04 November 2014

Sorry, Tony: UNSC 242 says borders are negotiable

From AIJAC, 4 Nov 2014, by Aharon Shapiro:

Tony Walker's recent column "First Principles in the Middle East" (AFR, October 25 - subscription required) resurrected a specious claim about UN Security Council Resolution 242 - the blueprint passed in November 1967 that created the land-for-peace formula for peace between Israel and its neighbours.


Walker claimed that the "Lack of the definite article ‘the' before the word ‘territories' has been misinterpreted by Israeli propagandists to argue [UNSC 242's call for Israeli withdrawal] does not extend to all territories occupied in 1967."

In making this claim, Walker in effect rewrites history. 

Not "Israeli propagandists" but the people involved in drafting the language of the resolution itself themselves said UNSC 242 did not require Israel to withdraw from all ‘the' territories occupied in 1967.

More importantly, Walker ignored the historical record - easily traced through a selection of archival sources from newspaper accounts of the day - which showed that UNSC 242 was passed only after at least three other drafts were rejected: 
(I) A US draft that was said to have been more explicit in its language that Israel need not withdraw from all of the captured territories; 
(II) An Indian draft that explicitly demanded Israeli withdrawal from all of the captured territories; and 
(III) a Soviet draft that surfaced at the last minute and was scrapped, that reportedly would have been somewhere between the UK version that was passed and the Indian version.

The fact that India's draft calling for a full withdrawal was pointedly rejected over this demand would be proof alone that the only ones who have clearly "misinterpreted" Resolution 242 are those on the anti-Israel side, not the pro-Israel camp (or "Israel propagandists", in Walker's pejorative view).

When considering interpretations of a historical document like UNSC 242, a natural place to begin would be the stated intent of the drafters themselves. In 2007, The Committee for Accuracy in the Middle East Reporting in America (CAMERA) assembled a collection of footnoted quotes by the drafters of UNSC 242, starting with then-UK Ambassador to the UN Lord Caradon, then-US Ambassador to the UN Arthur J. Goldberg, then-US Undersecretary of State for Political Affairs Eugene Rostow, then-British Foreign Secretary Baron George-Brown and then- Senior Adviser on International Law to the United States Mission to the United Nations J. L. Hargrove.

All of them said, some on numerous occasions, that UNSC 242 was written intentionally in such a way as to allow for modified boundaries.
On the other hand, any solid argument that UNSC 242 does not demand Israel's total withdrawal from all of the territories captured in 1967 should scrutinize first and foremost the document itself.

Such an analysis has been conducted on many occasions over the years. In 2011, Ruth Lapidoth, a Senior Researcher at the Jerusalem Institute for Israel Studies and Professor Emeritus of International Law at the Hebrew University of Jerusalem as well as the 2006 recipient of the Israel Prize, published a landmark paper on UNSC 242 for the Jerusalem Center for Public Affairs (JCPA)'s Jewish Political Studies Review.

The well-sourced, 11-page analysis is a standout and should be required reading for anyone wishing to fully understand exactly what UNSC 242 says and does not say regarding withdrawal. In the paper, Lapidoth also examines the issue of whether the resolution was intended to be binding or advisory, and whether it gave more weight to earlier Palestinian claims regarding the refugee issue.

