The legal question of the applicability of the Fourth Geneva Convention of 1949 to Judea, Samaria and Gaza has been the source of great argument ever since the Israel Defense Forces restored them to the possession of the Jewish People and the State of Israel in the Six-Day War. Some analysts who have approached this question have relied only on Article 2 of the Convention to determine if it applies to these territories, when the actual answer is to be found by combining Article 2 with Article 6 of the Convention.
The relevant paragraphs of Article 2 read as follows:In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (emphasis added).The relevant paragraphs of Article 6 state:The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2.
In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1-12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. (emphasis added).
In light of the fact that Article 2(1) of the Convention applies to all cases of declared war or armed conflict between two or more of the High Contracting Parties and that the states engaged in the Six-Day War were and remain parties to the Convention, there can be no doubt that at the outset of the war on June 5, 1967 until its conclusion on June 10, 1967, all the provisions of the Convention applied to each of the combatant states of Israel, Egypt, Jordan and Syria and to the territories that Israel brought under its military control as a result of the war, regardless of their legal status or sovereignty at the time and regardless of whether or not they were to be considered "occupied territories" under international law. During the war, the Convention also applied regardless of the formalistic question of whether it represented treaty law that required incorporation into the domestic law or customary law that did not require such incorporation. The discussion here will be limited to the applicability of the Fourth Geneva Convention to Judea, Samaria and Gazaafter June 10, 1967 when the state of active war or hostilities between Israel and the combatant Arab states terminated, even without a peace treaty.
To begin with, it is important to note that the "military operations" referred to in Article 6 of the Convention ceased altogether on June 10, 1967, in accordance with three UN Security Council resolutions passed during the Six-Day War demanding an immediate cease-fire.[1] This call for a cease-fire was accepted by Israel and Syria between whom active fighting was still raging on the Golan Heights. The state of war may have technically continued to exist between Israel and Syria (as well as Egypt and Jordan), but there were definitely no further military operations between them, within the meaning of Article 6 of the Convention.
Article 6 distinguishes between two kinds of territory: 1) the territory of the parties to the conflict, and 2) occupied territory. In the case of the former, the application of the Fourth Geneva Convention ceases "on the general close of military operations". But in the case of the latter — "occupied territory" — the Convention continues to apply until one year after the close of military operations and even beyond that date if the Occupying Power exercises the functions of government in such territory.
Inasmuch as the Six-Day War was not fought, neither within the existing borders of the State of Israel, nor within the borders of Jordan on the east bank of the Jordan River — the only recognized borders of the country under international law, the Convention was no longer applicable to those specific areas after the cease-fire or cessation of hostilities, except for those provisions of the Convention "which shall be implemented in peacetime". The question of the further applicability of the Convention then turns on the question of whether Judea, Samaria and Gaza were "occupied territories" belonging to the Kingdom of Jordan and/or Egypt within the meaning of both Article 6 of the Convention and Article 42 of the Hague Regulations of 1907. These regulations constitute an annex to the Fourth Hague Convention Respecting the Laws and Customs of War on Land.
Article 42 of the Hague Regulations defines territory as being occupied when the territory of the Hostile State is actually placed under the authority of a Hostile Army. It is to be noted that the text of Article 42 refers only to "territory" in a general sense, but the heading[2] of Section III under which Article 42 appears — "Military Authority over Territory of the Hostile State" — makes it clear that the word "territory" can only be a reference to the "territory of the hostile state", as is also evident from Article 55 of that Section, which specifically mentions various immovable properties belonging to the "hostile state". Article 42 furthers lays down that "the occupation extends only to the territory [of the Hostile State] where such authority has been established and can be exercised."
At the conclusion of the Six-Day War, the territories of Judea, Samaria and Gaza were indeed placed under the authority of a "Hostile Army", i.e., the Israel Defense Forces. However, these territories are not to be considered legally "under occupation", unless they actually belong to either Jordan or Egypt. It is a well-known fact that though Jordan annexed Judea and Samaria on April 24, 1950, thus rendering this region a de facto part of the Kingdom of Jordan (i.e., the so-called "West Bank"), this unilateral annexation was never recognized as valid under the prevailing norms of international law, inasmuch as Jordan was an aggressor state in the Israel-Arab War of 1948.[3] Thus Jordan never enjoyed sovereignty over Judea and Samaria, while Egypt never even claimed it over Gaza. Since neither Jordan nor Egypt (nor the fictitious "Palestinian People") were recognized sovereigns of these territories, they cannot be legally classified as "occupied". The only recognized sovereign over those territories under international law prior to the Six-Day War was the Jewish People as determined by several acts of international law. The first such act was the Smuts Resolution of January 30, 1919 (the precursor of Article 22 of the League Covenant), which in referring to the term "Palestine" must be interpreted in conjunction with the Balfour Declaration of November 2, 1917, the Lloyd George-Clemenceau Agreement of December 1, 1918, and the Weizmann-Feisal Agreement of January 3, 1919. It is thus evident that "Palestine" is a reference to the Jewish People and not to the local Arab inhabitants of the country. The other acts of international law that confirm the Jewish legal title to Palestine are the San Remo Resolution of April 25, 1920, the Mandate for Palestine of July 24, 1922, the Franco-British Boundary Convention of December 3, 1920 and the Anglo-American Convention Respecting the Mandate for Palestine of December 3, 1924. Since Israel, therefore, did not occupy the territory of a previous foreign sovereign, but only re-possessed the territory that the Principal Allied Powers of World War I had resolved was to be part and parcel of the Jewish National Home, as subsequently confirmed by the League of Nations, the Fourth Geneva Convention was not applicable to Israel's rule over Judea, Samaria and Gaza. Accordingly, it is absolutely false to assert that Judea, Samaria and Gaza are "occupied Palestinian territory", "occupied Arab territory" or simply "occupied territory" as claimed in many UN General Assembly and Security Council resolutions as well as by the Palestine Liberation Organization, the Palestinian Authority, the Arab League states, other governments and self-servingly, by the International Committee of the Red Cross.[4] Furthermore, when the Six-Day War broke out on June 5, 1967, there was no state in existence called "Palestine" whose territory could be considered "occupied" under international law, nor is there any such state even today, though if the Government of Israel continues to pursue the "two-state vision" of U.S. President George W. Bush, this state may yet emerge.
