Sunday, May 17, 2015

The Future of Palestine EUGENE V. ROSTOW

The Future of Palestine
The friends of Israel throughout the world were startled
when the news of the agreement between Israel and the
Palestinian Liberation Organization (PLO) became public
during the last days of August 1993. Some were fearful,
others euphoric. Voices of equal experience and authority
proclaimed both the doom of Israel and the fulfillment of
the Zionist dream. Some saw the dawning of peace; others,
nearly inevitable war. Whatever they said, however, all who
spoke, and millions more who remained silent, were in fact
equally troubled, concerned, confused, and uncertain: the
event itself is one of great complexity, which can be
understood only as a function of many variables. All
recognized in it both risks and opportunities for Israel. No
one could be positive about the balance between risks and
opportunities. This article attempts a preliminary assessment
of the Israeli-PLO agreement in its context of law, history,
strategy, and politics. Nothing less can be useful as the
basis for policy opinions and recommendations.
In itself, the agreement between Israel and the PLO is
important chiefly because it represents the formal end of
Adapted from the paper delivered at the American Leadership Conference on Israel and
the Middle East on 10 October 1993 in Arlington, Virginia.
the policy pursued by the Arab states and the Arab peoples
(except Egypt after 1977) since the days of the Balfour
Declaration and the British Mandate for Palestine. That
policy is summed up in the Khartoum formula of 1967: "No
negotiations with Israel, no recognition of Israel, no peace
with Israel."
The legal argument behind the Khartoum policy has not
changed for more than three quarters of a century. It is that
the action of Great Britain in issuing the Balfour
Declaration and that of the victorious allies in establishing
the British Mandate for Palestine were and are illegal, null
and void, beyond the powers of the Allies, the League of
Nations, and the league's successor, the United Nations.
Therefore, the Arabs have contended, the existence of Israel
and its presence in Palestine constitute a continuing
aggression against the implicit sovereignty of the
Palestinian Arabs, deemed to be a "people" and a "nation."
This contention is the only legal and moral justification
the Arabs have ever offered for their war against the Jewish
political presence in the Middle East for more than seventy-
five years. From the legal point of view, it is entirely
specious. But, like many myths, it has power. For the PLO
and the Arabs states to abandon this position, therefore, is
(or can become) a climax in the drama of modern Middle
Eastern history.
The Khartoum formula has been crumbling gradually,
although it is still the official line. In themselves, the
bilateral and multilateral talks between Israel and its Middle
Eastern neighbors since the Madrid Conference of 1991
violate the Khartoum slogan. Nonetheless, it is a matter of
real significance that the PLO, the most passionate defender
of the Khartoum doctrine, has finally and publicly
renounced the struggle.
For many, many years Israel, the United States, many
other countries, and the Security Council of the United
Nations have tried to have the Khartoum declaration
annulled. Now, because of the collapse of the Soviet Union;
because of the position taken by Jordan and the PLO during
the Gulf war; because of the strength of the Israeli Defense
Forces and the steadfastness of the Israeli people; because
of the currents and cross-currents of Arab politics, the Arab
chain around Israel has broken at its weakest link: before
the PLO lost all its bargaining power and any chance for a
role in the future of Palestine, it violated its pledges of
solidarity with Syria and Jordan by opening separate peace
negotiations with Israel.
The Madrid initiative is the most ambitious effort to
enforce Security Council resolutions 242 and 338 ever
undertaken. (See appendix A for texts.) It represents the
foreign policy of President George Bush and Secretary of
State James A. Baker, at its best-the Bush-Baker team of
the Gulf war, bold, energetic, and imaginative, not the
Bush-Baker team of the Yugoslav tragedy.
The Madrid initiative has made progress. Now the
changing structure of world politics offers favorable
auguries for the possibility of success if-but only if-the
Clinton administration, after a poor start, can find its way
to accept and carry forward the coherent principles of the
foreign policy the United States has pursued since the time
of Truman and Acheson.
The climate of world politics has never been more
favorable to the possibility of Arab peace with Israel. Since
the collapse of the Soviet Union, 25 countries have
established diplomatic relations with Israel for the first
time, and 16 have resumed diplomatic relations broken off
at the time of the Six-Day War in 1967. This list includes
Russia, China, India, Poland, and many other countries,
large and small. Together, they represent a substantial part
of the world's population.
