Wednesday, May 4, 2011

United Nations Security Council Resolution 242 (1967)


Monday, 5 June 1967, was another turning point in the history of Palestine, when the Six Day War broke out between Israel and the neighbouring Arab States, in the wake of the closure of the Straits of Tiran (Red Sea).

On June 6th, the United Nations Security Council, discharging its responsibility of the maintenance of international peace and security,[1] convened and adopted unanimously Resolution 233 (1967)[2] calling for an immediate cease-fire and a cessation of all military activities. Yet, the hostilities continued in the area.

In these circumstances, the Security Council called for the same in Resolution 234 (1967),[3] Resolution 235 (1967)[4] and Resolution 236 (1967).[5] These three Resolutions were passed unanimously by the Council, but the parties to the War, though UN Member States, did not comply with them, acting in breach of Article 25 of the Charter of the United Nations, which states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

Three Arab States were defeated and East Jerusalem, the West Bank and the Gaza Strip, as well as the Egyptian Sinai Desert and the Syrian Golan Heights – representing three times the area of the State of Israel – all fell under the Israeli military occupation.

Almost six months later, the Security Council adopted, unanimously, Resolution 242 (1967),[6] on 22 November 1967. This Resolution is worthy of a careful scrutiny, as it was the first one to call for Israeli withdrawal and termination of all claims or states of belligerency. 

I should like first to quote the first operative clause of the English version of Resolution 242, which states:

“1. Affirms (the Security Council) that the fulfillment of Charter principles requires the establishing of a just and lasting peace in the Middle East which should include the application of both the following principles:
        
        (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict;
        
(ii) 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 is understood from the aforesaid that the Security Council requires two steps, as explained below, to be taken in order to apply the principles of the UN Charter, and to establish a just and durable peace in the Middle East:

-  Call on Israel to withdraw from territories it occupied,
-  Bring all claims or fighting in the area to an end, and ensure respect for the sovereignty, territorial integrity and political independence of each State in the Middle East.

Resolution 242 stipulates Israeli withdrawal from occupied territories without defining the extent of withdrawal. The Resolution does not explicitly require that Israel withdraw to the lines that it occupied on June 5, 1967, i.e. before the outbreak of the War. In other words, the Resolution does not require Israel to return to the positions where it had stood before the 1967 War - the Armistice Demarcation Line established in 1949[7] - because it does not mention retreat from “the territories” or “all the territories” it occupied as a result of the War. But instead, it only calls for “withdrawal of Israel armed forces from territories occupied in the recent conflict”.

When asked about the reason for not specifying the extent of the Israeli withdrawal, Lord Caradon, who was then the Permanent Representative of the United Kingdom to the United Nations, and chief drafter of Resolution 242, explained: [8]

“Much play has been made of the fact that we didn’t say “the” territories or “all the” territories. But that was deliberate. I myself knew very well the 1967 boundaries and if we had put in the “the” or “all the” that could only have meant that we wished to see the 1967 boundaries perpetuated in the form of a permanent frontier. This I was certainly not prepared to recommend”.

On another occasion, Lord Caradon noted: [9]

“We didn’t say there should be a withdrawal to the ‘67 line; we did not put the “the” in, we did not say all the territories, deliberately. We all knew – that the boundaries of ‘67 were not drawn as permanent frontiers, they were a cease-fire line of a couple of decades earlier. We did not say that the ’67 boundaries must be forever”.
Before proceeding, it is interesting to point out that the definite article (the or all the) is mentioned in the French text of the same Resolution,[10] while bearing in mind that both English and French versions, as well as other official and working languages of the Security Council, are just as well authoritative, binding and of the same legal status.

The first subparagraph of the first operative clause of the French version states: “Retrait des forces armées israéliennes des territoires occupés lors du recent conflit”.

Consequently, Israel, because of the omission of a definite article in the English version, is not required to withdraw from all the territories it occupied in 1967, as stated in the French version.

This situation might give rise to these questions: Which version to implement, though both are authoritative? What is the extent of Israel’s withdrawal?

However, one must not be misled, since Israel’s use of force on 5 June 1967 was at the outset in violation of the international law, for the fact that the use of armed force is prohibited in international relations, according to the Charter of the United Nations. This prohibition derives from Article 2/4 of the Charter which states that: “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”.

Therefore, it is concluded from the foregoing Article that UN Member States, of which Israel is one, are under an obligation not to threaten to use, or use, force in international relations. This provision is complemented by Article 2/3 of the Charter which provides: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”.