Despite the fact that Israel never occupied the sovereign territory of another Arab state or people, within the meaning of the Fourth Geneva Convention and the Hague Regulations, it has been falsely branded as an occupier of "Arab land". This accusation has no basis in law but has persisted because of the false belief that has been nurtured since 1969 by the United Nations and the Arab States as well as the PLO, that Israel has conquered the national homeland of another people, the "Palestinians" who inhabit the non-existent state of "Palestine". To dispel these falsehoods, it need only be remembered that Mandated Palestine was created in April, 1920 at the San Remo Peace Conference for the express purpose of the future independent state of the Jewish People, not for an imaginary people called "Palestinians", whose existence as a separate nation was unknown during the whole period of the Mandate, especially to the Arabs themselves. Since Palestine was intended to be the Jewish National Home, the State of Israel, which inherited the national rights of the Jewish People to the country, can never be seen as the occupier of land that was specifically reserved for Jews and rightfully belongs, as a result, to Israel. It is only by ignoring these indisputable facts that the cry is incessantly raised that the "occupation" must end. Sadly, Israel itself was in large measure responsible for allowing this false conception to take root, when during the Six-Day War it made the fateful decision to apply the laws of war to the liberated Jewish territories rather than the corpus of its own law, thus failing to incorporate those territories into the Jewish State. This convinced world public opinion, especially that of American and European leaders, that Israel is indeed an occupier of foreign lands. To rectify this terrible mistake, which also violated existing Israeli constitutional law, Israel should not only strongly contest the allegation of "occupation" as baseless, but also pass legislation affirming Israel's national rights to all areas of the Land of Israel and making it a criminal offense to describe its presence and status in any part of the land as "occupation".[5] This will then prevent Israel's Supreme Court and most academic jurists in Israel's institutions of higher learning from further spreading this insidious libel, as they have incredibly done up to now, to the acclaim of those who favour the re-partition of the Land of Israel.
Finally, it should be noted that the legal term "occupation", as defined in international law, refers only to the occupation by a hostile army of territory belonging to a state. It does not refer to the people living in "occupied territory", who as non-nationals of the Occupying Power enjoy the status of "protected persons" under the Fourth Geneva Convention. In reconquering areas of the Land of Israel in June 1967, what the Israeli Defense Forces really did was "repossessing" lands internationally recognized ever since 1920 as belonging to the Jewish People, as originally reflected by the Hebrew phrase for those lands: shtahim muhzakim ("held" areas). This stressed that it was land, rather than people, that was repossessed. It is therefore a gross misuse of the term "occupation" to refer to Israel's "occupation of the Palestinian People", even without considering the question of whether Israel is a true occupier of what is now mistakenly termed "Palestinian land", i.e., Judea, Samaria and Gaza. To give a parallel example, the United States may be said to be a military occupier of Iraq, ever since it overthrew the cruel regime of Saddam Hussein, but it cannot be said to "occupy the Iraqi people". Those who accuse Israel of "occupying Palestinians" are using false and illogical terminology that has no basis in any instrument of international law. This terminology represents an unwarranted and unauthorized change of meaning of the term "occupation", in that it wrongly conflates two non-synonymous categories. In actual fact, Israel neither occupies the land of Judea, Samaria and Gaza, the alleged homeland of the so-called "Palestinians", nor does Israel "occupy" any nation of that name. Israel has a flawless legal right to govern all of the Land of Israel as well as all of its inhabitants, as the legitimate sovereign.
End Notes
[1] The three Security Council resolutions calling for a cessation of all military activities, all of which were adopted unanimously, were: 1) Resolution No. 233 of June 6, 1967; 2) Resolution No. 234 of June 7, 1967; 3) Resolution No. 235 of June 9, 1967.
[2] In interpreting the text of a treaty or of an annex to it such as the Hague Regulations, recourse may be had according to Article 31 of the Vienna Convention on the Law of Treaties to the context to be given to the terms of the treaty and also to the treaty's object and purpose. Based on this general rule of interpretation, the term "territory" as used in Article 42 of the Hague Regulations can only refer to the "territory of the hostile state" over which the army of the other state (i.e., the Occupying state) has assumed military authority.
[3] The principle of international law that applied to the situation was jus ex injuria non oritur [a right does not arise from a wrong]. Even the Council of the Arab League refused to recognize the Jordanian annexation of Judea and Samaria, and four states — Egypt, Saudi Arabia, Syria and Lebanon — voted to expel Jordan for violating the League's anti-annexation resolution of April 13, 1950.
[4] The International Committee of the Red Cross (ICRC) principally formulated the four 1949 Geneva Conventions that were approved at a Diplomatic Conference for the Establishment of International Conventions for the Protection of the Victims of War, held in Geneva from April 21 to August 12, 1949. The ICRC has a special position in the implementation of these Conventions, charged with providing relief and affording protection for members of armed forces who are wounded, sick or shipwrecked; prisoners of war; and civilian persons in time of war (see, for example, Articles 3(2), 63 and 142 of Geneva Convention IV). Under the erroneous assumption of the ICRC that Judea, Samaria and Gaza are indeed "occupied territories", the Government of Israel permits it to operate freely in these parts of the Land of Israel and the Jewish National Home. It is not without irony that the man who founded the International Red Cross, Jean Henri Dunant, a Swiss Protestant philanthropist, waged an unsuccessful campaign for the settlement of Jews in Palestine during the 1860s, even going so far as to establish an association for that very purpose. Herzl recognized Dunant's unique efforts to promote Jewish settlement by referring to him as a Christian Zionist in his closing speech at the First Zionist Congress in 1897 in the Swiss city of Basle.
[5] The Knesset on July 15, 2003 took an initial step in this direction when it passed, by a margin of 26 to 8, a resolution submitted by Gideon Sa'ar that read as follows: "...the Knesset affirms that the territories of Judea and Samaria are not occupied territories, either historically or from the standpoint of international law, and not according to the diplomatic accords signed by Israel...".