If successful, the negotiations which have now begun
between Israel, Jordan, and the PLO may lead to any one
of a number of peaceful resolutions of Israel's long struggle
to exist, and of the Arabs' equally long struggle to destroy
it. All that is clear now is that for the first time, serious
negotiations can start about the future of Palestine- that is,
about the political future of the communities that have
grown up within the territory of the British Mandate,
Jordan, Israel, and the territories in dispute between them,
what we call "the West Bank and the Gaza Strip." This is
the only possible legal and historical definition of the word
"Palestine." It is the definition used in the PLO Charter.
All that can be said at this point is that Israel and the
United States have every possible interest in seeing those
negotiations pursued on the basis of Security Council
resolutions 242 and 338, and the history they embody. No
one can be sure how these negotiations will turn out. But
they can now begin, and they should begin.
Israel, the United States, and other countries that may
be involved in these negotiations will have to proceed not
only with patience and resolve, but with extreme caution. In
the Middle East, the Roman maxim, si vis pacem pare
bellum (if you want peace, prepare for war), applies with
peculiar force. The history of the area since the end of the
Ottoman Empire is a tale of intrigue, deception, terror, and
other violence. Some of the other Arab states will follow
Egypt's example in scrupulously respecting their peace
agreements with Israel, but in the months and years to
come, Israel cannot assume that such attitudes and policies
will be universal. Israel will have to maintain its armed
forces, and from time to time demonstrate its will to use
them, if the negotiations envisaged by the Israeli agreement
with the PLO are to succeed.
Moreover, these negotiations cannot succeed without the
support of an American policy that is fully consonant with
the inherent strength of the American position in the world,
and with its national interests. Equally, Israeli diplomacy
must rise to the challenge of the occasion by showing the
imagination and intelligence of which it has often been
capable in the past. Above all, both Israel and the United
States should clear away any lingering traces of the
defeatism and pessimism of Baker's disastrous speech of
May 1989, which has dominated the American view of
Middle Eastern policy for so long. What is needed is a
coordinated Israeli and American policy of strength without
arrogance-a policy firmly based on the rule of law, and of
respect for the rights of Israel and of the Arab states alike.
Such a policy may succeed. A policy that violates this
principle will surely fail.
The only possible bases for these negotiations, as Israel, the
Arab states, and," the PLO now, publicly agree, are Security
Council Resolution 242, adopted after the Six-Day War of
1967, and, adopted after the Yom Kippur War of 1973,
Resolution 338 which makes Resolution 242 legally
binding. Those resolutions provide the only available
agenda for negotiation.
From what is publicly known so far about the
negotiations between Israel, Jordan, and the Palestinian
Arab delegation in Washington and Geneva, they have
made no progress because the Arab negotiators are still
resisting the territorial provisions of Resolution 242. The
new round of negotiations should, from the first day,
confront the reality of those provisions for the first time,
and in a fresh perspective.
The Declaration of Principles signed by Israel and the
PLO does not end the Israeli occupation of the West Bank,
the Golan Heights, and the Gaza Strip. That occupation can
end, in the words of Resolution 242, only when the parties
have established "a just and lasting peace in the Middle
East." In this respect, the procedures used in negotiating
the Peace Treaty between Israel and Egypt demonstrate
what the twin Security Council resolutions require before
the occupation can be ended. That rule is not an abstract
statement of legal principle. It reflects the bitter experience
not only of Israel, but also of Great Britain, the United
States, and Dag Hammarskjold, the former Secretary-
General of the United Nations. Great Britain, the United
Nations, and the United States persuaded Israel to withdraw
from the Sinai Desert in 1957 in exchange for Nasser's
promise to keep the Suez Canal and the Strait of Tiran
open to Israeli shipping; to stop all guerrilla attacks against
Israel from Egyptian territory; and to make peace. Those
promises were all broken. That history is the source of the
first of the two territorial provisions of Resolution 242, that
the Israelis need not withdraw from any part of the
occupied territories until each of the Arab states makes
peace. And the word "peace" in Resolution 242 means full
and formal peace, not merely an abandonment of all claims
of a right to assert that a state of belligerency exists
between the Arab states and Israel. By signing the
Armistice Agreements of 1949, the Arab states abandoned
all claims of belligerent rights. Resolution 242 was intended
to take the next and final step from armistice to peace.
The second territorial provision of Resolution 242 is
that while Israel should agree to withdraw from some of the
territories it occupied in 1967, it need not withdraw from ail
those territories. The Resolution states that there should be
"withdrawal of Israeli's armed forces from territories
occupied in the recent conflict." Five and a half months of
vigorous diplomacy, public and private, make it very clear
why the wording of the sentence took the form it did.
Motion after motion proposed to insert the words "the" or
"all the" before the word "territories." They were all
defeated, until finally the Soviet Union and the Arab states
accepted the language as the best they could get. In short,
the extent of Israeli withdrawals was to be a matter of
negotiation between the parties.
