New study proves conclusively UN didn't intend to force Israel back to '49 armistice lines
Draftsman Eugene Rostow argued for years that UN Security Council Resolution 242 was
not intended to force Israel back to the 1949 armistice lines. Now, in an upcoming article in the Chicago Journal of International Law, Northwestern University Professor Eugene Kontorovich proves by comparing 242 with five other Security Council resolutions that dealt with territorial withdrawals that Rostow was right: The Security Council never intended to try to force Israel to withdraw to the '49 armistice lines and
never intended to make 'settlements' illegal.
Kontorovich cites five pre-167 UN withdrawal resolutions obligating
withdrawals of: the USSR from Iran in 1946, the parties to the
Israeli-Arab 1948 war to withdraw to positions held on October 14 in
1948, North Korea to withdraw from South Korea to the 38th parallel in
1950, Belgium to withdraw from Congo in 1960 and India-Pakistan to
withdraw to August 5 positions in 1965, as decisive in explaining the
resolution.
He writes that the USSR had to withdraw from "the
whole" of Iran, that Belgium had to withdraw from "the territory"
(whereas 242 is missing the definite article "the") of Congo and that
the other three resolutions give definitive dates or markers for
withdrawal.
In contrast, Kontorovich writes that 242 intentional
dropping of "the" and leaving out of a set date or geographic marker
shows that the UN intentionally left the issue vague – which he argues
could be a decisive proof for the pro-Israel reading of the resolution
that Israel only has to withdraw from some territories as agreed in
negotiations.
Next, the article cites 13 more territorial
withdrawal resolutions post-1967 running all the way up to a 2012
resolution ordering Sudan and South Sudan to withdraw to their set
borders where the word "the" appears five times, signifying an
obligation of a complete withdrawal, and the other resolutions also
appear to signal a full withdrawal.
Former UN Ambassador and
Jerusalem Center of Public Affairs Director Dore Gold responded to the
article saying, "Unfortunately there are voices that believe the whole
discussion of the absence of the definite article 'the' in 242 is being
picky. What they don’t understand is that the language of the
resolution was drafted at the highest levels of US government at the
time."
Read the whole thing.
Labels: Eugene Rostow, settlements are legal, UN Security Council Resolution 242
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.
...
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
Martin Indyk gets it all wrong
Martin Indyk is the director of foreign policy at the Brookings Institution, and convener of the Saban Forum, the group that hosted Hillary Clinton and Ehud Barak on Friday night. He's also a former American ambassador to Israel and a long time 'peace processor.' As such, it is frightening just how wrong he has gotten the 'peace process.'
Going back to the 1960's, one of the biggest obstacles to peace (assuming that the 'Palestinians' would ever recognize a Jewish state of Israel and concede its right to exist - a huge assumption) has been what to do about the territories liberated by Israel in the 1967 War. The 'Palestinians' and their supporters have always insisted that Israel must return to the indefensible 1967 borders - the Auschwitz borders as Israel's ambassador to the United Nations Abba Eban famously called them. The Bush administration managed to make some progress with the 'Palestinians' by getting them to accept the notion of land swaps. In a land swap, Israel would give the 'Palestinians' 'equivalent' land within the 1949 armistice lines in exchange for Israel keeping land within Judea and Samaria, thereby minimizing somewhat the number of Jews who would have to be displaced from their homes in any 'settlement.' What 'equivalent' meant was never defined. But that progress was reversed with the Obama administration's insistence that Israel implement a total 'settlement freeze,' which returned the 'Palestinians' to their zero sum game of insisting on a complete return to the 1967 borders.
The real concession of a land swap was made by Israel and not by the 'Palestinians.' Israel had no obligation - has no obligation - to give the 'Palestinians' land equal to 100% of the land mass that it liberated from Jordan in 1967. And it's that fact that Martin Indyk - and many others in Washington - now
chooses to ignore.
A negotiation on borders will have to be predicated on the principle in UN Security Council Resolution 242, the original peace process resolution: that the border between the two states should be based on the June 4, 1967 line with territorial adjustments. This is consistent with American policy in recent decades. Mr Obama should pronounce that as the American position going into these border negotiations.
