Appendix
V: SECURITY COUNCIL RESOLUTION 242: A VIOLATION OF LAW AND A PATHWAY TO DISASTER
Howard Grief
November 2007
Resolution 242, adopted by the United Nations
Security Council five and a half months after the outbreak of the Six-Day War
of June 1967, stated the principles for the establishment of a just and
lasting peace in the Middle East. The goal of
Resolution 242 was "to achieve a peaceful and accepted settlement in
accordance with the provisions of this resolution". Since Resolution 242
was not self-enforcing, a settlement of this kind could only be achieved
through direct negotiations between the parties who were affected by the
resolution. The Draft Resolution that became Resolution 242 was introduced by
the United Kingdom Permanent Representative, Lord Caradon (Hugh Mackintosh
Foot) on November 16, 1967 and passed
unanimously on November 22, 1967. Caradon based his
Draft Resolution on Chapter VI of the U.N. Charter dealing with the
"Pacific Settlement of Disputes" containing non-binding provisions
involving "parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security" (Article
33 of the Charter). This Resolution was not based on Chapter VII of the
Charter dealing with actions or enforcement measures with respect to threats
to the peace, breaches of the peace and acts of aggression, as laid down in
articles 41 and 42 of the Charter. Though the legal basis of Resolution 242
is not actually specified in the resolution itself, it can be deduced from
its terms and language to be a non-obligatory recommendation and from the fact
that it does not make any prior determination of the existence of any threat
to the peace, breach of the peace or act of aggression, as required by
article 39 of the Charter. This determination is a necessary condition before
any enforcement measures can be taken by the U.N. for failure by the parties
to the conflict to comply with the decisions of the Security Council.
As a consequence of Resolution 242 being only
a recommendation to the states involved in the Six-Day War of June 1967
concerning the best way to achieve a just and lasting peace in the Middle
East, it cannot be classified as "international law" nor can it
produce "legal rights" in favour of any parties to whom it is meant
to apply. Neither, for that matter, does the Resolution produce "legal
obligations" that are imposed upon all the states concerned, requiring
them to act in conformity with the resolution unless those states agree
mutually to do so. It is also important to note that Resolution 242 is
applicable to states only, and not to non-state entities such as the
"Palestine Liberation" Organization.
Two principles, supposedly in fulfillment of
the U.N. Charter, are enunciated in the Resolution to attain "a just and
lasting peace in the Middle East" or a peaceful
and accepted settlement. The first principle applies to Israel alone and calls for
the "withdrawal of Israeli armed forces from territories occupied in the
recent conflict". The use of indefinite language as regards Israel's contemplated
withdrawal was intentional. The British text was preceded by an American
draft resolution introduced a week earlier on November 7, 1967 and fully
reflected the U.S. position on the question of Israel's recommended
withdrawal "from territories occupied in the recent conflict".
Neither the British nor the American draft resolutions identified the
territories from which a withdrawal of forces would be made, nor was a time
frame given for this withdrawal. These points were to be decided, as already
indicated, by negotiations between the parties and hence no immediate Israeli
withdrawal was required to comply with the resolution. The American draft was
based on talks previously held with Israel to obtain its consent
to withdraw from most but not all "the" territories allegedly
"occupied" by Israeli armed forces in the Six-Day War. In those
talks, Israel agreed to withdraw
from all of Sinai but not from the Gaza Strip which it wanted to keep,
provided a peace treaty could be concluded with Egypt. Israel refused to withdraw
from the other territories without proper security adjustments or border
changes, the extent of which may or may not have involved major changes to
the pre-Six-Day War borders, depending on how "secure" the
negotiated borders would be. In order for Israel to have secure
borders with Jordan, in accordance with
the resolution, extensive border modifications were required, otherwise they
would always be insecure. On the other hand, the U.S. believed that only
"minor" border changes should be made, but no substantive
alterations.
The American position on the extent of the
Israeli withdrawal was first enunciated by President Johnson in a speech
delivered on June 19, 1967. He stated:
There
are some who have urged, as a single, simple solution, an immediate return to
the situation as it was on June 4. As our distinguished and able Ambassador,
Mr. Arthur Goldberg, has already stated, this is not a prescription for
peace, but for renewed hostilities.
Certainly troops must
be withdrawn, but there must also be recognized rights of national life, progress
in solving the refugee problem, freedom of innocent maritime passage,
limitation of the arms race, and respect for political independence and
territorial integrity.
(Bernard Reich [ed.], Arab-Israeli
Conflict and Conciliation: A Documentary History, Praeger Publishers,
Westport, Connecticut (1995), Document Entitled: Johnson's Five Principles of
Peace, p. 97 at p. 99.)
President Johnson thus linked any Israeli
withdrawal of troops with the attainment of all five principles that he set
out in his speech. He emphasized strongly that the withdrawal of Israeli
forces was not to be immediate, but would take place only when the other
conditions he listed were also fulfilled.
The American position on Israel's withdrawal was
challenged in the Security Council by three other draft resolutions submitted
by Latin-American countries, the Asian-African nations of India, Mali and Nigeria and separately by
Soviet Russia. These three drafts demanded a complete Israeli withdrawal to
the lines existing prior to the outbreak of war, i.e., to the June 4, 1967 lines. However, none of them ever reached the
stage of a vote in the Security Council, since after much wrangling between
the members, it was unanimously decided at the end to support only the
British text of Lord Caradon, that deliberately used the very same indefinite
language on Israeli withdrawal as the draft American resolution did. Thus it
is clear that Resolution 242, when finally adopted, did not require a total
Israeli withdrawal of forces "from all the territories", but only
"from territories", which took into account Israel's security
concerns on this question.
