The Future of Palestine EUGENE V. ROSTOW

The Future of Palestine

EUGENE V. ROSTOW

The friends of Israel throughout the world were startled

when the news of the agreement between Israel and the

Palestinian Liberation Organization (PLO) became public

during the last days of August 1993. Some were fearful,

others euphoric. Voices of equal experience and authority

proclaimed both the doom of Israel and the fulfillment of

the Zionist dream. Some saw the dawning of peace; others,

nearly inevitable war. Whatever they said, however, all who

spoke, and millions more who remained silent, were in fact

equally troubled, concerned, confused, and uncertain: the

event itself is one of great complexity, which can be

understood only as a function of many variables. All

recognized in it both risks and opportunities for Israel. No

one could be positive about the balance between risks and

opportunities. This article attempts a preliminary assessment

of the Israeli-PLO agreement in its context of law, history,

strategy, and politics. Nothing less can be useful as the

basis for policy opinions and recommendations.

In itself, the agreement between Israel and the PLO is

important chiefly because it represents the formal end of

Adapted from the paper delivered at the American Leadership Conference on Israel and

the Middle East on 10 October 1993 in Arlington, Virginia.

I

2 THE FUTURE OF PALESTINE

the policy pursued by the Arab states and the Arab peoples

(except Egypt after 1977) since the days of the Balfour

Declaration and the British Mandate for Palestine. That

policy is summed up in the Khartoum formula of 1967: "No

negotiations with Israel, no recognition of Israel, no peace

with Israel."

The legal argument behind the Khartoum policy has not

changed for more than three quarters of a century. It is that

the action of Great Britain in issuing the Balfour

Declaration and that of the victorious allies in establishing

the British Mandate for Palestine were and are illegal, null

and void, beyond the powers of the Allies, the League of

Nations, and the league's successor, the United Nations.

Therefore, the Arabs have contended, the existence of Israel

and its presence in Palestine constitute a continuing

aggression against the implicit sovereignty of the

Palestinian Arabs, deemed to be a "people" and a "nation."

This contention is the only legal and moral justification

the Arabs have ever offered for their war against the Jewish

political presence in the Middle East for more than seventy-

five years. From the legal point of view, it is entirely

specious. But, like many myths, it has power. For the PLO

and the Arabs states to abandon this position, therefore, is

(or can become) a climax in the drama of modern Middle

Eastern history.

The Khartoum formula has been crumbling gradually,

although it is still the official line. In themselves, the

bilateral and multilateral talks between Israel and its Middle

Eastern neighbors since the Madrid Conference of 1991

violate the Khartoum slogan. Nonetheless, it is a matter of

real significance that the PLO, the most passionate defender

of the Khartoum doctrine, has finally and publicly

renounced the struggle.

EUGENE V. ROSTOW 3

For many, many years Israel, the United States, many

other countries, and the Security Council of the United

Nations have tried to have the Khartoum declaration

annulled. Now, because of the collapse of the Soviet Union;

because of the position taken by Jordan and the PLO during

the Gulf war; because of the strength of the Israeli Defense

Forces and the steadfastness of the Israeli people; because

of the currents and cross-currents of Arab politics, the Arab

chain around Israel has broken at its weakest link: before

the PLO lost all its bargaining power and any chance for a

role in the future of Palestine, it violated its pledges of

solidarity with Syria and Jordan by opening separate peace

negotiations with Israel.

The Madrid initiative is the most ambitious effort to

enforce Security Council resolutions 242 and 338 ever

undertaken. (See appendix A for texts.) It represents the

foreign policy of President George Bush and Secretary of

State James A. Baker, at its best-the Bush-Baker team of

the Gulf war, bold, energetic, and imaginative, not the

Bush-Baker team of the Yugoslav tragedy.

The Madrid initiative has made progress. Now the

changing structure of world politics offers favorable

auguries for the possibility of success if-but only if-the

Clinton administration, after a poor start, can find its way

to accept and carry forward the coherent principles of the

foreign policy the United States has pursued since the time

of Truman and Acheson.

