The Legal Effect of UN Resolutions

Since the first resolution adopted by the United Nations in 1947, Israel has consistently sought to live in peace with its Arab neighbors. For more than a half-century, it has not always had willing partners.

“Tragedy is not what men suffer but what they miss. … Time and again, [Arab] governments have rejected proposals today – and longed for them tomorrow.”
Abba Eban – at the UN, 1968

Though sometimes confusing, the rules that form the UN Charter also determines the powers of the UN Security Council. Two chapters are especially relevant if one is to understand the meaning of the Security Council’s power and the resolutions it passes.

Security Council Resolutions under Chapter VI:

Resolutions the Security Council adopts under Chapter VI are intended to be followed and implemented via negotiated settlements between concerned parties. One of the UN resolutions adopted under Chapter VI of the UN Charter is Resolution 242, adopted in 1967 after the Six-Day War. It calls on Israel and its Arab neighbors to accept the resolution through negotiation, arbitration and conciliation. Under Chapter VI of the UN Charter, the recommendations of UN Resolution 242 cannot be imposed on the parties concerned, as Arab leaders often argue. In fact, the title of Chapter VI also offers a clue to its nature, for it deals with “Pacific Resolution of Disputes.”

Security Council Resolutions under Chapter VII:

In contrast, resolutions adopted by the Security Council under Chapter VII invest the Security Council with power to issue stringent resolutions that require nations to comply with the terms set forth in the resolution. This leaves no room to negotiate a settlement with the affected parties. Thus, Chapter VII deals with “Threats to Peace, Breaches of the Peace and Acts of Aggression.” When Iraq invaded Kuwait in 1990, the Security Council adopted resolutions under Chapter VII that only required the aggressor, Iraq, to comply.¹

The UN Secretary-General, the General Assembly, and now the international Court of Justice (ICJ) seem ignorant of the General Assembly’s powers or perhaps prefers to ignore them. These UN organs even fail to note that “affirmation” means merely a declarative statement of sentiment. It is not a directive. It is not law. In any case, this and a host of other anti-Israel resolutions passed annually are not legally binding documents by any measure. One does not even have to be an experienced judge to see this; one need only to read the UN Charter to establish this fact. Article 10 of the UN Charter states:

“The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.” [italics by author].

Past members of the ICJ have gone on record as underscoring that the UN Charter does not grant the General Assembly (or the International Court of Justice, for that matter) authority to enact or amend international law.

Professor Judge Schwebel, former President of the International Court of Justice, has stated that:

“… the General Assembly of the United Nations can only, in principle, issue ‘recommendation’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.”²

Schwebel also cites the (1950) opinion of Judge, Sir Hersch Lauterpacht, a former member judge of the International Court of Justice, who declared that:

“… the General Assembly has no legal power to legislate or bind its members by way of recommendation.”³

Yet another former ICJ judge, Sir Gerald Fitzmaurice has been just as resolved in rejecting what he labeled the “illusion” that a General Assembly resolution can have “legislative effect.”⁴

Academics and renowned international law experts also agree. Professor Julius Stone illuminates this subject by pointing out:

“In his book The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Professor Gaetano Arangio-Ruiz⁵ is led to conclude that the General Assembly lacks legal authority either to enact or to ‘declare’ or ‘determine’ or ‘interpret’ international law so as legally to bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it.”⁶

In 1947 the British put the future of western Palestine into the hands of the United Nations, the successor organization to the League of Nations which had established the Mandate for Palestine. A UN Commission recommended partitioning what was left of the original Mandate – western Palestine, into two new states, one Jewish and one Arab.⁷ Jerusalem and its surrounding villages were to be temporarily classified as an international zone belonging to neither polity.

Resolution 181, was a none-binding recommendation to partition Palestine, whose implementation hinged on acceptance by both parties - Arabs and Jews. The resolution, adopted on November 29, 1947 in the General Assembly by a vote of 33 - 12, with 10 abstentions. Among the supporters were both the United States and the Soviet Union, and other nations including France and Australia. The Arab nations, including Egypt, Syria, Iraq, and Saudi Arabia denounced the plan on the General Assembly floor and voted as a bloc against Resolution 181 promising to defy its implementation by force [italics by author].

The resolution recognized the need for immediate Jewish statehood (and a parallel Arab state), but the ‘blueprint’ for peace became a moot issue when the Arabs refused to accept it. Subsequently, de facto realities on the ground in the wake of Arab aggression (and Israel’s survival) became the basis for UN efforts to bring peace. Resolution 181 lost its validity and relevance.

