New study of Res 242 could alter views of Israeli-Arab conflict

UN Resolution 242 is recognized as the key UN resolution relating to the Israeli-Arab conflict which could alter how many reveal the issues in dispute especially as regards to borders.

By Yonah Jeremy Bob, JPOST

THE ISRAEL-JORDANIAN border fence. The future holds a very uncertain prognosis.
THE ISRAEL-JORDANIAN border fence. The future holds a very uncertain prognosis.

As the UN Security Council and International Criminal Court return to focusing on Israel, an about-to-be-published study reveals new sides to Council Resolution 242, recognized as the key resolution relating to the Israeli-Arab conflict, that could alter perceptions of issues in dispute, especially regarding borders.

According to an article by Prof. Eugene Kontorovich of Northwestern University, to be published soon in the Chicago Journal of International Law, a new side has emerged in the unending debate over the meaning of UNSC Resolution 242, which establishes principles for setting Israeli borders and withdrawal from territories conquered in 1967.

Kontorovich’s study compares Resolution 242 to all 18 other Security Council resolutions dealing with territorial withdrawals and finds that the resolution was unique in its ambiguity as to how much territory Israel needs to withdraw from, with other resolutions being explicit about a full withdrawal.

In the article, Kontorovich writes that there has always been a debate as to whether the phrase in UN Resolution 242 “withdrawal from territories” obligates Israel to withdraw from the entire West Bank and Golan Heights, or merely some portion of them as agreed upon in negotiations.

Some Israeli critics claim the resolution means that Israel has been illegally occupying the territories conquered in 1967 for five decades, while some supporters claim it means that Israel has already complied by withdrawing from the Sinai Peninsula, Gaza, parts of the West Bank, and small parts of the Golan Heights.

Kontorovich cites five pre- 1967 UN withdrawal resolutions: the USSR from Iran in 1946; the parties to the Israeli- Arab 1948 war to withdraw to positions held on October 14, 1948; North Korea to withdraw from South Korea to the 38th parallel in 1950; Belgium to withdraw from Congo in 1960; and India and Pakistan to withdraw to the August 5, 1965 positions.

He writes that the USSR had to withdraw from “the whole” of Iran, that Belgium had to withdraw from “the territory” (whereas 242 is missing the definite article “the”) of Congo, and that the other three resolutions give definitive dates or markers for withdrawal.

In contrast, Kontorovich writes that 242’s intentional dropping of “the” and not setting a set date or geographic marker shows that the UN intentionally left the issue vague – which he argues could be a decisive proof for the pro-Israel reading of the resolution that Israel only has to withdraw from some territories, as agreed in negotiations.

Next, the article cites 13 additional territorial withdrawal resolutions, including a 2012 resolution ordering Sudan and South Sudan to withdraw to their borders, where the word “the” appears five times, signifying an obligation of a complete withdrawal, while the other 12 resolutions also appear to signal a full withdrawal.

Former UN ambassador and Jerusalem Center of Public Affairs director Dore Gold responded to the article, saying, “Unfortunately there are voices that believe the whole discussion of the absence of the definite article ‘the’ in 242 is being picky. What they don’t understand is that the language of the resolution was drafted at the highest levels of US government at the time.”

He continued, “In fact, [then Soviet] prime minister Kosygin was demanding language for withdrawal from ‘all the territories’ be inserted, and it had even been inserted in an earlier draft.

But it was no less than LBJ [president Lyndon Johnson] who held firm and insisted that the language be “withdrawal from territories” without the word “the” to limit the withdrawal obligation.

Gold added, “Kontorovich has come onto something extremely important which reinforces the Israeli traditional interpretation of 242, which was also the consensus of the UN Security Council in November 1967.”

He claimed that this interpretation of the resolution also supports Israel’s arguments that the 1967 war was fought in self-defense.

In contrast, human rights lawyer Michael Sfard said that the debate about whether Resolution 242 obligates Israel to withdraw from all of the territories conquered in 1967 or only some of them has become less important.

He said Resolution 242 came down “before the PLO was recognized as the representative of the Palestinian people, before Jordan waived its rights to the West Bank in favor of the “State of Palestine,” before the Oslo Accords, and before Palestine was recognized as a state by the UN General Assembly.”