The climate of world politics has never been more

favorable to the possibility of Arab peace with Israel. Since

the collapse of the Soviet Union, 25 countries have

established diplomatic relations with Israel for the first

time, and 16 have resumed diplomatic relations broken off

at the time of the Six-Day War in 1967. This list includes

4 THE FUTURE OF PALESTINE

Russia, China, India, Poland, and many other countries,

large and small. Together, they represent a substantial part

of the world's population.

If successful, the negotiations which have now begun

between Israel, Jordan, and the PLO may lead to any one

of a number of peaceful resolutions of Israel's long struggle

to exist, and of the Arabs' equally long struggle to destroy

it. All that is clear now is that for the first time, serious

negotiations can start about the future of Palestine- that is,

about the political future of the communities that have

grown up within the territory of the British Mandate,

Jordan, Israel, and the territories in dispute between them,

what we call "the West Bank and the Gaza Strip." This is

the only possible legal and historical definition of the word

"Palestine." It is the definition used in the PLO Charter.

All that can be said at this point is that Israel and the

United States have every possible interest in seeing those

negotiations pursued on the basis of Security Council

resolutions 242 and 338, and the history they embody. No

one can be sure how these negotiations will turn out. But

they can now begin, and they should begin.

Israel, the United States, and other countries that may

be involved in these negotiations will have to proceed not

only with patience and resolve, but with extreme caution. In

the Middle East, the Roman maxim, si vis pacem pare

bellum (if you want peace, prepare for war), applies with

peculiar force. The history of the area since the end of the

Ottoman Empire is a tale of intrigue, deception, terror, and

other violence. Some of the other Arab states will follow

Egypt's example in scrupulously respecting their peace

agreements with Israel, but in the months and years to

come, Israel cannot assume that such attitudes and policies

will be universal. Israel will have to maintain its armed

forces, and from time to time demonstrate its will to use

EUGENE V ROSTOW 5

them, if the negotiations envisaged by the Israeli agreement

with the PLO are to succeed.

Moreover, these negotiations cannot succeed without the

support of an American policy that is fully consonant with

the inherent strength of the American position in the world,

and with its national interests. Equally, Israeli diplomacy

must rise to the challenge of the occasion by showing the

imagination and intelligence of which it has often been

capable in the past. Above all, both Israel and the United

States should clear away any lingering traces of the

defeatism and pessimism of Baker's disastrous speech of

May 1989, which has dominated the American view of

Middle Eastern policy for so long. What is needed is a

coordinated Israeli and American policy of strength without

arrogance-a policy firmly based on the rule of law, and of

respect for the rights of Israel and of the Arab states alike.

Such a policy may succeed. A policy that violates this

principle will surely fail.

II.

The only possible bases for these negotiations, as Israel, the

Arab states, and," the PLO now, publicly agree, are Security

Council Resolution 242, adopted after the Six-Day War of

1967, and, adopted after the Yom Kippur War of 1973,

Resolution 338 which makes Resolution 242 legally

binding. Those resolutions provide the only available

agenda for negotiation.

From what is publicly known so far about the

negotiations between Israel, Jordan, and the Palestinian

Arab delegation in Washington and Geneva, they have

made no progress because the Arab negotiators are still

resisting the territorial provisions of Resolution 242. The

6 THE FUTURE OF PALESTINE

new round of negotiations should, from the first day,

confront the reality of those provisions for the first time,

and in a fresh perspective.

The Declaration of Principles signed by Israel and the

PLO does not end the Israeli occupation of the West Bank,

the Golan Heights, and the Gaza Strip. That occupation can

end, in the words of Resolution 242, only when the parties

have established "a just and lasting peace in the Middle

East." In this respect, the procedures used in negotiating

the Peace Treaty between Israel and Egypt demonstrate

what the twin Security Council resolutions require before

the occupation can be ended. That rule is not an abstract

statement of legal principle. It reflects the bitter experience

not only of Israel, but also of Great Britain, the United

States, and Dag Hammarskjold, the former Secretary-

General of the United Nations. Great Britain, the United

Nations, and the United States persuaded Israel to withdraw

from the Sinai Desert in 1957 in exchange for Nasser's

promise to keep the Suez Canal and the Strait of Tiran

open to Israeli shipping; to stop all guerrilla attacks against

Israel from Egyptian territory; and to make peace. Those

promises were all broken. That history is the source of the

first of the two territorial provisions of Resolution 242, that

the Israelis need not withdraw from any part of the

occupied territories until each of the Arab states makes

peace. And the word "peace" in Resolution 242 means full

and formal peace, not merely an abandonment of all claims

of a right to assert that a state of belligerency exists

between the Arab states and Israel. By signing the

Armistice Agreements of 1949, the Arab states abandoned

all claims of belligerent rights. Resolution 242 was intended

to take the next and final step from armistice to peace.