Aware of Arabs’ past aggression, Resolution 181, in paragraph C, calls on the Security Council to:

“… determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution.” [italics by author]

The ones who sought to alter by force the settlement envisioned in Resolution 181 were the Arabs who threatened bloodshed if the UN were to adopt the Resolution:

“The [British] Government of Palestine fear that strife in Palestine will be greatly intensified when the Mandate is terminated, and that the international status of the United Nations Commission will mean little or nothing to the Arabs in Palestine, to whom the killing of Jews now transcends all other considerations. Thus, the Commission will be faced with the problem of how to avert certain bloodshed on a very much wider scale than prevails at present. … The Arabs have made it quite clear and have told the Palestine government that the do not propose to co-operate or to assist the Commission, and that, far from it, they propose to attack and impede its work in every possible way. We have no reason to suppose that they do not mean what they say.” [italics by author]⁸

Arabs’ intentions and deeds did not fare better after Resolution 181 was adopted:

“Taking into consideration that the Provisional Government of Israel has indicated its acceptance in principle of a prolongation of the truce in Palestine; that the States members of the Arab League have rejected successive appeals of the United Nations Mediator, and of the Security Council in its resolution 53 (1948) of 7 July 1948, for the prolongation of the truce in Palestine; and that there has consequently developed a renewal of hostilities in Palestine.”⁹

Text from the actual document of Resolution 181 reads:

“… Having constituted a Special Committee and instructed it to investigate all questions and issues relevant to the problem of Palestine, and to prepare proposals for the solution of the problem, and Having received and examined the report of the Special Committee (document A/364). … Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below; …” [italics by author].

In the late 1990s, more than 50 years after Resolution 181 was rejected by the Arab world, Arab leaders suddenly recommended to the General Assembly that UN Resolution 181 be resurrected as the basis of a peace agreement. There is no foundation for such a notion.

Resolution 181 (the 1947 Partition Plan) was the last of a series of recommendations that had been drawn up over the years by the Mandator and by international commissions, plans designed to reach an historic compromise between Arabs and Jews in western Palestine. The first was in 1922 when Great Britain unilaterally partitioned Palestine. This did not satisfy the Arabs who wanted the entire country to be Arab. Resolution 181 followed such proposals as the Peel Commission (1937); the Woodhead Commission (1938); two 1946 proposals that championed a bi-national state; one proposed by the Anglo-American Committee of Inquiry in April 1946 based on a single state with equal powers for Jews and Arabs; the Morrison-Grady Plan raised in July 1946 which recommended a federal state with two provinces – one Jewish, one Arab. Every scheme since 1922 was rejected by the Arab side, including decidedly pro-Arab ones because these plans recognized Jews as a nation and gave Jewish citizens of Mandate Palestine political representation.

Arabs rejected the “unbalanced” Partition Plan

The UN International Court of Justice (ICJ) uses the term ‘unbalanced’ in describing the reason for Arab rejectionism of Resolution 181.¹⁰ This description hardly fits reality. Seventy-six percent of the landmass of the original Mandate for the Jews was excised in 1923 to create a fourth Arab state – Transjordan (today Jordan).

David Lloyd George, then the British Prime Minister described the recommendation in resolution 181 rather differently than the ICJ describes. In his words:

“… the Balfour Declaration implied that the whole of Palestine, including Transjordan, should ultimately become a Jewish state. Transjordan had, nevertheless, been severed from Palestine in 1922 and had subsequently been set up as an Arab kingdom. Now a second Arab state was to be carved out of the remainder of Palestine, with the result that the Jewish National Home would represent less than one eighth of the territory originally set aside for it. Such a sacrifice should not be asked of the Jewish people.”¹¹

“17,000,000 Arabs now occupied an area of 1,290,000 square miles, including all the principal Arab and Moslem centres, while Palestine, after the loss of Transjordan, was only 10,000 square miles; yet the majority plan proposed to reduce it by one half. UNSCOP proposed to eliminate Western Galilee from the Jewish State; that was an injustice and a grievous handicap to the development of the Jewish State.”¹² [italics by author].

Israel’s independence is not a result of a partial implementation of the Partition Plan.

Resolution 181 has no legal ramifications – that is, Resolution 181 recognized the Jewish right to statehood, but its validity as a potentially legal and binding document was never consummated. Like the schemes that preceded it, Resolution 181’s validity hinged on acceptance by both parties of the General Assembly’s recommendation.

Cambridge Professor Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice, a renowned expert on international law and editor of one of the ‘bibles’ of international law, Oppenheim’s International Law, clarified that from a legal standpoint, the 1947 UN Partition Resolution had no legislative character to vest territorial rights in either Jews or Arabs. In a monograph relating to one of the most complex aspects of the territorial issue, the status of Jerusalem, Judge, Sir Lauterpacht wrote that any binding force the Partition Plan would have had to arise from the principle pacta sunt servanda,¹³ that is, from agreement of the parties at variance to the proposed plan. In the case of Israel, Judge, Sir Lauterpacht explains:

“… the coming into existence of Israel does not depend legally upon the Resolution. The right of a State to exist flows from its factual existence-especially when that existence is pro¬longed, shows every sign of continuance and is recognised by the generality of nations.”¹⁴

Reviewing Lauterpacht’s arguments, Professor Stone, a distinguished authority on the Law of Nations, added that Israel’s “legitimacy” or the “legal foundation” for its birth does not reside with the United Nations’ Partition Plan, which as a consequence of Arab actions became a dead issue. Professor Stone concluded:

“… The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control.”¹⁵

Arab’s aggression before and after the adoption of Resolution 181.