Howard Grief was born in Montreal, Canada and made aliyah in 1989. He served as a legal advisor to Professor Yuval Ne'eman at the Ministry of Energy and Infrastructure in matters of international law pertaining to the Land of Israel and Jewish rights thereto. He is a Jerusalem-based attorney and notary, as well as a specialist in Israeli constitutional law. In October 1993, he wrote the first of several articles denouncing the illegal agreements Israel made with the PLO that appeared in the pages of Nativ and elsewhere. He is the founder and director of the Office for Israeli Constitutional Law.
Howard Grief has written extensively on Israel's ownership of the West Bank. See, for example, "Is Israel Occupying The West Bank?"; "The origin of the Occupation Myth" ; and "Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine under International Law."
Except for the last paragraph of the article, which is completely new, the present article -- which is also being posted on the website of the Ariel Center for Policy Research, to whom it was originally submitted -- is an excerpt from the last chapter of Grief's book "The Legal Foundation and Borders of Israel under International Law", "The Legal Foundation and Borders of Israel under International Law" offers a comprehensive and systematic legal treatment of Jewish national and political rights to all of the Land of Israel. Howard Grief, is the originator of the thesis that de jure sovereignty over the entire Land of Israel and Palestine was vested in the Jewish People as a result of the San Remo Resolution adopted at the San Remo Peace Conference on April 24, 1920.
| APPENDIX 1: Basic documents regarding Israel in International Law
Title: San Remo Resolution — April 25, 1920
Caption: This resolution, consisting of the Balfour Declaration and Article 22 of the Covenant of the League of Nations, is the basic document upon which the Mandate for Palestine was constructed. The San Remo Resolution concerning Palestine and the Jewish National Home was adopted at the San Remo Peace Conference on April 25, 1920 by the four Principal Allied Powers of World War I who were represented by the Prime Ministers of Britain (David Lloyd George), France (Alexandre Millerand) and Italy (Francesco Nitti) and by the Ambassador of Japan (K. Matsui). The Resolution was a binding agreement between these Powers to reconstitute the ancient Jewish State within its historic borders "from Dan to Beersheba", an agreement that was incorporated into the Treaty of Sevres and the Mandate for Palestine.
Title: The Franco-British [Boundary] Convention of December 23, 1920.
Caption: The Franco-British [Boundary] Convention which delineated the boundaries between Palestine and Syria-Lebanon was signed on December 23, 1920. The term "Transjordan" does not appear in the Convention since it did not exist as a separate territorial entity at the time the Convention was made. What was later to become Transjordan (today called the Hashemite Kingdom of Jordan) was, at that time, an integral part of the Land of Israel intended for inclusion in the Jewish National Home in accordance with the terms of the Draft Mandate submitted by the British Government to the Council of the League of Nations on December 6, 1920 for its confirmation.
Title: Mandate for Palestine — July 24, 1922.
Caption: The Mandate for Palestine was granted to Britain by the Principle Allied Powers of World War I. It constituted an elaboration of what the San Remo Resolution intended to be done concerning the newly-created mandated state of Palestine. It consisted of 28 articles, all of which applied to the Jewish National Home, not merely those articles which had an obvious Zionist character. The essential point was the responsibility placed upon Britain not only to use its "best endeavours" to establish a Jewish State (euphemistically called the Jewish National Home), but also to actually "secure" its achievement. The Mandate was confirmed by the Council of the League of Nations on July 24, 1922 and accepted in all by 52 nations, including the United States.
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| APPENDIX II: The Franco-British [Boundary] Convention Of December 23, 1920
The British and French Governments, respectively represented by the undersigned Plenipotentiaries, wishing to settle completely the problems raised by the attribution to Great Britain of the mandates for Palestine and Mesopotamia and by the attribution to France of the mandate over Syria and the Lebanon, all three conferred by the Supreme Council at San Remo, have agreed on the following provisions:-
The boundaries between the territories under the French mandate of Syria and the Lebanon on the one hand and the British mandate of Mesopotamia and Palestine on the other are determined as follows:-
On the east, the Tigris from Jeziret-ibn-Omar to the boundaries of the former vilayets of Diarbekir and Mosul.
On the south-east and south, the aforesaid boundary of the former vilayets southwards as far as Roumelan Koeui; thence a line leaving in the territory under the French mandate the entire basin of the western Kabur and passing in a straight line towards the Euphrates, which it crosses at Abu Kemal, thence a straight line to Imtar to the south of Jebul Druse, then a line to the south of Nasib on the Hedjaz Railway, then a line to Semakh on the Lake of Tiberias, traced to the south of the railway, which descends towards the lake and parallel to the railway. Deraa and its environs will remain in the territory under the French mandate; the frontier will in principle leave the valley of the Yarmuk in the territory under the French mandate, but will be drawn as close as possible to the railway in such a manner as to allow the construction in the valley of the Yarmuk of a railway entirely situated in the territory under the British mandate. At Semakh the frontier will be fixed in such a manner as to allow each of the two High Contracting Parties to construct and establish a harbour and railway station giving free access to the Lake of Tiberias.
On the west, the frontier will pass from Semakh across the Lake of Tiberias to the mouth of the Wadi Massadyie. It will then follow the course of this river upstream, and then the Wadi Jeraba to its source. From that point it will reach the track from El Kuneitra to Banias at the point marked Skek, thence it will follow the said track which will remain in the territory under the French mandate as far as Banias. Thence the frontier will be drawn westwards as far as Metullah, which will remain in Palestinian territory. This portion of the frontier will be traced in detail in such a manner as to ensure for the territory under the French mandate easy communication entirely within such territory with the regions of Tyre and Sidon, as well as continuity of road communication to the west and to the east of Banias.
From Metullah the frontier will reach the watershed of the valley of the Jordan and the basin of the Litani. Thence it will follow this watershed southwards. Thereafter it will follow in principle the watershed between the Wadis Farah-Houroun and Kerkera, which will remain in the territory under the British mandate, and the Wadis El Doubleh, El Aioun and Es Zerka, which will remain in the territory under the French mandate. The frontier will reach the Mediterranean Sea at the port of Ras-El-Nakura, which will remain in the territory under the French mandate.
