It is generally accepted by the Palestinian leadership, the international community, and liberal Zionists that the territorial parameters of a two-state solution to the Israel-Palestine conflict are already determined. They would leave Israel within its current borders: Palestine would consist of the 22 percent of Mandatory Palestine outside those borders, namely the West Bank and Gaza. There would be some mutually agreed adjustments to the West Bank border.
It is also widely believed that such borders are mandated by UN Security Council Resolution 242. This article will show, by careful study of the wording of the resolution, that it makes no such prescription.
Confining the Palestinians within 22% of their homeland would be manifestly unjust, and could not possibly lead to a lasting peace, or a viable, contiguous Palestinian state. Palestine needs, and justice demands, much more territory than that. A new border between Israel and Palestine should be negotiated.
The Six Day War and Resolution 242
On June 5, 1967, after a period of increasing tension between Israel and the neighboring Arab states, and with Egyptian forces massing in the Sinai, Israel made a preemptive strike which destroyed the Egyptian air force on the ground. In the following war, which lasted only six days, Israeli forces comprehensively defeated the combined forces of Egypt, Syria and Jordan.
The ceasefire at the end of the war left Israel in military control of four territories that were outside its de facto borders, the Armistice lines of 1949 (Green Line). These territories were: the Sinai, part of the sovereign territory of Egypt; the Gaza strip, part of Palestine, under Egyptian military occupation since 1949; the Golan heights, part of the sovereign territory of Syria; and the West Bank (including East Jerusalem), part of Jordan, but held in trust for the Palestinians.
In all four territories Israel started to build settlements for Jewish Israelis, showing that it intended to make the conquered territories part of the State.
This repeated the pattern of the 1948-49 war. The State of Israel was proclaimed on May 14, 1948 within the borders specified in the UN Partition Plan, constituting 55% of Mandatory Palestine. Its forces were already operating outside those borders, and in the subsequent war with the Arab states Israel continued to conquer Palestinian territory and illegally incorporate it into the State. By the end of the war in 1949 78% of Palestine lay within the Green Line.
Now, after the six-day war, Israel had military control over 100% of Mandatory Palestine, plus territory in Egypt and Syria.
On November 22, 1967 the UN Security Council passed Resolution 242, which has been the basis of all subsequent attempts to reach a peaceful conclusion to the Arab-Israeli conflict:
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, [“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, or in any other manner inconsistent with the Purposes of the United Nations.”]
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 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;
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 in this resolution;
4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.
Read the words
There has been much controversy over the meaning of this resolution. It is said that to understand it you need to study the intent of the drafters. But the reason that it may seem vague and ambiguous is that the drafters did not all have the same intent. That is why it took them several days to arrive at wording they could all accept. The final version was passed unanimously. We can only work from those words. A Security Council resolution is not a puzzle to be solved; it is a legal document which means what the words say.
Principle(i) is a specific response to the recent war. There could not be a just and lasting peace that left Israeli forces in occupation of the territory they had taken in the war. They must go back to where they came from. That is, back to Israel, inside Israel’s de facto border, the 1949 Green Line.
Principle(ii) is general, and could be applied in any conflict situation. Put colloquially, it says that states in the area should stop fighting, agree where their borders are, and stick to them.
It is not difficult to work out how Principle(ii) applies in this case. The Arab states had not even recognized the existence of Israel, let alone its right to have recognized boundaries. Israel had not respected the right of the Arab states to have secure boundaries and had violated their territorial integrity.
The Resolution says nothing about the timing of the withdrawal. As far as the Arab side were concerned, Israel had taken their territory by force, and were intending to keep it and colonize it with Jewish settlers. They wanted an immediate return to the prewar positions before they would consider a permanent settlement. Israel said that, for its own security, it would need to leave its forces in place until there was a peace agreement.
If the drafters had said, in Principle(i), “Immediate withdrawal”, we might not have had 49 years of on-going Israeli occupation of the West Bank and Gaza. But they didn’t.
The Resolution is addressed to “states in the area.” It says nothing about the Palestinians and the territory of Palestine. If the drafters had included a third principle about the right of the Palestinian people to self-determination within Palestine we might not have had 49 more years of the denial of that right. But they didn’t.
Misunderstanding 1: New borders are to be negotiated to make Israel more secure.
According to the Jewish Virtual Library:
The parties were expected to make territorial adjustments in their peace settlement encompassing less than a complete withdrawal of Israeli forces from occupied territories, inasmuch as Israel’s prior frontiers had proved to be notably insecure.
This is fiction. Read what the words say. Principle(i) makes no reference to borders or a final settlement. It speaks only of the ending of the recent occupations. Principle(ii) says nothing about renegotiating any borders, it simply says that borders must be secure, recognized and respected. And that applies to all states, not just Israel.
