Conference taveng::bagels

1113.0. "A lucid analysis of the settlements' legality" by MTWREV::GOYKHMAN () Wed Oct 09 1991 18:43

			ARE THE SETTLEMENTS LEGAL?

				by Eugene Rostow
			The New Republic, Oct 21, 1991
			(reprinted without permission)

	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 spokesmen 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, not from "all" the territories, but from some of the
territories, which included the Sinai Desert, the West Bank, the East Jerusalem,
and the Gaza Strip.
	Five-and-a-half months of vehement public diplomacy in 1967 made it
perfectly clear what the missing definitive article in Resolution 242 means.
Ingeniously drafted resolutions calling for withdrawal from "all" the 
territories were defeated in the Security Council and in 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 the 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 rights, 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 the 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 Palestinian 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
negotiations. 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 1922. 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 the, in view of Article 80 of the UN 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 the Resolution 242 has always been the keystone of the 
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 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.

	EUGENE V. ROSTOW is a Distinguished Fellow at the United States 
Institute of Peace.