Foreign Relations & International Law

Recognizing Israel’s Claims to the Golan Heights: Trump’s Decision in Perspective

Scott R. Anderson
Friday, March 22, 2019, 4:29 PM

On Thursday, March 21, President Trump introduced yet another sea change to U.S. policy towards the Arab-Israeli conflict—this time by tweet. “After 52 years,” Trump wrote, “it is time for the United States to fully recognize Israel’s [s]overeignty over the Golan Heights.”

The 1974 ceasefire line between Syria and Israel in the Golan. (Photo: Matthew Kahn)

Published by The Lawfare Institute
in Cooperation With

On Thursday, March 21, President Trump introduced yet another sea change to U.S. policy towards the Arab-Israeli conflict—this time by tweet. “After 52 years,” Trump wrote, “it is time for the United States to fully recognize Israel’s [s]overeignty over the Golan Heights.”

Left unclear was whether the president was merely calling for U.S. recognition of Israeli sovereignty over the Golan Heights or actually implementing it. National security adviser John Bolton later tweeted out his agreement on top of the president’s statement a few hours later, but the government otherwise failed to provide further information: The State Department referred reporters’ questions to the White House, where officials declined to elaborate on what the president had tweeted. For most of the afternoon, the closest thing to an official statement came from the State Department’s Twitter account, which simply retweeted Bolton without further comment.

Instead, the first person to confirm the change in U.S. policy was none other than Israeli Prime Minister Benjamin Netanyahu. Speaking next to Secretary of State Mike Pompeo from the prime minister’s residence in Jerusalem, Netanyahu claimed to have discussed the decision with President Trump. Speaking in both English and Hebrew, he described the decision as a “miracle of Purim” and tied it to Israel’s ongoing conflict with Iran, stating:

President Trump made history. He recognized Israeli sovereignty over the Golan Heights, at a time when Iran is trying to use the Golan Heights as a platform for the destruction of Israel. We are commemorating the miracle of Purim, when, 2,500 years ago, the Jewish people triumphed over the other Persians who tried to exterminate it. They will fail today, as they failed then, amongst other things thanks to the immense support of the United States and a president that is the greatest friend Israel ever had in our entire history.

Only then did Netanyahu turn the stage over to Pompeo, who, in a rambling statement, seemed to confirm that the president’s tweet had not been merely hortatory: U.S. policy toward the Golan Heights had in fact changed. “President Trump made the decision to recognize that that hard-fought real estate, that important place,” he said, “is proper to be a sovereign part of the state of Israel.”

The apparently slapdash rollout of this decision is an uncomfortable fit with the complex and hotly contested political history of the Golan Heights. A strategically significant plateau along Israel’s northeast border with Syria, the Golan Heights provide a vantage point into neighboring parts of Israel, Lebanon, and Syria, and—in at least some formulations—border the eastern shore of the Sea of Galilee. The status of the territory has been in dispute since the state of Israel was founded, as the 1949 armistice line that was ultimately reached between Israeli and Syrian forces did not align with the borders of the pre-1948 British mandates of Palestine and Syria, which Israel maintains should have been the starting point for the border between the two countries.

Regardless, Israel seized control of the entirety of the Golan Heights in the Six Day War of 1967. In response to that conflict, the U.N. Security Council unanimously adopted resolution 242, which (in its English version) called for the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” and “acknowledgement of the sovereignty, territorial integrity and political independence of every state in the area and their right to live in peace within secure and recognized boundaries.” Israel, however, retained control of the Golan Heights, an act it justified in part by pointing to linguistic ambiguities across the English and French versions of U.N. Security Council Resolution 242 and its endorsement of “secure ... boundaries.” After Syria tried unsuccessfully to reclaim the Golan Heights in the 1973 October War, the two parties agreed to a ceasefire line through U.N.-sponsored negotiations, which was secured by a demilitarized zone and a U.N. Disengagement Observer Force, both of which remain in place to this day. In effect, this left most of the Golan Heights under Israeli control. (Notably, Lebanon also claims ownership over the Shebaa farms area of the Golan Heights, which remains in Israeli control.)

