The Middle East: Islamic Law and Peace
U.N. RESOLUTION 242: ORIGIN, MEANING, AND SIGNIFICANCE
April 2002
Contents
Foreword
To students of the Middle East and political leaders and diplomats throughout
the world the number 242 conjures up the tragic events of the past and
underscores the pervasiveness of the problems that continue to threaten
peace and stability in the region. Whenever hostilities erupt or negotiations
resume between the parties to the long-standing conflict, the number,
together with the Security Council resolution to which it refers, is invoked
automatically.
U.N. Security Council Resolution 242 was meant to establish a "just and
lasting peace in which every State in the area can live in security."
But thirty-four years after its adoption, peace continues to elude the
region. Nevertheless, as the proposal made in February 2002 by Saudi Arabia's
Crown Prince Abdullah suggests, 242 continues to shine like a beacon over
the political landscape of the Middle East. Despite the fact that his
1981 initiative, in which he offered a similar proposal for breaking the
deadlock in the peace negotiations concerning the Arab-Israeli conflict
and the Palestinian problem, did not succeed, Abdullah's new attempt has
evoked excitement in many capitals and appears to be nurturing hopes for
the resuscitation of peace negotiations.
While reaffirming its belief that the responsibility for concluding a
"just and lasting peace" remains with the parties themselves, who should
be encouraged to talk to each other, the National Committee on American
Foreign Policy considers that Resolution 242, despite the often contradictory
claims of the parties and different interpretations of the text, remains
a valid document that can serve as a framework for a final settlement.
Obviously, today's conditions are completely different from those of 1968,
when the shadow of the cold war hovered over the drafting of the resolution.
Indeed the resolution's prescriptions should be considered in light of
current international circumstances and changes that have taken place
in the region.
Therefore, the National Committee considers it of interest to circulate
the text of the resolution together with the article Justice, Arthur J.
Goldberg, who was the U.S. ambassador to the U.N. at the time of its adoption,
wrote for the American Foreign Policy Interests on the occasion
of its twentieth anniversary in 1988.
George D. Schwab
President
Resolution 242 After Twenty
Years
Arthur J. Goldberg
Twenty years have elapsed since the adoption of Resolution 242 by the
United Nations Security Council. It is timely and appropriate therefore
to reassess this resolution, which has been called one of the most important
in the history of the United Nations, and to speculate about whether it
can continue to serve as the basis for a comprehensive peace settlement
in the Middle East. Such an analysis requires both a review of the events
that led to the adoption of the resolution and an attempt to answer the
question whether the resolution remains viable.
Background
In May 1967 the late President Nasser of Egypt moved a substantial number
of Egyptian armed forces into the Sinai, ejected the U.N. peacekeeping
forces, reoccupied and remilitarized the strategically important Sharm-el-Sheik,
and proclaimed the closing of the Straits of Tiran. In so doing, President
Nasser shattered the status quo that had prevailed in the area since the
1956-1957 war.
These were ominous measures. Israel, which had responded to American
pressure by withdrawing its forces from Sinai and Sharm-el-Sheik in 1957,
had continued to assert that any action that prevented its ships and cargoes
from passing through the Straits of Tiran would be considered an act of
war. Moreover, faced with well-armed Egyptian forces on its borders and
the provocative statements of Nasser and other Arab leaders, Israel had
little choice other than to order the mobilization of its predominantly
civilian army. Tension in the area became acute.
Justified concern prompted the Western powers, including the United States,
to take the initiative in promptly convening the United Nations Security
Council in order to attempt to avert a conflict by restoring the status
quo ante. The attempts made in the Security Council and those made through
private diplomatic channels failed because of Arab objections that were
supported by the Soviet Union. Apparently, both the Arab states and the
Soviet Union were willing to risk war.
When the war broke out on June 5, 1967, the Western powers renewed their
attempts to bring about an effective cease-fire on the first day of battle,
hoping to stabilize the situation before it could be radically altered.
