Israel and the Inadmissibility of Territorial Acquisition by War

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Palestinian Self-Determination and UNSCR 242

Israel is widely accused of occupying territory that belongs to another people: the Palestinians. This is considered immoral, oppressive and a violation of major principles of international law:

  • the inadmissibility of the acquisition of territory by war;
  • the denial of the Palestinian right of national self-determination.

Most famously expressed in UNSCR 242 of November 1967, the legal principle of the inadmissibility of the acquisition of territory by war is often used to imply that Israel is bound to withdraw unilaterally from the territories captured in the 6-Day War. In fact, UNSCR 242 made no such demand, although it could easily have done so if that was intended. Therefore, if the inadmissibility of the acquisition of territory by war is indeed a principle of international law, why did 242 not require Israeli withdrawal?The ban on acquiring territory by war is derived from Article 2 (4) of the UN Charter, which states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

By contrast, defensive war against such aggression is permitted by Article 51:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.

During the 6-Day War of June 1967, Israel captured territory in the course of a war of self-defense. Naturally, the right of self-defense is also applicable to future attacks. Therefore, given that the overriding purpose of the UN Charter is to maintain international peace, it made no sense to return territories to aggressors without believable assurances and security arrangements that those territories would not be used to attack Israel again.

As a result, instead of a demand for a unilateral Israeli withdraw, UNSCR 242 proposed a package of measures in an attempt to secure future peace and security. These measures encompassed:

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;

Other measures listed in the resolution included:

guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

(UN Security Council Resolution 242, 1967)

In sum, these proposals underlined Israel’s right not to be attacked. This was why any Israeli withdrawal from captured territories was linked to safety measures, such as the acceptance of Israel’s right to secure and recognized borders, which were intended to minimize the risk of future war.

However, two months prior to UNSCR 242, the Arab League Summit in Khartoum had passed its famous 3-No’s Resolution to affirm what it termed its main principles. These were:

no peace with Israel, no recognition of Israel, no negotiations with it

(Arab League Summit Resolution, Khartoum 1967, para 3)

As a result, no Arab State made peace with Israel, nor accepted its right to exist, nor accepted secure and recognized boundaries free from threats or acts of force. Nor did the Arab states guarantee Israel’s territorial inviolability and political independence. In other words, the Khartoum Declaration of the Arab League asserted the exact opposite of the UN Charter and UNSCR 242.

The 242 proposal to resolve the impasse

In an attempt to resolve the impasse created by the Arab League Declaration, UNSCR 242 requested:

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;

Not to pre-empt the outcome of the sought-after negotiated agreements, 242 did not specify where it considered secure borders should be. This was for the parties themselves to work out and agree. This is also why, as part of the package to resolve the dispute, the call for the withdrawal of Israeli forces did not impose or propose a withdrawal from all territories, from the territories, or from all the territories. Nor did it specify which territories it considered occupied.

The assumption behind the promotion of an agreement of the parties and Israeli withdrawal from at least some unspecified territory was that Israel’s occupation would be temporary. However, no timescale was provided. Instead, 242 outlined a process of negotiation for a settlement capable of maintaining peace based on the acceptance of the right to exist of all states with recognized and secure borders. Until these agreements could be achieved, the occupation would continue. In the event, we know that this process has yet to yield the results desired by UNSCR 242 as Syria, Lebanon and more recently the Palestinians oppose the key aspects required.

A further demonstration that Israel was not required to withdraw unilaterally from any territory it captured in 1967 is that 242 was not legally binding. That is, it was written under Chapter VI of the UN Charter whereby the Security Council makes its opinion and recommended course of action clear, rather than a Chapter VII resolution, which would have made it a legally binding instruction.

Egypt breaks ranks and accepts 242

Breaking with the other Arab states a decade later, Egypt negotiated a peace agreement with Israel that secured Israeli withdrawal from the occupied Sinai. Unlike the West Bank, an important factor in this agreement was that the designation of the Sinai as occupied was uncontroversial as Israel had no claim to it. Likewise, Egypt had no claim to Israeli territory. As a result, an agreement on borders was relatively uncontentious. The addition of security measures to limit Egyptian forces in the Sinai effectively protected Israel by the provision of a buffer of approximately 200 kilometers between the respective military forces. In other words, the agreement was in accordance with the process set out by 242.

