QUESTION #8
Which Security Council and General Assembly resolutions are relevant
in this case?
Although, as has been mentioned earlier, United Nations resolutions
do not constitute legal decisions, they do have a legally binding
effect on those countries which vote in favor of those specific
resolutions. Therefore, the resolutions which are relevant to the
current advisory are those resolutions cited in the UN's request
to the International Court of Justice, which Israel supported. Accordingly,
these resolutions appear below with accompanying analysis.
This is the resolution that partitioned the British Mandate of
Palestine, in order to create a Jewish and Arab state. Although
Israel of course did not vote since it did not yet exist, it is
reasonable to view it as binding on Israel both because it is itself
a source of Israel's legitimacy, and also because a majority of
the Jews at the time supported the resolution.
The reason that 181 is significant in the current context
is because some interpret it to mean that the resolution by itself
created Jewish and Arab states. This is precisely how the UN General
Assembly presented the resolution in its request for an ICJ advisory,
saying that 181:
… partitioned mandated Palestine into two States,
one Arab and one Jewish.
While it is true that the resolution speaks of the provisional
governments of each state, it becomes clear in Part 1C
of the resolution (entitled “DECLARATION”) that this
is just shorthand - for the introduction to the section reads:
A declaration shall be made to the United Nations by the
Provisional Government of each proposed State, before independence.
By referring to “each proposed State before independence”,
181 clearly did not confer statehood in a legal sense on either
the Jewish or Arab “state”. Rather, it created a mechanism
for their emergence. (In the case of the proposed Arab state, it
did not emerge, because of the overwhelming opposition both by the
Palestinian Arabs and the Arab states of the Middle East.)
Thus, 181 does not provide a precedent for Palestinian sovereignty.
Furthermore, it is likely that the Palestinian rejection of 181
further erodes any claims to sovereignty based on it.
It is also worth noting Chapter 3 of that same section,
Part 1C, which states that:
Arabs residing in the area of the proposed Jewish State
and Jews residing in the area of the proposed Arab State who have
signed a notice of intention to opt for citizenship of the other
State shall be eligible to vote in the elections to the Constituent
Assembly of that State, but not in the elections to the Constituent
Assembly of the State in which they reside.
From statements such as this, we can infer that the intention
of UNGA Resolution 181 was not to prejudice or to establish the
legal claims of Jews or Arabs, but rather to reach a workable, livable
arrangement, where no one would have to leave their homes, while
resolving the problem of demographics and voting rights.
In other words, 181 was not created to acknowledge theoretical
exclusive sovereign rights of either nation, but was intended only
as a peaceful settlement of the on-going conflict.
Hence, the partition of land recommended in Resolution 181 cannot
be used to attack or justify Israel's presence in the West Bank,
and from this perspective is irrelevant to the issue of the fence.
Passed at the conclusion of the 1967 Middle East War, this resolution
relates to the disputed territories in its preamble where it reiterates
a well-established point of International Law regarding “the
inadmissibility of the acquisition of territory by war”.
This same point is also mentioned early in the UN's request for
an advisory from the ICJ.
The significance of this concept is that, even in a defensive
war, which arguably was the nature of the 1967 War from Israel's
perspective, sovereignty can only be legally acquired through negotiations
and international recognition. At the same time, the fundamental
right to sovereignty over a disputed piece of territory resides
in a people's historical ties to that territory, in accordance with,
for example, the ICJ advisory of 1975 on the legal status of Western
Sahara (see Question #2).
In other words, a people or nation may have a legitimate claim
to a land, but International Law does not accord them the right
to take that land by force, even in the context of a defensive war.
Rather, International Law insists on going through proper channels
and procedures to secure the land in question.
In this spirit, 242 mentioned:
… withdrawal of Israeli armed forces from territories
occupied in the recent conflict.
What 242 actually says:
The one line in 242 mentioning “withdrawal of Israeli
armed forces” is cited by some to claim that Israel has
no legal right to be in the territories, based on Article 25 of
the UN Charter which obligates member states to follow the directives
of the Security Council.
However, in the original context, the Security Council never called
on Israel to withdraw its forces. This may sound like some sort
of abstruse interpretation, but in truth, the plain meaning of the
text is unambiguous on this point.
The relevant portion of Resolution 242 reads:
The Security Council... 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
the following principles:
Withdrawal of Israeli armed forces from territories occupied in
the recent conflict;
Termination of all claims or states of belligerency...
There is nothing about this language to suggest that the Security
Council gave a specific directive to Israel to withdraw its forces.