Despite the language and the negotiating history of
Resolution 242, the Arab negotiators insisted that Israel was
required to return to the Armistice Demarcation Lines of
1949, the de facto boundary of Israel in June 1967. The
best answer to that claim was once given by Lord Caradon,
the British Ambassador to the United Nations who had
proposed Resolution 242 to the Security Council in 1967
and actively negotiated its passage. Asked whether
Resolution 242 required Israel to go back to the Armistice
Demarcation Lines of 1949, Lord Caradon remarked,
We didn't say there should he a withdrawal to the '67 line: we did
not put the 'the' in. We did not say "all the territories" deliberately
.... We did not say that the '67 boundaries must he forever.
Since the Armistice Agreements of 1949 expressly provide
that the Armistice Demarcation Lines are not political
boundaries, but can be changed by agreement when the
parties move from armistice to peace, the Arab argument
against the withdrawal provision of Resolution 242 is
without foundation in law or history. But it continues to be
The Peace Agreement between Israel and Egypt required
Israel to return the entire Sinai Desert to Egypt. The Sinai
Desert had always been recognized as Egyptian territory. It
was not part of the Palestine Mandate. laree! had no legal
claim to it, except that of victory in a war of self-defense
and, in the case of Sharm el-Sheikh, as boundary changes
needed for security purposes.
The political importance to Israel of achieving peace
with Egypt, the largest and most important Arab state.
induced Israel to concede the point. The Sinai transfer had
another consequence, however. It meant that Israel had
withdrawn from some 94 percent of the territories it
occupied during the 1967 war, the bench-mark of
Resolution 242. It can hardly be seriously contended that
the Security Council, which, after five months of intense
diplomacy, deliberately refused to require Israeli withdrawal
from all the territory it had occupied in 1967, had done so
inadvertently nonetheless. The problem of drawing a secure
and recognized political boundary between Israel and Jordan
thus transcends the withdrawal clause of Resolution 242.
Whatever Israeli withdrawal from the occupied territories
Resolution 242 may be presumed to require, a withdrawal
from 94 percent of those territories is surely enough to
satisfy it.
The basis for the territorial dimension of the Palestinian
negotiations is therefore the underlying territorial claims of
the parties, as well as the right of Israel to claim territorial
adjustments for security reasons or to secure access to
international waterways, the two justifications for territorial
change acknowledged by Resolution 242.
In order to agree on "secure and recognized" boundaries,
the parties should put aside the sterile controversy about the
absence of the word "the" from the territorial clause of
Resolution 242, and confront their problem with a full
awareness of the history of modern Jewish settlement in
The respective claims of Israel and Jordan to the West
Bank and the Gaza Strip are both unintelligible without
reference to the terms of the mandate, which confers on
"the Jewish people" of the world the right to make "close
settlements" in all of Palestine, and provides that the Arab
inhabitants shall continue to have "civil and religious" (but
not national political) rights in the territory. In short, the
mandate recognizes the historic claims of the Jewish people
to Palestine, and reserves to them the right to establish a
Homeland which was expected in due course to become a
In the mandate, the only qualification to the Jewish right
of settlement in Palestine is that Great Britain as the
"Mandatory Power" could, if it wished, "postpone and
withhold" the right of settlement for the area of Eastern
Palestine-now Jordan-because of its turbulent political
condition at the time. The British did "postpone and
withhold" the Jewish right of settlement in that area in
1922. Since then, the "Tran Jordanian Province of Palestine"
became "Transjordan" and now "Jordan." But Jordan's
attempt to annex the West Bank area in 1950, when it was
the military occupant of the territory after a war of
aggression, was not generally recognized, and has now been
abandoned, which leaves intact the Jewish right of
settlement in the West Bank and the Gaza Strip. This right
is protected by Article 80 of the United Nations Charter,
which provides that unless a trusteeship agreement is agreed
upon (which was not done for the Palestine Mandate),
nothing in the chapter
shall be construed in and of itself to alter in any manner the rights
whatsoever of any states or any peoples or the terms of existing
international instruments to which members of the United Nations
may respectively be parties.
This paragraph of Article 80, commonly known as "The
Palestine Article," was debated and passed with the problem
of the Palestine Mandate very much in mind.'
The Mandates of the League of Nations have a special
status in international law. They are considered to be trusts,
indeed "sacred trusts." In the case of Namibia, the former
South African mandate for the German colony of South
West Africa, the International Court of Justice ruled that the
mandate survived the end of the League of Nations. It was
equally held to survive the Court's decision that South
Africa had violated and repudiated the mandate, and had
therefore in effect resigned as Mandatory, as Great Britain
did when it withdrew from Palestine in 1948. This would
be the normal legal view under both civil and common law.