The second territorial provision of Resolution 242 is

that while Israel should agree to withdraw from some of the

EUGENE V ROSTOW 7

territories it occupied in 1967, it need not withdraw from ail

those territories. The Resolution states that there should be

"withdrawal of Israeli's armed forces from territories

occupied in the recent conflict." Five and a half months of

vigorous diplomacy, public and private, make it very clear

why the wording of the sentence took the form it did.

Motion after motion proposed to insert the words "the" or

"all the" before the word "territories." They were all

defeated, until finally the Soviet Union and the Arab states

accepted the language as the best they could get. In short,

the extent of Israeli withdrawals was to be a matter of

negotiation between the parties.

Despite the language and the negotiating history of

Resolution 242, the Arab negotiators insisted that Israel was

required to return to the Armistice Demarcation Lines of

1949, the de facto boundary of Israel in June 1967. The

best answer to that claim was once given by Lord Caradon,

the British Ambassador to the United Nations who had

proposed Resolution 242 to the Security Council in 1967

and actively negotiated its passage. Asked whether

Resolution 242 required Israel to go back to the Armistice

Demarcation Lines of 1949, Lord Caradon remarked,

We didn't say there should he a withdrawal to the '67 line: we did

not put the 'the' in. We did not say "all the territories" deliberately

.... We did not say that the '67 boundaries must he forever.

Since the Armistice Agreements of 1949 expressly provide

that the Armistice Demarcation Lines are not political

boundaries, but can be changed by agreement when the

parties move from armistice to peace, the Arab argument

against the withdrawal provision of Resolution 242 is

8 THE FUTURE OF PALESTINE

without foundation in law or history. But it continues to be

made.

The Peace Agreement between Israel and Egypt required

Israel to return the entire Sinai Desert to Egypt. The Sinai

Desert had always been recognized as Egyptian territory. It

was not part of the Palestine Mandate. laree! had no legal

claim to it, except that of victory in a war of self-defense

and, in the case of Sharm el-Sheikh, as boundary changes

needed for security purposes.

The political importance to Israel of achieving peace

with Egypt, the largest and most important Arab state.

induced Israel to concede the point. The Sinai transfer had

another consequence, however. It meant that Israel had

withdrawn from some 94 percent of the territories it

occupied during the 1967 war, the bench-mark of

Resolution 242. It can hardly be seriously contended that

the Security Council, which, after five months of intense

diplomacy, deliberately refused to require Israeli withdrawal

from all the territory it had occupied in 1967, had done so

inadvertently nonetheless. The problem of drawing a secure

and recognized political boundary between Israel and Jordan

thus transcends the withdrawal clause of Resolution 242.

Whatever Israeli withdrawal from the occupied territories

Resolution 242 may be presumed to require, a withdrawal

from 94 percent of those territories is surely enough to

satisfy it.

The basis for the territorial dimension of the Palestinian

negotiations is therefore the underlying territorial claims of

the parties, as well as the right of Israel to claim territorial

adjustments for security reasons or to secure access to

international waterways, the two justifications for territorial

change acknowledged by Resolution 242.

EUGENE V. ROSTOW 9

Ill.

In order to agree on "secure and recognized" boundaries,

the parties should put aside the sterile controversy about the

absence of the word "the" from the territorial clause of

Resolution 242, and confront their problem with a full

awareness of the history of modern Jewish settlement in

Palestine.

The respective claims of Israel and Jordan to the West

Bank and the Gaza Strip are both unintelligible without

reference to the terms of the mandate, which confers on

"the Jewish people" of the world the right to make "close

settlements" in all of Palestine, and provides that the Arab

inhabitants shall continue to have "civil and religious" (but

not national political) rights in the territory. In short, the

mandate recognizes the historic claims of the Jewish people

to Palestine, and reserves to them the right to establish a

Homeland which was expected in due course to become a

State.

