Trump’s Recognition of Israeli Sovereignty in the Golan Heights and Netanyahu’s Promise to Annex the Jewish Settlements in the West Bank – Poison Pills to Middle East Peace
On March 25, 2019, President Donald Trump declared US recognition of Israeli sovereignty over the Golan Heights, which Israel captured from Syria during the Six-Day War of 1967. For decades, control of the Golan – a strategic barrier between Israel and Syria – has been considered a subject for peace negotiations between the two countries. President Trump’s announcement raises a number of questions, not least of which: does Israel have, or has it even claimed, sovereignty in the Golan?
Less than two weeks later, in the final days of a tight election campaign, Israeli Prime Minister Benjamin Netanyahu promised that, if elected, he would apply Israeli sovereignty to Jewish settlements in the West Bank. Assuming that Netanyahu’s pledge was not simply a campaign tactic to rally his right-wing base (“I will annex the West Bank Jewish settlements and Palestinian President Abu Mazen will pay for it!”), and if Prime Minister-designate Netanyahu actually proceeds to carry out this promise and initiates a law to extend Israeli sovereignty to the West Bank settlements, how would that differ from simply applying Israeli law to the settlements, and what would the likely political implications be?
These pronouncements – when placed in the context of Israeli law, previous Israeli agreements with its neighbors, and international norms – could further stymie any future Israeli-Syrian peace treaty and spell disaster for the two-state solution, potentially leading to instability and many more decades of conflict.
But first, to put the answers to these questions into context, let us go back in time to when the “original sin” precipitating these current trends was conceived – moments in history for which I had a front-row seat.
The Golan Heights
On December 14, 1981, I was sitting in my office at the Israel Defense Forces (IDF) Judge Advocate General Headquarters in Tel Aviv, working on one of the numerous legal documents that piled on my desk. As the Director of the IDF’s International Law Department, my responsibility was similar to that of the Israeli Attorney General, except that his responsibility was to ensure that the Israeli government complied with Israeli law inside Israel, whereas my responsibility was to ensure Israeli compliance with international law in the areas under Israeli military control, which lay outside Israel’s borders. As such, my legal “kingdom” at that time covered territories three times larger than that of Israel’s, including the Sinai Peninsula captured from Egypt in 1967, the West Bank and Gaza, the Golan Heights and Southern Lebanon. But on that fateful day, my “kingdom” was about to shrink abruptly.
Around 5:30 pm, a colleague knocked on my door, popped his head into my office and asked: “Are you listening to the radio news?”
“No,” I said, “I don’t even have a radio here.”
“You’d better find a radio and start listening,” he replied. “[Israeli Prime Minister Menachem] Begin is now speaking to the Knesset [the Israeli parliament], advocating the adoption of a bill he has just submitted proposing to apply Israeli law to the Golan Heights and he is determined to complete the legislative process today.”
That was quite surprising. It normally takes many weeks, if not months, from the time a bill is first submitted for consideration in the Knesset until it becomes law. As it turned out, that morning Begin had read an interview with Syrian President Hafez al-Assad, which had been published in a Kuwaiti newspaper the day before, in which Assad rejected the Saudi-proposed peace plan between the Arab world and Israel, and stated he would never recognize Israel even if the Palestinians did so. Instead, Syria and the rest of the Arab states should wait until the strategic balance with Israel changed in their favor, so that they could impose upon Israel the Arab demands.
Furiously, Begin decided to take an immediate retaliatory step. He himself drafted a bill – the Golan Heights Law – and insisted on submitting it to the Knesset on that same day. Begin, who was then hospitalized with a broken leg, was brought to the Knesset in a wheelchair to make a passionate speech calling upon the Knesset members to approve the bill that same day, which the Knesset did around midnight.
The succinct Golan Heights Law stated, in its entirety, the following:
- The Law, jurisdiction and administration of the State [of Israel] will take effect in the Golan Heights, as described in the Schedule.
- This Law will begin taking effect on the day of its acceptance in the Knesset.
- The Minister of the Interior is placed in-charge of the implementation of this Law, and is entitled, in consultation with the Minister of Justice, to enact regulations for its implementation and to formulate regulations on interim provisions regarding the continued application of regulations, directives, administrative directives, and rights and duties that were in effect in the Golan Heights prior to the acceptance of this Law.
The hastily-prepared “Schedule” attached to the law consisted of a featureless drawing of the outer perimeter of the Golan Heights, which looked as if it might have been a third grader’s geography class homework.
While the Golan Heights Law did not state clearly that Israel annexed the Golan Heights, the words it used (“The Law, jurisdiction and administration of [Israel] will take effect in the Golan Heights”) tracked precisely the same language used in two similar Israeli laws that had been previously passed by the Knesset and intended to annex territory to Israel.
