RESOLUTION 242

On June 4, 2007, I attended a conference -- "Israel's Right to Secure Boundaries: 40 Years for UN Security Council Resolution 242," sponsored by the Jerusalem Center for Public Affairs, headed by Dore Gold, and the Konrad Adenauer Stiftung.

This was an opportunity to hear international lawyers and diplomats -- some associated directly with the historical time period or the drafting of 242 -- share solid information and background.

The issue of what 242 says is critically important at this time because its intent has been radically distorted by the Arabs. I will be writing extensively on this in weeks ahead, but here wanted to share some highlights. You may find this information useful in clarifying your own thinking on the matter and in refuting distortions where you find them.

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In brief, Resolution 242 provides a preamble which emphasizes 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.

It then affirms the need for a just and lasting peace which should include "the application of both principles: withdrawal of Israeli armed forces from territories occupied in the recent conflict, and 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."

It further affirms the need to guarantee freedom of navigation of international waters in the area, and to achieve a just settlement of the refugee problem.

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What 242 does NOT mention:

-- Palestinian people or a Palestinian state . This document addresses relations between states: Israel and surrounding Arab states.

-- Jerusalem.

-- "Right of return." Allusion to a just settlement of the refugee problem is vague and does not even refer specifically to Palestinian Arab refugees, for there were Jewish refugees from Arab lands as well.

-- Direct negotiations. This was anathema to the Arab states. The Arab states met in Khartoum after this passed and declared the three "no's": no recognition of Israel, no peace, no negotiations.

-- Peace treaties. It dealt with de facto peace, not de jure. Termination of belligerency.

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The Arabs use Resolution 242 like a mantra, stating over and over that it requires Israel to return to the pre-'67 lines and that Israel is in non-compliance with the resolution until it does so.

This is simply not the case.  First, the resolution speaks of withdrawal from "territories" and not from "the territories" or "all territories." This was intentional on the part of the framers of the resolution. It was never intended that Israel would return to the pre-'67 lines (known as the Green Line), which was just an armistice line and not a final border. We heard Alan Dershowitz speak today; he was working with Arthur Goldberg, US ambassador to the UN and one of the drafters of the resolution. Dershowitz addressed this matter of intent clearly.

Second, and very significantly, the intent of the resolution must be taken as a whole: withdrawal from whatever territories would not, in any event, take place until Israel was also provided with respect for her sovereignty and territorial integrity, and her right to live in peace within secure borders was acknowledged. This was all to be accomplished concurrently. Under no conditions was Israeli withdrawal conceived of as a precondition, something to be done absent the other stipulations of the resolution.

Israel is absolutely not in non-compliance with the resolution because she hasn't withdrawn from territories. It was not expected that Israel would move from one inch until secure boundaries for Israel were accepted by all belligerents.

The issue of secure borders for Israel is critical, and was uppermost in the minds of the drafters. Lyndon Johnson, who was president during the drafting of this resolution, was quoted as saying, "We are not the ones to say where other nations should draw lines for greatest security."

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As to the issue of military occupation, there are several significant factors:

There are substantial legal opinions that say military conquest does not confer sovereignty, but that Israel is not a military occupier in the normative sense of this term. That is because of the Mandate for Palestine, which has never been superseded by other international law. Israel was the only country that was to be established within the borders of Palestine according to the Mandate. (Israel is the only nation that could reach Judea and Samaria without crossing an international border and Israel would be able to institute civil law in Judea and Samaria without formal annexation.) There is solid opinion that Israel is maintaining a legitimate military occupation, and that Israel has a right to remain in Judea and Samaria until negotiations (and as determined thereafter).

Richard Holbroooke, former US ambassador to the UN, who spoke, made a further comment with regard to this. Resolution 242 has no enforcement mechanism -- in legal terms it was set up under chapter 6 and not chapter 7. There is no enforcement because Israel was not seen as an aggressor. (Enforcement would mean sanctioning of force to make Israel withdraw.)

Dershowitz quoted Goldberg with regard to the expectation of Israeli withdrawal, saying that Goldberg saw it as unprecedented for a victor to return all lands acquired in a war. Routinely at the end of wars land is retained by victors in order to ensure that there is no recurrence of an original belligerency, and that this happens without international objection.

Put simply, were Israel to return to pre-'67 lines (called Auschwitz borders by Abba Eban) she would be vulnerable to attack from Arab states again -- retention of land is necessary to provide Israel with security. There is the issue of strategic depth, so that an enemy cannot move to population centers too quickly, and the issue of retention of heights, in Judea and Samaria, as well as the Golan.

Binyamin Netanyahu, who also spoke, made the specific point in this context that we are not occupying Palestinian population centers -- we move in for operations necessary for security, but they control their own infrastructure, schools, press, etc. Nor does he envision a situation in which we would occupy them in that sense again.

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The Arab League (Saudi) initiative distorts Resolution 242 and reverses its intent. It cites the resolution but claims that it requires that Israel to withdraw from all lands acquired in 1967. Further, it sets up a sequence that contradicts 242 -- demanding Israeli compliance first and making this a pre-condition.

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It is time for representatives of Israel and all who support her to speak out forcefully about Israeli rights. We cannot afford to be on the defensive, always accused of being required to do more. There is vast legal ammunition for us to draw on with regard to Resolution 242 in order to protect our rights. As Netanyahu reminded us today, if we don't claim our rights they will dissipate.

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This overview addresses the issue of secure borders, the subject of the conference, and says nothing about our rights with regard to our heritage and ancient presence in the land.

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