A commission shall be established within three months from the signature of the present convention to trace on the spot the boundary line laid down in article 1 between the French and British mandatory territories. This commission shall be composed of four members. Two of these members shall be nominated by the British and French Governments respectively, the two others shall be nominated, with the consent of the Mandatory Power, by the local Governments concerned in the French and British mandatory territories respectively.
In case any dispute should arise in connection with the work of the commission, the question shall be referred to the Council of the League of Nations, whose decision shall be final.
The final reports by the commission shall give the definite description of the boundary as it has been actually demarcated on the ground; the necessary maps shall be annexed thereto and signed by the commission. The reports, with their annexes, shall be made in triplicate; one copy shall be deposited in the archives of the League of Nations, one copy shall be kept by the mandatory, and one by the other Government concerned.
The British and French Governments shall come to an agreement regarding the nomination of a commission, whose duty it will be to make a preliminary examination of any plan of irrigation formed by the Government of the French mandatory territory, the execution of which would be of a nature to diminish in any considerable degree the waters of the Tigris and Euphrates at the point where they enter the area of the British mandate in Mesopotamia.
In virtue of the geographic and strategic position of the island of Cyprus, off the Gulf of Alexandretta, the British Government agrees not to open any negotiations for the cession or alienation of the said island of Cyprus without the previous consent of the French Government.
1.The French Government agrees to facilitate by a liberal arrangement the joint use of the section of the existing railway between the Lake of Tiberias and Nasib. This arrangement shall be concluded between the railway administrations of the areas under the French and British mandates respectively as soon as possible after the coming into force of the mandates for Palestine and Syria. In particular the agreement shall allow the administration in the British zone to run their own trains with their own traction and train crews over the above section of the railway in both directions for all purposes other than the local traffic of the territory under the French mandate. The agreement shall determine at the same time the financial, administrative and technical conditions governing the running of the British trains. In the event of the two administrations being unable to reach an agreement within three months from the coming into force of the two above-mentioned mandates, an arbitrator shall be appointed by the Council of the League of Nations to settle the points as to which a difference of opinion exists and immediate effect shall be given as far as possible to those parts of the agreement on which an understanding has already been reached. The said agreement shall be concluded for an indefinite period and shall be subject to periodical revision as need arises.
2.The British Government may carry a pipe line along the existing railway track and shall have in perpetuity and at any moment the right to transport troops by the raiiway.
3.The French Government consents to the nomination of a special commission, which, after having examined the ground, may read just the above-mentioned frontier line in the valley of the Yarmuk as far as Nasib in such a manner as to render possible the construction of the British railway and pipe line connecting Palestine with the Hedjaz Railway and the valley of the Euphrates, and running entirely within the limits of the areas under the British mandate. It is agreed, however, that the existing railway in the Yarmuk valley is to remain entirely in the territory under the French mandate. The right provided by the present paragraph for the benefit of the British Government must be utilized within a maximum period of ten years.
The above-mentioned commission shall be composed of a representative of the French Government and a representative of the British Government, to whom may be added representatives of the local Governments and experts as technical advisers to the extent considered necessary by the British and French Governments.
4.In the event of the track of the British railway being compelled for technical reasons to enter in certain places the territory under French mandate, the French Government will recognize the full and complete extra-territoriality of the sections thus lying in the territory under the French mandate, and will give the British Government or its technical agents full and easy access for all railway purposes.
5.In the event of the British Government making use of the right mentioned in paragraph 3 to construct a railway in the valley of the Yarmuk, the obligations assumed by the French Government in accordance with paragraphs 1 and 2 of the present article will terminate three months after the completion of the construction of the said railway.
6.The French Government agrees to arrange that the rights provided for above for the benefit of the British Government be recognized by the local Governments in the territory under the French mandate.
It is expressly stipulated that the facilities accorded to the British Government by the preceding articles imply the maintenance for the benefit of France of the provisions of the Franco-British Agreement of San Remo regarding oil.
The French and British Governments will put no obstacle in their respective mandatory areas in the way of the recruitment of railway staff for any section of the Hedjaz Railway.
Every facility will be given for the passage of employees of the Hedjaz Railway over the British and French mandatory areas in order that the working of the said railway may be in no way prejudiced.
The French and British Governments agree, where necessary, and in eventual agreement with the local Governments, to conclude an arrangement whereby the stores and railway material passing from one mandatory area to another and intended for the use of the Hedjaz Railway will not for this reason be submitted to any additional customs dues and will be exempted so far as possible from customs formalities.
Experts nominated respectively by the Administrations of Syria and Palestine shall examine in common within six months after the signature of the present convention the employment, for the purposes of irrigation and the production of hydro-electric power, of the waters of the Upper Jordan and the Yarmuk and of their tributaries, after satisfaction of the needs of the territories under the French mandate. In connection with this examination the French Government will give its representatives the most liberal instructions for the employment of the surplus of these waters for the benefit of Palestine.
In the event of no agreement being reached as a result of this examination, these questions shall be referred to the French and British Governments for decision.
To the extent to which the contemplated works are to benefit Palestine, the Administration of Palestine shall defray the expenses of the construction of all canals, weirs, dams, tunnels, pipe lines and reservoirs or other works of a similar nature, or measures taken with the object of reafforestation and the management of forests.
Subject to the provisions of Articles 15 and 16 of the mandate for Palestine, of Articles 8 and 10 of the mandate for Mesopotamia, and of Article 8 of the mandate for Syria and Lebanon, and subject also to the general right of control in relation to education and public instruction, of the local Administrations concerned, the British and French Governments agree to allow the schools which French and British nationals possess and direct at the present moment in their respective mandatory areas to continue their work freely; the teaching of French and English will be freely permitted in these schools.
The present article does not in any way imply the right of nations of either of the two parties to open new schools in the mandatory area of the other.
The present convention has been drawn up in English and French, each of the two texts having equal force.
Done at Paris, the 23rd of December, 1920, in a double copy, one of which will remain deposited in the archives of the Government of the French Republic, and the other in those of the Government of His Britannic Majesty.