In the mandate, the only qualification to the Jewish right

of settlement in Palestine is that Great Britain as the

"Mandatory Power" could, if it wished, "postpone and

withhold" the right of settlement for the area of Eastern

Palestine-now Jordan-because of its turbulent political

condition at the time. The British did "postpone and

withhold" the Jewish right of settlement in that area in

1922. Since then, the "Tran Jordanian Province of Palestine"

became "Transjordan" and now "Jordan." But Jordan's

attempt to annex the West Bank area in 1950, when it was

the military occupant of the territory after a war of

aggression, was not generally recognized, and has now been

abandoned, which leaves intact the Jewish right of

10 THE FUTURE OF PALESTINE

settlement in the West Bank and the Gaza Strip. This right

is protected by Article 80 of the United Nations Charter,

which provides that unless a trusteeship agreement is agreed

upon (which was not done for the Palestine Mandate),

nothing in the chapter

shall be construed in and of itself to alter in any manner the rights

whatsoever of any states or any peoples or the terms of existing

international instruments to which members of the United Nations

may respectively be parties.

This paragraph of Article 80, commonly known as "The

Palestine Article," was debated and passed with the problem

of the Palestine Mandate very much in mind.'

The Mandates of the League of Nations have a special

status in international law. They are considered to be trusts,

indeed "sacred trusts." In the case of Namibia, the former

South African mandate for the German colony of South

West Africa, the International Court of Justice ruled that the

mandate survived the end of the League of Nations. It was

equally held to survive the Court's decision that South

Africa had violated and repudiated the mandate, and had

therefore in effect resigned as Mandatory, as Great Britain

did when it withdrew from Palestine in 1948. This would

be the normal legal view under both civil and common law.

A trust does not end because the trustee dies, resigns, or

tries to steal the trust property. In the case of Namibia, the

Western permanent members of the Security Council

negotiated the peaceful compliance of South Africa with the

Court's decision; the trust provisions of the mandate were

fulfilled; and the new state of Namibia was born.

Thus the Jewish right of settlement in the whole of

western Palestine-the area West of the Jordan-survived

the British withdrawal in 1948. It was terminated, as far as

I ___

EUGENE V. ROSTOW 11

the territory of Jordan and Israel are concerned, by the

recognition of their independence and their membership in

the United Nations. However, the mandate still defines the

legal status of the occupied territories, except for the Golan

Heights. Israel has never sought to annex these territories,

and they have never been generally recognized as parts

either of Israel or of Jordan. They are parts of the mandate

territory, now legally occupied by Israel with the consent of

the Security Council.

Under international law, neither Jordan nor the

Palestinian Arab "people" of the West Bank and the Gaza

Strip have a substantial claim to the sovereign possession

of the occupied territories. Jordan cannot base a claim to

the territory on its military occupation and administration of

the West Bank between 1948 and 1967, after the Arab war

of aggression in 1948. Neither can it base a claim on its

attempt to annex the territory in 1950. The annexation was

not widely recognized and has been withdrawn. By

protecting Arab "civil and religious rights," the mandate

implicitly denies Arab claims to national political rights in

the area in favor of the Jews; the mandated territory was in

effect reserved to the Jewish people for their self-

determination and political development, in

acknowledgment of the historic connection of the Jewish

people to the land. Lord Curzon, who was then the British

Foreign Minister, made this reading of the mandate explicit.

There remains simply the theory that the Arab inhabitants

of the West Bank and the Gaza Strip have an inherent

"natural law" claim to the area.

Neither customary international law nor the United

Nations Charter acknowledges that every group of people

claiming to be a nation has the right to a state of its own.

International law rests on the altogether different principle

12 THE FUTURE OF PALESTINE

of the sovereign equality of states. And nearly every state

inherited from history contains more than one ethnic,

religious, or cultural group: the French in Quebec, for

example; the Basques in France and Spain; the Flemish in

Belgium; the Kurds in Turkey, Iran, and Iraq; and so on.

