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Arbitration on the Syrian Border

June 19, 2008
INSS Policy Brief No. 13
Benn, Aluf

One question that has long plagued Israel-Syria negotiations is the route of the future border between the two countries. While in meters the gap between the positions of the two sides is narrow, it has held great symbolic and political significance, to the point of complicating any possible agreement.

Syria insisted and still insists that Israel withdraw from the entire Golan Heights to the positions held on June 4, 1967, before the Six Day War. In the past, Israel has agreed that the border would be based on the June 4 line, but proposed that it be demarcated in a way to satisfy the claims of both sides. Syria could claim that it had recovered the last centimeter of land that Israel conquered in 1967, while Israel would control the coast of Lake Kinneret (Sea of Galilee) and the eastern bank of the Jordan River highlands.

As prime minister, Ehud Barak came closer than both his predecessors and successors to a detailed discussion on the border demarcation with Syria. He proposed that Israel retain a strip of 400 meters along the northeastern coast of the Kinneret (and a narrower strip along the highland part of the Jordan. In a meeting with US president Bill Clinton in March 2000, then-Syrian president Hafez Asad rejected the proposal, whereupon the negotiations were halted. His son Bashar, the current Syrian president, stated in a similar vein, “Syria adheres to the 1967 borders as far as Tiberias. We will never compromise on that.”1

When Israel-Syria negotiations were resumed in May 2008, Syrian foreign minister Walid Mualem announced that Prime Minister Ehud Olmert had made a commitment to withdraw to the June 4, 1967 lines. Israel did not explicitly deny this, and Israeli sources said that Olmert “was aware of the proposals that his predecessors had made to the Syrians.”

Experience shows that behind this ambiguous formulation, which made possible the resumption of negotiations, a serious dispute exists regarding the exact route of the border. The populist Israeli saying “The Syrians will splash their feet in the Kinneret” became a political taboo at the end of the previous decade, i.e., a red line. Amassing public support for a change in this attitude will be difficult. The Syrian side is committed to the legacy of Asad Sr, who insisted to Clinton that Syrian sovereignty reach the waterline: “The [Kinneret] has always been ours, and not theirs. There were never any Jews east of the lake.”2

One way of surmounting the issue that thus far has not been considered seriously in negotiations between Israel and Syria is transferring the issue of the border to international arbitration. Arbitration is an acceptable mechanism for settling international legal and commercial disputes. In the Arab-Israeli peace process, a successful precedent is the arbitration to determine the border between Israel and Egypt at Taba.

Experience shows that the principal advantage of arbitration to solve a dispute in diplomatic negotiations lies in assigning the decision to an objective external party whose ruling is acceptable to the parties. In this way, neither side is seen as voluntarily ceding sacred national symbols to the other. The discussion shifts from a futile political argument over “rights” to legal and professional discourse. With Syria, arbitration would take a few years, during which the parties can make progress in carrying out other parts of the peace treaty, as happened with Egypt.

In the current context of negotiations with Syria, it is highly likely that the issue of the Kinneret coast will arouse sharp differences and make an agreement difficult to achieve. In contrast to other points along the border unfamiliar to the public, everyone in Israel and Syria knows the Kinneret. Thus even if Syrian and Israeli leaders show a political will to achieve a settlement, they will face difficult internal opposition to a compromise involving concession of a national symbol. It is no wonder that Bashar Asad limited his own options by presenting an uncompromising public stance on the question of the Kinneret – without mentioning other sections of the border at all.

If it proposes arbitration, Israel will appear to be a country that respects international law as a means of resolving conflicts and is willing to explore fully the feasibility of a political settlement, instead of risking war over a dispute over a narrow strip of land. In contrast to Israel’s inferior international position in its negotiations with the Palestinians, where it is regarded as an aggressive occupying country, there is no international pressure on Israel to yield to Syrian demands. Israel will therefore score political points by turning to arbitration. This will be to Israel’s advantage, whether it sincerely tries to make progress towards an agreement with Syria or whether it encounters international pressure to withdraw from the Kinneret coast and endeavors to postpone or defeat this initiative.