Following passage of Resolution 181 by the General Assembly, Arab countries took the dais to reiterate their absolute rejection of the recommendation and intention to render implementation of Resolution 181 a moot question by the use of force. These examples from the transcript of the General Assembly plenary meeting on 29, November 1947 speak for themselves:

“Mr. JAMALI (Iraq): … We believe that the decision which we have now taken … undermines peace, justice and democracy. In the name of my Government, I wish to state that it feels that this decision is antidemocratic, illegal, impractical and contrary to the Charter … Therefore, in the name of my Government, I wish to put on record that Iraq does not recognize the validity of this decision, will reserve freedom of action towards its implementation, and holds those who were influential in passing it against the free conscience of mankind responsible for the consequences.”

“Amir. ARSLAN (Syria): … Gentlemen, the Charter is dead. But it did not die a natural death; it was murdered, and you all know who is guilty. My country will never recognize such a decision [Partition]. It will never agree to be responsible for it. Let the consequences be on the heads of others, not on ours.”

“H. R. H. Prince Seif El ISLAM ABDULLAH (Yemen): The Yemen delegation has stated previously that the partition plan is contrary to justice and to the Charter of the United Nations. Therefore, the Government of Yemen does not consider itself bound by such a decision … and will reserve its freedom of action towards the implementation of this decision.”¹⁶

The Partition Plan was met not only by verbal rejection on the Arab side but also by concrete, bellicose steps to block its implementation and destroy the Jewish polity by force of arms, a goal the Arabs publicly declared even before Resolution 181 was brought to a vote.

Arabs not only rejected the compromise and took action to prevent establishment of a Jewish state but also blocked establishment of an Arab state under the partition plan not just before the Israel War of Independence, but also after the war when they themselves controlled the West Bank (1948-1967), rendering the recommendation a ‘a still birth.’

Any binding force to the Partition Plan would have had to arise from the principle pacta sunt servanda¹⁷ (“Treaties must be honored,” the first principle of international law). In other words, it would become a legal document only upon agreement of the parties at variance to accept the proposal. Israel’s ‘legitimacy’ as a nation does not reside with the United Nations’ partition plan except in a symbolic sense as recognition of the need for a Jewish statehood. As Professor Stone, a distinguished scholar of the Law of Nations noted:

“… The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control.”¹⁸

The UN itself recognized that 181 had not been accepted by the Arab side, rendering it a dead issue: In January 29, 1948, the First Monthly Progress Report of the UN-appointed Palestine Commission, charged with helping put Resolution 181 into effect was submitted to the Security Council (A/AC.21/7). Implementation of Resolution 181 hinged not only on the five Member States appointed to represent the UN (Bolivia, Czechoslovakia, Denmark, Panama, Philippines) and Great Britain, but first and foremost on the participation of the two sides who were invited to appoint representatives. The Commission than reported:

“… The invitation extended by the [181] resolution was promptly accepted by the Government of the United Kingdom and by the Jewish Agency for Palestine, both of which designated representatives to assist the commission. … As regards the Arab Higher Committee, the following telegraphic response was received by the Secretary-General on 19 January:

ARAB HIGHER COMMITTEE IS DETERMINED PRESIST [PERSIST] IN REJECTION PARTITION AND IN REFUSAL RECOGNIZE UN[O] RESOLUTION THIS RESPECT AND ANYTHING DERIVING THEREFROM [THERE FROM]. FOR THESE REASONS IT IS UNABLE ACCEPT INVITATION.”¹⁹

The UN Palestine Commission’s February 16, 1948 report (A/AC.21/9) to the Security Council noted that Arab-led hostilities were an effort

“to prevent the implementation of the [General] Assembly’s plan of partition, and to thwart its objectives by threats and acts of violence, including armed incursions into Palestinian territory.”

On May 17, 1948 – after the invasion began, the Palestine Commission designed to implement 181 adjourned sein die, after the General Assembly appointed a United Nations Mediator in Palestine, which relieves the United Nations Palestine Commission from the further exercise of its responsibilities.

At the time, some thought the partition plan could be revived, but by the end of the war Resolution 181 had become a moot issue as realities on the ground made establishment of an armistice-line (the Green Line) – a temporary ceasefire line expected to be followed by peace treaties - the most constructive path to solving the conflict.

