golan heights 88.
(photo credit: courtesy photo)
In the unlikely event that the flurry of talk emanating from Israel and Syria leads to a peace treaty that includes withdrawal from the Golan Heights, the government of Prime Minister Ehud Olmert will have to overcome two legal obstacles to implement it.
This is because in 1981, Israel officially annexed the Golan Heights. The Golan Heights Law was approved by a simple majority and did not set any special conditions for revoking it in the future. The law was passed by a simple majority, All that would have been needed to overturn it was also a simple majority.
This was the state of affairs when prime minister Yitzhak Rabin came to power and began serious negotiations with Syria, in which he made it clear that he was prepared to relinquish the Golan as part of an overall peace settlement. In fact, Rabin initiated the idea of holding a referendum to determine whether a majority of Israelis supported such a treaty. He said that if a majority opposed an agreement, he would not sign it.
Eventually the talks collapsed. In the meantime, however, those who believed the Golan should not be given back under any circumstances suffered a good scare. Their leader was Brig.-Gen. (res.) Avigdor Kahalani, then a Labor MK, who bolted the party because of its negotiations with Syria. Kahalani formed a new political party called the Third Way.
After Labor lost the 1996 election, Kahalani joined the government of prime minister Binyamin Netanyahu. In an attempt to ensure that no government would ever do what Rabin had tried to do, he proposed an amendment to the Golan Heights Law that would have required a majority of 81 MKs to revoke it.
The attempt failed. It was regarded as overly undemocratic to require approval from that many lawmakers, so far above the number of Knesset votes needed to genuinely reflect the will of the majority of the nation.
When this effort failed, Kahalani tried a different tact. He led the parliamentary struggle for approval of a bill that would apply to any territory that the government declared to be under its law and administration.
The Knesset approved the bill. According to the legislation, if the cabinet decides to give up any territory where Israeli law and administration is in force, the decision would have be put to a vote in the Knesset and win the support of an absolute majority (61) of MKs. If the Knesset endorses the cabinet decision, it would then be submitted to the nation in the form of a referendum.
Not much later, the fears that had galvanized Kahalani into action were almost realized. After prime minister Ehud Barak was elected in 1999, he held intensive negotiations with Syria.
The Justice Ministry started working on the draft of a bill that would set up the machinery for holding a national plebiscite. During those months, government and opposition forces feverishly clashed over who should be allowed to vote in a referendum, what majority should be required, and what question or questions should be put to the people.
These disputes were never settled. The talks once again failed.
The law requiring an absolute Knesset majority and a majority in a national referendum in order to cede Israeli territory also applies to any part of Israel within the Green Line and the parts of Jerusalem captured from Jordan. The cabinet applied Israeli law to these areas immediately after the 1967 Six Day War and later passed the Basic Law: Jerusalem to further emphasize that the city belongs to Israel.
However, the law does not apply to the West Bank and it did not apply to the Gaza Strip before disengagement. Since 1967, Israel has refrained from applying its law and administration to these territories. Therefore, it is not the sovereign there even in its own eyes. It currently holds the West Bank in belligerent occupation.
Indeed, last year, during the discussions on the withdrawal from the Gaza Strip, rightwing MKs tried to pass a law obliging the government of then-prime minister Ariel Sharon to hold a referendum before implementing disengagement.
The bill, however, did not pass and Sharon was able to proceed without any further legislative obstacles.