By: David M. Weinberg
Feb 26, 2016
Syria is dead. Its disintegration justifies international recognition of Israeli sovereignty over the Golan Heights. In the interests of regional stabilization.
As we sadly mark this week five years to the wrenching Syrian civil war, it is time to say plainly: Israeli sovereignty on the Golan should be recognized out of global interest in stabilizing the region. This is in addition to Israel’s normative, legal, historic and national security claims to the Heights.
Indeed, the Golan Heights represents high strategic and moral ground for Israel, but Israel has been afraid to say this for years, instead holding out the possibility of a withdrawal from the Golan in the context of a peace agreement with Damascus. Given what is happening in Syria today, what folly that might have been.
One of the first to state this boldly was Prof. Efraim Inbar, director of the Begin-Sadat Center for Strategic Studies. Back in 2011, as the civil war was just beginning, he published a comprehensive study entitled “Why Israel Must Maintain Control of the Golan Heights.”
Inbar argued that the status quo situation between Israel and Syria with regards to the Golan Heights was both sustainable and preferable to any alternative. Even before Syrian civil war erupted, and without taking into consideration the new political volatility in the region, Inbar said that retaining the Golan and maintaining secure borders for Israel was more important than a peace treaty with Syria.
“Designing borders in accordance with current but changing military technology and transient political circumstances is strategically foolish,” Inbar wrote. “Thus the Golan plateau is simply Israel’s best defense against potential Syrian aggression. Moreover, the expected political returns for Israel from a peace treaty with Syria are meager. Syria is unlikely to align itself with pro-Western Arab states and abandon its Islamic regional alliances. Moreover, Syria has little to offer Israel in economic or cultural terms. This calculus is not affected by the prospects of a change in Syria’s leadership.”
“Since retaining the Golan is more important for Israel than reaching a peace treaty with Syria in the foreseeable future, Israel should insist on a new paradigm, ‘peace for peace,’ based on the principle of defensible borders. The demand for secure borders seems reasonable and is rooted in international resolutions such as UN Security Council Resolution 242.”
Inbar also argued that Israel should augment its claims for defensible borders on the Golan Heights with normative, legal and historic arguments. “Firstly, a return to the 1967 border would be morally repugnant because it implies that the aggressor of 1967, Syria, should not pay any price for its flagrant violation of international norms. Secondly, Israel is demanding land that is part of its historic patrimony.” Inbar proceeded to survey the little-known political and religious Jewish history of the Golan Heights.
SINCE THEN, of course, Humpty Dumpty is no more. Syria has ceased to exist as a unitary state, and it is unlikely that it will ever be put back together again.
Al-Qaida-affiliated groups, ISIS, the Iranian Guards, Hezbollah, the Kurds, and Russia all control major parts of the country, along with rump forces of the Bashar Assad regime.
As a result, Prime Minister Netanyahu last year hinted to US President Barack Obama during a meeting in Washington that it was time “to think differently” about ownership of the Golan plateau.
We don’t know how Obama responded, but nobody is holding their breath. In his last year in office, Obama is unlikely to discover the strategic acumen and understanding about Israel and the Middle East that has so totally escaped him for the past seven years.
Nevertheless, the idea is gaining steam. It is time to accept reality: The Golan is Israeli.
Several Israeli and American public figures have taken up the challenge. According to former Israeli cabinet secretary Zvika Hauser, Syria’s collapse as a state creates the first real opportunity in nearly 50 years to conduct a constructive dialogue with the international community over a change in Middle Eastern borders, in the name of stability. Especially in light of the nuclear agreement between Iran and world powers, Israel must act, he says, to receive a presidential guarantee and Congressional legislation in recognition of permanent Israeli rule on the Golan.
This would be upgrade on the presidential promise given by US President Gerald Ford to Prime Minister Yitzhak Rabin in 1975 regarding American recognition of Israel’s need to maintain a security presence on the Golan Heights even in peacetime.
Maj. Gen. (res.) Amos Yadlin, former head of military intelligence, also maintains that “the borders of the last centuries are not holy. In sorting out contemporary disputes, borders should be adjusted to security exigencies and demographic realities. The US would be advancing its own interests and those of Israel by promoting recognition of Israel’s sovereignty on the Golan. This would establish a salutary precedent, in a region racked by religious and sectarian wars.”
Prof. Peter Berkowitz of the Hoover Institution at Stanford University this week also weighed-in on the issue, in a long article entitled “Israeli Rule of Golan Is Lawful – and Wise.”
“The chaos in Syria has weighty legal and political ramifications that should impel the international community to revise its understanding of the Golan’s status,” he wrote.
In the dramatically transformed circumstances brought about by Assad’s quest to retain power, “and which has produced carnage of epic proportions,” Israel has “the strongest legal claim to the Golan Heights. Its political claim is stronger still.”
“This is especially true given that few informed observers think that a functioning nation-state can be reconstructed out of the warring Alawite, Shia, Sunni, Kurd, and Druze factions into which Syria has collapsed.” Berkowitz puts little faith in the Geneva-negotiated ceasefire that is supposed to come into effect in Syria this weekend.
THE KEY PART of Berkowitz’s article, I think, is an argument for the legality of Israel’s annexation of the Golan. He notes that following World War II, international law prohibited the acquisition of territory by force, even in the case of a defensive war. The general tendency is to preserve existing boundaries.
But what happens, he asks, when the party with the claim favored by international law disintegrates? “If title is equivocal, possession under claim of right matters. And therefore, Syria’s disintegration renders title over the Golan equivocal, while Israel can claim a right under the principle of effective occupation.”
This right provides that territory can be acquired through the exercise of sovereign power on a peaceful and extended basis. Israeli law has applied to the Golan for almost 35 years and Israel has exercised authority in a manner that suits all the residents of the territory.
Moreover, public international law favors stability, order, and peace; it aims to avoid resolutions that expose individuals to death or injury. Accordingly, it should prefer Israeli sovereignty over the Golan to the grim alternatives for the Golan Druze: the tyrannical rule of Shiite Islamist Iran’s puppet Assad, or the tyrannical rule of Islamic State Sunnis.
In short, Berkowitz writes, “the international consensus that the Golan belongs to Syria no longer fits the facts and the law. Nor does it coincide with America’s interest in checking the spread of Islamist violence throughout the Middle East and in bolstering a democratic ally.”
“At the first opportunity – which is unlikely to come before the next president’s inauguration in January 2017 – the US should affirm Israel’s lawful and just exercise of sovereignty over the Golan Heights and urge the international community, particularly US allies in Europe and the Middle East, to do the same.” Amen.