Because of faulty intelligence or an unwillingness to face the facts,
the Arab states, supported by the Soviet Union, refused to permit a cease-fire
resolution to be voted on that day even though the cessation of hostilities
would have conduced to the advantage of the Arabs. It should be recalled
that in the first few hours of the fighting, the Egyptian Air Force was
effectively destroyed, thereby determining the outcome of the war.
Only on the second day of the war, after it became apparent to all objective
observers and analysts that Israel had won the war, was agreement reached
in the Security Council on a resolution calling for a cease-fire. Although
Egypt accepted the resolution immediately, Jordan and Syria delayed their
acceptance despite the fact that Israeli forces were advancing on all
Arab fronts.
The cease-fire resolutions adopted during and after the Six Day War differed
in substance from Security Council resolutions relating to the Israeli-Arab
wars waged during the preceding nineteen years. In the earlier resolutions,
calls for a cease-fire were invariably accompanied by demands for the
withdrawal of troops to positions held before the conflicts erupted. In
June 1967, however, provisions for withdrawal were not incorporated in
the cease-fire resolutions. This provision was not omitted by accident.
Instead, the omission reflected the reaction by a majority of the members
of the Security Council to the events that led to the outbreak of war.
As the debates revealed, the majority of the members of the Security Council
were unwilling to vote for the unconditional withdrawal of Israeli forces
because of their conviction that a return to the armistice regime would
not serve the goal of securing a just and lasting peace between the parties.
This conviction was evidenced by the action that the Security Council
took with respect to a resolution introduced by the Soviet Union. The
Soviet resolution not only affirmed the Council's call for a cease-fire
but also condemned Israel as the aggressor and demanded the withdrawal
of its forces to positions held on June 5, 1967, before the conflict erupted.
The Soviet resolution was supported by six of the fifteen members. (Nine
are required to adopt a resolution.)
Israel was not condemned as the aggressor because of the widely shared
conviction that President Nasser's actions—particularly the eviction
of the U.N. peacekeeping forces, the movement of Egyptian troops into
the Sinai, and the closing of the Straits of Tiran—provoked the war.
Further, the unwillingness of a majority of the members of the Security
Council to support the Soviet resolution for a withdrawal of Israeli forces
to the positions they held before June 5, 1967, was based on the conviction
that the withdrawal of troops should be made in the context of a peace
settlement that would ensure secure boundaries for Israel, replacing the
violated and provisional armistice lines.
The Soviet Union did not allow the matter to rest after its initial defeat
in the Security Council. It called for an emergency special session of
the General Assembly, which convened on June 17, 1967. The General Assembly
failed to adopt by the requisite two-thirds majority a resolution (offered
by Yugoslavia and several other members and supported by the Soviet Union
and the Arab states) that differed in tone but not in substance from the
Soviet resolution that was rejected by the Security Council.
The Adoption of Resolution 242
When the special session of the General Assembly adjourned in September
1967, the matter reverted to the Security Council and again became the
subject of further public debate as well as intensive private negotiations
and finally culminated on November 22 in the adoption of Resolution 242.
The draft resolution was presented by the British ambassador, Lord Caradon,
who was selected as a sponsor because of his acceptability to the Arab
states. It was based on a resolution that had been offered by Latin American
states to the special session of the General Assembly and a United States
resolution that was introduced when the Security Council meeting was resumed.
The unanimous support garnered for Resolution 242 was the result of intensive
diplomatic activity undertaken by the United States both at the United
Nations and in foreign capitals throughout the world. This is not to say
that Great Britain, Latin American countries, India, and other states
were not actively engaged in negotiations and diplomatic activity; but
the United States took the primary role in facilitating the adoption of
the resolution. In fact, Resolution 242 parallels the U.S. draft resolution.
It should be noted that before the vote was taken, the Soviet Union offered
another draft resolution that condemned Israel as the aggressor and called
for the withdrawal of Israeli troops to the June 5 lines. The Soviets
did not press this resolution to a vote because majority support was lacking.
The United States followed a similar course of action not because its
draft resolution lacked majority support but because it regarded Resolution
242 to be satisfactory.
Before the vote on Resolution 242 was taken, it was determined by an
unofficial count that not only the members of the Security Council but
also Israel, Egypt, and the other concerned Arab states did not object
to the resolution. Resolution 242 was adopted unanimously after a minimum
of speech making.