A July 30, 1949 working paper of the UN Secretariat entitled The Future of Arab Palestine and the Question of Partition noted further that:

“The Arabs rejected the United Nations Partition Plan so that any comment of theirs did not specifically concern the status of the Arab section of Palestine under partition but rather rejected the scheme in its entirety.”²⁰

By the time armistice agreements were reached in 1949 between Israel and its immediate Arab neighbors (Egypt, Lebanon, Syria and Transjordan) with the assistance of UN mediator Dr. Ralph Bunche – Resolution 181 had become irrelevant, and the armistice agreements addressed new realities created by the war. Over subsequent years, the UN simply abandoned the recommendations contained in Resolution 181, as its ideas were drained of all relevance by events. Moreover, the Arabs continued to rejected 181 after the war when they themselves controlled the West Bank (1948-1967) which Jordan invaded in the course of the war and annexed illegally.

Attempts by Palestinians in the past decade (and recently by the ICJ) to ‘roll back the clock’ and resuscitate Resolution 181 more than five decades after they rejected it ‘as if nothing had happened’ are a baseless ploy designed to use Resolution 181 as leverage to bring about a greater Israeli withdrawal from parts of western Palestine and to gain a broader base from which to continue to attack an Israel with even less defendable borders. Both Palestinians and their Arab brethren in neighboring countries rendered the plan null and void by their own subsequent aggressive actions.

Professor Stone wrote about this ‘novelty of resurrection’ in 1981 when he analyzed a similar attempt by pro-Palestinians ‘experts’ at the UN to rewrite the history of the conflict. (Their writings were termed ‘Studies’.) Stone called it “revival of the dead”

“To attempt to show … that Resolution 181(II) ‘remains’ in force in 1981 is thus an undertaking even more miraculous than would be the revival of the dead. It is an attempt to give life to an entity that the Arab states had themselves aborted before it came to maturity and birth. To propose that Resolution 181(II) can be treated as if it has binding force in 1981, [EH the year the book was written] for the benefit of the same Arab states, who by their aggression destroyed it ab initio,²¹ also violates ‘general principles of law,’ such as those requiring claimants to equity to come ‘with clean hands,’ and forbidding a party who has unlawfully repudiated a transaction from holding the other party to terms that suit the later expediencies of the repudiating party.”²² [italics by author].

Resolution 181 had been tossed into the waste bin of history, along with the Partition Plans that preceded it.

Resolution 194, adopted by the UN General Assembly on December 11, 1948, addressed a host of issues, but only one paragraph out of 15 dealt with refugees created by the conflict. Resolution 194 attempted to create the tools required to reach a truce in the region. ²³ It established a conciliation commission with representatives from the United States, France and Turkey to replace the UN mediator. The commission was charged with achieving “a final settlement of all questions between [governments and authorities concerned].” The Resolution’s ‘refugee clause’ is not a ‘stand alone’ item, as the Arabs would have us think, nor does it pertain specifically to Palestinian refugees.

Of the 15 paragraphs, the first six sections addressed ways to achieve a truce; the next four paragraphs addressed the ways that Jerusalem and surrounding villages and towns should be demilitarized, and how an international zone or jurisdiction would be created in and around Jerusalem. The resolution also called on all parties to protect and allow free access to holy places, including religious buildings.

One paragraph has drawn the most attention: paragraph 11, which alone addressed the issue of refugees and compensation for those whose property was lost or damaged. Contrary to Arab claims, it did not guarantee a Right of Return and certainly did not guarantee an unconditional Right of Return - that is the right of Palestinian Arab refugees to return to Israel. Nor did it specifically mention Arab refugees, thereby indicating that the resolution was aimed at all refugees, both Jewish and Arab. Instead, Resolution 194 recommended that refugees be allowed to return to their homeland if they met two important conditions:

• That they be willing to live in peace with their neighbors
• That the return takes place “at the earliest practicable date”

The resolution also recommended that for those who did not wish to return, “Compensation should be paid for the property … and for loss of or damage to property” by the “Governments or authorities responsible.”

Although Arab leaders point to Resolution 194 as proof that Arab refugees have a right to return to Israel or be compensated, Israel is not even mentioned in the resolution. The fact that plural wording also is used – “governments or authorities” – suggests that, contrary to Arab claims, the burden of compensation does not fall solely upon one side to the conflict.²⁴ Because Arab armies invaded Israel, Israel was not responsible for creating the refugee problem. When hundreds of thousands of Arab Jews, under threat of death, attack and other forms of persecution were forced to flee Arab communities, the State of Israel absorbed the overwhelming majority of them into the then-fledgling nation.

The forgotten Jewish refugees from Arab countries.

For a host of reasons – practical to parochial – Israel has failed to raise the issue of the mammoth injustice done to almost a million Jews from Arab countries. The scale and the premeditated state-sponsored nature of persecution that prompted the 1948 flight of close to 900,000 Jews from their homes has only recently begun to emerge.²⁵

Arab publicists have sought to detach entirely the flight of Jews from Arab lands from the Arab-Israeli conflict, claiming they are two separate phenomena, and that Israelis should take up the issue with each respective Arab state that was involved, not with the Palestinians.