A trust does not end because the trustee dies, resigns, or
tries to steal the trust property. In the case of Namibia, the
Western permanent members of the Security Council
negotiated the peaceful compliance of South Africa with the
Court's decision; the trust provisions of the mandate were
fulfilled; and the new state of Namibia was born.
Thus the Jewish right of settlement in the whole of
western Palestine-the area West of the Jordan-survived
the British withdrawal in 1948. It was terminated, as far as
I ___
the territory of Jordan and Israel are concerned, by the
recognition of their independence and their membership in
the United Nations. However, the mandate still defines the
legal status of the occupied territories, except for the Golan
Heights. Israel has never sought to annex these territories,
and they have never been generally recognized as parts
either of Israel or of Jordan. They are parts of the mandate
territory, now legally occupied by Israel with the consent of
the Security Council.
Under international law, neither Jordan nor the
Palestinian Arab "people" of the West Bank and the Gaza
Strip have a substantial claim to the sovereign possession
of the occupied territories. Jordan cannot base a claim to
the territory on its military occupation and administration of
the West Bank between 1948 and 1967, after the Arab war
of aggression in 1948. Neither can it base a claim on its
attempt to annex the territory in 1950. The annexation was
not widely recognized and has been withdrawn. By
protecting Arab "civil and religious rights," the mandate
implicitly denies Arab claims to national political rights in
the area in favor of the Jews; the mandated territory was in
effect reserved to the Jewish people for their self-
determination and political development, in
acknowledgment of the historic connection of the Jewish
people to the land. Lord Curzon, who was then the British
Foreign Minister, made this reading of the mandate explicit.
There remains simply the theory that the Arab inhabitants
of the West Bank and the Gaza Strip have an inherent
"natural law" claim to the area.
Neither customary international law nor the United
Nations Charter acknowledges that every group of people
claiming to be a nation has the right to a state of its own.
International law rests on the altogether different principle
of the sovereign equality of states. And nearly every state
inherited from history contains more than one ethnic,
religious, or cultural group: the French in Quebec, for
example; the Basques in France and Spain; the Flemish in
Belgium; the Kurds in Turkey, Iran, and Iraq; and so on.
Therefore, it is a rule essential to international peace that
claims of national self-determination be asserted only
through peaceful means. The international use of force to
vindicate such claims is and must be strictly forbidden by
the United Nations Charter.
This comparison of the conflicting legal claims of Israel,
Jordan, and the Palestinian Arabs to the disputed territories
does not mean that "a just and lasting peace" in the region
requires Israeli annexation of the entire West Bank and the
Gaza Strip. Rights may be sacrificed or compromised to
achieve other goals and values. Israel wishes to remain a
largely Jewish state and abhors the idea of "ethnic
cleansing." The recognition of the Jewish right of settlement
under the mandate does mean, however, that Israel enters
these negotiations from a position of great legal, moral, and
tactical strength.
During the long period of armistice, which has not yet
formally ended, this reality about Israel's claim to the land
has been obscured because the great powers prevailed upon
Israel to defer settling in the occupied territories on the
ground that such settlements were an "obstacle to peace."
As it turned out, the Israeli settlements in the West Bank
have been a potent inducement to the Arabs to consider
peace as a serious alternative. It was becoming obvious that
unless the Arabs abandoned the Khartoum principle, there
would be no land to divide with Israel, at least in the West
Bank. In the new negotiations, the right of the Jewish
people to settle in the occupied territories is bound to be a
central issue and should most emphatically be pressed by
Israel, the United States, and other nations.
The opposition to Jewish settlements in the West Bank
also relied on a legal argument-that such settlements
violated the Fourth Geneva Convention forbidding the
occupying power from transferring its own citizens into the
occupied territories. How that Convention could apply to
Jews who already had a legal right, protected by Article 80
of the United Nations Charter, to live in the West Bank,
East Jerusalem, and the Gaza Strip, was never explained. In
any event, the Geneva convention is irrelevant to the
process of ending the occupation and making peace.