The first of these laws was passed at the end of Israel’s 1948 War of Independence, following the 1949 Armistice Agreements that Israel entered with Egypt and Jordan. These agreements established the “Green Line” – the border that separated between Israel and these two neighbors, which also defined the outer limits of Israel’s sovereignty. The law annexed to Israel those areas of the former Mandated Palestine that Israel had captured during its 1948 War of Independence, which were beyond the territory allocated to Israel under the 1947 U.N. General Assembly Resolution that adopted the Palestine Partition Plan, up to the Green Line.
The Knesset passed the second law following the 1967 Six-Day War, in which Israel annexed East Jerusalem. In both cases, Israel justified the annexation by invoking its claim to sovereignty over any portions of the Biblical Land of Israel (the former Palestine) that have fallen under Israeli control, based on its historic connections to the Land of Israel.
But the Golan is not considered part of the Land of Israel and Israel has never asserted any pre-existing sovereign right or claim to this area Instead, Israeli demands to modify the Israeli-Syrian border were based exclusively on security considerations and were intended to be raised in the context of peace treaty negotiations between the two countries. These demands were in line with U.N. Security Council Resolution 242, which was adopted in 1967 and has been accepted by both Israel and Syria as the basis for peace negotiations. On the one hand, the resolution cites the international legal principle of “inadmissibility of the acquisition of territory by war” – meaning that it is prohibited to annex unilaterally captured enemy territory following a war.
At the same time, however, Resolution 242 only calls for withdrawal from “territories occupied in the recent conflict” (deliberately omitting the word “the” before the word “territories,” which would imply all the territories) and states that the withdrawal should be to “secure and recognized boundaries.” Based on these aspects of Resolution 242, it has been the traditional U.S. position that the resolution does not require full withdrawal to the pre-June 1967 borders, but rather that Resolution 242 permits minor modifications in the boundary due to security considerations, provided that the two parties agreed to these modifications.
Begin was very familiar with Resolution 242’s prohibition of unilateral annexation. Thus, during the Knesset deliberations over the Golan Heights bill, when accused of attempting to annex the Golan Heights to Israel, Begin rejected that characterization, making a case that simply applying Israeli law to these areas was not tantamount to a change in sovereignty or annexation. Moreover, when several opposition Knesset members objected to the bill because it could undermine a future peace treaty with Syria, Begin announced that, should circumstances change, with the Syrian president ready to negotiate a peace treaty with Israel, the Golan Heights Law would not be an obstacle.
Indeed, fifteen years later, when I participated in negotiations with Syria over a peace treaty under the Rabin-Peres government, the working premise was that Israel would agree to withdraw from the Golan Heights if Syria accepted Israel’s main positions regarding other aspects of the peace treaty. The only remaining disagreement was on the precise location of the boundary, with only an approximate ten meters (33 feet) difference separating the Israeli and Syrian positions regarding the location of the boundary in the Sea of Galilee area. At no time was the Golan Heights Law an impediment to the negotiations. Based on news reports, subsequent Israeli governments, including a Likud-led government headed by Netanyahu, continued to negotiate with Syria based on the same working premise.
But in 1981, despite Begin’s announcement that the law did not constitute annexation and did not preclude negotiations with Syria, President Ronald Regan’s reaction to the law was extremely harsh. The Reagan Administration immediately moved to punish Israel, suspending an arms transaction between the US and Israel; joining the 14 other members of the UN Security Council in a resolution demanding that Israel rescind the Golan Heights Law, and declaring the Israeli move “null and void and without legal effect.” Further, the United States also suspended a US-Israel strategic cooperation agreement – a first of its kind for Israel – that I had negotiated and that was signed in Washington only three weeks earlier, on November 30, 1981.
Now fast forward to 2019. Out of the blue, on March 25th, citing aggressive acts by Iran and Hezbollah in southern Syria, President Trump published a proclamation stating that:
I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim that, the United States recognizes that the Golan Heights are part of the State of Israel.
Since Begin himself denied that the Golan Heights Law constituted annexation to Israel – that is, it did not make the Golan Heights part of the State of Israel – Trump’s proclamation recognized a non-existent status of these areas. As such, on the issue of the Golan, Trump put the United States in a more extreme position than even the Israeli government itself.
What a dramatic change in attitude from one U.S. president to another in a span of 38 years!