Clearly this is a whitewash and attempt to rewrite history. One only needs to reexamine the almost prophetic article in the New York Time's two days after Israel declared independence ("Jews in Grave Danger in all Moslem Lands") to confirm the tie. The New York Times reported on May 16, 1948:²⁶ "For nearly four months, the United Nations has had before it, an appeal for ‘immediate and urgent’ consideration of the case of the Jewish populations in Arab and Moslem countries stretching from Morocco to India." The accompanying country-by-country table estimated the Jewish population-at-risk as 899,000 souls. The article cited the dismissal of Jews in the civil service in Syria, per capita ransom payment of $20,000 by Iraqi Jews seeking to leave Iraq, a forced levy on the Lebanese Jewish community to support the Arab war effort parallel to incitement and physical attacks on Jews, and Jews fleeing to India from Afghanistan. It quoted the UN Economic and Social Council report as saying: "The very survival of the Jewish communities in certain Arab and Moslem countries is in serious danger, unless preventive action is taken without delay." Hostility and oppression only grew, ultimately leading to the exodus of almost all Jews from all Arab and Moslem countries from Casablanca to Karachi.

Lastly, General Assembly resolutions on political matters are not legally binding, but solely a recommendation. Arab claims that Israel is required to allow refugees a Right of Return are groundless. Nevertheless, in 2000 at Camp David, Israel was prepared to participate in provision of compensation and allow refugees to go to the proposed Palestinian state offered at the time,²⁷ but Arab leaders refused to accept the offer.

Resolution 242 is the cornerstone for what it calls “a just and lasting peace.” It calls for a negotiated solution based on “secure and recognized boundaries,” recognizing the flaws in Israel’s previous temporary borders (the 1948 Armistice lines or the Green Line) by not calling upon Israel to withdraw from ‘all occupied territories,’ but rather “from territories occupied.”

The United Nations Security Council adopted Resolution 242 in 1967 subsequent to the Six-Day War.²⁸ It followed Israel’s takeover of the Sinai Peninsula and Gaza Strip from Egypt, the Golan Heights from Syria, and the West Bank from Jordan. The resolution was to become the foundation for future peace negotiations. Contrary to Arab contentions, a careful examination of the Resolution will show that it does not require Israel to return to the June 4, 1967 Armistice lines (i.e. the Green Line).

Resolution 242 was approved on November 22, 1967, more than five months after the war. Israel’s surprised strike at Egypt on June 5, 1967 was in response to months of belligerent declarations and actions by its Arab neighbors that triggered the war. 465,000 enemy troops, more than 2,880 tanks and 810 aircraft, prepared for war, surrounded Israel in the weeks leading up to June 5, 1967. In addition, Egypt had imposed an illegal blockade against Israeli shipping by closing the Straits of Tiran, the Israeli outlet to the Red Sea and Israel’s only supply route to Asia, in complete violation of international law. In legal parlance, those hostile acts are recognized by the Law of Nations as a causes beli.²⁹

The Arab measures went beyond mere saber rattling or power projection. Arab states did not plan simply to attack Israel to dominate it or grab territory; their objective was to destroy Israel. Their own words leave no doubt as to this intention. The Arabs meant to annihilate a neighboring state and fellow member of the UN by force of arms:³⁰

• “We intend to open a general assault against Israel. This will be total war. Our basic aim will be to destroy Israel.” (Egyptian President Gamal Abdel- Nasser, May 26, 1967)
• “The sole method we shall apply against Israel is total war, which will result in the extermination of Zionist existence.” (Egyptian Radio, ‘Voice of the Arabs,’ May 18, 1967)
• “I, as a military man, believe that the time has come to enter into a battle of annihilation.” (Syrian Defense Minister Hafez al-Assad, May 20, 1967)
• “The existence of Israel is an error which must be rectified.... Our goal is clear – to wipe Israel off the map.” (Iraqi President Abdur Rahman Aref, May 31, 1967)

Arab declarations about destroying Israel were made preceding the war when control over the West Bank and the Gaza Strip (or Sinai and the Golan Heights) were not in Israel’s hands, and no so-called Israeli occupation existed.

That is why the UN Security Council recognized that Israel had acquired the territory from Egypt, Jordan, and Syria not as a matter of aggression, but as an act of self-defence. That is also why Resolution 242 was passed under Chapter VI of the UN Charter rather than Chapter VII. As explained above, UN resolutions adopted under Chapter VI call on nations to negotiate settlements, while resolutions under the more stringent Chapter VII section deal with clear acts of aggression that allow the UN to enforce its resolutions upon any state seen as threatening the security of another state or states.