Likewise, the Arab countries who maintained states of belligerency
with Israel even after the ceasefire in 1967 were never actually
ordered to cancel their governments' official declarations of belligerency
towards Israel.
Hence, neither Israel nor the Arab states violated Resolution
242, because it did not contain any specific directives.
What the text does say is that the Security Council has a vision
of a just and lasting peace, and that when certain conditions are
met, that vision will be realized and will constitute a fulfillment
of the UN Charter's vision of peace in the world.
The Security Council expressed its opinion that Israeli withdrawals
should ideally be a “principle” of future peace agreements,
but it did not state anything like, “the Security Council
calls on/directs Israel to withdraw its forces forthwith”,
or “to withdraw its forces as soon as the Arab countries end
their official states of belligerency”.
Israel's right to a military presence in the West Bank under
242
But even according to the opinion that Israel was obligated by
Resolution 242 to withdraw from captured territories in its future
peace agreements (which it in fact did in its treaties with Egypt
and Jordan), there is no room to say that 242 automatically made
Israel's presence in the West Bank illegal.
Furthermore, in the opinion of the Security Council, a full Israeli
withdrawal would not create an ideal peace. This is implied by the
lack of absolutist language in 242 such as “withdrawals from
all of the territories” or “withdrawal to the
June 4, 1967 borders”.
In fact, such proposals for the draft of 242 were put forth by
Israel's opponents, and all were soundly defeated by the Security
Council. A number of representatives who sat on the Security Council
explicitly stated that it was their country's position that peace
would be best guaranteed in a negotiated settlement whereby Israel
has, as stated in the continuation of Resolution 242, “secure
and recognized boundaries”.
Hence, it is a matter of record that the Security Council considered
the West Bank to be a territory over which Israel was fundamentally
entitled to gain at least partial sovereignty.
Ultimately, even with the Security Council's vision of a peace,
based in part on Israeli withdrawals, nothing in 242 detracts from
Israel's right to have a military presence in the West Bank while
hostilities continue, nor does any part of 242 assign greater rights
to Arabs or Jews in the West Bank.
Thus, the true relevance of Resolution 242 to the current ICJ advisory
on the security fence is that it demonstrates that Israel is not
in violation of international law vis a vis its presence in the
West Bank, nor does Israel have an obligation to withdraw from any
particular portion of the West Bank should a peace treaty involving
the West Bank ever be signed.
Resolution 242 left the rightful sovereignty of the West Bank
to be determined by negotiation
As additional proof that 242 did not assign a right to Arab or
Jewish sovereignty in the West Bank, we see that the resolution
called for respecting the “political independence of every
State in the area” and for “achieving a just
settlement of the refugee problem”, without mention of
who should have sovereignty over the disputed territories.
In fact, by only mentioning the Palestinian issue as a refugee
problem, 242 was widely interpreted as supporting a splitting of
the West Bank between Israel and Jordan, Jordan having annexed the
West Bank without international recognition in 1950. It was for
this very reason that Palestinian organizations have never recognized
those provisions of the resolution.
In not calling for the establishment of either a Palestinian state,
or even Jordanian control of the West Bank, Resolution 242
properly left the issue of its sovereignty to future peaceful negotiation.
And so again we see that 242 cannot be used to challenge the legality
of the security fence on the basis of a supposed rejection of Israel's
right to be present in the West Bank.
The same conclusion applies to Security
Council Resolution 338 of 1973, which adds nothing of substance
to its predecessor, Resolution 242.
Other Security Council resolutions mentioned in the UN advisory
request:
There are a number of other Security Council Resolutions mentioned
in the UN's request for an ICJ advisory. The gist of all of them
is that the Security Council considered most of Israel's building
projects in eastern Jerusalem to have no effect on the undetermined
status of the city, and they called on Israel to desist from any
acts which might change its status.
At the time there was concern that eastern Jerusalem could not
be included in a negotiated settlement, if Israel built too much
there. However, after all of the resolutions, Israel was able to
negotiate over not only eastern Jerusalem, but also western Jerusalem,
as the Oslo Accords put Jerusalem as a whole on the negotiating
table.
Furthermore, at Camp David, Israel in fact offered the Palestinians
sovereignty over nearly all of eastern Jerusalem. Thus the Security
Council concerns turned out to be unfounded.
In any case, the Security Council resolutions on eastern Jerusalem
never specify that it belongs to some specific country or people,
but rather insist that its final political status be determined
through negotiations. Therefore, the status of the portion of the
security fence which runs through eastern Jerusalem is not essentially
different from the status of any of the other portions which run
through the West Bank.
This being the case, there is nothing particularly germane about
the resolutions on eastern Jerusalem vis a vis the security fence.