The borders between Palestine and its neighboring states, Egypt, Syria, Lebanon and Jordan, were established and recognized in 1923 when Palestine was under the British Mandate. The borders between Israel and these neighbors followed the same lines. Israel did not respect the right of these states to have secure and respected borders when it crossed those borders in 1967 intent on conquest and colonization. The idea that the Resolution ‘expects’ Israel to gain territory as a result of those actions is ludicrous, because the preamble emphasizes the “inadmissibility of the acquisition of territory by war”.
There is no reason why these long-established borders should be re-negotiated. Of course, two neighboring states are always free to make changes to their mutual border by agreement (and with the consent of the population effected), but they will not come to agreement unless such a change will enhance the security of both.
The internal border between Israel and the rest of Palestine, including the West Bank border, is in a different category. Israel was initially recognized by other states in 1948 on the borders it claimed on May 14, the UN Partition Plan lines. These are the only recognized borders that Israel has ever had.
At the attempted peace conference between Israel and the Arab states in Lausanne in 1949 both sides accepted that the partition line would be the basis of discussion of the territorial question, but Israel then refused any retreat from the Green Line. This does not mean that the Green Line is recognized as anything other than a temporary de facto border. The armistice agreements themselves make it clear that:
The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.
The Partition Plan border between Israel and the rest of Palestine, although recognized by outside states, was never agreed with the Palestinians or with the Arab states. The border between Israel and the rest of Palestine was therefore indeterminate in 1967, as it still is today. Principle(ii) requires a recognized border to be established, and this will involve negotiations between the parties.
Misunderstanding 2: Israel must withdraw from some territories, not all.
The resolution says “withdrawal from territories occupied”. Israel and its supporters point out that it doesn’t say ALL territories, and conclude that it means SOME territories. But one could equally conclude that because it does not say SOME territories it must mean ALL territories, and I suggest most people would regard this as a more reasonable interpretation.
Nevertheless, there is a degree of ambiguity. This is easily resolved by the Resolution itself: it emphasizes “the inadmissibility of the acquisition of territory by war”. It was Israel that had attempted to acquire territory by war, and therefore its forces had to withdraw.
Note also that Principal(i), when speaking of withdrawal, uses the plural ‘territories’ rather than ‘territory’, referring to the four separate territories which Israel had conquered. If Israel was allowed to keep ‘some territories’, it would mean that it could keep the whole of two or three of the four. It is preposterous to suggest that the Security Council, simply by omitting the word ‘all’, had thereby legitimized some of Israel’s recent conquests.
How did this ambiguity arise? Members of the Security Council who leaned to the Arab side wanted it to say ‘all territories occupied’. When the Council decided to omit the ‘all’ these members said they would still interpret the phrase as meaning ‘all territories occupied’. The Wikipedia page on Resolution 242 quotes Dean Rusk, US Secretary of State, explaining his reason for omitting the ‘all’:
We wanted that to be left a little vague and subject to future negotiation because we thought the Israeli border along the West Bank could be ‘rationalized’.
This is a perfect example of the futility of attempting to interpret the Resolution by considering the ‘intent’ of the drafters. The use of deliberate vagueness to express intention produces only confusion: drafters should say what they mean.
In this case, there is actually no need to say anything. The border to which the forces must withdraw is the de facto border of Israel, the 1949 Green Line. This was decided in 1949 by agreement between the parties, based on military considerations and other factors such as minimizing interference with the lives of local residents.
The process of withdrawal will involve discussions between the parties: there is nothing to stop them ‘rationalizing’ the lines by mutual agreement, providing it is stated that this is done without prejudice to a final border determination. Such a provision is always included in armistice agreements.
Misunderstanding 3: The permanent borders are to be based on the Green Line.
Lord Caradon, British representative at the United Nations, said the following when asked about the meaning of resolution 242 and the use of ‘territories’ rather than ‘all territories’ (my emphases):
What it states, as you know, is first the general principle of inadmissibility of the acquisition of territory by war. That means that you can’t justify holding onto territory merely because you conquered it. We could have said: well, you go back to the 1967 line [by which he means the 1949 Green Line] But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to the needs of the situation.
Had we said that you must go back to the 1967 line, which would have resulted if we had specified a retreat from all the occupied territories, we would have been wrong… If we had attempted in New York to draw a new line, we would have been rather vague. So what we stated was the principle that you couldn’t hold territory because you conquered it, therefore there must be a withdrawal to – let’s read the words carefully – “secure and recognized boundaries.” They can only be secure if they are recognized. The boundaries have to be agreed; it’s only when you get agreement that you get security.