HARDINGE OF PENSHURST
G. LEYGUES |
| APPENDIX III: Jewish Legal Rights and Title of Sovereignty to the Land of Israel and Palestine
by Howard Grief
April 2004 published on Jerusalem Summit website www.jerusalemsummit.org
The legal title of the Jewish People to the mandated territory of Palestine in all of its historic parts and dimensions was first recognized under international law on April 25, 1920 by a Decision taken at the San Remo Peace Conference by the Supreme Council of the Principal Allied Powers to entrust Palestine to Great Britain under the Mandates System for the purpose of establishing a national home for the exclusive benefit of the Jewish People, in accordance with the terms of the Balfour Declaration of November 2, 1917.
The Supreme Council of the Allies was made up of the top political leaders and officials of Great Britain, France, Italy and Japan, and it was they in their meeting in the Italian resort city who decided the future fate of all the Asiatic possessions which, as a consequence of World War I, had ceased to be under the sovereignty of the Ottoman Turkish Empire which formerly governed them.
These possessions included all the area then called the Fertile Crescent, which originally comprised Palestine, Syria and Mesopotamia (whose name later became Iraq) as separate territorial units, before any substantive changes were made to their boundaries. At the San Remo Conference, it was decided that all three countries, whose exact borders had not yet been delineated, would be administered by Mandatories under the newly-created Mandates System, established by the Treaty of Versailles of 1919. The Mandates System did not come into being until the ratification of this Treaty on January 10, 1920. It was established simultaneously with the League of Nations whose duty it was to supervise the observance of individual mandates through a body called the Permanent Mandates Commission. The actual terms of those mandates and the powers exercised by the Mandatory were in each case explicitly defined and confirmed by the Council of the League unless previously agreed upon by the Members of the League.
British determination and influence in the wartime group of nations officially called the Principal Allied Powers in relation to Turkey excluded other areas under former Ottoman rule in Asia from being part of the new system of mandatory government, particularly the Hedjaz and the whole Arabian Peninsula.
This was the global settlement that was made after World War I, that conferred enormous benefits to the Arabic-speaking world. The "Arabs" received the lion's share of the territories that formerly belonged to Turkey. As a result of this munificence they hold today lands equal to twice the area of the USA, as the Editor of Midstream, Mr. Joel Carmichael, has keenly observed in a letter to the author.
Other peoples who were originally included in this global settlement fared badly. Kurds and Armenians were supposed to get their own autonomous homelands or states, and the Assyro-Chaldeans, who were a Christian community centered in Mosul, were also promised protection and safeguards for their rights. However, in the final outcome, none of the promises made to them were fulfilled, because their claims and aspirations, although explicitly recognized by the Allies in the abortive Treaty of Sevres, were subsequently discarded by both the British and French who turned over their designated areas to the complete control of both Arabs and Turks who then cruelly deprived them of their vested national rights and status within those areas.
When the settlement and division of land was devised at the San Remo Conference, it was clear to all concerned parties, Arab and Jew alike and to all European, American and Japanese statesmen, that Palestine, within its historic frontiers according to the biblical formula, from Dan to Beersheba, but which still needed to be marked out in a separate agreement, was exclusively reserved for the benefit of the Jewish people all over the world, of which only a fraction then actually lived in the ancient Jewish country. What this obviously meant to one and all was an independent Jewish State in all of the historic territory of Palestine.
Jewish legal rights and title to all of historic Palestine, including Transjordan and Golan, whose association with the Jewish People goes back to the earliest days of Jewish history, was indeed then formally recognized in the Franco-British Convention of December 23, 1920, even though no specific words were used to that effect but was well understood by the parties, both from the negotiations that were conducted prior to the conclusion of the Convention in consultation with Zionist leaders who pressed the British to obtain the best possible frontiers for the Jewish National Home, and from the reference to the Mandate for Palestine contained in the Convention itself. Some parts of historic Palestine were not included in the final boundaries assigned to Palestine, especially in the northern and north-eastern sections of the new lines.
Jewish legal rights and title to the country of Palestine were founded on three basic pillars which comprised the following sources of support:
1.The historical connection of the Jewish People with Palestine in its entirety. Without this acknowledgment of the country's storied Jewish past, there would have been no Mandate and no Jewish National Home. The historical connection dated back to the Israelite period as described in the Jewish Bible, to the Hasmonean restoration and to the Herodian era and also, in general, to the unbroken chain of links which Jews of every generation had always maintained with the Land of Israel from the very first days of the Patriarchs, Abraham, Isaac and Jacob, right up to the present day, embracing a continuous history of approximately 3800 years.
The "home" referred to in the Declaration was a euphemistic term for "state" already used 20 years earlier by the Jewish leaders attending the World Zionist Congress convoked by Theodor Herzl and held at Basel, Switzerland, in August 1897, so as not to offend Turkish sensibilities on the projected loss of Palestine from their recognized sovereign domains under international law. The word "national" was later appended to the word "home" by Nahum Sokolow, the long-time Zionist leader at the time he participated in the drafting of the Balfour Declaration with British officials. The addition of this word was to make it even clearer what the ultimate goal of the Zionist Organization was, on behalf of the scattered Jewish people. Strangely, what was evident by the words "national home" then became muddled by the originator of the term, Sokolow himself, who, in a display of inane and unnecessary deception, wrote in the introduction to his two-volume monumental work, History of Zionism, published in 1919, that the word "home" as used in the Basel Program of 1897, did not mean the creation of an independent "Jewish State", which was an interpretation he attributed to anti-Zionists who were opposed to the revival of the Jewish People as an independent nation in its ancestral homeland. This denial of the term's true meaning was contrary to what both Balfour and Lloyd-George themselves stated, both at the time the Balfour Declaration was approved by the War Cabinet and in the years afterwards. It was also contrary to President Wilson's own pronouncement on the subject, influenced by the great American Supreme Court Justice, Louis Dembetz Brandeis, both of whom had a major role in the approval of the Balfour Declaration. The matter became further confused by Ahad Ha'Am, the pompous pseudonym used by Asher Ginsberg, who stated erroneously in a deliberate trouble-provoking exegesis that the words "in Palestine" did not mean that the whole country of Palestine would become the Jewish National Home. Furthermore, he declared that Palestine was also the national home of the Arabs who deserved the same rights as the Jews were obtaining in ruling the country they both shared.
As a result of Sokolow's and Ginsberg's unconscionable and unforgivable misrepresentations which created heavy roadblocks on the way to Jewish independence, it thereafter became easy for succeeding British Governments to exploit their false interpretation of the Balfour Declaration and to change the policy embedded in the Declaration to the great detriment of the Jewish National Home.
