudiating the view President Reagan’s UN ambassador took in 1981 in the Security Council that the Golan is occupied territory of Syria? Then it needs to explain whether Israel has in fact claimed sovereignty.

The United States puts itself in an odd position in relation to the rest of the world by declining to retract the Trump proclamation. The Biden inaction has a significance beyond the immediate situation. The Biden Administration touts the need for countries to follow international rules in their relations with one another. A rules-based international order has been its mantra. It demands that Russia follow rules in regard to Ukraine. It demands that China abide by international rules in the South China Sea. At his contentious meeting with Chinese officials in Alaska in March, Secretary Blinken beat China over the head with the need for a rules-based order.

The Biden Administration’s commitment to following the rules in relations with other states is already open to question for its failure to appoint a Legal Adviser in the Department of State. Since Biden’s inauguration, the position-holder is in an acting capacity only. Blinken needs to be advised by a lawyer who can speak with authority.

If the Biden Administration wants credibility for a rules-based international order policy, it cannot ignore the rules when they come up against its political proclivities. Secretary Blinken should run, not walk, to the nearest podium and “walk back” the Trump proclamation on the Golan.