Resolution 242 acknowledged the need for Arab states to recognize Israel’s right to exist and to end their anti-Israeli belligerence. It recognized Israel’s right to live in peace “with secure and recognized boundaries free from threats or acts of force.” Moreover, it recognised that the Green Line was indefensible against Arab aggressors.

Although Resolution 242 refers to “the inadmissibility” of acquiring territory by war, a statement used in nearly all UN resolutions relating to Israel, Professor, Judge Schwebel explains that this principle of “acquisition of territory by war is inadmissible” must be read together with other principles:

“… namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”³¹

Resolution 242 immediately follows to emphasize the “need to work for a just and lasting peace in which every state in the area can live in security.”

While Resolution 242 may call upon Israel to withdraw from territory it captured during the war, the UN recognized that Israel cannot return to the insecure borders before the Six-Day War that invited aggression – frontiers that the usually mild-mannered and eloquent former Israeli diplomat, the late Abba Eban, branded “Auschwitz borders.”

The meaning of the words “all” & “the”.

As noted above, the UN adopted Resolution 242 in late November 1967, five months after the Six-Day War ended. It took that long because intense and deliberate negotiations were needed to carefully craft a document that met the Arabs’ demand for a return of land, Israel’s requirement that the Arabs recognize Israel’s legitimacy, and make a lasting peace.

It also took that long because each word in the resolution was deliberately chosen, and certain words were deliberately omitted, according to negotiators who drafted the resolution.

So although Arab officials claim Resolution 242 requires Israel to withdraw from all territory it captured in June 1967, nowhere in the resolution is that demand delineated. Nor did those involved in the negotiations and drafting of the resolution want such a requirement. Instead, they say Resolution 242 explicitly and intentionally omitted the terms ‘the territories’ or ‘all territories.’

The wording of UN Resolutions 242 and 338 clearly reflects the contention that none of the Territories were occupied territories taken by force in an unjust war.

Because the Arabs were clearly the aggressors, nowhere in UN Security Council Resolutions 242 or 338 – the cornerstones of a peace settlement – is Israel branded as an invader or unlawful occupier of the Territories.

The minutes of the six month ‘debate’ over the wording of Resolution 242, as noted above, show that draft resolutions attempted to brand Israel as aggressor and an illegal occupier as a result of the 1967 Six-Day War, were all defeated by either the UN General Assembly or the Security Council (for a list and content of the drafts, see “Definition of Aggression” in the chapter “Documents”).

Professor Eugene Rostow, then U.S. Undersecretary of State for Political Affairs, went on record in 1991 to make this clear. He testified:

“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.”

Professor Rostow continue and describes:

“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 …”³²

Lord Caradon, then the United Kingdom Ambassador to the UN and the key drafter of the resolution, said several years later:

“We knew that the boundaries of ’67 were not drawn as permanent frontiers; they were a cease-fire line of a couple decades earlier. We did not say the ’67 boundaries must be forever.”

Referring to Resolution 242, Lord Caradon added:

“These words were very carefully chosen. They have to be secure [borders] and they have to be recognized. They will not be secure unless they are recognized. It was not for us to lay down exactly where the border should be. I know the 1967 border very well. It is not a satisfactory border. It is where troops had to stop. It is just where they happened to be that night - that is not a permanent boundary.”³³

In a 1974 statement he said:

“It would have been wrong to demand that Israel return to its positions of 4 June 1967. … That's why we didn't demand that the Israelis return to them and I think we were right not to.”³⁴

It is true, as Arab leaders correctly note, that certain suggested drafts of Resolution 242 exist that contain that tiny controversial ‘the’ in reference to territories. Arab leaders say this proves that Israel must withdraw from all territories captured in 1967. However those versions of the resolution are in French. Under international law, English-language versions are followed and accepted as the conclusive reference point, and French versions are not.

Arthur J. Goldberg,³⁵ the U.S. Ambassador to the UN in 1967 and a key draftee of Resolution 242, stated:

“The notable omissions in language used to refer to withdrawal are the words the, all, and the June 5, 1967, lines. I refer to the English text of the resolution. The French and Soviet texts differ from the English in this respect, but the English text was voted on by the Security Council, and thus it is determinative. In other words, there is lacking a declaration requiring Israel to withdraw from the (or all the) territories occupied by it on and after June 5, 1967. Instead, the resolution stipulates withdrawal from occupied territories without defining the extent of withdrawal. And it can be inferred from the incorporation of the words secure and recognized boundaries that the territorial adjustments to be made by the parties in their peace settlements could encompass less than a complete withdrawal of Israeli forces from occupied territories.”³⁶

Political figures and international jurists have discussed the existence of “permissible” or “legal occupations.” In a seminal article on this question, entitled What Weight to Conquest, Professor, Judge Schwebel, a former president of the International Court of Justice, wrote:

“A state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense. … Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title”

“As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory of what was Palestine, including the whole of Jerusalem, than do Jordan and Egypt.”³⁷

“Territorial Rights Under International Law. ... By their [Arab countries] armed attacks against the State of Israel in 1948, 1967, and 1973, and by various acts of belligerency throughout this period, these Arab states flouted their basic obligations as United Nations members to refrain from threat or use of force against Israel’s territorial integrity and political independence. These acts were in flagrant violation inter alia of Article 2(4) and paragraphs (1), (2), and (3) of the same article.”³⁸

If the so-called West Bank and Gaza were indeed occupied territory – belonging to someone else and unjustly seized by force - there could be no grounds for negotiating new borders.