Israeli settlement activity in the Golan Heights began in earnest in the 1970s and has continued since that time. In 1981, Israel’s Knesset adopted a law that sought to formally annex the Golan Heights and incorporate them into the Israeli state. Again acting unanimously, the U.N. Security Council adopted Resolution 497 declaring such action “null and void and without international legal effect,” on the grounds that the acquisition of territory by force is inadmissible under the U.N. Charter and that the Golan Heights remained subject to the international law governing military occupation, which prohibits such annexation. In spite of this opposition by the international community, the de facto incorporation of the Golan Heights into the state of Israel has largely continued unabated, to the point that the region has become a center for Israeli-oriented tourism, wine-making, and even skiing. And while the native Syrian Arab and Druze populations have mostly retained their Syrian identity, a growing minority of the latter have pursued Israeli nationality—despite concerns that legislation recently adopted by Israel’s Knesset will render them and other non-Jewish Israelis secondary to Israel’s Jewish citizens.

Until yesterday, the United States had maintained a consistent position on the Golan Heights across Democratic and Republican presidential administrations, declining to recognize any fixed borders absent negotiations between Israel and Syria while promising to give weight to Israeli territorial claims and demands for a secure border. Trump’s announcement not only disrupts this policy but arguably runs counter to the international law principle that informed U.N. Security Council Resolutions 242 and 497: Namely, the obligation to “refrain ... from the threat or use of force against the territorial integrity or political independence of any state” embedded in Article 2(4) of the U.N. Charter.

The Trump administration’s unorthodox roll-out suggests that the motivation for this decision was primarily political. Netanyahu, a fellow traveler with close ties to many of Trump’s own supporters, is facing indictment on an array of corruption-related criminal charges. This has severely weakened his standing headed into Israel’s upcoming April 9 parliamentary elections, which may deprive him of power if he loses—or allow him to weather the criminal charges against him if he wins. The fact that the president made his decision during Pompeo’s visit makes clear that Netanyahu has the support of the Trump administration, which is widely popular in Israel due to Trump’s 2017 recognition of Jerusalem as Israel’s capital. President Trump may also see some domestic political advantage in the move, as members of his Republican Party have increasingly used Israel-related statements and policies to drive a wedge between those Democrats who have traditionally been strong supporters of Israel and the increasing proportion that are openly critical of certainly Israeli policies, painting the latter--and in some cases the broader Democratic Party itself--as anti-Israel or even anti-semitic. President Trump has himself engaged in such rhetoric in recent weeks, and may well see his Golan Heights decision as rowing in the same direction as these efforts.

Whatever the international response, there is no doubt that Trump has the constitutional authority to make recognition decisions regarding a foreign state’s territorial boundaries as a matter of U.S. law. The Supreme Court affirmed as much in its 2015 decision in Zivotofsky v. Kerry, which upheld the Obama administration’s authority to disregard a statute that sought to compel U.S. recognition of Israeli sovereignty over Jerusalem. Yet the fact that the president’s Golan Heights decision appears to be in such clear tension with the U.N. Charter does at least raise the question as to whether it is consistent with his constitutional duty to “take Care that the Laws be faithfully executed[,]” particularly as the Constitution expressly includes such treaties as part of the “Supreme Law of the Land.” Regardless, it’s highly unlikely that a U.S. court will ever take up this issue, leaving Trump’s new policy in place--at least until one of his successors changes it. Some members of Congress have indicated that they intend to introduce legislation that would hedge against this possibility, prevent future presidents from doing so, but this would almost certainly be unconstitutional under Zivotofsky. That said, alternate measures that rely on authorities that are more clearly within Congress’s constitutional control—including one proposal that would statutorily mandate that the Golan Heights be treated as part of Israel for purposes of foreign commerce—may be more legally defensible and thus harder for future presidents to reverse without congressional cooperation.

The international response to the president’s decision, meanwhile, has been almost overwhelmingly negative. The Arab League condemned the move as unlawful under international law, as did Turkey and Iran. The Assad regime in Syria went further, proclaiming its intent to recover the Golan Heights from Israel’s unlawful occupation “through all available means.” The European Union did not condemn the president’s decision but confirmed that its own longstanding policy—one that views the Golan Heights as occupied territories under international law—has not changed. Russia, meanwhile, noted that such an action would violate various U.N. Security Council decisions and could destabilize the region. “It is just a call for now,” a Russian spokesman said, raising doubts about whether the president’s statement truly reflected a change in U.S. policy. “Let’s hope it will remain a call.”

And the Russian spokesperson has a point: The exact contours of the Trump administration’s new policy remain unknown, and there is ample room for obfuscation. This was the tack that the Trump administration took with its Jerusalem decision, which recognized that city as Israel’s capital to much fanfare but ultimately declined to identify the “specific boundaries of Israeli sovereignty,” leaving them “subject to final status negotiations” with the Palestinians. Trump administration officials are reportedly working on a written statement to clarify the new U.S. policy towards the Golan Heights, which Trump will sign at a meeting with Netanyahu next week in Washington. No one should be surprised if that statement embraces similar ambiguity in an effort to salvage whatever is left of the policy equities that the prior longstanding U.S. policy had attempted to preserve. And there are at least three, all of which seem likely to be negatively affected by the Trump administration’s decision.