If any further evidence is needed to prove
that Resolution 242 did not oblige Israel to withdraw completely to the June
4, 1967 lines, it is provided by three of the formulators of this resolution,
Arthur J. Goldberg, U.S. Ambassador to the U.N., George Brown, the British
Foreign Secretary in 1967 at the time the resolution was adopted, and Lord
Caradon, the sponsor of the resolution.
In the words of Ambassador Goldberg in a
speech he delivered on May 8, 1973 in Washington:
Resolution
242(1967) does not explicitly require that Israel withdraw to the lines
occupied by it before the outbreak of the war. The Arab States urged such
language; the Soviet Union... proposed this at the Security
Council, and Yugoslavia and some other
nations at the Special Session of the General Assembly. But such withdrawal
language did not receive the requisite support either in the Security Council
or in the Assembly.
Resolution 242 (1967)
simply endorses the principle of "withdrawal of Israel's armed forces from
territories occupied in the recent conflict", and interrelates this with
the principle that every state in the area is entitled to live in peace
within "secure and recognized boundaries".
The notable omissions
— which were not accidental — in regard to withdrawal are the words
"the" or "all" and "the June 5, 1967 lines". In other words, there is lacking
a declaration requiring Israel to withdraw from
"the" or "all the" territories occupied by it on and
after June 5, 1967. (Tekoah, Yosef, In the Face of Nations,
edited by David Aphek, Simon and Shuster, New York, 1976, p. 257)
Substantiating Ambassador Goldberg's
interpretation of Resolution 242, George Brown stated in January 1970:
I
formulated the Security Council resolution. Before we submitted it to the
Council we showed it to the Arab leaders. The proposal said Israel will withdraw from
territories that were occupied and not from "the" territory, which
means that Israel will not withdraw
from all the territories (Tekoah, Yosef, op. cit., p. 263).
More corroboration is provided by Lord
Caradon:
Withdrawal
shall take place to secure and recognized boundaries, and these words were
very carefully chosen: they have to be secure, and they have to be
recognized. They will not be secure unless they are recognized. And that is
why one has to work for agreement. This is essential. If we had attempted to
draw a map, we would have been wrong. We did not. And I would defend absolutely
what we did. It was not for us to lay down exactly where the border should
be. I know the 1967 border very well. It is not a satisfactory border, it is
where troops had to stop in 1947, just where they happened to be that night.
That is not a permanent boundary (Tekoah, Yosef, op. cit., pp. 263-64).
Later, in an interview with a Lebanese
newspaper, the Beirut Daily Star, on June
12, 1974, Lord Caradon is quoted as saying:
It
would have been wrong to demand that Israel return to its
positions of June 4, 1967 because those
positions were undesirable and artificial. After all, they were just the
places where the soldiers of each side happened to be on the day the fighting
stopped in 1948. They were just armistice lines. That is why we did not
demand that the Israelis return to them.
The second principle in Resolution 242 taken
directly from the U.N. Charter to achieve a just and lasting peace in the Middle East applies to every
state in the region. This principle affirms what the Charter supremely
requires of all states: "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." The language setting forth this goal was
a reflection of Article 2, paragraph 4, of the U.N. Charter, which lays down
the obligation that "all members shall refrain in their international
relations from the threat or use of force against the territorial integrity
or political independence of any state...". The acceptance of this
second principle by Arab states which approved Resolution 242 meant in effect
the recognition by them of the State of Israel. This principle was the reason
why Israel agreed to accept the resolution of November 22, 1967, for not only
did it accord recognition of Israel by those Arab states accepting the
resolution, it also urged them to end their state of belligerency against the
Jewish State and acknowledge its right to live in secure and recognized
boundaries. Moreover, they also had to respect Israel's sovereignty and
political independence. Theoretical Arab recognition also resulted from one
of the recitals in the Preamble stating the need to work for a just and
lasting peace in which every State in the area can live in security and also
from the second clause of Resolution 242 which "affirms further the
necessity for guaranteeing the territorial inviolability and political independence
of every state in the area through measures including the establishment of
demilitarized zones".
The Arab states of Egypt and Jordan both
initially accepted Resolution 242 in the hope that Israel would then withdraw
from the territories they had just lost to Israel in the Six-Day War, which
either they had illegally acquired in the 1948 War or which never legally
belonged to them under international law. In regard to Jordan, the pro-Arab,
anti-Israeli journalist and author, Donald Neff, claims in a book he wrote
that a secret agreement existed between the U.S. and Jordan under which the
U.S. gave what he called "ironclad assurances" to King Hussein of
Jordan, "that the U.S. was prepared to support the return of a
substantial part of the West Bank to Jordan with boundary adjustments, and
would use its influence to obtain compensation to Jordan for any territory it
was required to give up" (see his book, Warriors for Jerusalem: The Six
Days that changed the Middle East, Linden Press/Simon & Shuster, New
York (1986), pp. 341, 345). The assurances given to Hussein, writes Neff,
were made by U.S. Secretary of State Dean Rusk, U.N. Ambassador Arthur J.