The Rationale Behind the Arab-Israeli Acceptance of Resolution 242
Having been rebuffed both in the Security Council and in the General
Assembly, the Arab states came to the conclusion that the language of
Resolution 242 was the best that they could hope to obtain at the time.
They obviously counted on its ambiguities to enable them to assert their
own interpretations of the language. Further, they calculated that the
passage of time would erode the support of the United States and like-minded
states for Israel, and, of course, they did not foresee President Sadat's
courageous initiative in going to Jerusalem and in participating in the
negotiations that culminated in the peace treaty between Israel and Egypt.
To a certain extent, their calculations proved to be prescient. World
opinion, overwhelmingly supportive of Israel as the "underdog" at the
time of the 1967 war, has shifted to produce a measure of sympathy for
the defeated and now "underdog" Arab states, and some Western countries
have watered down their support for the principles embodied in the resolution.
The Israelis accepted Resolution 242 for some of the same reasons as
those subscribed to by their Arab antagonists. It was the best resolution
that Israel could hope to get from the United Nations under the circumstances.
The Israelis were fearful that their diplomatic support would erode if
they proved to be intransigent. Like the Arab states, Israel concluded
that the ambiguities of the resolution would enable it to assert its own
interpretation. Most important, Israel recognized the danger of an overly
inflexible position in light of its need for American military hardware
and economic assistance, which were provided.
The Provisions of Resolution 242
Resolution 242 is a carefully—some would say artfully—drafted
set of guidelines designed to promote agreement and to assist the parties
to achieve a settlement. Certain key aspects were designed to be ambiguous
in order to allow flexibility in negotiations.*
The stated goal of the resolution is the establishment of a just and
lasting peace that would enable every state in the area to live in security.
In the resolution, the Security Council expressly repudiated the concept
of an imposed peace and called for "agreement"—an "accepted settlement"
by and between the parties. Thus the experience of the 1957 imposed settlement
was to be avoided. The council supported instead a consensual peace agreement
to be negotiated by the parties—an endorsement that was scarcely
surprising in light of the collapse of the 1957 imposed settlement and
the shattering of armistice agreements.
The resolution stipulates respect for and acknowledgement of the sovereignty
of every state in the area. Because Israel has never denied the sovereignty
of its neighbors, this provision obviously requires those countries to
acknowledge the sovereignty of Israel and its right to exist. The negotiating
history of Resolution 242, as reflected in the debates and votes in the
Security Council and in the special session of the General Assembly that
was held in 1967, shows that there was little support in the U.N. community
for the view that after two decades, Israel's existence could still be
denied by its Arab neighbors.
The resolution does not explicitly require that Israel withdraw to the
lines that it occupied on June 5, 1967, before the outbreak of the war.
The Arab states urged such language; the Soviet Union proposed such a
resolution to the Security Council in June 1967, and Yugoslavia and other
nations made a similar proposal to the special session of the General
Assembly that followed the adjournment of the Security Council. But those
views were rejected. Instead, Resolution 242 endorses the principle of
the "withdrawal of Israeli armed forces from territories occupied in the
recent conflict" and juxtaposes the principle that every state in the
area is entitled to live in peace within "secure and recognized boundaries."
In light of Arab unwillingness to acknowledge Israel's right to exist,
this language, thought applicable to all states, was designed primarily
to ensure Israel's right to existence within secure boundaries recognized
by its Arab neighbors.
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.
To buttress their claim that the resolution calls for a complete Israeli
withdrawal, the Arab states contend that this interpretation is overly
restrictive. They point to such language as "the inadmissibility of the
acquisition of territory by war." This language, the Arab states argue,
calls for the complete withdrawal of Israeli forces from all of the territories
occupied by them in the Six Day War. Further, the Arab states contend
that the U.N. Charter supports their contention that the military conquest
of territory is inadmissible. It is arguable whether under international
law this argument applies to the Israeli occupation of the West Bank.