First and foremost is the U.S. commitment to the prohibition on the use of force embedded in the U.N. Charter, which—despite being stretched in sometimes uncomfortable ways—remains a keystone of the post-World War II international order. Banning territorial expansion by conquest was one of the signature purposes of the U.N. Charter, and endorsing the Israeli accession of “hard-fought real estate” in the Golan Heights, in Pompeo’s words, runs contrary to this purpose. No doubt the situation in the Golan is complicated, and there are arguments that U.S. and Israeli international lawyers will pursue in an effort to square this circle somehow. But the effect within the international community will almost certainly be a weakening of this principle, and the international order that is structured on it. Moreover, this principal has been the primary basis on which the United States has rallied international support against various questionable actions by other states, including the Russian annexation of Crimea and China’s claims in the South China Sea. After Trump’s recognition of Israel’s claim to the Golan Heights, these efforts may be seen as increasingly hypocritical and thus warranting less support.

Second is the effective detente that has existed between Israel and Syria over the Golan Heights since the 1970s. This has been to the substantial benefit of Israel, which has been able to exercise control over the Golan Heights in relative security and de facto incorporate the area into the Israeli economy, society and state apparatus. Trump’s announcement seems likely to reinvigorate this dispute, as the Assad regime’s strident response makes clear. Moreover, a confluence of factors make a Syrian response more likely: Assad is currently intent on recovering territorial control, concerned about possible secession by the U.S.-backed Kurds and already irked at Israeli strikes against Iran-affiliated targets in its territory. The latter is also the most likely area in which Israel will suffer repercussions, as its anti-Iran military campaign is reliant on the tacit cooperation of Assad’s Russian allies, who effectively control Syrian airspace and could restrict or oppose their operations in retaliation. Israeli relations with Lebanon—where Hezbollah, another Iranian ally, continues to exercise substantial influence—may also take a hit, as the president’s decision appears to affirm Israeli claims over the Shebaa farms region. All told, by aggravating these old conflicts and putting Israel’s current military operations at risk, it’s unclear whether the president’s decision will help or hurt Israel’s strategic position vis-a-vis Iran in the long run.

Finally, Trump’s decision is almost certain to seriously compromise hopes for a negotiated solution to the Arab-Israeli conflict, including his own supposedly forthcoming peace plan. For several decades, these negotiations have relied on Resolution 242 and its endorsement of the 1967 borders as a starting point for negotiations. Israel has repeatedly accepted this premise, including in its peace agreements with Egypt and Jordan as well as in the Oslo Accords it signed with the Palestinians—and has done so despite its de facto annexation of East Jerusalem and the Golan Heights, which most of the international community continues to view as illegal. Public U.S. endorsements of these activities not only adds fuel to widespread Arab objections over the illegality of these actions but undermines any remaining U.S. ability to act as a credible mediator, though the Trump administration’s increasingly open hostility towards the Palestinian leadership may have already dealt the latter a fatal blow.

When Trump recognized Israel’s claims to Jerusalem as its capital, he described his action as “nothing more, or less, than a recognition of reality”—namely, the fact that Israeli ties to Jerusalem were real and unlikely to be unwound in any future scenario. The administration may well argue much the same in regard to the Golan Heights. And there is some truth to this claim, particularly given that Syria’s broader future remains very much in doubt. Whatever practical validity Israeli claims may have, however, they cannot be confirmed by fiat. To the contrary, such declarations, if anything, have a tendency to result in feelings of opposition and resentment—not to mention legal claims—that can come to threaten whatever status quo may emerge. The only sustainable resolution is negotiation towards some mutually agreeable outcome, one whose legitimacy both sides can accept in perpetuity.

This is the approach that has produced Israel’s current borders with Egypt and Jordan. And it was the same approach that the United States and the international community were attempting in regard to Israel’s border with Syria as well, however slowly. Trump’s decision to recognize Israeli claims in the Golan Heights promises to disrupt this process, perhaps fatally. The decision may be in the interest of the president and some of his political allies. But the same is not true of Israelis and the many others whose lives and livelihoods ultimately depend on long-term peace and stability in the region.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

Subscribe to Lawfare