Editor’s Note: Understanding the role of the United Nations in the restoration of Jewish sovereignty in the Middle East in 1948 is essential to understanding the legality of Israel’s post-1967 control of the land it acquired in a war of self-defense. The following is excerpted from “Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate,” a 1980 work by the late Professor Eugene V. Rostow, published in the Yale International Law Journal. Make the mental switch between Soviet Union/Russia and PLO/Palestinian Authority and it remains remarkably contemporary.
Throughout Europe and the United States, in the General Assembly and the Security Council of the United Nations, and in many other resonant forums, there is an increasingly shrill chorus of demands that Israel be more “flexible” and that the United States “force” Israel to acquiesce in the establishment of a third Palestinian state – an Arab state in the territories of Palestine generally known as the West Bank (including Jerusalem) and the Gaza Strip. It is expected that such a state would be under the control of the PLO. This view is now supported – nominally, at least – by most governments in Western Europe.
In the early months of 1980, it was widely rumored that France had persuaded Great Britain and West Germany to back an effort in the Security Council to modify Resolution 242, adopted after the Six Day War in 1967, and the only feasible basis for efforts to make peace between Israel and its neighbors. The amendment the French are urging would favor “self-determination for the Palestinian people” – a formula intended to pave the way for a third Palestinian state.
As the Middle Eastern troubles of Western policy have become more ominous, with Iran in anarchy and the Soviet Union in control of Afghanistan, the West has been drawn more and more feverishly to the idea of doing something “positive” for the Arabs by getting Israel to accept a second Arab Palestinian state on the West Bank and the Gaza Strip. Such a concession on the part of Israel is necessary, the advocates of this course contend, in order to make it possible for the Arab states of the region to join the United States in resisting the further expansion of Soviet power…
The campaign for a state that is more and more explicitly a PLO state including the West Bank and the Gaza Strip is irrational from the point of view of Western security interests. The emergence of such a state would weaken Israel, the strongest military power in the Middle East, and the most reliable ally of the West in the area, by necessity and conviction. But the irrationality of the idea has not yet affected the momentum of European, American, and Egyptian policy.
They’re Not “Arab” Territories
The legal assumption behind this frantic impulse is that the territories in dispute are in some sense “Arab” territories held by Israel only as military occupant. Once that premise is accepted, it seems to follow that the natural path to peace would be for Israel to evacuate the area, and to allow the population to decide whether to establish a new state or to federate with Jordan.
But the premise from which the familiar prescription derives is erroneous as a matter of history and international law. The only possible geographic, demographic, and political definition of Palestine is that of the Mandate, which included what are now Israel and Jordan as well as the West Bank and the Gaza Strip.
The term “Palestinian” applies to all the peoples who live or have a right to live in the territory – Jews, Christians, and Muslims alike. Thus, the West Bank and the Gaza Strip are not “Arab” territories in the legal sense, but territories of the Mandate that have never been recognized as belonging to Israel or to Jordan… For reasons that remain compelling, Security Council Resolution 242 prescribes that Israel is under no obligation to withdraw from the West Bank or the Gaza Strip until Jordan makes peace.
Self-Determination
Despite its great political appeal, the idea of “self-determination” for all “peoples” is a puzzling and complex factor in the political life of an international system based on the existence and sanctity of states. Most states include more than one people: Spain has Basques and Catalans; France, Bretons; Belgium, Walloons and Flemish; Canada a considerable French-speaking population. The Soviet Union [was] of course a combination of many peoples, widely different in language, religion, and culture. Almost all the African states include a number of tribes.
The United Nations Charter lists self-determination as one of the aspirations of the organization, to be sought by political means, but not by the international use of force. The Charter has been generally interpreted to forbid international help for movements of secession based on the slogan of self-determination. The United States fought the bloodiest war of the nineteenth century to resist the plausible idea of self-determination for the South.
The Mandate
The purpose of the Palestine Mandate was “the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” The Mandatory government was required to facilitate Jewish immigration and “close settlement” in Palestine, subject to the proviso that the Mandatory government could “postpone or withhold” the application of these (and related) articles of the Mandate in the area of Palestine east of the Jordan River. This was done when Britain established Transjordan as an autonomous province of the Mandate in 1922. But Jewish rights of immigration and close settlement in the West Bank and the Gaza Strip, established by the Mandate, have never been qualified.
In Palestine, Israel and Jordan already exist as states, and only the Gaza Strip and the West Bank remain as unallocated parts of the Mandate. The reasoning of [prior UN] decisions requires that the future of these two territories be arranged by peaceful international agreement in ways that fulfill the policies of the Mandate.
Jewish rights of “close settlement” in the West Bank are derived from the Mandate. Therefore, they exist; it is impossible seriously to contend, as the United States government does… that Israeli settlements in the West Bank are illegal.