Understanding UNSC 242 through the newspapers of its era should begin at least a week prior to the passage of the resolution, when the UK was trying to build a consensus for a compromise resolution aiming to reconcile two opposing drafts.
On November 15, 1967, in an article titled "A British attempt at compromise", The Guardian (UK) wrote:
Lord Caradon is trying to get general acceptance by all Security Council members of a British compromise draft resolution on the Middle East. The British delegation believes that a draft must be acceptable to the entire council membership -the four Great Powers and the 10 nonpermanent members-if it is to be accepted by the parties directly concerned. If the British draft materialises it will involve some shift in the positions of both Israel and the Arabs. Each of the draft resolutions at present before the council- one submitted by India, Mali, and Nigeria, the other by the United States-is acceptable to only one side. The three nation draft... calls for unconditional withdrawal of Israeli troops from all territories occupied during the June conflict... Lord Caradon is scheduled to speak [tomorrow], and if he cannot produce an actual draft he may well ask for an adjournment for further private negotiations.
On November 17, 1967, an article in the Washington Post by the highly respected journalist Robert Estabrook made very clear to readers the difference between the British draft of the resolution, which was ultimately accepted, and the Indian draft of the resolution, which was ultimately rejected. Interestingly, Estabrook reported that, behind the scenes, the Arabs were coming to terms with the fact that their push for a resolution that would call for a total withdrawal would not prevail.
The most controversial portion of the British resolution is the language referring to withdrawal of Israeli armed forces "from territories occupied in the recent conflict." The measure omits the qualifying phrase "all the territories" as stated in the Indian resolution, which has been supported by the Arabs and the Soviet Union. On this and several other points the British draft parallels the American resolution. But the British measure is more concise and omits mention of efforts to curtail the arms race. Like the American, it would give the U.N. special representative a broad mandate in this case "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 of this resolution." A Soviet diplomat said earlier today that his delegation found the British effort unacceptable. But other delegations did not regard this as the last word from Moscow and predicted that the Russians would ultimately go along with anything the Arabs accepted. Arab ambassadors were ambivalent in their comments on the British resolution, although they liked it better than the American. One noted with approval that the Israelis have been irritated with Britain. Essentially the Arabs are weighing whether this is the most explicit language they can expect to get on Israeli withdrawal. Some are ruefully aware that they could have had language more in line with their wishes in a Latin American resolution that they rejected in the General Assembly last summer.
In an editorial published November 22, 1967 on the eve of the passage of UNSC 242, The Guardian noted in passing in an editorial "Elusive terms in the Middle East" that the resolution would make final borders negotiable.
...the clause about territorial integrity might be modified, although it already leaves a fair degree of latitude about eventual boundaries...
In its report from November 23, 1967, The Times (UK) reported how India became the first country to impose its own interpretation of the resolution - in effect refusing to accept that its own version had not been accepted. The UK's Lord Caradon responded by telling them that was India's choice, but it would not change the fact that the wording of 242 was carefully chosen (emphasis added).
While the resolution now adopted stands on its merits, it was not passed without any reservation. For India, Mr. G. Parthasarathi said it was his country's understanding that the resolution would commit the council to the principle of total withdrawal by Israel from all the territories occupied by it since June 5, 1967. In other words, he said, the draft committed the council to the withdrawal by Israel from Gaza, Sinai, Jerusalem, west Jordan, and Syria. Speaking next. Lord Caradon said that every delegation had of course the right and the duty to state its own views and its Government's policies. But the resolution did not belong to one side or the other, or to any country. It was the outcome of intensive consultations with all. "Therefore, only the resolution will bind us, and we are sure its wording is clear."It was noteworthy that both the United States and the Soviet Union agreed to give priority to the British motion over those which had been tabled earlier in their names, and then went on to vote for it.
After reading through the stated intent of the drafters of UNSC 242 in their own words, as well as tracing the road to passage through the newspapers of the day, Walker's claim that only "Israeli propagandists" believe that UNSC 242 does not call for a total withdrawal from the territories captured in Israel's defensive war of 1967 cannot be sustained.

In conclusion, the question needs to be asked why should it still matter, almost 50 years after it was passed, whether UNSC 242 required Israel to withdraw from all of the territories it captured in the Six Day War or not.

Setting aside the issue of the Golan Heights and concentrating only on the West Bank, it matters a great deal, for if UNSC 242 had demanded of Israel a withdrawal to the armistice lines of 1949, the Palestinians would not need to negotiate with Israel over final borders.

Clearly, as shown here, the historical record unequivocally illustrates that UNSC 242 didn't make such a demand on Israel. Rather, it asked of Israel and its Arab interlocutors to directly negotiate over final borders as part of a comprehensive peace agreement.