Despite British backtracking, the Balfour Declaration did become in any case an act of international law of supreme importance to the cause of Zionism, when it was officially adopted by the Principal Allied Powers at the San Remo Conference. It is without doubt the linch-pin or essential foundation of all Jewish legal rights to Palestine under international law, upon which everything else depended. It was the exclusive basis for the implementation of the Mandate for Palestine. It may be said without exaggeration that almost every article of the Mandate for Palestine was only an extension or elaboration of what the Balfour Declaration was meant to be in actual practice, including those provisions not ostensibly thought to be dealing with the establishment of the Jewish National Home.
The foregoing three components of the Jewish legal title to Palestine were then rolled into one comprehensive international instrument, the Mandate for Palestine, which thereafter became the primary cited source for Jewish legal rights to the re-constituted Jewish National Home that was called Palestine in English, a name originally chosen by the Zionist leaders in the Basel Program of 1897, and translated into Hebrew as the Land of Israel.
These rights were included specifically in the first three recitals of the Preamble of the Mandate Agreement, each one of the recitals being of great importance by itself. Recital One refers to Article 22 of the Covenant of the League of Nations, which leads back to Part I of both the Treaty of Versailles and the Treaty of Sevres. Recital Two refers to the Balfour Declaration that was adopted by the Decision of the Principal Allied Powers at the San Remo Conference which, four months later, was transformed into Article 95 of the Treaty of Sevres. Recital Three then mentions the historical connection of the Jewish People with Palestine and it also organically links together all three components of the Jewish legal title when it further states that "recognition has thereby been given... to the grounds for reconstituting their national home in that country". The word thereby, together with the plural rendition of the word grounds, provide the connecting thread for all three recitals. Furthermore, the word reconstituting, as used here, is a direct reference to the State of Judea, since the only country with which there was an historical connection by the Jewish People was Judea before its name was changed to Palestine by the Roman Emperor Hadrian. The word Judea in Greek and Latin actually connotes "the Jewish country", further evidence of the Jewish historical connection.
The instrument containing the Mandate for Palestine is thus the final locus or resting place of Jewish legal rights to all of Palestine. However, it should be remembered, that although the Mandate for Palestine is also of the greatest importance for asserting these rights, it is not the starting-point of Jewish sovereignty over all of Palestine. That occurred on April 25, 1920, the exact date when Great Britain was appointed the Mandatory and entrusted with a Mandate to implement the Balfour Declaration for the benefit of the Jewish People, who were defined as World Jewry, rather than the Jews of Palestine. It was then that Article 22 of the League of Nations Covenant became intertwined and integrated with the Balfour Declaration which together devolved sovereignty over Palestine to the Jewish People to reconstruct the Jewish National Home.
This constituted official recognition under international law of Jewish legal rights and title to all of Palestine, which has never since been altered by any other binding act or instrument of international law that has also met the test of legality.
In this regard, it is worthwhile to assess the claim that Jewish legal rights and title to the whole country including Judea, Samaria and Gaza, ceased to have effect with the end of the Mandate for Palestine. This claim is wrong not only for the reason that the U.N. Partition Resolution of November 29, 1947 failed to be accepted at the relevant time by the concerned Arab parties, including the local Arab inhabitants, and was in any case only a recommendation that was not self-executing. There is a more fundamental reason why Jewish legal rights and title over all of Palestine continued after the end of Mandate which relates to the doctrine of estoppel, which applies both in international law as well as in the municipal or internal laws of nations. This doctrine affects three distinct groups or parties. First, all the members of the League of Nations, over fifty in number are debarred by virtue of this doctrine from denying what they had previously assented to, at the time the Mandate for Palestine was confirmed by the League, i.e., that the country in its entirety including Judea, Samaria and Gaza was exclusively reserved for the Jewish People for the purpose of setting up its national home or state.
Second, the doctrine of estoppel also applies with even greater force to the United States, which had specifically accepted all the terms of the Mandate for Palestine in a treaty it signed with Great Britain on December 3, 1924. The ratification of this treaty by the U.S. Senate had the additional legal effect of making the Mandate for Palestine and the Balfour Declaration which was its breath and essence, part of the domestic law of the country. This is a fact of enormous importance, which has been conveniently forgotten today by the American Government that wrongly calls legally established Jewish settlements in Judea, Samaria and Gaza, "obstacles to peace", and whose expansion it considers "inflammatory and provocative". By its previous approval of the treaty, the U.S. is estopped from denouncing or taking any action against Jewish settlement activity in the Land of Israel.
Finally, the doctrine of estoppel applies with equal validity to all Arab states whose own creation under international law derived from the very same global settlement made by the Principal Allied Powers at San Remo and Sevres which led to the establishment of the Jewish State. The Arabs cannot gleefully accept national rights accorded them under this settlement while at the same time denying them to the Jewish People. By doing this, they are engaging in blind and willful disobedience of international law, which is also plainly irrational.
One additional note related to this matter is that it is unnecessary to base the continuation of Jewish legal rights and title to all of former Palestine on Article 80 of the U.N. Charter. This provision was designed as a stop-gap measure until the new trusteeship system set up by the Charter could replace the Mandates System and take full effect. However, once the Jewish State came into existence, Article 80 ceased to apply to Palestine, since the country could no longer be placed under the trusteeship system by means of a trusteeship agreement.
Unfortunately what was clearly established in regard to Jewish legal rights and title to all of Palestine under international law both by the San Remo Decision on Palestine and the Mandate for Palestine became almost immediately obscured and undermined by new events and developments. This process began with the overthrow of the Turkish Sultanate by revolutionary armed forces led by Mustafa Kemal, later called Kemal Ataturk.
After taking complete control of the Turkish Government, Ataturk refused to accede to the loss of any Turkish territories in Anatolia, as provided in the Treaty of Sevres. These territories included Greek-speaking Smyrna and its surroundings, Cilicia or Little Armenia and the Kurdish-inhabited parts of South-Eastern Anatolia. His sweeping military triumphs forced the scrapping of the Treaty of Sevres which was replaced by the Treaty of Lausanne on July 24, 1923, ratified a year later on August 6, 1924. This development did not directly affect the San Remo Decision on Palestine nor the status of the newly emergent countries detached from the Ottoman Empire that became Arab states. The damage done was of another order.