Goldberg and President Johnson himself in a meeting with Hussein at the White
House on November 8, 1967. Neff reports that
Hussein asked Johnson how soon he could expect Israel to withdraw and was
told by him that it would take place in six months and this time frame was
allegedly reiterated by Goldberg (op. cit., p. 342). Neff further states that
Israel acquiesced to the
terms of the secret agreement. However, Israel flatly denied ever
doing so.
Goldberg for his part not only denied the
accuracy of the assertion that Resolution 242 presupposed only minor border
changes, but emphatically denied that any assurance or commitment had ever
been given to King Hussein by the American Government that it would ensure Israel's withdrawal from the
Jordanian West Bank, as the King falsely claimed in U.S. newspaper interviews.
In his own newspaper article refuting Hussein's allegation of a secret
agreement with the U.S., that it would compel
Israel's withdrawal from the
Jordanian "West Bank", Goldberg wrote:
In
1967, I was the permanent representative of the United States in the United
Nations. In that capacity, I met with King Hussein in New York during November 1967
on four occasions. These conversations, as described in the reporting cables
on file with the U.S. Department of State, foreshadowed the United States drafting of, and
concurrence in, United Nations Security Council Resolution 242 of November
1967.
In the course of these
meetings, I made it clear to King Hussein that I was speaking at the express
authorization of President Lyndon Johnson. It was, I stated, the U.S. view
that in light of the fact that Jordan had entered the 1967 war after Israel
had urged it not to do so, and had been defeated, the United States could not
guarantee that the West Bank would be returned to Jordan. The most we could
do, I made clear, would be to use our influence to help Jordan get the best deal
possible.
I did say that we did
not visualize a Jordan limited only to the
East Bank. This is a far cry from a commitment to Jordan that we would
guarantee Israel's withdrawal from the
West
Bank. The statement in Secretary Henry Kissinger's memoirs that I
assured King Hussein that we would compel Israel's withdrawal to the pre-June
5, 1967 border, except for minor border rectifications, is inaccurate and
unsupported by the contemporaneous records of the Department of State
("Hussein's misreading of history", The Jerusalem Post, May 28,
1984, p. 8).
Goldberg's robust rebuttal of King Hussein's
allegation of a secret commitment made to him by the U.S. is significant.
Goldberg enjoyed a close relationship with President Johnson and evidently
knew his thinking on the subject of Resolution 242 and what it meant. Because
of his personal role in helping to draft the resolution, he was uniquely able
to refute the mischievous account of Henry Kissinger who served as Secretary
of State in the Richard Nixon and Gerald Ford Administrations. During his
period of public service, Kissinger was very active in urging Israel's withdrawal from Judea and Samaria. He conveniently used
the lie spread by Hussein to try to compel Israel to return to what
Israeli Foreign Minister Abba Eban called the "Auschwitz borders" of Israel that existed with Jordan prior to the Six Day
War.
The other principal enemy combatant, Syria, absolutely refused
to accept this resolution because it did not recognize the existence of Israel and did not want to
negotiate with it to make peace. However, Syria changed its mind
after it was defeated in the Yom Kippur War of 1973 and suffered a further
loss of territory. It then agreed to U.N. Resolution 338, adopted on October 22, 1973, which called upon the parties to
implement Resolution 242 in all its parts.
Taken together, the two principles of
Resolution 242, if implemented by the parties to the conflict, would require
Israel's withdrawal, not, as already noted, from "all" the
territories it allegedly "occupied" in the Six-Day War — the term
"occupied" is fraught with legal meaning under the Hague
Regulations of 1907 and the Fourth Geneva Convention of 1949 — but only a
withdrawal to "secure and recognized boundaries".
The Arab and Russian interpretation of this
resolution, i.e., that Israel must immediately
withdraw its forces back to the pre-June 5, 1967 lines without regard to
secure and recognized boundaries, and even before negotiations take place, is
completely unfounded. The withdrawal could only occur when all other
provisions and principles mentioned in the resolution were resolved at the
same time and not before. However, in keeping with the Khartoum Summit
Conference Resolutions of September 1, 1967, the Arab states
refused to enter into any peace talks with Israel, or recognize it, a
stance which forestalled any planned Israeli withdrawal. The stalemate ended
in the case of Egypt only when such talks
did begin, talks that resulted in a peace treaty signed on March 26, 1979, in which Israel agreed to withdraw
completely from Sinai over a period of three years. In that particular case,
the armistice borders of 1949 were now deemed to be in reference to
Resolution 242 "secure and recognized", as opposed to the former Auschwitz armistice borders with
Jordan.
