Resolution 242 Revisited: New Evidence On The Required Scope Of Israeli Withdrawal

Eugene Kontorovich

Northwestern University Law School

December 4, 2014

16 Chicago Journal of International Law 127 (2015)

Northwestern Public Law Research Paper No. 14-57

Abstract:

United Nations Security Council Resolution 242, passed in November 1967, in the wake of the Six Day War, is widely regarded as among the most important ever. But its meaning is also the most debated. The resolution famously called for “Withdrawal of Israel armed forces from territories occupied in the recent conflict.” The meaning of this provision – in particular, the extent of the required withdrawal – has been contested ever since.

This article presents new evidence on the resolution’s meaning – an issue that has gained new relevance amidst current diplomatic efforts for a Security Council resolution that could effectively supersede 242. The article does not engage all the myriad disputes and questions about the resolution, nor aim at a comprehensive evaluation of it. Rather, it adds two important but previously unappreciated dimensions that bear on how 242 should be read.

First, the article examines the meaning of 242’s withdrawal provision by comparing it to all other such territorial withdrawal demands issued by the Security Council. It finds that the language of 242 differs notably from the other 18 distinct territorial withdrawal demands, all of which explicitly require a complete withdraw from the territory in question. An examination of these resolutions supports the view that 242’s unusual wording was a meaningful and substantive drafting choice.

Second, the article examines contemporaneous understandings in the United Nations about the rules concerning territorial. Discussions in the International Law Commission, involving the leading international law jurists of the post-WWII era, demonstrates that it was generally agreed that the U.N. Charter introduced a new prohibition on territorial changes as a result of war, a principle referred to in the preamble of 242. Yet the same discussions also make clear that this rule was understood to have significant limitations and exceptions.

Resolution 242 Revisited: New Evidence On The Required Scope Of Israeli Withdrawal – Introduction

United Nations Security Council Resolution 242, passed in November 1967 in the wake of the Six-Day War, is widely regarded as among the most important of all the Council’s measures. It remains the foundation of the U.N.’s approach to the Arab-Israeli conflict. The resolution famously calls for the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict.” The meaning of this provision has been contested ever since.

One interpretation holds that Resolution 242 requires a complete Israeli withdrawal from all the territories that came under its control during the Six-Day War. This is consistent with, but not mandated by, a straightforward reading of the language and the French text.5 Proponents of the broad interpretation of the resolution also point to the preamble’s reference to the “inadmissibility of the acquisition of territory in war” as corroborating their position.

Yet the drafting history of the provision tells a different story. The British and U.S. diplomats involved in framing the resolution specifically omitted a “the” before “territories” to leave the extent of the required withdrawal open for future negotiations between Israel and its neighbors.7 Indeed, over several months of deliberations in the Council, the U.K. and U.S. rejected attempts by the Arab-aligned nations to explicitly require withdrawal from “all” or “the” territories.8 The Western states insisted that it would be both unreasonable and unrealistic to require a complete Israeli withdrawal to the 1949 Armistice Lines, which would also entail a complete Israeli abandonment of Jerusalem’s holy sites.

The stakes of the “the” debate are high. Resolution 242 is variously cited as both supporting and negating Israeli territorial claims to the Golan Heights and the West Bank Others see it as establishing the general principle that future borders will be based on negotiations, not dogmatic adherence to the 1949 Armistice Lines.10 According to one reading, Israel has been flouting a Security
Resolution for nearly five decades. According to the other, Israel has already complied—by relinquishing well over 90% of territory it occupied (the entire Sinai Peninsula, all of Gaza, parts of the West Bank, and small parts of the Golan).11 And so the debate has gone back and forth, with much heat but little new light in the past four decades.

Moreover, as of this writing, significant efforts by the European Union, and potentially the U.S., are aimed at passing a new Security Council resolution “updating” Resolution 242. Whether such a resolution merely restates the territorial conclusions of its predecessor or aggressively takes away Israeli entitlements under the compromise of 1967—giving what the U.N. conceded to Israel then to the Arabs today—depends on what was really decided in 1967. If Resolution 242 required a full withdrawal, then a “new peace architecture,” even one that would spell out Israel’s complete withdrawal from the West Bank in great detail, would not change the fundamental territorial parameters established by the Council in 1967. But if Resolution 242 allows a partial withdrawal, then the proposed new resolutions would contradict and countermand the earlier resolution, to Israel’s substantial disadvantage.

Even as the Council is poised to revisit the legacy of Resolution 242, important evidence that bears on how that resolution should be read has not been examined. This evidence—the wording of other territorial withdrawal demands passed in other situations by the Security Council—demonstrates the significance of the missing “the.” Looking at parallel language in other measures by the same body is a recognized tool of interpretation, yet one that has not been applied in relation to Resolution 242. Additionally, examining the post–World War II discussions in the U.N.’s International Law Commission, where the leading international jurists of the time discussed the principle against territorial acquisition and its limits, sheds new light on the resolution’s meaning. This understanding of the non-acquisition principle was confirmed by (and perhaps was necessary to reconcile the U.N. Charter with) contemporaneous state practice.

Israel Resolution 242

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