Once the negotiations about the future of Palestine are
liberated from the narrow question of how far Israel should
withdraw from the territories occupied in 1967, bolder and
more imaginative approaches to the question of the most
appropriate political organization of the territory become
practical. Those negotiations should build on the fact of the
economic interdependence of all parts of the area; the social
co-existence of its peoples: should encourage investment
and development throughout Palestine as a common market;
and recognize the abiding reality of Israel and Jordan as
functioning Jewish and Arab states within Palestine. It is
reported that the Palestinian Arabs have agreed to a solution
of confederation with Jordan. And former Secretary of State
Schultz has recently revealed that he and President Reagan
favored the solution of functional confederation for the
whole of Palestine. Under such an arrangement between
Israel and Jordan, there would be free movement of people,
goods, and funds; most Arabs would be citizens of Jordan,
most Jews citizens of Israel. Sovereignty would be shared
by function, an idea Israel had accepted for Jerusalem in
1948. And Israel could remain a Jewish state.
These ideas may seem fantastic to those who fear that
the policies of blind resistance, terrorism, and war which
have governed Arab behavior toward the Jews since 1917
are inexorable and immutable. Arabs and Jews have lived
peacefully together in Islam for many centuries. There is no
reason fixed in the stars why that example cannot be
revived. The Turkish tradition of the millet may provide a
possible guide to the future. These were the ideas animating
the General Assembly Partition Plan of 1948. If the post-
Madrid negotiators on the future of Palestine stop
squabbling about just where a boundary should be drawn,
and concentrate instead on how to organize the co-existence
and cooperation of the peoples, the original dreams of
Zionism may still be realized.
The negotiations about the future of Palestine set in
motion by the understanding between Israel and the PLO
may not lead to peace. In the fragile atmosphere of Arab
politics, many factors may thwart the hopes and
expectations of the parties.
In order to prevent such a catastrophe, it should be
made clear early that in the event the peace process breaks
down, the United States and Israel would favor the
following policies: (1) the Israeli occupation of the West
Bank and Gaza would continue under Security Council
Resolutions 242 and 338, with some modifications in the
direction of local self government; and (2) the United States
and other Western countries would withdraw their
objections to further Jewish settlement in the West Bank,
the Gaza Strip, and East Jerusalem. As has been noted
earlier, the United States and many other nations have for
years objected to such settlements on the ground they were
an obstacle to peace. If, after more than 75 years, the Arabs
still refuse to accept the legitimacy of a Jewish political
presence in the Levant, the United States should drop its
long standing objection, and acknowledge the Jewish right
of settlement under the mandate for what it is, and thus in
effect accept Israeli annexation of the occupied territories.
1. I am indebted to my learned friend Dr. Paul Riebenfeld, who has
for many years been my mentor on the history of Zionism, for
reminding me of some of the circumstances which led to the adoption
of Article 80 of the Charter. Strong Jewish delegations representing
differing political tendencies within Jewry attended the San Francisco
Conference in 1945. Rabbi Stephen S. Wise, Peter Bergson, Eliahu
Elath, Professors Ben-Zion Netanyahu and A. S. Yehuda, and Harry
Selden were among the Jewish representatives. Their mission was to
protect the Jewish right of settlement in Palestine under the mandate
against erosion in a world of ambitious states. Article 80 was the result
of their efforts.
AND 338
Resolution 242 of November 22, 1967
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:
(i) Withdrawal of Israeli armed forces from territories occupied in
the recent conflict;
(ii) 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
(a) For guaranteeing freedom of navigation through
international waterways in the area;
(b) For achieving a just settlement of the refugee problem;
(c) 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 of 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.
Resolution 338 of October 22, 1973
The Security Council
1. Calls upon all parties to the present fighting to cease all firing
and terminate all military activity immediately, no later than 12 hours
after the moment of the adoption of this decision, in the positions they
now occupy;
2. Calls upon the parties concerned to start immediately after the
cease-fire the implementation of Security Council Resolution 242 (1967)
in all of its parts;
3. Decides that, immediately and concurrently with the cease-fire,
negotiations start between the parties concerned under appropriate
auspices aimed at establishing a just and durable peace in the Middle
McNair Papers
The McNair Papers are published at Fort Lesley J. McNair,
home of the Institute for National Strategic Studies and the
National Defense University. An Army post since 1794, the fort
was given its present name in 1948 in honor of Lieutenant
General Lesley James McNair. General McNair, known as
"Educator of the Army" and trainer of some three million troops,
was about to take command of Allied ground forces in Europe
under Eisenhower, when he was killed in combat in Normandy,
25 July 1944.
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Iraq conquered and occupied Kuwait a sovereign Nation and was liberated by the U.S. and its allies.
Israel without outside help liberated Judea and Samaria after it was attacked by Jordan and removed Jordanian occupation, just like the allies liberated Kuwait.
Historically Gaza was a Jewish City and the Golan Heights was always Jewish territory.

YJ Draiman

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