Are the settlements legal? Resolved
By Eugene W. Rostow,
Copyright 1991 The New Republic Inc.
The New Republic, October 21, 1991
Assuming the Middle East conference actually does take place, its official task will be to achieve peace between Israel
and its Levantine neighbors in accordance with Security Council Resolutions 242 and 338. Resolution 242, adopted after the
Six-Day War in 1967, sets out criteria for peace-making by the parties; Resolution 338, passed after the Yom Kippur War in
1973, makes resolution 242 legally binding and orders the parties to carry out its terms forthwith. Unfortunately, confusion
reigns, even in high places, about what those resolutions require.
For twenty-four years Arab states have pretended that the two resolutions are "ambiguous" and can be interpreted to
suit their desires. And some European, Soviet and even American officials have cynically allowed Arab spokesman to delude
themselves and their people--to say nothing of Western public opinion--about what the resolutions mean. It is common even
for American journalists to write that Resolution 242 is "deliberately ambiguous," as though the parties are equally free
to rely on their own reading of its key provisions.
Nothing could be further from the truth. Resolution 242, which as undersecretary of state for political affairs between
1966 and 1969 I helped produce, calls on 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. When such a peace is made, Israel is required to
withdraw its armed forces "from territories" it occupied during the Six-Day War--not from "the" territories nor from "all"
the territories, but from some of the territories, which included the Sinai Desert, the West Bank, the Golan Heights, East
Jerusalem, and the Gaza Strip.
Five-and-a-half months of vehement public diplomacy in 1967 made it perfectly clear what the missing definite article
in Resolution 242 means. Ingeniously drafted resolutions calling for withdrawals from "all" the territories were defeated
in the Security Council and the General Assembly. Speaker after speaker made it explicit that Israel was not to be forced
back to the "fragile" and "vulnerable" Armistice Demarcation Lines, but should retire once peace was made to what Resolution
242 called "secure and recognized" boundaries, agreed to by the parties. In negotiating such agreements, the parties should
take into account, among other factors, security considerations, access to the international waterways of the region, and,
of course, their respective legal claims.
Resolution 242 built on the text of the Armistice Agreements of 1949, which provided (except in the case of Lebanon)
that the Armistice Demarcation Lines separating the military forces were "not to be construed in any sense" as political or
territorial boundaries, and that "no provision" of the Armistice Agreements "Shall in any way prejudice the right, claims,
and positions" of the parties "in the ultimate peaceful settlement of the Palestine problem." In making peace with Egypt in
1979, Israel withdrew from the entire Sinai, which had never been part of the British Mandate.
For security it depended on patrolled demilitarization and the huge area of the desert rather than on territorial
change. As a result, more than 90 percent of the territories Israel occupied in 1967 are now under Arab sovereignty. It is
hardly surprising that some Israelis take the view that such a transfer fulfills the territorial requirements of Resolution
242, no matter how narrowly they are construed.
Resolution 242 leaves the issue of dividing the occupied areas between Israel and its neighbors entirely to the agreement
of the parties in accordance with the principles it sets out. It was, however, negotiated with full realization that the problem
of establishing "a secure and recognized" boundary between Israel and Jordan would be the thorniest issue of the peace-making
process. The United States has remained firmly opposed to the creation of a third Palestinian state on the territory of the
Palestine Mandate. An independent Jordan or a Jordan linked in an economic union with Israel is desirable from the point of
view of everybody's security and prosperity. And a predominantly Jewish Israel is one of the fundamental goals of Israeli
policy. It should be possible to reconcile these goals by negotiation, especially if the idea of an economic union is accepted.
The Arabs of the West Bank could constitute the population of an autonomous province of Jordan or of Israel, depending
on the course of the negotations. Provisions for a shift of populations or, better still, for individual self-determination
are a possible solution for those West Bank Arabs who would prefer to live elsewhere. All these approaches were explored in
1967 and 1968.
One should note, however, that Syria cannot be allowed to take over Jordan and the West Bank, as it tried to do in
The heated question of Israel's settlements in the West Bank during the occupation period should be viewed in this
perspective. The British Mandate recognized the right of the Jewish people to "close settlement" in the whole of the Mandated
territory. It was provided that local conditions might require Great Britain to "postpone" or "withhold" Jewish settlement
in what is now Jordan. This was done in 1922. But the Jewish right of settlement in Palestine west of the Jordan river, that
is, in Israel, the West Bank, Jerusalem, and the Gaza Strip, was made unassailable. That right has never been terminated and
cannot be terminated except by a recognized peace between Israel and its neighbors. And perhaps not even then, in view of
Article 80 of the U.N. Charter,
"the Palestine article," which provides that "nothing in the Charter shall be construed ... to alter in any manner
the rights whatsoever of any states or any peoples or the terms of existing international instruments...."
Some governments have taken the view that under the Geneva Convention of 1949, which deals with the rights of civilians
under military occupation, Jewish settlements in the West Bank are illegal, on the ground that the Convention prohibits an
occupying power from flooding the occupied territory with its own citizens. President Carter supported this view, but President
Reagan reversed him, specifically saying that the settlements are legal but that further settlements should be deferred since
they pose a psychological obstacle to the peace process.
In any case, the issue of the legality of the settlements should not come up in the proposed conference, the purpose
of which is to end the military occupation by making peace. When the occupation ends, the Geneva Convention becomes irrelevant.
If there is to be any division of the West Bank between Israel and Jordan, the Jewish right of settlement recognized by the
Mandate will have to be taken into account in the process of making peace.
This reading of Resolution 242 has always been the keystone of American policy.In launching a major peace initiative
on September 1, 1982, President Reagan said, "I have personally followed and supported Israel's heroic struggle for survival
since the founding of the state of Israel thirty-four years ago: in the pre-1967 borders, Israel was barely ten miles wide
at its narrowest point. The bulk of Israel's population lived within artillery range of hostile Arab armies. I am not about
to ask Israel to live that way again."
Yet some Bush administration statements and actions on the Arab-Israeli question, and especially Secretary of State
James Baker's disastrous speech of May 22, 1989, betray a strong impulse to escape from the resolutions as they were negotiated,
debated, and adopted, and award to the Arabs all the territories between the 1967 lines and the Jordan river, including East
Jerusalem. The Bush administration seems to consider the West Bank and the Gaza Strip to be "foreign" territory to which Israel
has no claim. Yet the Jews have the same right to settle there as they have to settle in Haifa. The West Bank and the Gaza
Strip were never parts of Jordan, and Jordan's attempt to annex the West Bank was not generally recognized and has now been
abandoned. The two parcels of land are parts of the Mandate that have not yet been allocated to Jordan, to Israel, or to any
other state, and are a legitimate subject for discussion.
The American position in the coming negotiations should return to the fundamentals of policy and principle that have
shaped American policy towards the Middle East for three-quarters of a century. Above all, rising above irritation and pique,
it should stand as firmly for fidelity to law in dealing with the Arab-Israeli dispute as President Bush did during the Gulf
war. Fidelity to law is the essence of peace, and the only practical rule for making a just and lasting peace. .
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