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| November 2007 Resolution 242 After 40 Years by Michael Lynk * Exactly forty years ago, on November 22, 1967, the United Nations Security Council adopted Resolution 242, its most famous and most contentious declaration. The resolution's purpose was to end Israel's occupation of the Arab lands captured in the June 1967 war, and create the framework for a lasting peace in the region. Every Middle East peace process since 1967 has endorsed 242 as its diplomatic touchstone, including George Bush's upcoming summit planned for next week in Annapolis, Maryland. History will be casting a long shadow over the Annapolis summit. Resolution 242 remains controversial today because of a rancorous debate over whether it requires Israel to withdraw from all of the lands it captured in 1967. This debate goes to the heart of the Israeli-Palestinian conflict, and revolves, curiously, around the significance of one missing word: “the”. Israel's decisive victory in the June 1967 war left it in military control of the West Bank and East Jerusalem, Gaza, the Egyptian Sinai and the Syrian Golan Heights. Although Israel had stated at the start of the war that it had no territorial ambitions, it proceeded to annex East Jerusalem in late June and soon after approved the first Jewish settlements in the West Bank and the Golan. Later that summer, when American Secretary of State Dean Rusk reminded Israel's Foreign Minister, the urbane Abba Eban, about Israel's pledge, Eban shrugged his shoulders and said: We've changed our minds.” “Israel's keeping territory”, Rusk warned his American foreign policy colleagues as they debated what position the United States should take, “would create a revanchism for the rest of the twentieth century.” After five months of diplomatic stalemates at the United Nations over the Middle East conflict, Lord Caradon, the British Ambassador to the UN, proposed a draft resolution in mid-November that broke the logjam. On the central issue of the Israeli withdrawal from the conquered territories, Caradon's resolution first emphasized “the inadmissibility of the acquisition of territory by war” and then called for “withdrawal of Israeli armed forces from territories occupied in the recent conflict.” This was the language unanimously adopted by the Security Council in November 1967. The burning question since has been: what did Lord Caradon and the Security Council mean by this apparently ambiguous language? Some diplomats and legal scholars, along with the Israeli government, point out that the Security Council deliberately avoided inserting “the” before “territories” in the withdrawal phrase. Abba Eban wrote in his memoirs that this indefinite language was a “perceptible loophole”, which authorized “territorial revision” for Israel's benefit. Israel's leaders will be carrying this argument into the Annapolis summit, seeking to retain its extensive network of settlements in the West Bank and East Jerusalem. This is a clever argument, but it fails the ultimate tests of intentional law, diplomatic intention ... Israel's retention of conquered territories fails the test of political realism. Shortly after the end of the June 1967 war, U Thant, the UN Security General, said that: “everyone agrees that there should be no territorial gains by military conquest. It would, in my view, lead to disastrous consequences if the United Nations were to compromise this fundamental principle.” The alternative, he said, would be “the law of the jungle.” Dean Rusk's fear in 1967 – that the consequences of revanchism and territorial acquisition by force would destabilize the conflict and the region – has been borne out by the fierce facts of the past forty years. olitical realism. Modern international law has emphatically prohibited the acquisition of territory by force since the end of the Second World War. The 1945 United Nations Charter is built upon this principle, it enjoys virtual universal acceptance, and it has been endorsed by the International Court of Justice and by all leading international law scholars. Over the past forty years, both the Security and Council and the General Assembly have repeatedly endorsed the dictum of “no title by conquest”, with direct reference to the territories occupied by Israel. This prohibition applies whether the conflict is characterized as a war of aggression or one of self-defence. As for diplomatic intention, all fifteen members of the Security Council explained their reasons for unanimously adopting Resolution 242 on the day of the vote. Eight of the members expressly stated that 242 requires Israel to withdraw its troops from all of the captured lands. Two countries – France and England – said as much, but in more muted language. The other five members – including the United States and Canada – said nothing on the subject either way. Lord Caradon would later write that 242 foresaw insubstantial modifications to the 1949 boundaries between Israel and its neighbours, but it was not intended to permit any Israeli territorial expansion as a result of the June war. Finally, Israel's retention of conquered territories fails the test of political realism. Shortly after the end of the June 1967 war, U Thant, the UN Security General, said that: “everyone agrees that there should be no territorial gains by military conquest. It would, in my view, lead to disastrous consequences if the United Nations were to compromise this fundamental principle.” The alternative, he said, would be “the law of the jungle.” Dean Rusk's fear in 1967 – that the consequences of revanchism and territorial acquisition by force would destabilize the conflict and the region – has been borne out by the fierce facts of the past forty years. The failure of Resolution 242 has sometimes been attributed to the overconfident reliance by its diplomatic drafters on the virtues of constructive ambiguity. This is an intriguing, but shallow, explanation. A more persuasive explanation for the failure of 242 lies in the resolute marginalization of international legal principles by the major players in modern Middle East diplomacy. At Annapolis next week, the Americans and Israelis, as well as the Palestinians, would do well to have copies of the UN Charter along side their maps and briefing papers. *************** Professor Michael Lynk teaches law at the University of Western Ontario. In 1989, he worked for the United Nations in Jerusalem. (mslynk@uwo.ca) |