But that's not what 242 said. Resolution 242 required Israel to return 'territories' to the Arab states (not the 'Palestinians' who were never mentioned before the 1967 War) in exchange for peace. The territories returned would still have to leave Israel with 'secure and recognized boundaries.' If returning
any territory in Judea and Samaria would leave Israel without 'secure and recognized boundaries,' then no territory in Judea and Samaria was to be returned. Israel already fulfilled its 242 obligation by returning the Sinai to Egypt. But
don't take my word for it.
A key part of the case in favour of a "some territories" reading is the claim that British and American officials involved in the drafting of the Resolution omitted the definite article deliberately in order to make it less demanding on the Israelis. As George Brown, British Foreign Secretary in 1967, commented: - I have been asked over and over again to clarify, modify or improve the wording, but I do not intend to do that. The phrasing of the Resolution was very carefully worked out, and it was a difficult and complicated exercise to get it accepted by the UN Security Council. I formulated the Security Council Resolution. Before we submitted it to the Council, we showed it to Arab leaders. The proposal said 'Israel will withdraw from territories that were occupied', and not from 'the' territories, which means that Israel will not withdraw from all the territories. [10]
Lord Caradon, chief author of the resolution, takes a subtly different slant. His focus seems to be that the lack of a definite article is intended to deny permanence to the pre-1967 border, rather than to allow Israel to retain land taken by force. Such a view would appear to allow for the possibility that the borders could be varied through negotiation: - Knowing as I did the unsatisfactory nature of the 1967 line, I wasn’t prepared to use wording in the Resolution that would have made that line permanent. Nonetheless, it is necessary to say again that the overwhelming principle was the ‘inadmissability of the acquisition of territory by war’ and that meant that there could be no justification for the annexation of territory on the Arab side of the 1967 line merely because it had been conquered in the 1967 war. The sensible way to decide permanent ‘secure and recognized’ boundaries would be to set up a Boundary Commission and hear both sides and then to make impartial recommendations for a new frontier line, bearing in mind, of course, the "inadmissibility" principle. [11]
Eugene V Rostow, U.S. Undersecretary of State for Political Affairs in 1967 and one of the drafters of the resolution, draws attention to the fact that the text proposed by the British had succeeded ahead of alternatives (in particular, a more explicit text proposed by the Soviet Union), although it should be noted that none of these included the phrase "the territories": - ... paragraph 1 (i) of the Resolution calls for the withdrawal of Israeli armed forces 'from territories occupied in the recent conflict', and not 'from the territories occupied in the recent conflict'. Repeated attempts to amend this sentence by inserting the word 'the' failed in the Security Council. It is, therefore, not legally possible to assert that the provision requires Israeli withdrawal from all the territories now occupied under the cease-fire resolutions to the Armistice Demarcation lines. [12]
- The USSR and the Arabs supported a draft demanding a withdrawal to the 1967 Lines. The US, Canada and most of West Europe and Latin America supported the draft which was eventually approved by the UN Security Council. [13]
- Security Council Resolutions 242 and 338... rest on two principles, Israel may administer the territory until its Arab neighbors make peace; and when peace is made, Israel should withdraw to 'secure and recognized borders', which need not be the same as the Armistice Demarcation Lines of 1949. [14]
He also points out that attempts to explicitly widen the motion to include "the" or "all" territories were explicitly rejected - Motions to require the withdrawal of Israel from ‘the’ territories or ‘all the territories’ occupied in the course of the Six Day War were put forward many times with great linguistic ingenuity. They were all defeated both in the General Assembly and in the Security Council.[1]
Rostow's President, Lyndon B Johnson, appears to support this last view: - We are not the ones to say where other nations should draw lines between them that will assure each the greatest security. It is clear, however, that a return to the situation of June 4, 1967 will not bring peace. [15]
The 'recent decades' to which Indyk refers do not include the 1960's - or for that matter the 1970's, 1980's or 1990's (contrary to popular myth the Oslo accords never called for a 'Palestinian state'!). But Indyk continues to perpetuate the lie, because without it there would be no 'peace process.' And Israel allows the lie to continue.
Labels: Eugene Rostow, Lyndon B. Johnson, Martin Indyk, Six Day War, UN Security Council Resolution 242