By contrast, 242 did not say and could not have expected that Gaza be returned to Egypt or that the West Bank be returned to Jordan as neither Egypt nor Jordan had sovereign rights in either territory. Having been captured by Arab armies in the war to annihilate Israel in 1948-9, the legal rule of the inadmissibility of the acquisition of territory by war applied to both.

Further, by not specifying which territories it considered occupied, 242 effectively left this for negotiation between the parties. However, in refusing negotiations or recognition of Israel, the Khartoum Declaration of the Arab League ensured that the status of the West Bank was never discussed or a resolution agreed. In fact, the Arab states never accepted the legal position that the League of Nations had established the Palestinian Mandate in order to secure Jewish national and settlement rights in the territory of Mandatory Palestine, which included what later became known as the West Bank.

Following the war of 1948-9, when the Arab states attempted to destroy Israel, the Jordanian occupation of the West Bank made it impossible for the new Jewish states to exercise these rights. Israel subsequently captured the territory in the 6-Day War of 1967. No other state had legitimate sovereignty over the West Bank, and as a state cannot occupy its own territory, the West Bank cannot be considered occupied by Israel in the standard meaning in international law in The Hague Regulations, articles 42 and 43 (see, From Occupation to Annexation).

The cornerstone of the 2-State Solution

However, legal rights and practical rights are two different matters. Since Jordan abandoned any claim to the West Bank, Israel has dealt directly with the Arab residents who oppose Israeli ascendancy and proclaim themselves a nationality with rights of national self-determination. As a result, many view the Palestinian–Israel conflict as between two sets of legitimate national movements, between two sets of equivalent rights. Characterized as a matter of right vs right, and justice vs justice, this understanding provides the basis in principle for a win-win agreement to end the conflict by means of the 2-State Solution to share the territory of Mandatory Palestine.

A requirement for the realization of this apparently equitable solution is that both national movements recognize and accept that they each have equal legitimacy and equivalent rights. Yet, the Palestinians, along with the Arab League, continue to deny the same rights of self-determination to Jews that they claim themselves. In their view, Jews are a religious group only without national rights of self-determination. The PLO has maintained this position since its foundation. Abbas and other leading members of the PA and the Arab League restate it endlessly – seeing only their own national movement as legitimate (see, The Israeli Demand that Palestinians Accept Israel as a Jewish State).

In fact, no PA party, faction, militia or leader has expressed support for recognizing Israel as a Jewish state. Nor have their Islamist rivals. This view that there are no legitimate Jewish national rights on any part of what are considered exclusively Arab/Muslim lands is the exact opposite of the 2-State Solution. Such a supremacist stance does not see 2-States for 2-Peoples as an acceptable or equitable compromise; instead, it is seen as an act of treason – a betrayal.

This persistent refusal to accept Israel’s right to exist as the Jewish nation-state demonstrates a determined purpose. The Israeli fear is that this purpose is not to end to the conflict, as advocates of a 2-State Solution imagine, but to extend it. That is, in complete opposition to the anti-war purpose of the UN Charter and UNSCR 242, a Palestinian state will provide a base for further attempts to destroy Israel; that an exchange of land-for-peace will bring instead an exchange of land for more rockets, more tunnels, more terror and more war.

Consequently, no matter how strongly its advocates believe the 2-State Solution ought to be the solution to the conflict, its cornerstone, the reciprocal acceptance of national rights, does not exist. The exclusivity of the Arab/Palestinian claim means that a successful 2-State Solution to end the conflict is untenable.

It is to Israel’s great political disadvantage that the moral inequity of the Arab stance and its practical consequence of killing stone dead the 2-State Solution is almost universally unknown. Instead, Israel is blamed for blocking Palestinian self-determination when in fact the Palestinian denial of Jewish self-determination is the core obstacle and driving force of the conflict. Therefore, Israel needs far wider international understanding that as long as the Palestinians refuse to accept Israel as a Jewish state there is zero chance of ending the conflict (see, Israel’s Two Primary Messages).

Jon Dyson

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