Aside from any mis-interpretation of
Resolution 242 by Russia and the Arab states,
the very principle of Israel withdrawal was
inimical to Israel and was not required
under the U.N. Charter as the Resolution purported. In fact, the Security Council
does not have and never had the authority or right to order Israel to
withdraw from territories that constituted historical and legal areas of the
Jewish National Home and Land of Israel that had been recognized implicitly
or explicitly as belonging to the Jewish People in various acts of
international law: the San Remo Resolution of April 25, 1920; the
Franco-British Boundary Convention of December 23, 1920; and the Mandate for
Palestine, confirmed by the League of Nations on July 24, 1922 and accepted
by the United States in the Anglo-American Treaty on Palestine of December 3,
1924. The principle of withdrawal in Resolution 242 is premised on the words
emphasized in the Preamble of this resolution, which refers to the
"inadmissibility of the acquisition of territory by war". This
dictum, it must be noted, is wrong, since it ignores the situation where a
state, threatened with imminent aggression or destruction by one or more
other states, takes preemptive action and captures parts of the territory of those
states in a war that breaks out between them. In this case it is certainly
admissible under international law for the state under imminent attack to
keep the territory that was captured from which the planned aggression
emanated. The dictum also smacks of great hypocrisy since many states in past
centuries have aggrandized their territory by capturing lands from other
states by means of war — that Resolution 242 naively states is
"inadmissible". A good example of this is the United States which took two-fifths
of the territory of Mexico as a result of the
Mexican War, 1846-1848. This territory includes what is today the states of California, Nevada, Utah and parts of Arizona, New Mexico, Colorado and Wyoming. France for its part added to
its domain by taking Alsace-Lorraine from Germany in World War I, and
also fought battles over territories that today comprise France, such as Savoy, Nice and Corsica that were once part
of pre-unified Italy, Sardinia and Genoa. Moreover, over the
preceding centuries Germany, Italy and Russia also acquired
territories in war with other states, and other examples abound. By contrast,
the State of Israel, which is a creation of the Jewish People and an inherent
part of it, never acquired legal title to the liberated Jewish territories as
a result of war it itself initiated, but only as a result of the decisions
taken by the Principal Allied Powers at the San Remo Peace Conference on
April 24-25, 1920 and in various acts of international law. The territories
liberated in the Six-Day War had been illegally removed by Britain from the
Jewish national patrimony during the twenty-eight years Britain administered
Palestine as a mandated territory from July 1, 1920 to May 14, 1948. What
happened in the Six-Day War was that the State of Israel, threatened with
stark Arab aggression and destruction, restored to the Jewish nation in a war
of self-defense those areas of the Jewish National Home and the Land of Israel that originally
belonged to it under international law. The situation was similar to what France achieved in World War
I, when it restored Alsace-Lorraine to its patrimony, after this territory
had been taken by Germany in the
Franco-Prussian War of 1870-71. Alsace-Lorraine was never called
"occupied German territory" after France re-conquered it.
Moreover, the dictum of the "inadmissibility of the acquisition of
territory by war" should be applied not to Israel, but to Jordan which illegally
occupied Judea and Samaria in the 1948 War of
Independence, and also to Egypt which did the same in
regard to Gaza. It is thus a serious
misrepresentation to characterize Israel's restoration of
Jewish-owned territory as an "occupation", as Resolution 242 did,
when it was nothing of the kind. To the extent that Resolution 242 calls for
an Israeli retreat from parts of the historical Jewish homeland, which
includes Judea, Samaria and Gaza as well as the Golan
and at least part of Sinai, it is to that extent illegal under international
law. In terms of the U.N. Charter under which Resolution 242 was supposedly
made, this resolution violates a key provision thereof, Article 80, which
declares in effect that until a trusteeship agreement has been concluded to
replace the then-existing Mandate for Palestine (no such agreement was ever
made), nothing shall be construed to alter the rights of any states or
peoples or the terms of existing international instruments. The language of
Article 80 refers implicitly to the rights of the Jewish People acquired
under the Mandate for Palestine and other international
acts related to the Mandate. Resolution 242 can therefore have no application
to any area of the Jewish National Home and Land of Israel or alter Jewish legal
rights thereto. Insofar as the resolution does alter these rights, by calling
for an Israeli withdrawal from territories historically connected with the
Jewish People, that were repossessed in the Six Day War, it is a violation of
international law and definitely not a principle in fulfillment of the U.N.
Charter as Resolution 242 falsely alleges in paragraph 1(i) of the
resolution. In this regard, since none of the territories that Resolution 242
infers were "occupied territories" were in actual fact
"occupied territories", but part of the national patrimony of the
Jewish People, or at the very least not owned by Arab states, this resolution
becomes devoid of any legal meaning. It represents not international law, but
a travesty of that law.
In addition to the resolution's
incompatibility with international law that bestowed the legal right to all
of Palestine on the Jewish People, the resolution also violated Israel's own
constitutional law in the form of the Area of Jurisdiction and Powers
Ordinance and the Proclamation issued on September 2, 1948 by Defense
Minister David Ben-Gurion, formally known as "Israel Defense Forces
Government in the Land of Israel" (or simply "the Land of Israel
Proclamation"). Israeli constitutional law as it existed when Resolution
242 was adopted on November 22, 1967 prohibited Israel's withdrawal from the
territories comprising the Land of Israel that were liberated
in the Six Day War. That fact, however, did not stop the Eshkol Government
from accepting Resolution 242, a clear violation of Isareli law that has
produced disastrous repercussions for the country ever since. Rather than
withdrawing from the territories reconquered by the IDF in 1967, Israel was
obliged to incorporate those territories into the State in accordance with
the provisions of the aforementioned Area of Jurisdiction and Powers
Ordinance and the Land of Israel Proclamation or, at the very least, leave
them open for future incorporation under section 11B of the Law and
Administration Ordinance.