Therefore, it is a rule essential to international peace that

claims of national self-determination be asserted only

through peaceful means. The international use of force to

vindicate such claims is and must be strictly forbidden by

the United Nations Charter.

This comparison of the conflicting legal claims of Israel,

Jordan, and the Palestinian Arabs to the disputed territories

does not mean that "a just and lasting peace" in the region

requires Israeli annexation of the entire West Bank and the

Gaza Strip. Rights may be sacrificed or compromised to

achieve other goals and values. Israel wishes to remain a

largely Jewish state and abhors the idea of "ethnic

cleansing." The recognition of the Jewish right of settlement

under the mandate does mean, however, that Israel enters

these negotiations from a position of great legal, moral, and

tactical strength.

During the long period of armistice, which has not yet

formally ended, this reality about Israel's claim to the land

has been obscured because the great powers prevailed upon

Israel to defer settling in the occupied territories on the

ground that such settlements were an "obstacle to peace."

As it turned out, the Israeli settlements in the West Bank

have been a potent inducement to the Arabs to consider

peace as a serious alternative. It was becoming obvious that

unless the Arabs abandoned the Khartoum principle, there

would be no land to divide with Israel, at least in the West

Bank. In the new negotiations, the right of the Jewish

people to settle in the occupied territories is bound to be a

EUGENE V. ROSTOW 13

central issue and should most emphatically be pressed by

Israel, the United States, and other nations.

The opposition to Jewish settlements in the West Bank

also relied on a legal argument-that such settlements

violated the Fourth Geneva Convention forbidding the

occupying power from transferring its own citizens into the

occupied territories. How that Convention could apply to

Jews who already had a legal right, protected by Article 80

of the United Nations Charter, to live in the West Bank,

East Jerusalem, and the Gaza Strip, was never explained. In

any event, the Geneva convention is irrelevant to the

process of ending the occupation and making peace.

Once the negotiations about the future of Palestine are

liberated from the narrow question of how far Israel should

withdraw from the territories occupied in 1967, bolder and

more imaginative approaches to the question of the most

appropriate political organization of the territory become

practical. Those negotiations should build on the fact of the

economic interdependence of all parts of the area; the social

co-existence of its peoples: should encourage investment

and development throughout Palestine as a common market;

and recognize the abiding reality of Israel and Jordan as

functioning Jewish and Arab states within Palestine. It is

reported that the Palestinian Arabs have agreed to a solution

of confederation with Jordan. And former Secretary of State

Schultz has recently revealed that he and President Reagan

favored the solution of functional confederation for the

whole of Palestine. Under such an arrangement between

Israel and Jordan, there would be free movement of people,

goods, and funds; most Arabs would be citizens of Jordan,

most Jews citizens of Israel. Sovereignty would be shared

by function, an idea Israel had accepted for Jerusalem in

1948. And Israel could remain a Jewish state.

14 THE FUTURE OF PALESTINE

These ideas may seem fantastic to those who fear that

the policies of blind resistance, terrorism, and war which

have governed Arab behavior toward the Jews since 1917

are inexorable and immutable. Arabs and Jews have lived

peacefully together in Islam for many centuries. There is no

reason fixed in the stars why that example cannot be

revived. The Turkish tradition of the millet may provide a

possible guide to the future. These were the ideas animating

the General Assembly Partition Plan of 1948. If the post-

Madrid negotiators on the future of Palestine stop

squabbling about just where a boundary should be drawn,

and concentrate instead on how to organize the co-existence

and cooperation of the peoples, the original dreams of

Zionism may still be realized.

IV.

The negotiations about the future of Palestine set in

motion by the understanding between Israel and the PLO

may not lead to peace. In the fragile atmosphere of Arab

politics, many factors may thwart the hopes and

expectations of the parties.

In order to prevent such a catastrophe, it should be

made clear early that in the event the peace process breaks

down, the United States and Israel would favor the

following policies: (1) the Israeli occupation of the West

Bank and Gaza would continue under Security Council

Resolutions 242 and 338, with some modifications in the

direction of local self government; and (2) the United States

and other Western countries would withdraw their

objections to further Jewish settlement in the West Bank,

the Gaza Strip, and East Jerusalem. As has been noted

earlier, the United States and many other nations have for

years objected to such settlements on the ground they were

EUGENE V. ROSTOW 15

an obstacle to peace. If, after more than 75 years, the Arabs

still refuse to accept the legitimacy of a Jewish political

presence in the Levant, the United States should drop its

long standing objection, and acknowledge the Jewish right

of settlement under the mandate for what it is, and thus in

effect accept Israeli annexation of the occupied territories.