Trump’s Golan Heights proclamation appears intended as a gift to Israel, or perhaps to Netanyahu himself (who returned the favor by promising to name a settlement in the Golan Heights after President Trump). But in fact, it’s nothing more than a “White Elephant.” The President’s statement will not, and legally cannot, make the Golan more annexed to Israel than it is today – and today it is not annexed to Israel. (The Golan Heights Law has had impact only within Israel, under its domestic law, where it is considered to be part of Israel. For the Golan—or any other foreign territory—to be truly considered annexed to Israel under international law, there must be an agreement between the two countries recognizing the change in sovereignty or, alternatively, universal recognition by the international community.) Conversely, Trump’s proclamation will preclude the United States from ever again playing the role of mediator in any future Israeli-Syrian peace talks – impossible in the near term, but possible and necessary once circumstances change. Moreover, the Trump Administration’s position will, in effect, prevent Israel from taking a more moderate position in any future peace negotiations with Syria. In other words, it will effectively prevent a peaceful resolution of the Israeli-Syrian conflict.
Israeli Settlements in the West Bank
Just three days before the Israeli elections on April 9th, responding to a reporter’s question as to whether he would annex the Israeli settlements after the elections, Prime Minister Netanyahu minced no words and said:
Will we go to the next phase? The answer is yes. We will go to the next phase to extend Israeli sovereignty. I will impose sovereignty, but I will not distinguish between settlement blocs and isolated settlements. From my perspective, any point of settlement is Israeli, and we have responsibility, as the Israeli government. I will not uproot anyone, and I will not transfer sovereignty to the Palestinians.
Netanyahu did not say how he planned to implement his campaign pledge, but he explicitly talked about extending Israeli sovereignty – not merely applying Israeli law to the settlements, as Israel had done in the Golan Heights under Begin.
But before attempting to decipher Netanyahu’s intentions and the implications of his promise, another trip back in time is necessary. In the late 1970s and early 1980s, I was involved in two converging developments, both related to the Israeli settlements in the West Bank. In 1977, Menachem Begin and his Likud Party formed the first Israeli rightist government, which resulted in two major policy changes. First, they opened the gate to extensive settlement activity in the West Bank. Previous Labor-led governments had established settlements very sparingly, locating them in areas thinly populated with Palestinians and based almost exclusively on security considerations. Conversely, Begin’s Likud government commenced a process of establishing numerous settlements throughout the West Bank, bringing in tens of thousands of Jewish settlers.
In parallel, Begin also negotiated the 1978 Camp David Accords with Egypt and the United States, which were based on Begin’s plan for Palestinian autonomy. As the IDF representative in the Israeli delegation that negotiated with Egypt and the US to implement Camp David’s autonomy principles, I was a principal author of the Israeli model of autonomy. In drafting these documents, I had to find a balance between two principles underlying Begin’s autonomy plan. The first was Begin’s commitment that Israel would not exercise unilaterally its right and claim to sovereignty in the West Bank as long as the Palestinian autonomy arrangements were in place. Second was Begin’s principle that Israelis would not be subject to the jurisdiction of Palestinian autonomous bodies. This position was part of a larger principle that was central to Begin’s autonomy plan – the autonomy he offered was not intended to extend to the territory of the West Bank but to its Palestinian residents on a personal basis only. That principle necessarily also required that Jewish settlers in the West Bank would not be subject to Palestinian jurisdiction. I translated these two principles into a proposed integrated arrangement to apply during the five-year autonomy period. Under the plan, Jewish settlers in the West Bank would continue to be subject to the jurisdiction of the Israeli military commander, rather than being subject to either the Palestinian autonomous government (which would have contradicted Begin’s position that Palestinian autonomy was personal and not territorial) or to Israeli governmental bodies in Israel-proper (which could have been interpreted to mean that the settlements were annexed to Israel).
Around the same time, the Israeli government appointed a committee consisting of a senior attorney at the Israeli Ministry of Justice and me, which was tasked with developing and implementing arrangements that would regulate civilian life within the Jewish settlements in the West Bank in a manner consistent with Israeli norms.
In that context, I insisted on a number of guiding principles. First, subject to only a handful of exceptions, regulation of the settlements would be applied through orders of the West Bank military commander, rather than through Knesset legislation.
Second, the military commander would not apply Israeli law to the settlements, lock, stock and barrel. Rather, individual laws were applied to the settlements by the military commander following a case-by-case examination which considered the settlements’ unique status. For instance, in the early days, students residing in the settlements were sent by buses to schools located in Israel on a daily basis. But when schools began to be built inside the settlements, the commander’s decision was to follow the Israeli curriculum, using Israeli teachers and textbooks written in Hebrew, rather than following the Palestinian curriculum, using Palestinian teachers and textbooks written in Arabic. This arrangement was one of the first to be applied through a military commander order.
Third, the military commander’s orders addressing civilian life within the settlements would not substitute the local law in the West Bank. Like all military orders, the commander’s orders were only to supplement local law on a temporary basis and would automatically expire at the end of the military occupation.
