8. UN Security Council Resolutions 242 and 338
United Nations Security Council Resolution 242 was adopted unanimously by the UN Security Council in the aftermath of the 1967 Six-Day War. The resolution calls for a solution to the Arab-Israeli conflict based in principle on states having the right to “just and lasting peace” within “secure and recognized boundaries.”1
Resolution 242 and 338 never branded Israel as an “unlawful occupier” or an “aggressor” and never called on Israel to withdraw from all the “territories.” The wording of the resolutions clearly reflect the contention that none of the territories were occupied land taken by force in an unjust war.
In contrast, the International Court of Justice repeatedly reminds readers of the “… illegality of territorial acquisition resulting from the threat or use of force,” all out of context. The Court misleads readers by ignoring Arab aggression and concealing “the provisions of the Charter concerning cases in which the use of force is lawful,”2 as was the case of the 1967 Six-Day War.
The minutes of the six month ‘debate’ over the wording of Resolution 242, as noted in the close of Chapter 7, show that draft resolution proposals that speak of “occupied territories,” “aggression” and which called on Israel to “withdraw immediately all its forces to the positions they held prior to 5 June 1967,” were all defeated.
Professor Eugene V. Rostow, a drafter of UN_Security Council Resolution 242 and an international law expert, went on record in 1991 to make this clear:
“Resolution 242, which as Undersecretary of State of Political Affairs between 1966 and 1969, I helped to 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. … 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 upon by the parties”3 [italics by author].
Former British Ambassador to the UN Lord Caradon, the principal author of the Resolution 242 draft, indicated the same in 1974:
“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.”4
Arthur J. Goldberg,5 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”6 [italics by author].
Political figures and international jurists have discussed the existence of “permissible” or “legal occupations.” In a seminal article on this question, Schwebel, the former president of the International Court of Justice, wrote:
“... a state [E.H., 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; (c) 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”7 [italics by author].
Professor Stone, a leading authority on the law of nations, has concurred, further clarifying:
“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.”8
- See Appendix C. UN_Resolutions 242, 338, 1515. ↑
- See Appendix D. UN_Resolution 2625. ↑
- Eugene V. Rostow, The Future of Palestine, Institute for National Strategic Studies, November 1993. Professor Rostow was Sterling Professor of Law and Public Affairs Emeritus at Yale University and served as the Dean of Yale Law School (1955-66); Distinguished Research Professor of Law and Diplomacy, National Defense University; Adjunct Fellow, American Enterprise Institute. In 1967 as U.S. Under-Secretary of State for Political Affairs he become a key draftee of the UN Resolution 242. ↑
- Lord Caradon (Sir Hugh Foot) was the UK representative to the UN in 1967. His final draft becomes the foundation for UN Resolution 242. See Beirut Daily Star, June 12 1974, as quoted by Leonard J. Davis in Myths and Facts (Washington: Near East Report, 1989), p. 48, cited in Dan Diker, “Does the International News Media Overlook Israel’s Legal Rights in the Palestinian-Israeli Conflict,” JCPA, at: http://www.jcpa.org/jl/vp495.htm. ↑
- Arthur J. Goldberg was a professor of law at the John Marshall Law School in Chicago, and was appointed in 1962 to the U.S. Supreme Court. In 1965 he was named U.S. representative to the United Nations. Judge Goldberg was a key draftee of UN Resolution 242. ↑
- Goldberg, “U.N. Resolution 242: Origin, Meaning, and Significance.” National Committee on American Foreign Policy. See article at: http://www.mefacts.com/cache/html/arab-countries/10159.htm. (10159) ↑
- Professor, Judge Stephen M. Schwebel, What Weight to Conquest? in Justice in International Law, Cambridge University Press, 1994. Opinions quoted in this critiques are not derived from his position as a judge of the ICJ. ↑
- Professor Julius Stone, Israel and Palestine, Assault on the Law of Nations, The Johns Hopkins University Press, 1981. ↑