Sunday, April 13, 2014
Israel's Rights in the Territorial Dispute with the Palestinians
With unconfirmed rumors appearing in the press about what is likely to happen in the peace process in the months ahead, now is the time to recall exactly what Israel's rights are in its territorial dispute with the Palestinians over the future of the West Bank.
Those rights were first enshrined in the most famous and important U.N. resolution in the peace process, U.N. Security Council Resolution 242. This month marks the anniversary of the resolution. The first draft was proposed on Nov. 7, 1967, while the final draft was adopted unanimously by all 15 Security Council members on Nov. 22 that year.
Understanding the significance of Resolution 242 is not an exercise in the study of some obscure aspect of decades old diplomatic history. Over the years the resolution evolved into the basis of the entire peace process, including the 1979 Egyptian-Israeli peace treaty, the 1991 Madrid peace conference, the 1993 Oslo Accords, the 1994 Jordanian-Israeli peace treaty, and draft agreements with Syria. Back in 1973, on the eve of the Geneva Peace Conference, the U.S. even provided a letter of assurance to Israel that it would prevent any party from tampering with Resolution 242. Israeli diplomacy sought to protect Resolution 242 as though it was a crown jewels of the Jewish state.
Resolution 242 is best known for its famous withdrawal clause, which did not call on Israel to pull back to the pre-war 1967 lines. While the Soviet Union insisted that the resolution specifically call for "a withdrawal from all the territories occupied" by Israel in the Six-Day War, the U.S. and Britain countered with very different phraseology that was reflected in the final draft, that was eventually adopted by all 15 members of the Security Council. It would only state that there had to be a withdrawal "from territories."
The U.S. and Britain recognized that the pre-1967 line had only been an armistice line from 1949 and was not a final international border. Indeed, Article 2 of the original 1949 Armistice Agreement between Israel and Jordan clearly stipulated that it did not prejudice the territorial "claims and positions" of the parties since its provisions were "dictated exclusively by military considerations."
The battle over the language of the withdrawal clause was not just conducted by overly legalistic advisers to the British and American missions to the U.N.; everyone understood that these distinctions had enormous significance, for they went all the way to the apex of power in both Washington and Moscow and were settled in direct communications between President Lyndon Johnson and Prime Minister Alexei Kosygin.
The British, under Prime Minister Harold Wilson, were the main drafters of Resolution 242. Their Ambassador to the U.N. in 1967, Lord Caradon, clarified what the language of the withdrawal clause meant in an interview published in 1976 in the Journal of Palestine Studies: "We could have said, 'Well, you go back to the 1967 line.' But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to the needs of the situation. Had we said that you must go back to the 1967 line, which would have resulted if we had specified a retreat from all the occupied territories, we would have been wrong."
Any Israeli withdrawal had to be to "secure and recognized borders," as the resolution stated.
Lord Caradon's American counterpart, Arthur Goldberg, fully supported this interpretation repeatedly over the years, such as in his 1988 statement: "The resolution stipulates withdrawal from occupied territories without defining the extent of withdrawal." Goldberg was a legal scholar who served previously on the U.S. Supreme Court, before coming to the U.N.
Others backed his interpretation as well. The senior U.S. figure in the State Department with responsibility for the Middle East, Joseph Sisco, went on NBC's Meet the Press on July 12, 1970, and also said: "That resolution  did not say 'withdrawal to the pre-June 5 lines.''' In short, there was no argument about how Resolution 242 should be interpreted. Israel had rights to retain some West Bank territory, so that at the end of the day it could obtain defensible borders in any future political settlement.
By the way, it is notable that according to Resolution 242, Israel was entitled to this territory without having to pay for it with its own pre-1967 territory. There were no land swaps in Resolution 242. Nor was there any corridor crossing Israeli sovereign territory so that the West Bank could be connected to the Gaza Strip (just as there is no land corridor across Canada connecting Alaska to the rest of the U.S.). These diplomatic innovations were thought of by negotiators in the 1990s, but Israel in no way is required to agree to them, according to Resolution 242. In his memoirs, Abba Eban, then Israel's foreign minister, described the readiness of the U.S. and Britain, in particular, to agree to a revision of the pre-war boundaries as a "major breakthrough" for Israeli diplomacy.
Yet there were also efforts underway over the years to erode this Israeli achievement. Some diplomats argued that the French version of the resolution said "from the territories," rather than "from territories." Anglo-American diplomacy had carefully avoided the definite article in the English version. Whether the French version was a translation mistake or a consequence of how French grammar deals with abstract nouns didn't matter. Resolution 242 was negotiated in English, and 10 out of 15 members of the U.N. Security Council were English-speaking countries. Thus the English version of Resolution 242 was the decisive version to work with.
In 1970, British Prime Minister Wilson had been replaced by Edward Heath. In January 1973, Britain joined the European Economic Community, leading to a major erosion of its position on Resolution 242. On Nov. 6, 1973, in the aftermath of the 1973 Yom Kippur War, the EEC issued a joint declaration which reflected its own growing sense of vulnerability to threats of an Arab oil embargo. It was a time when no European state would even allow U.S. cargo aircraft with badly needed spare parts for the IDF to refuel on their way to Israel -- only Portugal agreed, but insisted on the U.S. using its airfield in the Azores. Europe as a collective felt it needed to appease the Arab oil-producers. As a result, the EEC declaration, which now included Britain, explicitly stated that Israel had to withdraw to the armistice lines of 1949. Under pressure, the British abandoned the essence of a resolution that they themselves had drafted six years earlier.
One of the intriguing aspects of Resolution 242 was that it said nothing about Jerusalem. In a letter to The New York Times on March 6, 1980, Arthur Goldberg wrote: "Resolution 242 in no way refers to Jerusalem, and this omission was deliberate." He explained that he never described Jerusalem as "occupied territory." Goldberg was reacting to the policy of the Carter administration, which was criticizing Israeli construction practices in east Jerusalem and misrepresenting Israel's legal rights. Goldberg believed that the status of Jerusalem had to be negotiated, but he insisted that "Jerusalem was not to be divided again."
Israel itself may have contributed to confusion about its rights in Jerusalem. The 1993 Oslo Accords formally recognized Jerusalem as a subject for future final status negotiations. Yet that did not mean that Prime Minister Yitzhak Rabin was prepared to re-divide Jerusalem. Negotiability was one thing; withdrawal was something else. In his final Knesset address, on Oct. 5, 1995, one month before he was assassinated, Rabin declared: "The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six-Day War. We will not return to the June 4, 1967 lines." Rabin spoke the language of Resolution 242. He added that Israel would retain "a united Jerusalem."
The effort to erode Israel's rights recognized in Resolution 242 has continued. Over the past few years, the Middle East Quartet suggested to Israel that if it would say that the basis of the negotiations would be the 1967 lines, then Mahmoud Abbas would come back to the negotiations. This strategy didn't work back then and contradicted Resolution 242.
Ultimately, U.S. Secretary of State John Kerry succeeded in restarting negotiations without making the 1967 lines the basis of a final settlement. As Israel engages in the current sensitive talks with the Palestinians, it is imperative that it recall its legal rights, especially to those states who voted for Resolution 242 but now demand that Israel withdraw to the 1967 lines, contrary to what the U.N. originally established.