Sfard added, “All of the above impact the legal situation from an international law perspective, along with the timeless and paramount principle that states cannot acquire sovereignty to new territory by conquest and new borders require agreement between the relevant parties.”

January 3, 2015 | 9 Comments »

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9 Comments / 9 Comments

  1. Ted Belman Said:

    Previous to the treaty Jordan transferred all their rights to the territories and to negotiate them was transferred to the PLO. So whatever rights Jordan had, the PLO and now PA has.

    bernard ross Said:

    Where is the legal enforceable document, was there a deed or just an announcement which can be taken as PR? From what I see the actual deeds were talk and were really just Jordan walking away from a property and mumbling some words saying they leave it to the current resident.

    Ted, I am still waiting for the LEGAL document. did you find one?

    UN resolution 242 and the recognition of Palestinian rights
    After the 1967 Arab-Israeli war, the United Nations Security Council unanimously passed resolution 242 calling for Israeli withdrawal from the territories occupied during the war, in exchange for “termination of all claims or states of belligerency” and “acknowledgement of sovereignty, territorial integrity and political independence of every state in the area”. The Palestine Liberation Organization (PLO), which had been formed in 1964, strongly criticized the resolution, saying that it reduced the question of Palestine to a refugee problem.[8]:18
    http://en.wikipedia.org/wiki/Two-state_solution

    I think there is no legally enforceable transfer existing, that it is a hot air balloon that everyone assumes has LEGAL wings..

    Perhaps you should investigate this from a legal standpoint?

  2. @ Ted Belman:

    On 31 July 1988, King Hussein announced the severance of all legal and administrative ties with the West Bank, except for the Jordanian sponsorship of the Muslim holy sites in Jerusalem. In his speech to the nation held on that day he announced his decision and explained that this decision was made with the aim of helping the Palestinian people establishing their own independent state.[4][5]

    Where is the legal enforceable document, was there a deed or just an announcement which can be taken as PR? From what I see the actual deeds were talk and were really just Jordan walking away from a property and mumbling some words saying they leave it to the current resident. Nothing to do with Israel, never referred to in the treaty…. and furthermore was the PLO recognized in any legal capacity by Israel at the time. After all if Israel considered the PLO a terror org along with the US in 1988 it would on its face be an unacceptable transfer. From what I surmise the only document currently having a legal influence on west bank land is the Oslo accords and if that dies the question will be what died with it?

  3. Ted Belman Said:

    As for the peace treaty with Jordan, it didn’t end the dispute regarding borders.

    Think about this statement as a legal statement. There is no doubt that the treaty ended the dispute with the relevant party (Jordan) as Jordan has concluded agreed finalized borders. there was never any contemplation of a PLO state entity in 242 and never any mention of a PLO entity in the Israel Jordan border treaty agreement. therefore, apparently, Jordan appears to have agreed borders with Israel in contradiction of its purported, I believe legal sham, transfer. Jordan made a PR coup of no legal value in giving the non state illegitimate PLO worthless rights which were not unlimited. Its like me saying that I will give you a quit claim deed to a home I own and when you arrive you find other owners who show you a title where the former unrecognized owner deed to them. Its worse because, let’s say, you live in a country which does not allow the transfer of property to, or making of contracts with, minors. In this case the agreement required participants who were states and were subject defacto to the agreement of the participants to the transfer. Why assume what cannot be proven? Lets look at that worthless quit claim deed that Jordan gave the pals, probably as a macabre joke.
    SHOW ME THE TRANSFER DOCUMENT 🙂

  4. Ted Belman Said:

    As for the peace treaty with Jordan, it didn’t end the dispute regarding borders. Previous to the treaty Jordan transferred all their rights to the territories and to negotiate them was transferred to the PLO. So whatever rights Jordan had, the PLO and now PA has.