NOTES

1. I am indebted to my learned friend Dr. Paul Riebenfeld, who has

for many years been my mentor on the history of Zionism, for

reminding me of some of the circumstances which led to the adoption

of Article 80 of the Charter. Strong Jewish delegations representing

differing political tendencies within Jewry attended the San Francisco

Conference in 1945. Rabbi Stephen S. Wise, Peter Bergson, Eliahu

Elath, Professors Ben-Zion Netanyahu and A. S. Yehuda, and Harry

Selden were among the Jewish representatives. Their mission was to

protect the Jewish right of settlement in Palestine under the mandate

against erosion in a world of ambitious states. Article 80 was the result

of their efforts.

16 THE FUTURE OF PALESTINE

APPENDIX A ANNEX TO THE FRAMEWORK AGREEMENTS-

UNITED NATIONS SECURITY COUNCIL RESOLUTIONS 242

AND 338

Resolution 242 of November 22, 1967

The Security Council,

Expressing its continuing concern with the grave situation in the

Middle East,

Emphasizing the inadmissibility of the acquisition of territory by

war and the need to work for a just and lasting peace in which every

State in the area can live in security.

Emphasizing further that all Member States in their acceptance of

the Charter of the United Nations have undertaken a commitment to act

in accordance with Article 2 of the Charter,

1. Affirms that the fulfillment of Charter principles requires the

establishment of a just and lasting peace in the Middle East which

should include the application of both the following principles:

(i) Withdrawal of Israeli armed forces from territories occupied in

the recent conflict;

(ii) Termination of all claims or states of belligerency and

respect for and acknowledgement of the sovereignty, territorial

integrity and political independence of every State in the area and

their right to live in peace within secure and recognized boundaries

free from threats or acts of force;

2. Affirms further the necessity

(a) For guaranteeing freedom of navigation through

international waterways in the area;

(b) For achieving a just settlement of the refugee problem;

(c) For guaranteeing the territorial inviolability and political

independence of every State in the area, through measures

including the establishment of demilitarized zones;

3. Requests the Secretary-General to designate a Special Representative

to proceed to the Middle East to establish and maintain

contacts with the States concerned in order to promote agreement and

assist efforts to achieve a peaceful and accepted settlement in accordance

with the provisions and principles of this resolution.

EUGENE V. ROSTOW 17

4. Requests the Secretary-General to report to the Security

Council on the progress of the efforts of the Special Representative as

soon as possible.

Resolution 338 of October 22, 1973

The Security Council

1. Calls upon all parties to the present fighting to cease all firing

and terminate all military activity immediately, no later than 12 hours

after the moment of the adoption of this decision, in the positions they

now occupy;

2. Calls upon the parties concerned to start immediately after the

cease-fire the implementation of Security Council Resolution 242 (1967)

in all of its parts;

3. Decides that, immediately and concurrently with the cease-fire,

negotiations start between the parties concerned under appropriate

auspices aimed at establishing a just and durable peace in the Middle

East.

McNair Papers

The McNair Papers are published at Fort Lesley J. McNair,

home of the Institute for National Strategic Studies and the

National Defense University. An Army post since 1794, the fort

was given its present name in 1948 in honor of Lieutenant

General Lesley James McNair. General McNair, known as

"Educator of the Army" and trainer of some three million troops,

was about to take command of Allied ground forces in Europe

under Eisenhower, when he was killed in combat in Normandy,

25 July 1944.

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Iraq conquered and occupied Kuwait a sovereign Nation and was liberated by the U.S. and its allies.

Israel without outside help liberated Judea and Samaria after it was attacked by Jordan and removed Jordanian occupation, just like the allies liberated Kuwait.

Historically Gaza was a Jewish City and the Golan Heights was always Jewish territory.

YJ Draiman