It seems clear that under the circumstances, Israel exercised the right
of self-defense in the 1967 war. It should be noted that Jordan occupied
the West Bank by war in 1946, contrary to the United Nations partition
resolution. (Only two states recognized this annexation: Great Britain
and Pakistan.) On the other hand, Israel has occupied the West Bank by
war since 1968. By principles of prescription, Israel has occupied the
West Bank for approximately the same period as Jordan. Thus the status
of the West Bank under international law is questionable, although in
realistic and demographic terms, the rights of Palestinians must be resolved
short of Israeli annexation. The most that can be said of the withdrawal
and related language of Resolution 242 in light of this negotiating history
is that it neither commands nor prohibits territorial adjustments in the
peace agreements contemplated in the resolution.
As recognized in the Camp David Accords, there is a difference between
international boundaries, presumably intended to be permanent, and provisional
armistice lines. Furthermore, the withdrawal language of the resolution
seems to indicate that its patent ambiguities and the differing interpretations
of the parties only can be resolved by settlements concluded after negotiations
between the parties.
On certain aspects the resolution is less ambiguous than the language
pertaining to withdrawal. Resolution 242 specifically deals with free
passage through international waterways. In precise language it affirms
"the necessity for guaranteeing freedom of navigation through international
waterways," which include the Gulf of Aqaba. This language underscores
the fact that blocking Bab el Mandeb and other points of access to the
Red Sea is prohibited. The principle of international law that governs
free passage through international waters was also acknowledged in the
Camp David Accords.
Resolution 242 contains the phrase "respect and acknowledgment of ...
the territorial integrity of every state in the area." This language has
been cited in support of the demand for the complete withdrawal of Israeli
forces from all of the occupied territories. That demand overlooks the
fact that for many years the Israelis have sought respect for their territorial
integrity, which has been withheld from them by the Arab states and the
PLO.
The resolution refers to the utility of the establishment of demilitarized
zones in ensuring peace and guaranteeing territorial inviolability. The
location of the demilitarized zones was left to the parties to negotiate,
as was done at Camp David between Egypt and Israel.
Resolution 242 strongly supports the view that a peace settlement is
not to be imposed and that the resolution is not to be self-implementing.
Instead, it stipulates that third-party assistance, the parties are to
negotiate with third and to agree to an acceptable settlement. (This provision
was confirmed by U.N. Resolution 338, which was unanimously adopted on
October 22, 1973, during the Yom Kippur War. This resolution "decides
that negotiations start between the parties concerned under appropriate
auspices, aimed at establishing a just and durable peace in the Middle
East.")
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.
Of course, time works changes, and the Camp David Accords recognize that
the rights of Palestinians will have to be recognized in a comprehensive
peace settlement.
Another notable and purposeful omission from Resolution 242 is any specific
reference to the status of Jerusalem and the reaffirmation of past U.N.
resolutions calling for the internationalization of the city. Resolution
242 thus realistically recognizes the desuetude of the internationalization
resolutions and leaves open the possibility of an agreement for a unitary
Jerusalem under Israeli sovereignty that would provide appropriate safeguards
for Muslim and Christian holy places and possible Vatican-type enclaves
or boroughs for the Arab population of Jerusalem. No Israeli, dove or
hawk, will ever surrender any part of Jerusalem.
Resolution 242 and Camp David
In the peace treaty between Israel and Egypt, the product of Camp David,
Resolution 242 was acknowledged to be the basis for the settlement. It
should be recognized, however, that the boundaries between Israel and
Egypt before the 1967 war were internationally recognized boundaries,
not provisional armistice lines. Those boundaries were recognized in the
Camp David Accords and served as the rationale for Prime Minister Begin's
agreement to remove all Jewish settlements from the Sinai. Since then,
the United States has made several attempts to mediate a comprehensive
peace settlement based on Resolution 242 and the Camp David Accords. They
have all failed.
Resolution 242 in the Context of an International Peace Conference
Recently King Hussein of Jordan proposed an international peace conference
to be composed of the concerned parties and the five permanent members
of the United Nations Security Council: China, France, Great Britain,
the Soviet Union, and the United States. The terms of reference presumably
would be Resolution 242. It is not clear whether King Hussein visualizes
the international conference to be a shield for direct negotiations with
Israel or a conference in which the permanent members would play a substantive
role. It is also not clear in what manner the PLO would participate and
the extent of its participation.