In developing this arrangement, I thought it would serve two purposes: regulating civilian life within the settlements in the immediate term and preparing the legal framework for running the settlements during the upcoming five-year period of Palestinian autonomy (which I then naively believed was imminent), I thought the arrangements would leave all options open for the permanent status agreement to be negotiated after the five-year autonomy period, per the schedule in the Camp David Accords. I perceived this arrangement as laying the legal foundation for miniature Jewish autonomy, like the Russian doll-within-a-doll-within-a-doll: Jewish autonomy–within larger Palestinian autonomy–inside the larger Israel. As we all now know, Camp David’s Palestinian autonomy model was not ultimately implemented. However, fifteen years later, I transplanted these arrangements into the Oslo Accords. And to the best of my knowledge, today – 25 years after Oslo – these arrangements more or less still exist.
Throughout this forty-year period, I have always believed that the two-state idea is the only possible solution to the Palestinian-Israeli dispute, and that, in the context of the permanent solution, all Israeli settlers must be removed from the West Bank.
If Netanyahu now proceeds to unilaterally annex the Israeli settlements in the West Bank through a Knesset law, he will no doubt be accused by the world of violating the principle of international law prohibiting the acquisition of territory by war reflected in U.N. Security Council Resolution 242. Israel would also be accused of violating the Oslo Accords, which incorporate Resolution 242 as the agreed basis of the negotiations. And such a move may push the Palestinian Authority to void the Oslo Accords or adopt other counter-measures against Israel. For instance, annexing the settlements may halt the currently well-functioning security cooperation between Israeli and Palestinian security forces, or trigger a chain reaction in which the Palestinian Authority is destabilized or collapses.
Further, to the extent that Netanyahu’s plan is simply to apply Israeli law to the Jewish Settlements, in the same way Begin did in 1981 in his Golan Heights Law, such a move would not make any practical difference. Applying Israeli law to the settlements through formal Knesset legislation is not necessary as a practical matter, given that the legal framework for running the daily life in the settlements based on Israeli norms already exists through the standing military commander order arrangements described above.
So, if there is nothing for Israel to gain and very much to lose, why would Netanyahu want to go ahead and annex the settlements now? But wait. There’s more. And it gets worse.
The Israeli Referendum Law – The Ultimate Poison Pill
In 2014, the Knesset passed a law called “Basic Law: Referendum,” according to which, any agreement by the Israeli Government that will result in a situation where “the law, jurisdiction and administration of the State of Israel shall no longer apply to territory in which they currently apply,” must be approved by a Knesset vote of at least 80 out of its 120 members (or, in the alternative, a vote of at least 61 members AND the majority, that is, more than 50%, of all Israelis through a general referendum, a very difficult process that has never been tried before in Israel).
When this law was passed by the Knesset, Israeli “law, jurisdiction and administration” was applied (outside Israel proper) only in East Jerusalem and the Golan Heights. The purpose was clearly to make it very difficult, almost impossible, for any Israeli government to cede any portion of these areas, presumably as a part of a peace agreement. Sixty-eight Knesset members voted for the Referendum Law, and thus would likely also have voted against any agreement to cede the Golan Heights or East Jerusalem, were such a proposal brought before the Knesset for approval.
So, if Netanyahu now proceeds to pass legislation to apply Israeli “law, jurisdiction and administration” to the Jewish settlements in the West Bank, it would expand the Referendum Law’s applicability beyond the Golan Heights and East Jerusalem to include parts of the West Bank, making any future peace agreement all the more difficult.
Consider these two facts: in 1995, when the late Israeli Prime Minister Yitzhak Rabin presented the Oslo II Agreement for a Knesset vote, the agreement was approved by a slim majority of 61 in favor to 59 against. Since then, the Israeli left has declined significantly. At the time of the Oslo II vote, Rabin’s Labor Party had 44 Knesset members, and Meretz, the other leftist party that joined forces with Rabin during the Oslo process, had 12 seats. Today, Labor holds six Knesset seats, and Meretz holds four.
Any permanent status agreement on the West Bank would require the evacuation of at least some Israeli settlements. Applying Israeli law to these settlements as Bibi proposes – which would in turn apply the Referendum Law to such an agreement – will, therefore, automatically impose almost impossible approval requirements (support by at least 80, instead of only 61, of the 120 Knesset members) on any permanent status agreement, if one is to be concluded in the future by a new, different government. Stated otherwise, annexing West Bank settlements might well be the final nail in the coffin of the two-state solution.
In U.S. corporate law, there is a concept called the “poison pill” – a strategy companies use to shield against a hostile takeover by another company. When activated, a poison pill triggers a new, prohibitive cost that must be paid as a part of the takeover. Annexing the Israeli settlements, compounded by the impact of the Referendum Law, will automatically create a political poison pill, shielding against the two-state solution ever coming to fruition.
Dear Knesset members: Applying Israeli law to the settlements is practically irreversible. Perhaps today the two-state solution is impossible to achieve, but the circumstances may change in the future. So, please don’t do that. Leave all options open!