Friday, November 22, 2013

UN Security Council Resolution 242 (1967): Some reflections

Today marks the 46th anniversary of the adoption by the UN Security Council of Resolution 242 (1967).

Security Council Resolution 242 contains some points worth review. Therefore, the main objective of the following is to shed light on these points, as a reminder.

Monday, 5 June 1967, was another turning point in the history of Palestine, in the wake of the Six Day War between, on the one hand, Egypt, Syria and Jordan, and Israel on the other.

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

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 unanimously passed, but the belligerent parties did not comply with them.

Three Arab States were defeated. The West Bank, including East Jerusalem, and the Gaza Strip, as well as the Egyptian Sinai Desert and the Syrian Golan Heights all fell under Israeli military occupation.

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

First and foremost, Security Council Resolution 242 does not make reference to Palestine or Palestinians in any of its paragraphs.

Furthermore, it is worth citing here the first operative clause of the English text of Resolution 242:

“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 acknowledgment 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 aforementioned that, according to the Security Council, the application of the principles of the UN Charter requires the establishment of a just and lasting peace in the Middle East based on, inter alia:

-  Israeli withdrawal from territories occupied,
- Bringing all claims or fighting to an end, and ensuring respect for the sovereignty, territorial integrity and political independence of each State in the Middle East.

However, Resolution 242 calls for 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 4th, 1967, i.e. before the outbreak of the War. In other words, the Resolution does not demand 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 (the Demarcation Line is referred to as the “Green Line”). 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) appears 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 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.

Nonetheless, one must not be misled, since Israel’s use of force on 5 June 1967 was at the outset in violation of international law, for the fact that the use of armed force is prohibited in international relations, according to the UN Charter. Article 2(4) of the Charter places a wide prohibition on the use of force by States, by stating: “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 above-mentioned that UN Member States, of which Israel is one, are under an obligation not to threaten to use, or use, force in international relations. The foregoing 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”.

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

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 5th, 1967[11]. On this basis, strictly talking, Israel cannot invoke the right to self-defence, guaranteed by Article 51 of the Charter. This being said, one should not forget the arms embargo imposed by France Israel during the presidency of Charles de Gaulle, to protest against the Israeli attack.

The fact that the threat or use of force is prohibited by international law necessarily 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 is reflected in the principle of “the inadmissibility of the acquisition of territory by war”. Resolution 242 emphasized the aforementioned principle in its Preamble. Also, Security Council Resolution 478 (1980)[12] affirmed this 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)[13] 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[14], 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 occupation, in 1967, of East Jerusalem, the West Bank and the Gaza Strip, as well as the Egyptian Sinai Desert[15] and the Syrian Golan Heights was - and still is - in contravention of international law, for the facts presented before.

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

While Israel is obliged to withdraw from the territories it occupied in 1967, it is, as a UN Member State, bound to fulfill its international obligations in good faith (bona fide) 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 or hide behind ambiguity or imprecision, though deliberate, 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 carry out, 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.

Consequently, Israel 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 good faith.

On the other hand, is Security Council Resolution 242 itself legally binding?   

The situation in June 1967 was “ideal” for a “Chapter VII resolution”: an international armed conflict, involving occupation and later annexation of territory; East Jerusalem. The Six Day War not only threatened international peace and security, but also breached them and further constituted a clear aggression – by Israel – inviting the adoption of a resolution under Chapter VII of the UN Charter, something the Security Council did not do, although it should have.

Security Council Resolution 242, which is still in force, was not adopted under Chapter VII of the Charter of the United Nations, which puts in question the binding force or nature of the Resolution. This is apparent from the absence of three elements:

- The Resolution does not contain, neither in its Preamble nor in its operative paragraphs, a determination or a finding that there was a “threat to international peace and security”;
The Resolution does not include an explicit “present tense” reference to Chapter VII of the UN Charter providing that the Security Council isActing under Chapter VII of the Charter of the United Nations”. Such a statement is usually, when acting under Chapter VII, inserted in the last paragraph of the preamble;
- The wording or phrasing of the Resolution clearly shows that it was not in fact intended to be legally binding. This is deduced from the use of the verb “affirms”, rather than “decides”, in the operative clauses.

The above-mentioned elements are not set forth in the UN Charter, but have actually been developed through the practice of the Security Council. This, however, does not mean that it is necessary that the three elements be simultaneously met in order to make a resolution legally binding. One of them is sufficient.

As a matter of fact, the presence or absence of one or more of the three elements depends on the political will, and even political compromises, at the Security Council. But this is not discussed here.

Since none of the said elements is included in Security Council Resolution 242, it was clearly not adopted under Chapter VII of the UN Charter, but rather under Chapter VI (that deals with “pacific settlement of disputes”), nor was it intended to be legally binding. Resolutions adopted under Chapter VI are mere “recommendations”, not “decisions” in the true sense of the word.

However, one could probably argue that, under Article 25 of the UN Charter, UN Members are bound by “all” resolutions of the Security Council. Article 25 stipulates: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter” (emphasis added). Notice the use of the word “decisions”, which excludes non-binding resolutions, or better “recommendations”. As such, UN Members are obligated to accept and implement binding resolutions, only.

One could probably also argue that Resolution 242 has become “binding” as a result of its acceptance by the concerned parties, and of the constant reference to it by the international community, including through subsequent UN resolutions - namely UN Security Council Resolution 338 (1973)[16]. The acceptance and constant reference might have enhanced the “weight” of Resolution 242, not to say “legal weight”. However, such an argument needs further examination.

Last but not least, Resolution 242 “affirms the necessity for achieving a just settlement of the refugee problem”, without defining or determining “which” refugees. In other words, it does not specifically mention Palestine refugees - an omission that has been taken advantage of by Israel in the interpretation of the Resolution. But what about the Palestinians who were displaced in 1967? The Resolution is mute on this issue. 

In conclusion, even if UN Security Council Resolution 242 (1967) is not legally binding, and regardless of the deliberate “contradiction” between the English and French texts, Israel, the occupying Power, is certainly under an obligation to withdraw from all the territories it occupied in 1967. Its obligation derives directly from the rules and principles of international law: the prohibition of the use of force as well as the inadmissibility of the acquisition of territory by force.

[1] Article 24(1) of the UN 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.
[9] Ibid.
[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] Churchill, Randolph S., Churchill, Winston S., “The Six Day War”, (London: Heinemann Ltd, 1967), p. 78.
[12] S/RES/478 (1980), 20 August 1980.
[13] A/RES/2625 (XXV), 24 October 1970.
[14] A/RES/ES-10/15, 2 August 2004.
[15] Following the Israel-Egypt Peace Treaty of 1979, Israel withdrew from Sinai Desert.
[16] S/RES/338 (1973), 22 October 1973.

No comments:

Post a Comment