The various provisions of the Treaty of Sevres which had clearly set out the new legal structure for Palestine and that of Syria and Mesopotamia in an unambiguous way were not repeated in the Treaty of Lausanne, but simply omitted altogether, replaced by a vague clause (Article 16), which referred to the future of territories "being settled or to be settled by the parties concerned" among which was Palestine, over which Turkey again renounced all rights and title, as it had done previously when the Sultan's representatives signed the Treaty of Sevres.
The change in regime in Turkey clouded the legal picture for Palestine in particular since the clear-cut provisions in the Treaty of Sevres which applied to it and left no doubt about Jewish legal rights and title to Palestine and the all-important date of their inception under international law stemming from the San Remo Decision were no longer there.
As a result, many renowned jurists have wrongly maintained that Turkey only lost its sovereignty over Palestine and the rest of the Fertile Crescent when it agreed to the Treaty of Lausanne of 1923, though the Treaty of Versailles of 1919, also recognized by Kemal's Turkey, expressly rebuts that incorrect contention, as does the first recital in the Preamble of the Mandate for Palestine as well as Turkey's earlier acceptance of Wilson's Fourteen Points, delivered in an address to the U.S. Congress on Jan. 8, 1918, one point of which dealt specifically with Turkey limiting its control to its own peoples. In any event, the provisions of the Treaty of Sevres still have great evidentiary value despite its non-ratification, to show what the Principal Allied Powers actually intended to do or had in mind when they adopted the Balfour Declaration as the only basis of the Mandate for Palestine.
The changes produced by Ataturk's rise to power were also accompanied by a sudden American intervention in the involved process then underway to confirm all the new mandates that were allotted to Mandatories under the Mandates System. The United States unexpectedly insisted on receiving for itself as well as for its nationals the same rights and benefits that were being given to all members of the League of Nations and their nationals, which would have been granted to them in any event. This new demand unduly held up the pending confirmation of the Mandate for Palestine that had already been submitted by Balfour on behalf of the British Government to the Council of the League of Nations on December 7, 1920, and was on the verge of being acted upon.
The American maneuver produced very deleterious effects for Jewish legal rights and title to all of Palestine. Not only did it prevent the immediate confirmation of the Mandate for Palestine by the Council of the League of Nations, but, more importantly, the irritating delay gave more time to the British Government to play around with the provisions of the Mandate for Palestine that had already gone through numerous drafts under the guiding hand of the British Foreign Minister. The American Government never acknowledged the damage their unnecessary demands caused the Jewish National Home, even if done unwittingly.
The damage done soon became evident enough. Thanks to the unwelcome American intrusion, the British deviously sneaked in a new provision into the Mandate, that of Article 25, using as a lame excuse Abdullah's threatened advance into Syria to protest his brother's eviction by the French, which had no chance of succeeding but amounted to mere bluster and feigned action. This additional provision to the Mandate for Palestine provided for a different administration of Transjordan from the rest of Palestine west of the Jordan River that led over the course of time, by various illegal steps additionally taken by the British to the complete loss of Transjordan from the Jewish National Home. The loss of that territory, once considered absolutely essential even by Chaim Weizmann and Nahum Sokolow for Palestine's future economic prosperity, deprived Palestine of a great reserve of land that was intended for Jewish settlement and development, as in the olden days when Jewish life flourished there.
The British engaged in other shady maneuvers and artifices whose combined effect was to distort the true legal meaning of the Mandate for Palestine and put in doubt Jewish legal rights and title to the whole country.
The author of this article served as a legal adviser to Professor Yuval Ne'eman in international law matters affecting the status of the Land of Israel, at the time the latter was Minister of Energy and Infrastructure in the Shamir Government (1990-92). He presented a research paper to the Minister in which he detailed some of the methods or devices employed by Britain to falsify the explicit provisions of the Mandate for Palestine that were meant to secure the establishment of the Jewish National Home and hence the Jewish State.
However, these methods or devices were so skillfully contrived and artfully executed, they fooled most people at the time. And because they were also based on Zionist antecedents provided by the likes of Nahum Sokolow and Asher Ginsberg and supported to a certain extent by the statements of Chaim Weizmann himself, the British were able to get away with their brazen undermining of the Jewish National Home until it became obvious what they had done. By that time, it was already too late to do anything to reform the situation and execute the Mandate according to its original true meaning. The British methods or devices included the following acts of sabotage of the Jewish National Home:
A. Changing the meaning of the words "the establishment in Palestine of a national home for the Jewish People" to connote not the establishment of an independent Jewish State, but rather a cultural or spiritual center, as earlier advocated by both Ahad Ha'Am and Nahum Sokolow.
Those British figures who were chiefly responsible for tearing asunder the definitive peace settlement reached at San Remo and Sevres and concomitantly with obfuscating Jewish legal rights and title to all of Mandated Palestine are among the most revered personages in British and Zionist history, specifically George Nathaniel Curzon, Herbert Samuel and Winston Churchill.
Curzon was a leading member in Prime Minister Lloyd George's War Cabinet, who became Foreign Secretary upon the retirement of Arthur James Balfour. He was placed in charge of Palestine's affairs during the critical formative years of the Mandate when it was in the midst of being drafted. He displayed a very negative attitude to the task he was assigned. He detested (and this is not too strong a word) the whole idea of creating a Jewish State and did his utmost to weaken its legal basis and to slow it down. He was ably aided by his officials who were much less hostile to Jewish aspirations, notable among whom were Eric Forbes Adam, Robert Vansittart and Hubert Young. What Curzon managed to do was to detrimentally change many of the original clear-cut provisions of the Mandate for Palestine designed to secure its establishment as a Jewish State, which had already been approved earlier by Balfour when he was in charge of overseeing the actual drafting of the Mandate for Palestine.
Despite Curzon's best attempts to prevent a Jewish state from being seen as the real and most important objective of the Mandate for Palestine, he did not fully succeed. That job was left to two others, Herbert Samuel and Winston Churchill, who were put in charge of Palestine's affairs, when jurisdiction over colonies and mandated territories was taken away from the Foreign Office and transferred to the Colonial Office early in 1921.