West Bank & Gaza Differ from Sinai and the Golan
Since the Six Day War in 1967 the United States government has taken the nominal position that Israel held the Sinai, the Golan Heights, the West Bank, and the Gaza Strip only as the military occupant under international law. The State Department has maintained that under Article 49 of the Fourth Geneva Convention, a state administering the territory of another state as military occupant cannot in the absence of military necessity or governmental need displace the inhabitants of the territory and establish its own citizens in their place.
The Department’s position is in error; the provision was drafted to deal with “individual or mass forcible transfers of population,” like those in Czechoslovakia, Poland, and Hungary before [, during] and after the Second World War. Israeli administration of the areas has involved no forced transfers of population or deportations.
The Israeli view is that while the 1907 Hague Convention and the 1949 Geneva Convention apply to the Israeli occupation of the Golan Heights and the Sinai, which are Syrian or Egyptian territory in the contemplation of international law, they do not apply to the Israeli occupation of the West Bank and the Gaza Strip, which have not been recognized as parts of any state, but are still unallocated territories of the Palestine Mandate.
The 1949 Geneva Convention simply does not deal with the situation in Palestine, in which neither Jordan in the West Bank nor Egypt in the Gaza Strip could claim after 1967 that its prior administration was that of the legitimate sovereign whose rights were temporarily displaced by the fortunes of war. In the telling phrase of Professor Yehuda Blum, the “reversioner” was missing. Israel’s claim to the area is at least as good as Jordan’s.
Since the Conventions deal only with military occupation by one state of territory belonging to another, Israel said, it is not obliged to apply the Conventions in the West Bank and the Gaza Strip. But it vowed to do so in general terms as a matter of its own policy.
For present purposes, it suffices simply to conclude that Israel’s legal position with regard to its right of settlement in the West Bank is impregnable.
The case for treating the West Bank and the Gaza Strip as “Arab” territory is not helped by contending that the existing population of the area is largely Arab. That was true for all of Palestine, except for Jerusalem, when the Mandate was established. Jewish settlement in a land then populated mainly by Arabs is what the Mandate specifically authorizes.
The government of the United States often complains that Israeli settlements in the West Bank are a political obstacle to peace even if they are not “illegal,” because they deter Jordan from making peace. But Jordan would not make peace between 1949 and 1967 when it occupied the West Bank and administered it as national territory. At that time, there were no Israeli settlements in the West Bank…
Perhaps Israeli settlement in the West Bank would stimulate Jordan to make peace, by making it clear that its continued refusal to make peace is not costless, and that it cannot expect conditions to remain unchanged indefinitely.
Whether Israeli settlement in the West Bank is a wise political tactic at any given time is not, however, the subject of this paper. To explore that issue under the circumstances of any particular period in the history of the Mandate would be an exercise in speculation.
The Security Council’s Role
In 1947, finding that the twin purposes of the Mandate were irreconcilable, Great Britain announced that it would give up the Mandate in 1948, and turn the problem over to the United Nations as successor to the League of Nations. The Security Council had received a Report from the General Assembly, recommending that it adopt a plan for partitioning what was left of the Mandate (after the establishment of Transjordan) into an Arab state and a Jewish state, with a special regime for Jerusalem, and arrangements for cooperation among the peoples and governments of the territory.
The Security Council did not accept the General Assembly’s recommendations. It did nothing. Israel declared its independence as the Jewish state contemplated by the Partition Plan. But the Arab states in the area made war on Israel on the grounds that (1) the Mandate was and always had been illegal; (2) the General Assembly’s Partition plan was a nullity; (3) upon the withdrawal of Great Britain from Palestine the inchoate sovereignty of the Palestinian people in the territory had to be acknowledged; and (4) the establishment of Israel was “an armed attack on the territorial integrity and political independence of the emerging state of Palestine,” which the people of Palestine and their neighbors had a right to resist in the name of self-defense, according to Article 51 of the Charter.
The first Arab-Israeli war of 1948-49 came to an end under the twin pressures of Israeli military success and international political urging. The Security Council issued several binding “decisions,” ordering the parties to sign armistice agreements, and then to make peace. The Armistice Agreements were duly signed, but peace did not follow. The conflict over Israel’s right to exist was caught up in the Cold War, which was rapidly spreading to areas near the boundaries of the Soviet Union in Asia and Europe.
