By Peter Berkowitz
February 19, 2016
For the full article go to: http://tinyurl.com/hh8tkxq
TEL AVIV—In exercising its right
of self-defense in the Six Day War, Israel seized from Syria the Golan Heights,
a strategically important plateau that looms over northeastern Israel, rising
sharply from the eastern bank of the Sea of Galilee to a height of more than
3,000 feet. Since June 1967 a powerful consensus has prevailed in the
international community, including the United States, that the Golan is
occupied territory.
The Syrian civil war, which has
been raging for almost five years, has done little to disturb the consensus.
But 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.
Modern Syria, which was born in
1946, has ceased to exist. Bashar al-Assad—who hails from the minority Alawite
community, an offshoot of Shia Islam—retains the title of president of Syria
though he now controls less than 25 percent of his former country. Despite
recent advances by government troops, the Islamic State and other Sunni
Islamists continue to dominate much of the territory Assad once governed.
Assad’s quest to retain power has
produced carnage of epic proportions. When the dictator moved to crush the
anti-regime, pro-democracy protests that broke out in Syria in early 2011, the
country’s population numbered approximately 22 million. Since then violence has
taken at least 250,000 lives, with more recent reports putting the figure
significantly higher. Between 1 million and 1.5 million people have been
wounded. More than 5 million refugees have fled to neighboring countries and to
Europe. The Economist estimated in September 2015 that an additional 7 million
people have been forced from their homes but remain within Syria’s official
borders. The United Nations Office for the Coordination of Humanitarian Affairs
believes that more than 13 million Syrians are in need of humanitarian
assistance.
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. The
termination, shortly after they began in early February, of peace talks in
Geneva suggests that much blood is still to be spilled.
Foreign funds and fighters sustain
the killing. With much of the Syrian army having crumbled, Assad is propped up
by Shiite Hezbollah fighters from Lebanon; the newly cash-flush Iranians who
are pocketing $100 billion or more as a result of the U.S.-brokered deal over
their nuclear program; and the Russians, whose air power has inflicted
punishing blows on Assad’s enemies. Saudi Arabia continues to support Sunni
rebels.
In these dramatically transformed
circumstances, Israel has the strongest legal claim to the Golan Heights. Its
political claim is stronger still.
Until the Six Day War, Syria used
a heavily fortified Golan as a platform to fire at Israeli villages below.
Damascus also permitted the Palestinian Liberation Organization to use the
Golan as a staging ground for terrorism. In the immediate aftermath of the Six
Day War, Israel offered to negotiate the status of all the territories it had
seized—which included the West Bank from Jordan and the Gaza Strip and Sinai
Peninsula from Egypt. Syria, along with Israel’s other Arab neighbors,
emphatically rejected the offer.
It addition to approximately
20,000 Jewish Israelis, the Golan is home to about 20,000 Druze, who speak
Arabic and practice their own distinctive religion. The Golan Druze reside in
four towns in the northernmost part of the territory. Unlike the Druze living
in the Galilee region of pre-1967 Israel who are citizens and serve in the
army, the vast majority of Golan Druze declined Israeli citizenship. Since the
Syrian civil war, however, they increasingly view life in Israel as preferable
to the alternatives. Today it is rare to see a picture of Assad in a Golan
Druze restaurant or store, although they still hang in private homes.
At a restaurant on the edge of the
town of Majdal Shams, which lies at the foot of the snow-capped Mount Hermon, a
veteran Golan Druze tour guide explained to me that there were two main reasons
for his community’s historic support for Assad. First, the president of Syria
has provided protection for Syrian Druze against Islamic State jihadists, who
see the Druze as infidels. Also, the Golan Druze fear that should Israel strike
a deal with Syria, Assad would punish them. He noted, however, that younger
Druze are increasingly open in their preference for Israel.
He also stressed that his people
generally regard the question of who should rule the Golan as a matter for
Syria and Israel to decide. And then, with a shining smile, my Druze
companion—who was already in his mid-twenties when Israel took the Golan in
1967 and so has living memories of life under Syrian authority—added that he
was quite confident that there is not another group in Israel, including the
Jews, who have life as good under the Israeli government as do the Golan Druze.
Meanwhile, Israelis across the
political spectrum realize that had a return of the Golan been negotiated,
Islamic State jihadists would now control the plateau. The Golan Heights,
moreover, does not raise the difficult questions for Israelis posed by the West
Bank and its restive population of approximately 2.8 million Palestinians,
because the Golan Druze are a small community pleased with their condition and
entitled by law to full Israeli citizenship.
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.
What happens, however, when the
party with the claim favored by international law disintegrates? The precedents
are few and ambiguous. However, James Crawford’s authoritative work,
“Brownlie's Principles of Public International Law,” 8th edition, declares that
“title prevails over possession, but if title is equivocal, possession under
claim of right matters.” Syria’s disintegration renders title over the Golan
equivocal.
Israel’s territorial claim arises
in part from the principle of “effective occupation,” which 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.
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—unlikely to come before the next president’s inauguration in
January 2017—the United States should affirm Israel’s lawful and just exercise
of sovereignty over the Golan Heights and urge the international community,
particularly U.S. allies in Europe and the Middle East, to do the same.
Peter Berkowitz, a member of the
board of the National Association of Scholars, is a senior fellow at the Hoover
Institution, Stanford University.