The contrast in the wording of 242 and 338 and the resolutions adopted in the wake of Iraq’s invasion of Kuwait.

The contrast is stark: UN Resolutions 242 and 338 state that they are based on Article 2 of the UN Charter, which deals with Member States’ commitment to “settle their international disputes by peaceful means” and “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” By contrast, The Iraqi resolutions state that they are founded on Articles 39 and 40 of the UN Charter that deal with “action with respect to threats to the peace, breaches of the peace and acts of aggression” and empower the UN to take steps to compel a state to comply. Iraq’s invasion and annexation of Kuwait in 1999 (Resolution 660 and others that follow) unequivocally calls for Iraq to “withdraw immediately and unconditionally” and Resolution 661 speaks clearly of ending “the invasion and occupation of Kuwait … to restore sovereignty, independence and territorial integrity of Kuwait.”

The drafting history of 242 shows it pertains to all refugees – Jewish and Arab – not solely Palestinian refugees.

Lastly, Resolution 242 speaks of “a just settlement of the refugee problem,” not ‘the Palestinian or Arab refugee problem.’ The history of the resolution shows that it was intentional and reflected recognition that the Arab-Israeli conflict created two refugee populations, not one. Parallel to the estimated 600,000 Arabs who left Israel, more than 850,000 Jews fled from Arab countries in the aftermath of the 1948 war – 650,000 finding asylum in Israel.

A history of the behind-the-scenes work drafting the resolution shows that the former Soviet Union Ambassador Vasiliy Vasilyevich Kuznetsov sought to restrict the term ‘just settlement’ to Palestinian refugees only. But former U.S. Justice Arthur Goldberg, the American ambassador to the UN who played a key role in the ultimate language adopted, pointed out:

“A notable omission in 242 is any reference to Palestinians, a Palestinian state on the West Bank or the PLO. The resolution addresses the objective of ‘achieving a just settlement of the refugee problem.’ This language presumably refers both to Arab and Jewish refugees, for about an equal number of each abandoned their homes as a result of the several wars.”³⁹

Required by realities on the ground after Egypt and Syria launched the 1973 Yom Kippur War, Resolution 338 made peace negotiations a global imperative. It required the parties to comply and halt hostilities.

Resolution 338, like 242, was adopted by the UN Security Council,⁴⁰ essentially reaffirming the principles of Resolution 242. But the new resolution also served as the mechanism for a cease-fire after the Arab states again attacked Israel. The resolution was drafted and adopted unanimously on October 22, 1973 in an effort to halt the warfare that became known as the Yom Kippur War. That war erupted in October 1973 when Egypt and Syria broke the cease-fire and launched a full-scale military assault on Israel.

As the new war illustrated, the recommendations of Resolution 242 had not been implemented. The Arab countries had refused to meet with Israel to exchange peace for territories, preferring to abide by the 1967 post-war Khartoum Resolution signed by eight Arab heads of state that set three ‘nays’: “No peace with Israel, no recognition of Israel and no negotiations with Israel.” Despite the UN’s call for negotiations in 242, Egypt and Syria tried to regain lost territory by force in 1973. On Yom Kippur, the Jewish Day of Atonement and the most solemn day of the Jewish year,⁴¹ Egypt and Syria launched a surprise attack against Israel, with Egyptian troops crossing the Suez Canal in an effort to regain the Sinai Peninsula, and Syrian troops overrunning the Golan Heights with similar intent.

International efforts intensified to stop the fighting, as Israel slowly turned back attacking armies. The cost to Israel was massive in fatalities, largely because Israel did not make a preemptive strike. Then - U.S. Secretary of State Henry Kissinger flew to the Soviet Union on October 20, and together, the two nations proposed a cease-fire resolution before the UN Security Council, which became Resolution 338.

In effect, Resolution 338 legally forced the Arab states and Israel to reach a cease-fire. Parallel to this, it sought to renew efforts for both sides to sit down and negotiate a settlement based on the language of Resolution 242. Combined, those two resolutions became the basis for future attempts to establish ‘a just and durable peace in the Middle East.’ Ultimately, they resulted in peace with Egypt and Jordan, a result yet to be achieved through negotiations with Israel’s other neighbors, Syria and Lebanon.