From another aspect, it is sterile to argue
that Israel is not obliged to withdraw from liberated Jewish territories
(Judea, Samaria, Gaza, Golan and Sinai) merely because of the fact that
Resolution 242 uses indefinite language rather than the definite article
'‘the" before the word "territories" in the official English
version in which the resolution was drawn up, but not incidentally in the
text of the U.N.'s four other official languages (French, Spanish, Russian
and Chinese). While it is undoubtedly true that Resolution 242, based on the
indefinite language employed therein, does not require a complete Israeli
withdrawal, Israel's rights to lands constituting its ancient and modern
patrimony should not be founded on this grammatical argument, as it so often
is by those who mistakenly believe that this resolution is a beneficial
document in support of Israel's position and rights. Israel's legal case for
keeping Judea, Samaria, the Golan Heights and formerly Gaza and Sinai is based on
a much sturdier foundation, without regard being paid to the indefinite
language of Resolution 242 which first and foremost calls for an Israeli
retreat, even if it is to secure and recognized boundaries or what are
sometimes called "defensible borders". That foundation was created
in the global peace settlement following the Great War of 1914-1918 between
the Principal Allied Powers and the Central Powers. In the settlement that
was then made, the aspirations of the Arab Independence Movement were amply
fulfilled, gaining most of the land mass of the Middle East, while all of
Palestine was left for the establishment of the Jewish National Home, i.e., a
future Jewish State, as signified by the Arabs themselves in the
Weizmann-Feisal Agreement of January 3, 1919. It was thus a great mistake for
Israel to approve this
resolution which denied or ignored its rights to all of Palestine, as recognized in the
global peace settlement concluded in 1919 and 1920. It was really an act of
utter folly by Israel to succumb to
American pressure on this critical point, requiring it to withdraw from parts
of the Jewish homeland, just as it was to accept the terminology of the
resolution — that these territories should be characterized as
"occupied". The result of this folly was to seriously undermine Israel's iron-clad legal
case to the liberated Jewish territories.
Israel should have made it clear
to the American Government from the very beginning that it is not required to
withdraw from any of the aforementioned territories and that it considered
them part of the Jewish national patrimony. This was true even in regard to
Sinai which, except for a relatively small portion of land in the north-west
part of the peninsula was not an officially recognized appendage of Egypt in 1967 under
international law. During the Ottoman Period prior to 1906, the Sanjak of
Jerusalem that unofficially comprised the core part of "Palestine",
but not the whole of it, included a large slice of Sinai in its northern and
central section, from El-Arish to the port of Suez and thence across to
Aqaba. From 1906 to 1949 the administrative boundary in Sinai was pushed back
under British coercion to a line extending from Rafah to Taba, which in 1949
became the armistice line until 1967. The Egyptian-Israeli Armistice
Agreement stated specifically that the demarcation line "is not to be
construed in any sense as a political or territorial boundary".
Resolution 242 adds two more requirements for
achieving a just and lasting peace in the Middle East. First, it affirms
the necessity for guaranteeing freedom of navigation through international
waterways in the area. This was a reference to Egypt's closure of the
Tiran Straits to Israeli shipping, an act of war which was a major factor in
sparking the Six-Day War, as President Johnson said in his June 19, 1967 speech. The narrow straits connect the
Gulf of Eilat with the Red Sea. In addition, Egypt had prevented Israel from using the Suez Canal which, as an
international waterway, was also included in the call for freedom of
navigation for all nations in the Middle East.
Second, Resolution 242 "affirms further
the necessity for achieving a just settlement of the refugee problem".
The "refugee problem" had more than one meaning. It was naturally a
reference to the existing Arab refugee problem that has been immune to
resolution and has grown exponentially over the years by illogically adding
to the original number of refugees in 1948 and 1967 most of whom have already
passed away, all of their descendants including, amazingly enough, even
grandchildren and great-grandchildren who never lived in or fled from
Mandated Palestine, and providing them with free rations, medical care,
educational facilities and other services. Most of these so-called refugees
live in Gaza where about
four-fifths or 80% of the population receive support and benefits from the
United Nations. The Arab refugee issue has been shamelessly exploited by the
twenty-one Arab states as a propaganda weapon against Israel. No other group of
displaced persons in the world has held the status of refugees for such a
long period of time. The whole idea of Arab refugees remaining refugees even
after 60 years, or in effect forever, is nothing less than a gigantic fraud
that should be brought to an end by one simple method, the disbanding of the
U.N. agency (UNRWA) and the withdrawal of all U.S. and European funding for
it, that serve to perpetuate the on-going fraud.
"A just solution of the refugee
problem" also carried with it a reference to the problem of Jewish
refugees from Arab countries who were driven out or escaped from Moslem
persecution both before and after the rebirth of the State of Israel. In
fact, the number of Jewish refugees exceeded the number of Arab refugees who
fled Palestine and Israel during the course of
war. There were about 800,000 Jews who left Arab countries — up to one
million if Shi'ite Iran is included — as compared to about 700,000 Arabs who
left what became the State of Israel both in 1948 and 1967.
No mention is made in Resolution 242 of the
so-called "Palestinians" and their alleged right of
self-determination. That would only come later, on December 10, 1969, when
the General Assembly adopted Resolution No. 2535 (XXIV) which affirmed
"the inalienable rights of the people of Palestine", followed in
later years by a slew of other resolutions of the same type that converted
the "refugees" into a new "nation" unknown in history and
no different from other Arabs living in Israel and the Arab states.
