Peace Talks and the Terms of Reference
Part 1(i): Withdrawal from territories occupied in the recent conflict.
The Palestinians are demanding terms of reference before returning to negotiations. Further, the Palestinians demand that reference to the agreed final lines, which the Palestinians incorrectly interpret as the pre-1967 lines, is required as the starting point for negotiations. The Palestinians are correct in demanding terms of reference. What the Palestinians overlook, however, is that the terms of reference, accepted by the international community through the United Nations and by the Palestinians themselves through their subsequent signature of the Declaration of Principles in September 1993 already exist. The terms of reference are called, simply, Security Council Resolution 242 of November 22, 1967 and the subsequent Oslo Agreements.
It is important to note that resolution 242 was adopted under Chapter VI of the UN Charter which deals with peaceful settlement of disputes and not under Chapter VII under which the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression. Thus Resolution 242 both recognizes the Arab aggression and intent to destroy Israel in 1967 (as stated by Egypt`s President Nasser in the period immediately prior to the outbreak of hostilities) and provides the roadmap to a negotiated settlement of the dispute between Israel and the Arab States as well as the Palestinians.
Professor Rostow, then U.S. Undersecretary of State for Political Affairs, has stated that the intent of Resolution 242 as set out in the Preamble is for the parties to make peace and allows Israel to administer the territories it occupied in 1967 until ‘a just and lasting peace in the Middle East’ is achieved. It is timely to record that prior to the Arabs intent to destroy Israel in June 1967 there were no so-called illegal occupation or settlements and that Jerusalem was unlawfully held by the Jordanians who denied access to Jews to visit the Jewish Holy Places.
Resolution 242 contains within its principles the totality for the peaceful resolution of the Arab/Israel conflict. It is worthwhile to set out these principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
(ii) 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 obligation for Israel is to withdraw from “territories” as set out in (i) above, and not “the territories”, against compliance with certain conditions as set out in (ii) above. Thus the reference to secure boundaries is not as the Palestinians (or the EU) have interpreted Resolution 242. Resolution 242 was introduced to the Security Council by Lord Caradon of Great Britain. He made the interpretation of Resolution 242 clear: “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 1948, just where they happened to be that night, that is not a permanent boundary…” “We didn’t say there should be a withdrawal to the ’67 line; we did not put the ‘the’ in, we did not say all the territories, deliberately. We all knew – that the boundaries of ’67 were not drawn as permanent frontiers, they were a cease-fire line of a couple of decades earlier… We did not say that the ’67 boundaries must be forever; it would be insanity.”
Lord Caradon`s understanding of Resolution 242 is supported by the British Foreign Secretary George Brown who stated: “The phrasing of the Resolution was very carefully worked out, and it was a difficult and complicated exercise to get it accepted by the UN Security Council. I formulated the Security Council Resolution. Before we submitted it to the Council, we showed it to Arab leaders. The proposal said ‘Israel will withdraw from territories that were occupied’, and not from ‘the’ territories, which means that Israel will not withdraw from all the territories”.
The US understanding of Resolution 242 is identical to and supportive of the British understanding. Arthur J. Goldberg, the U.S. Ambassador to the UN in 1967 and a key draftee of Resolution 242, stated: “The notable omissions in language used to refer to withdrawal are the words the, all, and the June 5, 1967 lines…. In other words, there is lacking a declaration requiring Israel to withdraw from the (or all the) territories occupied by it on and after June 5, 1967.”
It is clear that under Resolution 242, the 1967 “night time cease fire lines” were never intended to form the basis of future international boundaries and that the Palestinian themselves have already accepted this principle. The Declaration of Principles of September 1993 state specifically: “It is understood that the interim arrangements are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council Resolutions 242 and 338.” It is apparent that the Palestinians with their demand for pre-conditions and the EU with their illegal but constant demand for the 1967 lines are attempting to undermine or override the applicability of Resolution 242 and specifically the extent of any Israeli withdrawal and the reciprocal obligations set out in (ii) above. There is no reason for Israel, or for that matter, any permanent member of the UN Security Council who is a signatory to Resolution 242, to agree.
The Oslo Accords required Israel to redeploy to designated areas which are referred to as Areas A, B (both under the civil authority of the Palestinian Authority) and C (under Israeli civil authority). Israel complied with its obligations as provided in the Oslo Accords only after the mutual obligations of both Palestinians and Israel had been agreed. There is no good reason for Israel now to agree to any “pre-conditions” prior to negotiations. On the contrary, the precedent of Oslo clearly requires the negotiation of an agreement without pre-conditions and as important, without prior partial implementation (“gestures”). It is submitted that the demand for pre-conditions and gestures are in themselves unlawful and a violation of the express stipulations of Resolution 242. “Gestures”, if agreed, would need to be both the subject of negotiations and reciprocal. Part 1(ii), ignored by the Palestinians and the EU, specifies the conditions governing any further Israeli redeployment.
Following World War I, the victorious powers, including the USA, the UK and France, allocated territory which previously formed part of the Ottoman Empire at a conference referred to as San Remo. Until such time as another deployment is agreed, Israel presence in the area C of the territories is by right. Title to all that area (specifically including Jerusalem) west of the Jordan river, which formerly formed part of the Ottoman Empire, was assigned, by way of a mandate to Britain which terminated on May 14, 1948 as the national home of the Jewish people under the San Remo Convention and granted first under Article 22 of the League of Nations and subsequently confirmed under Article 80 of the United Nations Charter. It is noteworthy that at San Remo the Arabs also made substantial claims to Ottoman territory, but not to Jerusalem or indeed to Palestine to which it appears the Arabs at that time had no interest. The Arab claims at San Remo resulted in the establishment of Iraq and Syria. The illegal occupation of the West Bank and Jerusalem by Jordanian forces in 1948 was never recognized internationally nor did such illegal occupation result in a change of title to the West Bank or Jerusalem which remained with Israel. Further, Israel`s presence in Area C is lawful under the Oslo Accords, an agreement recognized internationally. For the European Union, individual countries and groups such as the Elders to refer to Israel`s presence as illegal or to call for Israel`s unilateral withdrawal in the light of Israel`s clear legal title under San Remo and its right to be present in Area C under the Oslo Accords and further in the absence of an agreement as contemplated by Resolution 242 is not only counter-productive but a deliberate disregard of the provisions of international law, Resolution 242 and the Oslo Accords, thus belittling the authority of United Nations resolutions and the requirement for negotiated settlements of disputes. It is time for Israel to insist that the dispute with the Palestinians be settled in accordance with the principles carefully formulated, mutually accepted and internationally ratified as set out in Resolution 242.
The next article will discuss the almost totally overlooked and ignored provisions of Resolution 242 intended to parallel if not precede any Israeli withdrawal namely Part 1(ii) of Resolution 242 requiring termination of all claims, acknowledgment of sovereignty and the right to live in peace within secure and recognized boundaries.