Israel Matzav: Straight from the horse's mouth

Tuesday, March 08, 2011

Straight from the horse's mouth

When you're trying to find the correct interpretation of a document that was written more than 40 years ago and whose contents are now in dispute, you're not going to do much better than a written explanation from one of the document's authors. Ted Belman reproduces a 1991 article written in The New Republic by Eugene Rostow, the draftsman of UN Security Council resolution 242.

Resolution 242, adopted after the Six-Day War in 1967, sets out criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in 1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith. Unfortunately, confusion reigns, even in high places, about what those resolutions require.

For twenty-four years Arab states have pretended that the two resolutions are “ambiguous” and can be interpreted to suit their desires. And some European, Soviet and even American officials have cynically allowed Arab spokesman to delude themselves and their people–to say nothing of Western public opinion–about what the resolutions mean. It is common even for American journalists to write that Resolution 242 is “deliberately ambiguous,” as though the parties are equally free to rely on their own reading of its key provisions.

Nothing could be further from the truth. Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until “a just and lasting peace in the Middle East” is achieved. When such a peace is made, Israel is required to withdraw its armed forces “from territories” it occupied during the Six-Day War– not from “the” territories nor from “all” the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East Jerusalem, and the Gaza Strip.

Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from “all” the territories were defeated in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced back to the “fragile” and “vulnerable” Armistice Demarcation Lines, but should retire once peace was made to what Resolution 242 called “secure and recognized” boundaries, agreed to by the parties. In negotiating such agreements, the parties should take into account, among other factors, security considerations, access to the international waterways of the region, and, of course, their respective legal claims.

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The heated question of Israel’s settlements in the West Bank during the occupation period should be viewed in this perspective.

The British Mandate recognized the right of the Jewish people to “close settlement” in the whole of the Mandated territory. It was provided that local conditions might require Great Britain to “postpone” or “withhold” Jewish settlement in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of Article 80 of the U.N. Charter, “the Palestine article,” which provides that “nothing in the Charter shall be construed … to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments….” Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians under military occupation, Jewish settlements in the West Bank are illegal, on the ground that the Convention prohibits an occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since they pose a psychological obstacle to the peace process.

In any case, the issue of the legality of the settlements should not come up in the proposed conference, the purpose of which is to end the military occupation by making peace. When the occupation ends, the Geneva Convention becomes irrelevant. If there is to be any division of the West Bank between Israel and Jordan, the Jewish right of settlement recognized by the Mandate will have to be taken into account in the process of making peace.

This reading of Resolution 242 has always been the keystone of American policy. In launching a major peace initiative on September 1, 1982, President Reagan said, “I have personally followed and supported Israel’s heroic struggle for survival since the founding of the state of Israel thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide at its narrowest point. The bulk of Israel’s population lived within artillery range of hostile Arab armies. I am not about to ask Israel to live that way again.”

Read the whole thing.

Labels: Eugene Rostow, settlements are legal, UN Security Council Resolution 242