To carry out Resolution 242, a special
Representative was designated by the Secretary-General "to proceed to
the Middle East, to establish and maintain contacts with the
States concerned in order to promote agreement and assist efforts to achieve
a peaceful and accepted settlement in accordance with the provisions and
principles in this resolution". This representative was Gunnar Jarring,
the Swedish diplomat who failed in his mission because the Arab states would
not recognize Israel, negotiate with it
nor make peace with Israel, in accordance with
the Khartoum Arab Summit Resolutions of September
1, 1967.
Resolution 242 was further re-affirmed in
Security Council Resolution 338 adopted on October 22, 1973 in the wake of the Yom Kippur War. This new
resolution called for a cease-fire and the implementation of Resolution 242
in all of its parts through negotiations conducted between the parties
concerned in order to establish a just and durable peace in the Middle East. Though Resolution
338 uses the word "decides" in urging the parties to start
negotiations immediately, concurrently with the cease-fire, to ostensibly
bring this resolution within the parameters of Article 25 of the Charter,
which requires U.N. members to carry out the binding "decisions" of
the Security Council, the essential meaning or nature of Resolution 242 as a
non-binding recommendation under Chapter VI of the Charter is not changed. A
Chapter VI resolution cannot be converted into a Chapter VII resolution by
this clever tactic, when the language of the original resolution remains
exactly the same. Furthermore, no sovereign state can be forced into
negotiations with another state against its will. Therefore, Resolution 242
remains a non-binding resolution under Chapter VI of the Charter, to which
Article 25 does not apply.
In the years that followed the adoption of
Resolution 242, the American position on Israeli withdrawal moved much closer
to the Arab position as originally understood by King Hussein of Jordan. A harbinger of a new
American interpretation of Resolution 242 came in a speech delivered by the U.S. representative to the
U.N., Charles W. Yost, in the Security Council, that dealt with the question
of the status of Jerusalem. Yost, acting under
the explicit instructions of President Nixon, deplored the application of
Israeli law to what he called "the occupied portions of the city".
He further expounded on this point:
The
United States considers that the part of Jerusalem that came under the
control of Israel in the June war, like other areas occupied by Israel, is
occupied territory and hence subject to the provisions of international law
governing the rights and obligations of an occupying power. Among the
provisions of international law which bind Israel, as they would bind
any occupier, are the provisions that the occupier has no right to make
changes in laws or in administration other than those which are temporarily
necessitated by his security interest, and that an occupier may not
confiscate or destroy private property. The pattern of behavior authorized
under the Geneva Convention and international law is clear: the occupier must
maintain the occupied area as intact and unaltered as possible, without
interfering with the customary life of the area, and any changes must be
necessitated by immediate needs of the occupation. I regret to say that the
actions of Israel in the occupied
portion of Jerusalem present a different
picture, one which gives rise to understandable concerns that the eventual
disposition of East Jerusalem may be prejudiced and the rights and
activities of the population are already being affected and altered. (The
Arab-Israeli Conflict, edited by John Norton Moore, Princeton University
Press, Princeton, New Jersey, Volume III, Documents [1974], pp. 993-994).
As seen by the foregoing statement of
Ambassador Yost, the U.S. Administration under President Richard Nixon now
formally considered eastern Jerusalem as "occupied
territory", being part of the "West Bank" of Jordan, and it did not
recognize the application of Israeli law, jurisdiction and administration to
this part of Jerusalem. This was a departure
from the policy adopted by the previous Johnson Administration on the
question of Jerusalem, as stated by Yost's predecessor, Arthur J. Goldberg,
even though it, too, had not approved unilateral steps taken by Israel to
include the eastern part of the city within its legal jurisdiction. In a
letter he sent to the New
York Times on March 12, 1980 "to set the record
straight", as he put it, he wrote:
Resolution
242 in no way refers to Jerusalem and this omission was
deliberate. I wanted to make clear that Jerusalem was a discrete
matter, not linked to the West Bank.
In a number of
speeches at the U.N. in 1967, I repeatedly stated that the armistice lines
fixed after 1948 were intended to be temporary. This, of course, was
particularly true of Jerusalem. At no time in these
many speeches did I refer to East Jerusalem as occupied
territory.
My speech of July 14, 1967, which Hodding Carter[*] distributed,
did not say that Jerusalem was occupied
territory. On the contrary, I made it clear that the status of Jerusalem should be negotiable
and that the armistice lines dividing Jerusalem were no longer
viable. In other words, Jerusalem was not to be divided
again.
This is a far cry from
Ambassador Yost's statement that we conceived East Jerusalem to be occupied
territory, to be returned to Jordanian sovereignty.
[* ] Hodding Carter,
the assistant secretary of state for public affairs in the Jimmy Carter
Administration.
The Yost statement to the U.N. Security
Council was followed by the unanimous adoption of Resolution 267 on July 3, 1969 that censured Israel in the strongest terms
for all measures and actions it had taken to change the status of Jerusalem. The Yost statement
also set the stage for the Rogers Plan enunciated several months later by
U.S. Secretary of State, William Pierce Rogers. In a speech he gave on December 9, 1969 containing his plan, he revealed how
the Nixon Administration now interpreted Resolution 242 on the question of
Israeli withdrawal, not merely from eastern Jerusalem but from all of the
so-called "occupied territories":
The
Security Council resolution neither endorses nor precludes [the] armistice
lines as the definitive political boundaries. However, it calls for
withdrawal from occupied territories, the non-acquisition of territory by
war, and the establishment of secure and recognized boundaries. We believe
that while recognized political boundaries must be established and agreed
upon by the parties, any changes in the pre-existing [armistice] lines [of
1949] should not reflect the weight of conquest and should be confined to
insubstantial alterations required for mutual security. We do not support
expansionism. We believe troops must be withdrawn as the resolution provides.
