Golan Heights: Trump violates international law

Send
Muhammad Nawshad Zamir
Published : 21:01, Mar 29, 2019 | Updated : 21:58, Mar 29, 2019

Muhammad Nawshad ZamirPresident 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 implementing it. On 25 March 2019, Trump converts his tweet into a proclamation stating that "the United States recognizes that the Golan Heights are part of the State of Israel”. In May 2017, prior to U.S. President Trump’s visit to Israel as part of a broader tour of the region, a promotional video released by the White House included a map of Israel drawn within the 1967 borders—leaving out the West Bank and the Golan. Therefore, the decision is yet another u-turn in US policy. This move was obviously welcomed by Israel. Trump's comment was condemned or rejected by the Syrian government, Egypt, Turkey, Russia, Iran, the European Union, Germany, France, the Arab League, and the Gulf Cooperation Council. The Druze community in the Golan Heights also protested against Trump's declaration.
Trump’s announcement not only disrupts long standing US policy of letting the parties find a peace solution themselves, 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 which remains a keystone of post WWII international order. For several decades, 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.

In terms of US law, 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 US constitution expressly includes such treaties as part of the “Supreme Law of the Land”.
With all the wars that Israel has experienced since its creation in 1948, occupation has been a recurring phenomenon in its history. As the 1967 Six Days War ended, Israel occupied territories over three times as large as its home territory. These included the Golan Heights occupied from Syria. The Golan Heights hold major strategic significance for both parties. In 1967 the whole of the Golan Heights came under Israeli occupation. The eastern line of the occupied territory changed somewhat following the 1973 Yom Kippur War and the Agreement on Disengagement between Israeli and Syrian Forces of 5 June 1974. This change was without strategic significance.
The Armistice Line between Israel and Syria was drawn in the General Armistice Agreement between Israel and Syria (1949) along the international boundary between Mandated Palestine and Syria. The United Nations Disengagement Observer Force (UNDOF) was established by United Nations Security Council Resolution 350 on 31 May 1974, to implement Resolution 338 (1973) which called for an immediate ceasefire and implementation of United Nations Security Council Resolution 242.
On 14 December 1981 Israel adopted the Golan Heights Law ([1981/82] 36 Laws of the State of Israel 7) under which ‘the law, jurisdiction, and administration of the State of Israel shall apply to the area of the Golan Heights’. The language of the law gave rise to the argument that in view of the obvious illegality of an annexation, and in view of the fact that statutes should receive an interpretation that least conflicts with international law, the Golan Heights Law should be interpreted as merely extending Israeli law to the area without annexing it. Be that as it may, international as well as Israeli public opinion viewed the Golan Heights Law as an annexation of the Golan.
When the question came before the Supreme Court of Israel, the Court tried to avoid this issue. While stressing that the mere extension of the law to a certain area outside State territory does not necessarily constitute annexation, the Court stated that all that was necessary to deduce from the law for the purposes of that case was whether all norms that apply in any part of Israel also apply in the Golan Heights (Abu Sallah v The Minister of the Interior). The law caused immense challenge for Israeli legal advisers in their attempts to reconcile the Israeli law with international law. It also posed a hurdle for the Foreign Ministry, which had to explain the situation to the world. The solution that was reached at the time was to use strategic language: Instead of admitting explicitly that Israel was annexing the territory and applying sovereignty over the Golan Heights, the law stated that Israel was "applying law, jurisdiction and administration."
In the international arena, the UN Security Council pronounced the Golan Heights Law as being null and void and without international legal effect and demanded that the law be rescinded. The resolutions in clear terms state that any acquisition of territory by force is inadmissible under international law.
Israeli soldiers stand on tanks near the Israeli side of the border with Syria in the Israeli-occupied Golan Heights, Israel May 9, 2018. REUTERS/File PhotoResolution 497 (1981) of 17 December 1981 states that the SC reaffirms that the acquisition of territory by force is inadmissible, in accordance with the Charter of the United Nations, the principles of international law and relevant Security Council resolutions deciding that the Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect. The resolution also demanded that Israel, the occupying Power, should rescind forthwith its decision.
Resolution 242 (1967) of 22 November 1967 of the Security Council emphasizes the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security, and emphasized that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter. The resolution affirmed the principles of:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict; and
(ii) Termination of all claims or states of belligerency and respect for and acknowledgment 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 free from threats or acts of force.
Israel somehow intended or intends to use the second principle to establish their claims of occupied territories ignoring the first principle that calls for withdrawal of the Israeli armed forces from the occupied territories.
In the same vein as the Security Council, the General Assembly also adopted resolutions declaring the position of international law in terms of illegal occupation and unlawful annexation in unequivocal terms.
General Assembly Resolution A/RES/36/226 (A and B) dated 17 December 1981 (excerpts)stated that The General Assembly, gravely alarmed by Israel's decision of 14 December 1981 to apply Israeli law to the occupied Syrian Arab Golan Heights, reaffirmed that acquisition of territory by force is inadmissible under the Charter of the United Nations, the principle of international law and relevant United Nations resolutions and declared that Israel's decision to apply Israeli law to the occupied Syrian Arab Golan Heights is null and void and has no legal validity whatsoever. The resolution also demanded that Israel, the occupying Power, rescinds forthwith its decision and all administrative and other measures relating to it, which constitute a flagrant violation of all relevant principles of international law and requested the Security Council, in the event of Israel's failure to implement the present resolution, to invoke Chapter VII of the Charter of the United Nations.

