The cornerstone for "a just and lasting peace"
November 22, 1967 - 41 Years later
November 21, 2008 | Eli E. Hertz
Most "Peace Initiatives" including the Geneva Accord, the Performance-Based Roadmap, the Annapolis Conference, and the Saudi Initiative failed to recognize the true sense of Israel's security needs rendering them 'a still birth.' Resolution 242 is still recognized as the cornerstone for what it calls "a just and lasting peace." The resolution calls for a negotiated solution based on "secure and recognized boundaries" - recognizing the flaws in Israel's previous temporary borders - the 1948 Armistice lines or the "Green Line"1 - by not calling upon Israel to withdraw from 'all occupied territories', but rather "from territories occupied."
The UN Security Council recognized that Israel had acquired the territory from Egypt, Jordan, and Syria not as a matter of aggression, but as an act of self-defense. That is also why Resolution 242 was passed under Chapter VI of the UN Charter rather than Chapter VII. UN resolutions adopted under Chapter VI call on nations to negotiate settlements, while resolutions under the more stringent Chapter VII section deal with clear acts of aggression that allow the UN to enforce its resolutions upon any state seen as threatening the security of another state or states.
While Resolution 242 may call upon Israel to withdraw from territory it captured during the war, the UN recognized that Israel cannot return to the non-secure borders existing before the Six-Day War that invited aggression - frontiers that the usually mild-mannered and eloquent former Israeli diplomat, the late Abba Eban, branded "Auschwitz borders."
The wording of UN Resolution 242 clearly reflects the contention that none of the Territories were occupied territories taken by force in an unjust war.
Because the Arabs were clearly the aggressors, nowhere in UN Security Council Resolutions 242 - the cornerstones of a peace settlement - is Israel branded as an invader or unlawful occupier of the Territories.
The minutes of the six month 'debate' over the wording of Resolution 242, as noted above, showing that draft resolutions attempted to brand Israel an aggressor and illegal occupier as a result of the 1967 Six-Day War, were all defeated by either the UN General Assembly or the Security Council.
Professor Eugene Rostow, then U.S. Undersecretary of State for Political Affairs, went on record in 1991 to make this clear:
"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."
Professor Rostow continues and describes:
"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 [Green Line"], but should retire once peace was made to what Resolution 242 called 'secure and recognized' boundaries ..."2
Lord Caradon, then the United Kingdom Ambassador to the UN and the key drafter of the resolution, said several years later:
"We knew that the boundaries of '67 were not drawn as permanent frontiers; they were a cease-fire line of a couple decades earlier. We did not say the '67 boundaries must be forever."
Referring to Resolution 242, Lord Caradon added:
"The essential phrase which is not sufficiently recognized is that withdrawal should 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. 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... "3
In a 1974 statement he said:
"It would have been wrong to demand that Israel return to its positions of 4 June 1967. ... That's why we didn't demand that the Israelis return to them and I think we were right not to."4
Arthur J. Goldberg,5 the U.S. Ambassador to the UN in 1967 and a key draftee of Resolution 242, stated:
"The notable omissions in language used to refer to withdrawal are the words the, all, and the June 5, 1967, lines. I refer to the English text of the resolution. The French and Soviet texts differ from the English in this respect, but the English text was voted on by the Security Council, and thus it is determinative. 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. Instead, the resolution stipulates withdrawal from occupied territories without defining the extent of withdrawal. And it can be inferred from the incorporation of the words secure and recognized boundaries that the territorial adjustments to be made by the parties in their peace settlements could encompass less than a complete withdrawal of Israeli forces from occupied territories."6
Political figures and international jurists have discussed the existence of "permissible" or "legal occupations." In a seminal article on this question, entitled What Weight to Conquest, Professor, Judge Schwebel, a former president of the International Court of Justice, wrote:
"A state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense. ... Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.
"As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt."7
Professor Julius Stone, a leading authority on the Law of Nations, has concurred, further clarifying:
"Territorial Rights under International Law ... By their [Arab countries] armed attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of belligerency throughout this period, these Arab states flouted their basic obligations as United Nations members to refrain from threat or use of force against Israel's territorial integrity and political independence. These acts were in flagrant violation inter alia [Latin: Among other things] of Article 2(4) and paragraphs (1), (2), and (3) of the same article."8
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This article was broadcast on Friday, November 21, 2008 at 2:15pm New York time.
1. Israel's pre-1967 borders reflected the deployment of Israeli and Arab forces on the ground after Israel's War of Independence in 1948. Professor Judge Stephen M. Schwebel, the former President of the International Court of Justice clarified in his writings Justice in International Law that the 1949 armistice demarcation lines are not permanent borders: "The armistice agreements of 1949 expressly preserved the territorial claims of all parties and did not purport to establish definitive boundaries between them."
The boundaries were labeled the "Green Line" merely because a green pencil was used to draw the map of the armistice borders.
2. Professor Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies, November 1993. Professor Rostow was Sterling Professor of Law and Public Affairs Emeritus at Yale University and served as the Dean of Yale Law School (1955-66); Distinguished Research Professor of Law and Diplomacy, National Defense University; Adjunct Fellow, American Enterprise Institute. In 1967 as U.S. Under-Secretary of State for Political Affairs he become a key draftee of the UN Resolution 242.
3. Lord Caradon, interviewed on Kol Israel (The Voice of Israel Radio) in February 1973. Lord Caradon (Sir Hugh Foot) was the UK representative to the UN in 1967. His final draft becomes the foundation for UN Resolution 242.
4. Lord Caradon to the Beirut Daily Star on 12 June 1974.
5. Goldberg, Arthur, was a professor of law at the John Marshall Law School in Chicago. He was appointed in 1962 to the U.S. Supreme Court. In 1965 he was appointed U.S. representative to the United Nations. Judge Goldberg was a key draftee of UN Resolution 242.
6. Goldberg. U.N. Resolution 242: Origin, Meaning, and Significance. National Committee on American Foreign Policy. See article at: www.mefacts.com/cache/html/arab-countries/10159.htm. (10159)
7. Professor, Judge Stephen M. Schwebel, "What Weight to Conquest?" in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of the ICJ.
8. Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations The Johns Hopkins University Press, 1981.
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