We support Israel's security and the
security of the Arab states as well. We are for a lasting peace that requires
security for both. (Reich, op.
cit., p. 105)
By saying that Israel's borders should not
reflect the weight of conquest and that any changes in the June 4, 1967 lines
should be confined to insubstantial alterations and by opposing Israeli
"expansionism", Rogers was adopting an unmistakable pro-Arab
position that Israel should give up almost all its territorial gains in the
Six-Day War and go back to the pre-existing lines of June 4, 1967 that
clearly were not the defensible borders required under Resolution 242.
President Nixon himself stated on July
1, 1970 that "Israel must withdraw to
borders that are defensible" (Yosef Tekoah, op. cit., p. 261). The Rogers
Plan was basically though not explicitly endorsed by President Reagan on
September 1, 1982 when he presented a peace proposal whose real architect was
Secretary of State George P. Schultz, in which the President said that the
United States, while it does not support the establishment of an independent
"Palestinian" state in the "West Bank" and Gaza, neither
does it support annexation or permanent control of those areas by Israel. He
further stated that Resolution 242 applies to all fronts, including the
"West Bank" and Gaza, though this is not
stated in the resolution itself and is therefore only an hypothesis and not an
actual fact. According to President Reagan, the extent to which Israel should be asked to
give up territory, "will be heavily affected by the extent of true peace
and normalization and the security arrangements". The conclusion seemed
to be that for full peace with the Arab states there would need to be nearly
full Israeli withdrawal from all territories taken in the Six-Day War, with
only insubstantial alterations. This prescription for the attainment of peace
was a clear reflection of the Rogers Plan. The Reagan Plan, as explained by
Secretary Shultz to King Hussein in a letter addressed to him in January
1983, also endorsed the concept that eastern Jerusalem which Israel had already annexed
by a government order issued on June
27, 1967 (promulgated the following day) was part of the "occupied
territory". This was bizarre in light of Arthur Goldberg's repudiation
of this very idea. Goldberg, a former Supreme Court justice, was intimately
involved in the framing of Resolution 242 and therefore ought to have known
what was or was not included in this resolution.
One of the strangest reactions to Resolution
242 came from Menahem Begin. He was a minister of the National Unity
Government of Israel in December 1967 when it was decided to accept the
resolution, but he was apparently not privy to this decision. After he
learned of it, he expressed his disapproval, but did not resign from the
Government. However, when the Government in which he served accepted the
Second Rogers Plan on July 31, 1970, to renew a cease-fire and
"standstill" in the military situation between Egypt (then
officially called the United Arab Republic) and Israel and also to pursue an
agreement for the establishment of a just and lasting peace between Jordan
and Israel as well as between Egypt and Israel, Begin and the Gahal bloc of
the Herut and Liberal parties quit the Government. He did so because the new
Rogers Plan was explicitly based on Resolution 242 which required Israeli
withdrawal "from territories occupied" in the 1967 conflict that
under the American interpretation included Jerusalem and the Jordanian
"West Bank", and also all other fronts. For Begin that meant a new
partition of the Land of Israel which also
jeopardized Israel's security. Begin's
commendable reaction was consistent with his life-long principles as a devout
adherent of the Land of Israel that inexplicably
excluded the Sinai Peninsula. However, when he became Prime
Minister and signed the Camp David Framework Agreement for Peace in the Middle East, he abandoned his previous
opposition to Resolution 242. The preamble of this agreement states that the
agreed basis for a peaceful settlement of the conflict between Israel and its neighbours is
United Nations Security Council Resolution 242, in all its parts.
Furthermore, the final status of the "West Bank" and Gaza was to be decided
upon in negotiations based on all the provisions and principles of U.N.
Security Council Resolution 242. In accepting the applicability of Resolution
242 to Judea, Samaria and Gaza, Begin, whether he realized it or not, was
accepting the damaging concept embedded in the resolution that these regions
of the Land of Israel were considered "occupied territories" from
which Israel was obliged to withdraw, even if the withdrawal was not to be a
complete one but only to secure and recognized boundaries. This concept was a
bedrock principle of the resolution that should have prevented Begin from
endorsing Resolution 242 as the agreed basis for reaching any possible peace
agreement with the Arab states concerned.
