Resolved: are the settlements legal? Israeli West Bank policies

Resolved: are the settlements legal? Israeli West Bank policies

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 th 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 1970.

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.

EUGENE V. ROSTOW is a Distinguished Fellow at the United States
Institute of Peace.

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