The General Assembly by Resolution A/RES/37/123 dated 16 December 1982 recalled its resolution 3314 (XXIX) of 14 December 1974, in which it defined an act of aggression, inter alia, as "the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof" and provided that "no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression", and reaffirmed the principles stated earlier.
Such illegality in acquisition of territory by force has now reached the status of jus cogens under international law. The notion of jus cogens in international law encompasses the notion of peremptory norms. In other words, it means that certain overriding principles of international law exist which form “a body of jus cogens.” These principles are those from which it is accepted that no State may derogate by way of treaty. As a result, they are generally interpreted as restricting the freedom of States to contract while ‘voiding’ treaties whose object conflicts with norms which have been identified as peremptory. Consensus regarding the definition of jus cogens was finally reached as to a definition during the Vienna Conference held in 1969 (“the Vienna Conference”) and this was codified in Article 53 of the Vienna Convention on the Law of Treaties 19695 (“the Vienna Convention”).
The development, however, was gradual. First, academics continued to acknowledge the existence of peremptory norms on an informal basis. Oppenheim stated in 1905 that in his view “a number of ‘universally recognised principles’ of international law existed which rendered any conflicting treaty void and that the peremptory effect of such principles was itself a ‘unanimously recognised customary rule of International Law.’ Second, moves towards a more ‘formal’ recognition of this concept within internationally binding instruments and jurisprudence began to appear after World War One, with for example the inclusion of relevant articles in both the Covenant of the League of Nations and the Statute of the Permanent Court of Justice (later, the Statute of the ICJ). Article 20.1 of the Covenant of the League of Nations of 1919 (interpreted by Judge Schücking, below), provided that members of the League should not enter into treaties which were incompatible with the terms of the Covenant. While later, Article 38(1)(c) of the Statute of the Permanent Court of Justice, adopted in 1920 included “the general principles of law recognized by civilised nations” within the sources of law applicable by the Court.
In 1934, Judge Schücking of the PCIJ interpreted Article 20 of the League of Nations as follows:
The Covenant of the League of Nations, as a whole, and more particularly its Article20…, would possess little value unless treaties concluded in violation of that undertaking were to be regarded as absolutely null and void, that is to say, as bei ng automatically void. And I can hardly believe that the League of Nations would have already embarked on the codification of international law if it were not possible, even to-day, to create a jus cogens, the effect of which would be that, once States have agreed on certain rules of law, and have also given an undertaking that these rules may not be altered by some only of their number, any act adopted in contravention of that undertaking would be automatically void.” [Judge Schücking’s individual opinion in The Oscar Chinn Case, (1934) PCIJ Rep. Ser. A/B, No. 63, p. 149]
Finally, the ICJ discussed the existence in international law of what it considered to be a special category of international norms that should receive a particular degree of prominence. In commenting on the Genocide Convention, it stated that “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the Contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention….The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of its provisions.” [Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951), p. 15]
Article 53 of the Vienna Convention is recognized as setting out the current internationally accepted definition of jus cogens. It provides:
Treaties conflicting with a peremptory norm of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Thus, the three elements or norm of jus cogens are that:
1. The norm must be a norm of general international law.
2. The norm must be “accepted and recognized by the international community of States as a whole.”
3. The norm must be one from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law of the same character.
Although there is not any exhaustive list of jus cogens, we begin with the examples put forward by the ILC in its final report to the Vienna Conference. Specific examples included by the ILC were: (1) Principles of the Charter of the United Nations prohibiting the unlawful use of force (Article 2 of the UN Charter specified in Resolution 242 of the UNSC); (2) International laws that prohibit the performance of any other act criminal under international law; and (3) International laws that oblige States to co-operate in the suppression of certain acts such as trade in slaves, piracy or genocide.
And thus, it can be concluded that the unlawful use of force by Israel on the Golan Heights and its unlawful annexation by way of aggression are against the jus cogens established in this area of international law. Example of Iraq annexing Kuwait being contrary to jus cogens sets the records right.
Barrister Muhammad Nawshad Zamir is BNP’s International Secretary.

/hb/
***The opinions, beliefs and viewpoints expressed in this article are those of the author and do not reflect the opinions and views of Bangla Tribune.
Top