Begin's acceptance of Resolution 242 was a
stark repudiation of all that he previously professed. His volte-face contrasted with the steadfast
position taken by his successor, Prime Minister Yitzhak Shamir, who stoutly
believed that Israel had the right to
retain all of the territory then under its military control since in his
interpretation Resolution 242 did not apply to Judea, Samaria and Gaza. Moreover, Shamir
believed that Israel had fulfilled its
alleged obligations under the resolution by withdrawing from all of the
Sinai, which constituted over 90% of the so-called "occupied
territories". Shamir's interpretation was the right one for, as already
noted, Resolution 242 falsely assumed that all the liberated territories of
1967 were "occupied territories", contrary to both international
law, including the U.N. Charter, and Israeli constitutional law. In truth,
all of these territories were part of the Land of Israel that were either
included or illegally excluded from the Jewish National Home whose borders
were supposed to embrace all of the lands historically connected with the
Jewish People under the San Remo Resolution of April 25, 1920. By the time Shamir became Prime Minister on October 10, 1983, Israel had already carried
out a full-scale withdrawal from Sinai, as a result of the Egyptian-Israeli
Peace Treaty of March 26, 1979, thus bringing to an
end the assumed "occupation" of Sinai. No additional withdrawals
were required from the other territories since they were not really
"occupied territories", exactly as Shamir believed.
Finally, in a radical shift from President
Johnson's position, President George W. Bush, acting in concert with the
United Nations, Russia and the European Union, gave American support to the
Road Map Peace Plan advocating "an independent, democratic and viable
‘Palestinian' state living side by side in peace and security with Israel
and its other neighbors" in Judea, Samaria and Gaza. This plan, which
grew out of Resolution 242 and cited it in the preamble as one of its
foundations, envisages an end of Israel's so-called
"occupation" of these territories that it said began in 1967. The
idea that a new Arab state in what was once Mandated Palestine would live in
peace and security with Israel and be democratic is a naive expectation or
illusion that flies in the face of all of the empirical evidence that Arab
violence is and has always been endemic and that the establishment of true
democratic institutions is foreign to the Arab psyche and do not exist today
in even a single independent Arab state. To further claim that a new Arab
state in former Palestine would be a panacea to the existing Arab
antagonistic approach to the Jewish State is not only baseless, but more
importantly is a gross denial of Israel's legal rights under international
law to all of the Land of Israel as determined by the Principal Allied Powers
after the end of World War I which created Palestine, not for a fictitious
nation called "Palestinians", but rather for the Jewish People. There
is no need for another Arab state in Palestine since Jordan was created by the
British for that very purpose, and moreover, twenty-one Arab states already
exist in the Middle East. A new Arab state would become a
terrorist irredentist state with disastrous repercussions for Israel. Official support for
such a state by the U.S., Europe and Israel represents nothing
less than a loss of sanity by the leaders of these countries.
Over the years, Resolution 242 became a
cornerstone document in international diplomacy seeking to bring about a just
and lasting peace between Israel and the Arab states.
It has been cited in all the major documents drawn up for this purpose ever
since November 1967, such as the Camp David Framework Peace Agreement of
September 17, 1978, the Egypt-Israel Peace Treaty of March 26, 1979, the
Israel-PLO Declaration of Principles of August 20 and September 13, 1993,
and, as already noted, the Road Map Peace Plan announced by the U.S.
Department of State on April 30, 2003. Resolution 242 is essentially a
"land for peace" document or a new, updated U.N. Partition Plan
which works against Israel's best interests. It
represents nothing less than a pathway to the destruction of the Jewish State
if implemented according to the official interpretation by the U.S. State
Department and all the Presidents who have parroted that interpretation.
Ironically, Israel, through its official spokesmen, also acts as if it was
beneficial and essential for bringing an end to Arab hostility to the
existence of the Jewish State in the Middle East, not appreciating the great
damage it has already caused to Israel's legal case in the eyes of the world
by urging Israeli withdrawal from its ancestral lands that are also vital for
its overall security. If Israel itself agrees to withdraw
from these lands that historically and legally belong to it, it is not
surprising that almost all countries in the world now demand that Israel implement a full or
nearly full withdrawal to achieve "peace". Israel is bringing upon
itself the disaster that would be caused by carrying out this kind of
withdrawal by initially accepting Resolution 242, when it should not have
done so, and then by making it an integral part of all subsequent
"peace" proposals or documents with the Arab world. The only way to
end this ongoing noxious "peace process" that terminates Israel's
legal rights to the so-called "occupied territories" is to denounce
formally once and for all the deleterious "land for peace" formula
as exemplified by Resolution 242.
UNITED NATIONS
SECURITY COUNCIL RESOLUTION NO. 242 OF NOVEMBER 22, 1967
STATING THE PRINCIPLES
OF A JUST AND LASTING PEACE IN THE MIDDLE EAST
The Security Council,
Expressing its continuing concern with the
grave situation in the Middle East, Emphasizing 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,
Emphasizing further 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,
1.
Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the Middle East which should include
the application of both the following principles:
(a)
Withdrawal of Israeli armed forces from territories occupied in the recent
conflict;
(b) Termination of all
claims or states of belligerency and respect for and acknowledgement 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;
2. Affirms further the
necessity
(1) For
guaranteeing freedom of navigation through international waterways in the
area;
(2) For achieving a
just settlement of the refugee problem;
(3) For guaranteeing
the territorial inviolability and political independence of every State in
the area, through measures including the establishment of demilitarized
zones;
3. Requests the
Secretary-General to designate a Special Representative to proceed to the
Middle East to establish and maintain contacts with the States concerned in
order to promote agreement and assist efforts to achieve a peaceful and
accepted settlement in accordance with the provisions and principles in this
resolution;
4. Requests the
Secretary-General to report to the Security Council on the progress of the
efforts of the Special Representative as soon as possible.
Adopted unanimously at
the 1382nd meeting.
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