    I understand your argument if one accepts that 242 still applies to the west bank which was under the control of Jordan at the time.
    However I disagree that 242 applies for many reasons.
    1-The transfer of rights from Jordan is a unilateral action to which Israel never agreed and in principle Israel cannot be expected to shoulder any new conditions as a result of their unilateral action. e.g. the condition of negotiating with an unrecognized non state terror org with no control of any territory.
    2- Jordans unilateral action does not confer obligations on Israel and that is demonstrated by the absence of any mention of it in the Jordan treaty. Therefore, Jordan transferred rights it could not guarantee. similar to transferring a title which had encumbrances, broken title and prior claims. But then the PLO paid nothing for the property so they got what they paid: nothing.
    3- The PLO was not a party to 242 and the enforcement authority of 242 resided in it being an agreement between the state parties to the conflict. Israels agreement was specifically based on the nature of parties to the conflict being state actors who could enforce and perform the agreement. The PLO was not a state AND not a party to the agreement. The transfer to an illegitimate, nonparticipating non state MATERIALLY breached the 242 wrt the west bank rendering that part null and void. It is similar to an adult transferring rights of an adult to a minor, the simple act of transfer does not make the transfer legal, enforceable or confer obligations on any other party. Could Jordan have transferred their rights to the basque separatist movement? The rights of Jordan in the west bank could not be assumed by a non state AND a non participant to 242 EXCEPT with the agreement of Israel to that transfer. It is like transferring a title to a minor in a jurisdiction where minors may not own land. The PLO had no legal status to assume the rights transferred.
    4-The fact that those supposed rights were supposedly transferred to the PLO did not appear in the israel Jordan treaty which shows that Jordan did not intend to make those rights more than ceremonial or PR, more like one of those fake diplomas on a wall. What exactly is the legal document showing those rights were LEGALLY transferred and that it has it been deemed legal and enforceable? Jordan could have mentioned pal rights to land in the treaty with Israel, its omission demonstrates it is baloney.
    5-there are questions as to whether Jordan transferred rights it owned as its invasion and occupation of the west bank were unrecognized by the international community and only recognized by UK and Pakistan. Jordan gave, at best, a “quit claim deed” to something that may not have even belonged to them but then they never guaranteed the transfer had any meat or it would have shown up in the treaty.
    6- Israel has internationally recognized borders with jordan deriving from the treaty therefore the current boundaries of Israel have defacto been internationally recognized.
    7- the same argument applies to Jordans rescinding citizenship to west bank arabs. Jordans unilateral action confers NO obligation on Israel to grant them citizenship. Right now I see them as stateless refugees, former citizens of Jordan. the same status of pal refugees in the neighboring arab nations.
    8- the only way the PLO would have had a legally enforceable right upon Israel would have been if Israel had agreed AND if the PLO was a state. Jordan could have concluded a treaty with Israel referencing the transfer and the abandonment of its claim. Jordan intentionally made a faux transfer to the pals giving them a worthless quit claim deed to an uninsured and clouded title.

    Please give me your argument which requires Israel to accept an agreement which was made with a specific state actor who had control over their population and borders. Show me the document of transfer, its legality in international law that goes beyond the value of a quit claim deed. If Jordan was serious then their borders with Israel would not have been clearly delineated in the Israel Jordan treaty as those borders contradict their transfer of rights. Which is the sham: the treaty or the transfer? If Jordan had transferred the land to the PLO then how could they have finalized those same borders with Israel? they would have had to say to Israel “you must go and negotiate some of your borders with the PLO as we already have borders with the PLO.”

    Israel is always bamboozled into the court of public opinion and BS law and end up believing the BS that everyone tells them. The is no way that Jordan has a right to transfer Israels responsibilities to Jordan over to the pals when the pals were unable to perform any of jordans responsibilities to Israel upon which Israel, and the UNSC, relied in the 242 agreement. AGAIN, the absence of any mention in the Israel Jordan treaty is the clue. A requirement of the “transfer” would have been to include it in a future treaty. DUH???? time to think out of the box. Israel has been hoodwinked but it need not continue. The only ramaining territorial border dispute descending from 242 is with Syria. the pals on ly have the generic right of self determination as do any minority which is a competing claim with the Jewish right of settlement. they certainly have NO CLAIM over land upon which they do not reside as a majority such as area C.

    Its all about Israel not wanting to take the land because it believes it is then required to absorb the enemy hostile population, The problem resides with the state and gov of israel.

  5. @ bernard ross:
    @ Yidvocate:
    Sorry Bernard. I think you are off base on a few points. This article doesn’t change our understanding of the meaning of 242, it just strengthens the case for some but not all the territories. Many people involved with the drafting of the resolution supported the notion that full withdrawal was not demanded. By the way, if it was, there would be nothing to negotiate.