Resolution 1397 was adopted after 18 months of failed American shuttle diplomacy designed to get Palestinians to honor their repeated promises to cease the violence (for step-by-step details, see the chapter on “Rejectionism”). The United States, which authored the resolution, sought to mobilize the Security Council to achieve the same goal by providing Palestinians with a positive incentive: public endorsement of a future Palestinian state. Resolution 1397 declared that the goal of the peace process was a Palestinian state side-by-side with Israel. Penned with the utmost diplomacy, the resolution avoided ‘finger pointing’ speaking solely in general of “tragic and violent events…since September 2000” and “demand[ing] immediate cessation of all acts of violence, including all acts of terror, provocation, incitement and destruction.”

The resolution has been criticized⁴² for what appears to be ‘moral equivalency’ in its efforts to be ‘balanced’, resulting in vague wording (“all concerned to ensure the safety of civilians”); for its fawning lip service to an unconstructive Saudi Arabia ‘initiative’; and for ‘rewarding’ Palestinians for their violence by making a Palestinian state the subject of a Security Council. Yet Arabs attempt to reap further rewards by reading into 1397 meanings that definitely are not there.

First of all, “two States, Israel and Palestine” was a vision, not a directive, as some Arabs would have us believe. And it certainly did not ‘recognize’ rights to a Palestinian state under all conditions, despite its veiled wording. Moreover, the vision was ‘linked’ to “livi[ing] side-by-side within secure and recognized borders.” While 1397 applauds the Saudi’s ‘peace plan’⁴³ as a “contribution,” the Security Council in no way ‘adopts’ or ‘endorses’ this plan, as some Arabs claim. While 1397 welcomed “diplomatic efforts of special envoys” to “bring about a comprehensive just and lasting peace in the Middle East,” these measures do not substitute or replace the principle of ‘direct negotiation’ enshrined in 242 and 338. Such diplomatic efforts are viewed merely as a constructive step toward restarting the peace process. This did not happen. Resolution 1397 was basically a ‘free lunch’ for Palestinians that required no concessions on their side.

Resolution 1515, adopted in November 2003 by the Security Council had the same goals as 1397, but ‘learned’ to some extent, from the primary weakness of 1397: Its failure to tie actualization of a Palestinian state to fulfillment of clearly stated preconditions – spelled out in the Road Map. This change is reflected in the title of the plan: A Performance-based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict.

The Road Map, a concept raised by President George W. Bush (June 2002), revised and re-revised and subsequently adopted by the Quartet (May 2003), accepted by Israel and the Palestinians (with reservations on both sides) at the height of optimism regarding the prospects of a ‘new democratic Middle East’ in the immediate aftermath of the Iraq War (for more details of this ‘gestation process,’ see the chapter on “Rejectionism”). In November 2003, the Security Council Endorsement of the Roadmap by the Security Council was an improvement on 1397, for it anchored the two-state solution envisioned in Resolution 1397 on practical “compliance-based” concrete steps that link the ‘prize’ (a Palestinian state) on performance (stopping the violence and democratic reform of the PA).

The Resolution has, however, sparked criticism,⁴⁴ primarily that it is an attempt to ‘engineer’ accommodation by external forces, a tactic that may prove no more viable in addressing realities than the 1947 plan ‘engineered’ by the UN or a host of other plans floated in the past. Other criticisms are that 1515’s carefully crafted ‘balance’ ignores the crucial need for total zero tolerance for terrorism and that the plan is woefully overoptimistic in its perception of the size and nature of the ‘peace opponents’ camp. Last but not least, critics have charged that the Road Map’s rigid superstructure and ‘time schedule’ undermines the principle of direct negotiations of all issues that is the heart of 242 and could compromise even its own performance-base principle.

The Resolution is unquestionably a victory for Palestinian aspirations for statehood. The Road Map’s sequence, which calls for an independent Palestinian state with provisional borders and attributes of sovereignty in Stage II – launched by an international conference prior to Stage III permanent status talks over all the substantive issues such as permanent borders and refugees, undercuts any incentive for Palestinians to make compromises on the Right of Return and other non-starters, and by ‘putting the cart before the horse’ distorts the principle of ‘land for peace’. Furthermore, the proactive role envisioned for members of the Quartet weakens the principle of a directly negotiated peace between the parties.

The Arabs have sought to amplify these gains (which may boomerang producing the opposite effect) by reading into 1515 things that don’t necessarily exist – particularly overstating the extent of ‘reciprocity’ or ‘parallel progress.’ Objectively, the demands on Palestinians in Stage I – to cease the violence totally and immediately with no excuses, and to carry out genuine reform the PA – are serious and substantive, almost an End of Days scenario for Palestinians, while the demands from Israel in Stage I are obtainable. Other Palestinians claim the Road Map means totally unfettered independence when in fact, the Road Map speaks of a demilitarized state.

A year after its endorsement, no progress had been made, leaving the impression that the Road Map has a good chance of ending up like countless other plans floated over the years that never got to square one.