The United States and Prime Minister Shamir of Israel first joined in
opposing such a conference because of their belief that it would open
the door to the Soviet Union to play a significant role in the area. Prime
Minister Shamir and his Likud party still firmly oppose any international
conference, and Secretary Shultz said recently that "an international
conference in and by itself is of no interest to the United States. The
way to go is through direct negotiations. If there is some way to construct
an international conference that meets the results we are seeking, we
are willing to examine that possibility."
After King Hussein, the most ardent proponent of an international conference
is Shimon Peres, deputy prime minister of Israel. He has thus far avoided
the dissolution of the coalition government over this issue by stating
that his support is subject to several conditions: The participation in
the conference of the permanent members of the Security Council will be
symbolic; direct negotiations will take place between the concerned parties;
the PLO will have to accept Resolution 242 in order to participate; its
representatives cannot be members of the PLO hierarchy; they must be members
of the Jordanian delegation; the status of Jerusalem as an undivided city
under Israeli sovereignty is not negotiable, although agreement can be
reached on appropriate measures to safeguard the security and autonomy
of Muslim and Christian holy places; and the Soviet Union will have to
agree to reestablish diplomatic relations with Israel.
Peres is an astute politician who knows that these conditions are not
acceptable to the Arab states, the Soviet Union, and the PLO. He is apparently
willing to assume the risk that if an international conference were to
be convened and negotiations ensued, the deep yearning of the people of
Israel for peace would impel Shamir to support a reasonable compromise.
But it is questionable whether Peres and his Labor party will win the
next election, which would alone empower Peres as prime minister to attend
an international conference and conduct negotiations.
The Uncertain Future of Resolution 242
The ultimate questions are whether the United States is prepared to exercise
to the fullest extent its great influence to facilitate the peace process;
whether the PLO will continue its fruitless role of rejection and terror
or agree to a sensible compromise; and whether the leaders of Israel and
its neighboring Arab states are mere politicians or statesmen who possess
vision and courage.
Two things are certain in this volatile and dangerous matter. The United
States must take the lead rather than play a passive role in pursuing
the difficult objective of a comprehensive peace in the Middle East, and
if a settlement is negotiated, it will be based on Resolution 242.
Note
*Resolution 242 of 22 November 1967
The Security Council,
Expressing its continuing concern with the grave situation in the Middle
East,
Emphasizing the inadmissibility of the acquisition of territory by war
and the need to work for a just and lasting peace in which every State
in the area can live in security,
Emphasizing further that all Member States in their acceptance of the
Charter of the United Nations have undertaken a commitment to act in accordance
with Article 2 of the Charter,
- Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the Middle East which should include
the application of both of the following principles:
- Withdrawal of Israeli armed forces from territories occupied in
the recent conflict;
- (ii) Termination of all claims or states of belligerency and
respect for and acknowledgement of the sovereignty, territorial integrity
and political independence of every State in the area and their right
to live in peace within secure and recognized boundaries free from
threats or acts of force;
- Affirms further the necessity
- For guaranteeing freedom of navigation through international waterways
in the area;
- For achieving a just settlement of the refugee problem;
- For guaranteeing the territorial inviolability and political independence
of every State in the area, through measures, including the establishment
of demilitarized zones;
- Requests the Secretary-General to designate a Special Representative
to proceed to the Middle East to establish and maintain contacts with
the States concerned in order to promote agreement and assist efforts
to achieve a peaceful and accepted settlement in accordance with the
provisions and principles in this resolution;
- Requests the Secretary-General to report to the Security Council on
the progress of the efforts of the Special Representative as soon as
possible.
About the Author
The late Arthur J. Goldberg was a justice of the Supreme Court of the
United States, U.S. ambassador to the United Nations (1965-1968), and
ambassador-at-large and chairman of the United States delegation to the
Belgrade follow-up conference (1977-1978).
© Copyright 2002, 1988 by the National Committee on American Foreign
Policy, Inc., New York. All rights reserved.
|