    Secondly, regarding the recital which says that land can’t be acquired by force, its only a recital and not an operative part of the resolution. Also there is no statement in this res that says that principle applies to the outcome of this war. It is just left hanging there.

    As for the peace treaty with Jordan, it didn’t end the dispute regarding borders. Previous to the treaty Jordan transferred all their rights to the territories and to negotiate them was transferred to the PLO. So whatever rights Jordan had, the PLO and now PA has.

    Though 242 was originally rejected by the Arabs, it was recognized by the PLO/PA in the Oslo Accords. But the Oslo Accords do not reach the level of a treaty because a treaty is an agreement between states only. PLO/PA is not a state.

    Israel is well within her rights to say she has already withdrawn from 90% of the territories and that she will withdraw from no more as only the Jordan river as the border would be a secure border. She needs no agreement to do so. She should declare that as her permanent border and accept the fact that it is not recognized as such.

    Anybody who tries to interpret the res as meaning all has no legitimate ground to stand on. It is solely an attempt to discredit Israel. Sometimes they argue that the French version of the resolution includes the word “the” except that the French version is not the official version. The English version is.

  6. @ Yidvocate:
    thanks for the compliment. I was just reading the resolution and all the diplomats and world leader arguments around it and came to the conclusion that Israel should repudiate ALL prior agreements on the basis that they were all geared to swindle the Jews out of their homeland and preserve the arab position.

  7. Sfard added, “All of the above impact the legal situation from an international law perspective, along with the timeless and paramount principle that states cannot acquire sovereignty to new territory by conquest and new borders require agreement between the relevant parties.”

    Looks like this guy is a dunce. There was agreement on borders between Jordan and Israel and there were no other borders to agree or reset wrt the west bank. Israels border with Jordan is the internationally recognized border as the treaty is internationally recognized. The whole discussion of 67 borders became moot with the end of jordans claim. Jordan has recognized their border with Israel and no other state exists. DUH??? there is no legal question of withdrawal, only a question of the former citizens of Jordan whose citizenship was unilaterally withdrawn by Jordan. there is no legal imperative requiring Israel to shoulder the burden of their statelessness. It is nothing to do with the land issues. As it stands they are a hostile, foreign population in Israels territory just as they are in the arab neighboring nations. Israel does not want them as citizens and therefore confuses that issue with the land. If they declare a state then the issue of Israeli citizenship is moot as they will have their own state. So far the only recognizable state is in gaza. they can be citizens of gaza and temporary residents of Israel based on their behavior. Any problem deport them to gaza. In time they will go to Jordan as the faux monarch will not last.

  8. 242 was drawn up in relation to a conflict between specific states. It was agreed by Israel solely on the basis of the interpretation of the absence of the word “the”. If the interpretation is void then Israels agreement is void and therefore it is no longer an agreement but merely a UNSC resolution standing on its own. Furthermore, if 242 is less important and the principle of sovereignty by acquisition of conquest is considered then one must return to also to the consideration of the rights of Jewish settlement which were only limited by the treaty with Jordan and 242… by agreement, by treaty.

    More importantly I believe 242 is irrelevant wrt YS. It appears to me that wrt YS the Jordan Israel peace treaty supersedes 242. 242 only has relevance relating to a conflict between nations and the boundaries between those nations. Jordan unilaterally abdicated its claim to the territory and no other party had a valid claim. The Jordan Israel boundary is clearly established at the Jordan river. I see no legally binding agreement on Israel to withdraw, the pals were not a part of 242 which was a cease fire resolution and agreement related only to the nations in the conflict. I think its a sham and fraud that Israel has legal obligations to the pals in YS for any withdrawal. Withdrawal obligations died with Jordans abdication of claim. I see nothing in the Jordan Israel treaty regarding withdrawal from YS.

    Only Oslo still is an obligation but not as a final outcome, only as a process, it is not a treaty. A unilateral pal state will kill Oslo if it has not yet been killed. The unilateral or multilateral declaration of a pal state might not have negative ramifications for Israel if it refuses recognition and it ends Oslo. It would likely strengthen the de facto control of C and still maintain the pals need to cooperate with Israel for their survival. I think the only problem stopping Israel is Israel itself.