If we read the words of the resolution carefully we find that it does NOT say that withdrawal must be to ‘secure and recognized boundaries’, nor that it must be delayed until these permanent boundaries have been agreed. The plain words of Principle(i) say clearly that Israeli forces must withdraw to the Green Line. Principle(ii) says there must be recognized borders. It says nothing about where such borders might be. That is for the parties to decide. The two Principles are independent: both must be satisfied. Withdrawal of Israeli forces to the Green Line does not solve the border problem, but it is a necessary part of a solution to the conflict: a minimum requirement for territory that Israel must return to its rightful owners.
Caradon’s intent was that the permanent borders should be based on negotiations around the Green Line: negotiations in which Israel could only gain territory, not lose it. There is no support for this idea in the words of the Resolution. Nor could there be. This was the second time Israel had acquired territory by war. It is preposterous to suggest that a Resolution which begins by emphasizing “the inadmissibility of the acquisition of territory by war”, simply by omitting the word ‘all’, could have legitimized Israel’s land theft in the 1948-49 war.
Judge Al-Khasawneh of the International Court of Justice confirms this view:
The Green line is the starting line from which is measured the extent of Israel’s occupation of non-Israeli territory. There is no implication that the Green Line is to be a permanent frontier.
Establishing new borders
Principle(ii) is looking for a border determination as part of a just and lasting settlement of the Israel-Arab conflict. An Israel-Palestine border based on the Green Line would leave the Palestinian people with just the West Bank and Gaza, 22% of their homeland. Given an Israeli population of around 8 million, and a Palestinian population of around 9 million (including the West Bank, Gaza and refugees with a right to return), such a border would be manifestly unjust, and could not possibly lead to a lasting peace, or a viable, contiguous Palestinian state. Palestine needs, and justice demands, much more territory than that.
Lord Caradon said the Green Line is a “rotten” border. I am not sure on what grounds, but it was certainly rotten from the point of view of the Palestinian Arabs since it allowed Israel to keep the 23% of Palestine that Israel conquered in 1948-49. The partition border was also a rotten border because the territory allocated to the Jewish state in the Partition Plan included an almost equal number of Jews and non-Jews. Neither is a suitable basis for establishing the new border: it requires a complete rethink, with the aid of a Boundary Commission of experts from both sides, under independent chairmanship.
The work of the Commission will be influenced by the the future relationship envisaged between Israel and Palestine. This is unlikely to consist of two completely independent sovereign states. Given that the infrastructure and economy were developed for a single state in Mandatory times, and have been under single control since 1967, this would be impractical. At the minimum, I would expect an economic union and a mutual defense pact. There might be further integration with some form of federation or union into a single state. In all these cases, the border being defined would be an open one, (open to transit, not necessarily to change of residence) which should be a much less contentious task than defining the sovereign border between two states. (Interestingly, an economic union, open border and non-sovereign states were part of the 1947 UN Partition Plan.)
The Border Commission will need to consider such factors as demography, geography, transport, infrastructure, natural resources, industry, agriculture, and, above all, the wishes of residents. It may suggest a transfer of some Arab-majority towns close to the Green Line from Israel to Palestine, and perhaps some of the major Israeli settlements in the West Bank, close to the Green Line, would be transferred to Israel.
But the major recommendation must surely be for a transfer of a substantial amount of the sparsely populated Negev region from Israel to Palestine.
This is not a new idea. The Negev was allocated to the Jewish state in the Partition Plan as an area capable of absorbing large numbers of Jewish immigrants, having at the time only a small population of mostly Bedouin. The UN Mediator was the first to suggest,in 1948, that some of the Negev be transferred to the proposed Arab state, at that time as compensation for the loss of western Galilee. The Arabs, at the failed attempt at a peace conference in Lausanne in 1949 said that they would need the Negev to accommodate the returning refugees, since Israel was not willing to accept them. During the conference President Truman wrote a secret letter to Ben-Gurion deploring Israel’s refusal to provide territorial compensation for areas it had acquired outside the Partition Plan borders. Furthermore, the expulsion of 750,000 non-Jewish Palestinians and Israel’s de facto enlargement in the 1948-49 war meant that the original reason for allocating the Negev to Israel became obsolete.
Such a transfer would achieve three things:
1. provide territorial contiguity between the West Bank and Gaza;
2. provide space for the returning refugees, for Israeli Arabs who would prefer to live in Palestine, for returnees from the Palestinian diaspora, and for relocation of some residents from the over-populated Gaza Strip;
3. place the Bedouin population within Palestine rather than Israel, if that is their wish.
To keep contiguous both Israeli and Palestinian territory, there could be a neutral crossing point between the two states, similar to those in the UN Partition Plan (see map in a previous article).