“The purposes of the United Nations are set out in art 1. Therefore, any threat of, or the use of, force incompatible with art 1 is in breach of art 2(4) of the Charter. As the purposes of the United Nations are widely drawn, art 2(4) places a wide prohibition on the use of force by states. Any use of force by a state outside its own borders is likely to be inconsistent with the maintenance of international peace and security or of promoting friendly relations among nations”.[11]

However, the use of force becomes legal only in two cases: Self-defence, individually or collectively, as set forth by Article 51 of the Charter, and the other case is Chapter 7 of the Charter which empowers the Security Council to use force in order to maintain or restore international peace and security, as a collective measure.


The State of Israel obviously was not in a state of self-defence. But rather, it commenced the war by directing air raids against Egyptian air-fields, at 0745 on the morning of Monday June 5, 1967.[12] Therefore, strictly talking, Israel cannot invoke the right to self-defence, guaranteed by Article 51 of the Charter.

The fact that the threat or use of force is prohibited by the international law means that acquiring territory through the threat, or use, of force is also forbidden. Therefore, a State cannot justify holding onto territory merely because it conquered it or occupied it by force. This principle is referred to as “the inadmissibility of the acquisition of territory by war”. Resolution 242 emphasized the afore-mentioned principle in its Preamble. Also, Security Council Resolution 478 (1980)[13] affirmed the same principle by stating in its Preamble: “Reaffirming again that the acquisition of territory by force is inadmissible”.

Furthermore, mention needs to be made of the extremely significant UN General Assembly Resolution 2625 (XXV),[14] entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, in which the General Assembly declared “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter”. It further emphasized that “No territorial acquisition resulting from the threat or use of force shall be recognized as legal”. It was also affirmed by General Assembly Resolution ES-10/15,[15] by which the Assembly acknowledged the Advisory Opinion of the International Court of Justice of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem.

As a consequence, Israel’s acquisition, in 1967, of East Jerusalem, the West Bank and the Gaza Strip, as well as the Egyptian Sinai Desert[16] and the Syrian Golan Heights was in contravention of the international law, for the facts presented before.

In addition to the illegality of the threat or use force according to the international law, and the inadmissibility of the acquisition of territory by force, the implementation by Israel of Resolution 242 is to be examined from a further aspect.

While Israel is obliged to withdraw from territories it occupied in 1967, it is, as a UN Member State, bound to fulfill its international obligations in good faith (bona fides) according to Article 2/2 of the UN Charter which states: “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter”.

Therefore, Israel must not be allowed to invoke the ambiguity, that is the omission of a definite article (the or all the) before territories occupied, in the English text of Resolution 242, in order not to abide by or derogate from its obligation to withdraw from all the territories it occupied, since the threat or use of force is illegal, and the acquisition of territory by force is inadmissible as well. Additionally, it is bound to fully implement Security Council Resolutions in compliance with Article 25 of the Charter.

In conclusion, Israel, the Occupying Power, must withdraw from all the territories it occupied in 1967, regardless of the legal status of the Demarcation Line of 1949 as a temporary measure. Otherwise, and according to the English text of the Resolution, Israel would be given the opportunity to decide to withdraw partially, not completely, from the territories that fell under its military occupation, thus legitimizing its preservation of territories it chooses to keep, in conflict with the international obligations incumbent on all United Nations Member States not to threaten to use, or use, force, nor hold territory by force, and to execute their obligations in bona fides.   



                                                                                                Gabriel Helou
                                                                                                24 February 2009













[1] Article 24/1 of the United Nations Charter: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”.
[2] S/RES/233 (1967), 6 June 1967.
[3] S/RES/234 (1967), 7 June 1967.
[4] S/RES/235 (1967), 9 June 1967.
[5] S/RES/236 (1967), 11 June 1967.
[6] S/RES/242 (1967), 22 November 1967.
[7] Jordanian-Israeli General Armistice Agreement signed in Rhodes, Island of Rhodes, Greece, on 3 April 1949.
[10] Up till 21 December 1982, only Chinese, English, French, Russian and Spanish were both the official and the working languages of the Security Council, until the latter adopted Resolution 528 (1982) on 21 December 1982, deciding to include Arabic among its official and working languages.
[11] Alina Kaczorowska, Public International Law: Textbook, 3rd edition, (London: OLD BAILEY PRESS, 2005), p. 416.
[12] Randolph S./Winston S. Churchill, The Six Day War, HEINEMANN, 1967, p. 78.
[13] S/RES/478 (1980), 20 August 1980.
[14] A/RES/2625 (XXV), 24 October 1970.
[15] A/RES/ES-10/15, 2 August 2004.
[16] Following the Israel-Egypt Peace Treaty of 1979, Israel withdrew from Sinai Desert.


No comments:

Post a Comment