The nefarious work begun by Curzon was ironically taken over and completed by the erstwhile Zionist, Herbert Samuel, who just before his appointment as British High Commissioner in Palestine worked closely with Chaim Weizmann in the Zionist Organization and helped to prepare the Zionist proposals submitted to the Paris Peace Conference of 1919. Samuel's subsequent undermining of what was the true intent of the Mandate for Palestine was recorded in the anti-Zionist "Churchill White Paper" of June 3, 1922, which he wrote with the blessing and connivance of Winston Churchill, then the Secretary of State for the Colonies, and which was accepted under ominous circumstances by the official Zionist leadership just prior to its release.
It was this White Paper of June 3, 1922 which was a turning point which caused all the future difficulties in Palestine and wrecked the original plan for establishing an independent Jewish State under British tutelage. The reason is simple enough. After publication of this White Paper, all British Governments which followed over the years implemented not the actual terms of the Mandate for Palestine but the interpretation or policy contained in the White Paper as to what the British responsibility and role was to be under the Mandate. The latter required a Jewish State, while the Churchill White Paper negated it, despite Churchill's false claim that such a state was not precluded, made fourteen years later in his testimony before the Peel Royal Commission. His White Paper also elevated Arab pretensions and aspirations to such an extent that everything thereafter became muddled and unclear, subject to continuous disputes as to what was really intended by the Mandate for Palestine.
The British circumvention of the Mandate for Palestine continued apace during the entire period of Mandatory rule, which lasted from July 1, 1920 to May 14, 1948.
The question now arises in light of what occurred in the past just what Israel can do today to rectify the British legacy of betrayal and the consequent widespread ignorance surrounding Jewish legal rights and title to all of former Palestine. The answer is to first learn what the rights granted to the Jewish People under international law were (i.e., under the San Remo Decision adopting the Balfour Declaration on April 25, 1920 and its projected implementation in the Mandate for Palestine), and then behold how true international law was perverted and sabotaged by the British. This is extremely important because everyone today cites "international law" in favour of a fictitious nation called the "Palestinians" whose land is being "occupied" by the Jewish nation of Israel which is highly ironic and even laughable in view of the fact that this land that is called "occupied" was always meant under Article 6 of the Mandate for Palestine to be "closely settled" not by Gentile Arabs, but by the Jews of the world who would become Palestinian and then Israeli Jews in the course of time. What true international law is on the subject is neither discussed nor exposed nor really known by hardly anyone.
Next, Israel must act according to what that law truly presupposes, namely a Jewish State in the whole Land of Israel, including both sides of the Jordan. Present circumstances, of course, do not allow for the fulfillment of all Jewish rights to our country, particularly as regards those parts of Transjordan which comprise the Land of Israel such as Gilead and Bashan, but we should never renounce those rights, which, lamentably, is exactly what has been done, illegally of course, by all Governments of Israel since 1993.
It is safe to assume that the foregoing advice will never be acted upon so long as there is an anti-nationalist Labour party and other "peace parties" who advocate a spurious peace, instead of believing in and fighting for the integrity and non-partition of the Land of Israel. Sadly, the same may even be said about the Likud party in its present configuration, because it has abandoned the ideology and spirit of what the original Herut Party once advocated in the 1950's and 1960's, namely an indivisible Land of Israel. While no one should denigrate the cause of true peace, no country in the history of the world ever voluntarily divested itself of important parts of its legally recognized homeland, for the sake of this valued goal. Neither should the State of Israel.
Only a future Government of Israel infused with the proper Jewish nationalist and religious spirit, knowledge and pride can change what is today a murky and forlorn situation.
As for what can be done actually now, Israel must —
[1] immediately scrap the "Oslo Peace Process" which, incredibly, recognizes the national and political rights of a motley Gentile people to substantial parts of the Land of Israel;
[2] evict the so-called and falsely-denominated "Palestinian Authority" and its entire leadership from the Jewish country, and [3] annex or incorporate all of Judea, Samaria and Gaza into the Jewish State; [4] All Arabs who do not profess loyalty to the Jewish State must leave the country and be re-settled in other Moslem countries, just as happened between the Greeks and the Turks after World War I; [5] No Arab parties professing national and collective rights for Arabs in the Jewish country should be allowed to sit in the Knesset.
The Moslems who live in the Land of Israel are not the indigenous inhabitants, as they falsely claim to be. They are mainly foreign Gentiles, all of whom are of mixed ancestry, including some of Jewish descent who were forcibly converted in centuries past. These foreign Gentiles (in Hebrew: nochrim) have no national rights to the Land of Israel and/or Palestine. They have boldly appropriated, without any right to do so, the name of "Palestinians" for themselves, though there is no such nation and have also removed this name from its Jewish and Zionist context under the Mandate. Their claims are totally invented and are deliberately imitative of genuine Jewish national rights which exist for no other nation in the Land of Israel, but which are now impugned under a false perception or reading of international law.
The future steps that need to be taken to restore all of the Jewish country to its sovereign owner, the Jewish People, are at this point clear enough.
It is fervently hoped that the day is not far off, especially under the new Sharon Government, that Israel will finally abandon what has been the most dangerous and suicidal course for a Jewish government to have ever followed: a policy which illegally transfers integral parts of the Jewish homeland to an enemy bent on destroying it and which has allowed it to create foreign rule and the rudiments of a state and army in the very midst of the Jewish country, led by a gang of bloody terrorists and murderers as seen only too well today.
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| Appendix IV: San Remo Resolution — April 25, 1920
It was agreed — (a) To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the proces-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine; this undertaking not to refer to the question of the religious protectorate of France, which had been settled earlier in the previous afternoon by the undertaking given by the French Government that they recognized this protectorate as being at an end. (b) that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree that Syria and Mesopotamia shall, in accordance with the fourth paragraph of Article 22, Part I (Covenant of the League of Nations), be provisionally recognized as independent States, subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone. The boundaries of the said States will be determined, and the selection of the Mandatories made, by the Principal Allied Powers. |
| 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.
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.
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.
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.
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; |
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