The refugees
Resolution 242 also calls for a “just settlement of the refugee problem”. Previous resolutions had talked of a “return” by the refugees. What was just in 1949 is not necessarily what was just in 1967, or is just in 2016. My view of justice now is that the refugees should be given a lot of money, by Israel, to go where they want. Some may want to go to Israel or Palestine, some to stay in other Arab states, and some to go to ‘the West’. Recent history has shown that the preferred destination of displaced Arabs is Europe. I suggest that Britain in particular should be willing to accept Palestinian refugees, since it was the British Government’s policy of establishing a Jewish national home in Palestine that was the root of the conflict. I hope the US would also accept responsibility, since it was President Truman’s premature recognition of Israel that prevented a temporary UN Trusteeship which might have prevented the 1948-49 war.
A question for readers
I am an outsider with very little knowledge of the geography and demography of Israel/Palestine. Am I right in thinking that a Palestinian state or national area of around 9 million inhabitants in the West Bank and Gaza would not be viable? And if so, why has the PLO apparently been willing to accept this concept? I will reply to all comments.
David
The majority of Palestinians reject the international laws that gifted Israel territories that it had no right whatsoever to take, and this include all of the land within 1948 and 1967 borders. Palestinians do not want their homeland split, be given free of charge, to a bunch of fascist European settlers who essentially committed armed robbery when they arrived on Palestine.
Any individual who commits armed robbery would rightfully be jailed for a really long time, but when a bunch of ideological fanatics do it, they get to keep their loot and be protected by the law too? Israel has no right to exist in any form on Palestine, and this will never change regardless which superpower gets to define “international law”.
Israelis need to decide whether to be in the side of justice, and live equally with respect and dignity alongside humanity, or remain wallowing in their filthy delusions of European supremacism, disgraced and detested.
David Fincham’s excellent analysis should have gone a bit further to expose the ‘illegality’ of the action by the UN General Assembly to force a partition plan upon a Mandated Nation – Palestine (Grade A Mandate).
What legal power did the UNGA have to impose such a decision?
Why was UNGA Res 181 not put forward for a vote by the UN Security Council?
Why were the Palestinians – the indigenous people of Palestine – not consulted?
The Palestinians have put forward a set of borders which have been recognized by a majority of the International Comity of Nations.
However, Israel has not recognized Palestine, has not agreed to those borders, has not proclaimed those borders, nor has it legally annexed any territories it has occupied or acquired by war.
The only Internationally recognized borders of Israel are those of the May 15th 1948 Israeli Government plea for recognition.
In my opinion the wording of UNSC Resolution 242 is plain, and I am in agreement with you in its interpretation. It is a fact that several forests have been used to supply the paper needed to accommodate all the differing views on this subject. UNSC Resolutions are only of any consequence when all five permanent members can agree. The US would never agree with our interpretation, therefore any attempt at implementing it would be vetoed and consigned to the memory hole. Dr David Morrison has a good article on veto wielding members, and how they are above the law for all time. http://www.david-morrison.org.uk/iraq/ags-legal-advice.pdf
“There is a fundamental contradiction written into the UN Charter, on the one hand article 2[1] states “The organization is based on the principle of the sovereign equality of all its members” but on the other hand, article 23 of the charter grants five of the members permanent seats on the Security Council, and article 27 gives each of them a veto over decisions of the council. Clearly, all members are equal, but some members are more equal than others”. The only way this will be resolved is in a Court of law with lawyers acting impartially, without any political maneuvering, [a tall order]. The ICC have the PA’s complaint to address and it is hoped that they will reach the same conclusions as the World Court [ICJ] in the ‘Wall case’ when all 15 Judges, including the US Judge offered the unanimous opinion that all the settlements are illegal. Thanks for all your very informative posts.
The boundary between Israel and a projected actual Palestinian State will have to be agreed and as all know today, Israel has no interest in making any agreement of that sort which the PLO or any other Palestinian group could accept.
If after all these years (almost 50 since 1967) the nations wish to intercede, good luck to them. UNSC 242 might be a guide but all it says is that Israel and Palestine must agree. The nations will have to coerce that agreement or (as we’ve seen in 49 years) that agreement will not occur.
What might the nations do to coerce Israel? My recommendation, often made in this space, is that the nations require Israel to remove all settlers, demolish all settlements and the wall, and end the blockade of Gaza — and do all this in a shortish time, maybe a year or two. and this requirement must require Israel to publish a plan to accomplish all this, and require the publication thereof within a very short time, perhaps a month or two. Failure to publish the plan or to act according to the plan will bring on sanctions. A program of increasingly severe sanctions must accompany this international action. Israel always ignores “mere words”.
So, an international requirement that Israel act backed up by sanctions. The actions required are clearly consistent with or even required by international law, so the international community would not be requiring anything other than a return to international legitimacy.
Israel may ignore all this and put up with the sanctions. Of course. But my feeling is that if the sanctions are realistic and fierce and begin to be applied in good earnest, Israel will — not do what is required but — start negotiating with the Palestinians for peace!
That is the coercion-towards-peace that I can imagine.
For what it’s worth.