Copyright
1991 The New Republic Inc. The New Republic, October 21, 1991 BYLINE: Rostow, Eugene
W.
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 1992. 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. |