For Israel, the main disadvantage of arbitration with Syria is the instinctive fear among public opinion and the political establishment of internationalizing the settlement, given what is regarded as a tendency of international institutions to rule against Israel. An Israeli leader will have to justify to the public why he consented to arbitration and did not take a stand on keeping the Kinneret coast under Israel control, even at the cost of refraining from an agreement.

The Historical Background
The international border was demarcated in 1923 by the United Kingdom and France, the two Mandatory powers that at the time controlled then-Palestine and Syria. The border that they established took into consideration the aspirations of the Zionist movement for development of the water resources of the Jordan basin, and left both sides of the river and Lake Kinneret on the Palestine side of the border (although most of the sources of the Jordan River remained on the Syrian side). To this day, this is the only line that is recognized internationally. In 1926, a good neighbor agreement permitting Syrians to fish in the Kinneret was added to the border agreement.

Following the 1948 War of Independence, Syria was the last country to begin talks on a ceasefire with Israel, and refused to return to Israeli sovereignty the territory it had conquered during the war. International mediator Ralph Bunche proposed a compromise involving the establishment of demilitarized zones and leaving the question of their sovereignty open. Israel and Syria agreed, and a ceasefire agreement was signed in July 1949.

The very agreement, however, was formulated carelessly, and its implementation left a number of problems that were not solved by 1967. One of the lacunae in the agreement was the existence of a 10 meter-wide strip along the northeastern coast of the Kinneret, which was officially on the Israeli side of the armistice line, since it had not been included in the demilitarized zone. In practice, however, Israel was totally unable to exercise its sovereignty over this strip.

The demilitarized areas were divided between Israel and Syria. After an unsuccessful attempt at a consensual division of the territory,3 each country took control by force of the territory in which it held topographic or settlement superiority. According to geographer Moshe Brawer’s calculations in his book Israel’s Borders, Israel took control of 44 sq km of the 62 sq km in the demilitarized zones, and Syria took control of 18 sq km, including the el-Hamma enclave, the northeastern coast of the Kinneret from Ein Gev to the upper Jordan estuary, and the eastern bank of the highland part of Jordan. There was no agreed line separating the two parties, only areas of effective control. Consequently, there is no map on which the June 4 line is marked. Even if agreed in principle, it will be necessary to negotiate the translation of that principle into a border marked on the map.

After the Six Day War, Israel secretly offered to withdraw to the international border, but retracted the offer before the matter was discussed. In the peace talks conducted in the 1990s, Israel did not insist on a return to the international border. In 1994 then-Prime Minister Yitzhak Rabin agreed to withdraw to the June 4 line if Israel’s needs were met, including those involving water. The American intermediaries passed on this qualified consent to Asad, and this is the “Rabin deposit” that the Syrians have been demanding as a basis of negotiation ever since.

According to one of the Israelis involved, Syrian negotiators based their demand for the June 4 line on UN Security Council Resolution 242, recognized as the legal basis for the peace process. The resolution calls for withdrawal of Israeli forces “from territories occupied in the recent conflict.” Resolution 242 thereby established the situation prevailing before the war as “ground zero,” with no mention of the international border or the ceasefire lines as binding precedents.

Most diplomatic efforts in the talks that have taken place since 1994 in both official and unofficial channels have focused on finding a formula that would satisfy both the Syrian demand for the June 4 line and Israel’s demand for full control of the Kinneret coast and the highland part of the Jordan. One of the ideas was to exploit the receding water line in the lake and the moving of the coastline away from where it was in 1967, so that the 10-meter strip would be in its old location, and Israel would have control over a wider area. The Syrians rejected this. A different question was whether the “consideration of Israel’s needs” included in the “Rabin deposit” also left open the possibility of a change in the border.

In arbitration, Israel would benefit from the strong precedent of the recognized 1923 international border, which also established the border between Israel and Lebanon. A recognized border has preferred status in international law in comparison to de facto arrangements, and certainly over secret proposals couched in ambigious language like the “Rabin deposit.” Against Syria's demand for control of territory beyond the international border that it acquired by force under the doctrine of “seizing territory,” the Israeli government can argue that Israel has held the Golan Heights for a longer time, and therefore holds sovereignty derived from possession.

A weak point in the Israeli argument will be the concession in 1949 by the Ben Gurion government of Israeli sovereignty over the demilitarized zones.

Of course, it is possible to reduce the scope of the arbitration and focus it solely on the question of where exactly the June 4 line lies, taking into consideration the legal and historical precedents and the changes that have occurred in the area (such as the receding Kinneret coastline). Syria will surely demand that the discusssion is conditioned on Israel’s consent to withdraw to the June 4 line.

The Taba Precedent
Precedents carry particular weight in the history of the peace process between Israel and the Arabs. It is convenient for the parties to rely on past agreements in order to prove that they have not initiated the concession. Israeli governments like to show that previous governments, especially those headed by the rival party, have already consented to the same concessions (each prime minister who began negotiating with Syria says that his predecessors agreed to withdraw from the Golan). It is easier for Arab governments to reach agreeements with Israel if other Arab governments have already dome so.

At the end of the 1980s, Egypt and Israel accepted arbitration on the question of marking the border between them in the Taba area and several other points, after failing on their own to reach agreement on the demarcation of the border. The arbitration was conducted by three international jurists, one Israeli jurist (Prof. Ruth Lapidot), and an Egyptian jurist. The arbitrators accepted Egypt’s position on on the location of the border at Taba (the Israeli arbitrator dissented) and Israel’s position on marking the border at several other points, particularly the coastal border.4 The result was good for both sides, and served as a notable example of a peaceful solution to a territorial dispute in accordance with international law.

A special border regime was established in Taba enabling Israelis easy entry to the vacation and tourist sites. During the Barak government, a similar border regime was also proposed for territories near the Kinneret to be turned over to Syria.

Ramifications for Negotiations with Syria
Putting the Israeli-Syrian border question to international arbitration can help solve the main dispute in negotiations, bolster the chances of determining a border in the Kinneret region that will take Israel's interests into consideration, and at least earn Israel political and public relations credit. Like all Arab countries, Syria needs international legitimacy in its relations with Israel, and it will find it difficult to reject such a proposal out of hand or to reject the arbitrators' decision.

Proper definition of the question to be put to the arbitrators will be important: whether they will have to mark the border in detail, as in the Taba arbitration, or only rule on the general principles for border demarcation and the binding precedents; whether they will have to decide only the route of the June 4 border or also define “Israel’s needs”; and whether they will also have to consider the division of water rights in the Jordan basin and the Kinneret and other arrangements derived from the demarcation of the border.

With the resumption of negotiations with Syria, the idea of arbitration as a way of solving the dispute that has in the past prevented achievement of an agreement and threatens to thwart it in the future is worthy of fundamental evaluation.                     

1 Asad’s statement at an editors’ briefing in Dubai on June 3, 2008.
2 Dennis Ross, The Missing Peace, New York: Straus and Giroux, 2004, p. 585.
3 Aryeh Shalev, Cooperation in the Shadow of Confrontation, Tel Aviv: Maarachot, 1989.
4 “Case Concerning the Location of Boundary Markers in Taba between Egypt and Israel,” Reports of International Arbitral Awards, September 29, 1988, Vol. 20, pp. 1-118, 2006.
The Institute for National Security Studies (INSS) is an independent academic institute that studies key issues relating to Israel's national security and Middle East affairs. Through its mixture of researchers with backgrounds in academia, the military, government, and public policy, INSS is able to contribute to the public debate and governmental deliberation of leading strategic issues and offer policy analysis and recommendations to decision makers and public leaders, policy analysts, and theoreticians, both in Israel and abroad. As part of its mission, it is committed to encourage new ways of thinking and expand the traditional contours of establishment analysis

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