Thus, four major wars against Israel took place after 1949 – those of 1956, 1967, 1973, and the war of attrition of 1969-70. In each of these episodes, and throughout the continuing cycle of guerrilla attacks against Israel, Soviet involvement on the Arab side was heavy, and often decisive. Each of the wars ended in a political settlement of sorts. The 1956 war was followed by an informal and largely invisible agreement between Israel and Egypt…
Resolution 242
The unhappy fate of the 1957 peace agreement [following the Suez crisis] was a decisive factor shaping Security Council Resolution 242, which followed the Six Day War in 1967 after five months of strenuous diplomatic effort and military testing. Resolution 242 returned to the principles of Resolution 62, adopted in 1948. It called for peace, and for an end to all claims on the part of the Arabs that a state of belligerence existed between Israel and its neighbors. In view of the refusal of the Arabs to carry out their earlier commitments to make peace with Israel, Resolution 242 was based on the principle that Israel had no obligation to withdraw from any territories occupied in the course of the war until the Arab states concerned actually made peace. Israeli occupation of the territories it took in 1967, that is, was “the gage of peace,” in the phrase used by a French scholar.
Resolution 242 also provided that when peace was made, the Israelis should withdraw to “secure and recognized” boundaries, which need not be the same as the Armistice Demarcation Lines of 1949, as the Armistice Agreements themselves had contemplated. The “secure and recognized” boundaries were to be reached by agreement. In negotiating those agreements, the parties could take into account considerations of security; guarantees of maritime rights through all the international waterways of the region; factors of equity in rectifying the armistice lines (which after all reflected no more than the position of the armies when the fighting stopped in 1949); and the respective legal claims of the parties to the territory in question.
Between 1967 and 1973, all efforts to carry out the terms of Resolution 242 failed. The Arab states stood on their Khartoum Declaration of 1967 – “no peace, no recognition, no negotiations.” What the Arab states wanted was the pattern of 1957, i.e., Israeli withdrawal at least to the 1967 boundaries without peace. This, of course, was exactly what Resolution 242 prohibited.
Legally, politically, and strategically, the obvious solution for the Palestinian problem is peace between Israel and Jordan in accordance with Resolutions 242 and 338. Such a settlement could take many forms, but peaceful settlement is the only way to end the problem of Palestine in ways that satisfy the terms of the Mandate and of the Security Council Resolutions that have sought to carry out its principles.
Thus far, the most promising idea for peace between Jordan and Israel is the proposal put forward by the Israeli Foreign Minister at Strasbourg more than a decade ago. That proposal would establish definitive boundaries between Jordan and Israel, dividing the West Bank and perhaps making the Gaza Strip part of Jordan; unite the two countries in a common market (or confederation) open also to other states in the area; give Jordan a free port on the Mediterranean, probably at Haifa; make special arrangements for Jerusalem which would take fully into account all the religious interests in that city; and establish appropriate security dispositions.
The Foundation of Israel in Law
There is no foundation in international law for the idea of a second Arab Palestinian state in the West Bank and the Gaza Strip. And it would be political and military folly for the West to force Israel to acquiesce in such a scheme. Establishing a new Arab state there would injure Western interests, and advance those of the Soviet Union by strengthening the Soviet position in the region and by increasing Arab dependence on Soviet protection. It would weaken Israel, which, since the fall of Iran, is the most important Western ally in the area.
Above all, such a policy would abandon the moral and political obligations towards Israel, which the victorious Allies assumed in 1919, and reiterated through the United Nations Charter in 1945.
Israel’s legitimacy as a state rests on much more than the usual criteria of international law–de facto statehood; membership in the United Nations; recognition; the success of its armed forces; the weight of history; and so on. In 1922, the organized international community of the day, the League of Nations, with the special concurrence of the United States, which was not a member, established the Palestine Mandate. Through that Mandate, it invited Jews to come to live in Palestine as their national home. In reliance on that promise, the Jewish community in Palestine developed, and, with the approval of the Security Council and the General Assembly of the United Nations (the successor to the League), became the state of Israel.
The solemn obligations of the international community to Israel implicit in these events survive not only as a special moral and historic element in Israel’s status within the family of nations, but as a trust still applicable, with other norms and interests, to the task of fashioning a just and durable future for the West Bank and the Gaza Strip. For the West to betray those commitments would be to take another long step towards dissolving the world community organized as the United Nations into a condition of universal war.
Failure of the United Nations
The long, bitter, and thus far unresolved conflict over the place of Israel in the state system raises this stark issue. For more than 30 years the Security Council, speaking for the organized international community, has insisted that Israel is a legitimate state, born of the Mandate, and that members of the United Nations are therefore legally and morally bound to make peace with it in accordance with the terms of the Mandate and of the Security Resolutions which seek to apply them. Throughout this period, a shifting but important group of states, strongly backed by the Soviet Union, has asserted that the Mandate and all that flowed from it was illegal, and that the existence of Israel is in itself an aggression against the sovereignty of the Palestinian people, defined as the descendants of those who lived in the territory of the Mandate in 1922.
The vehement effort to force Israel to accept a PLO state including the West Bank, Jerusalem, and the Gaza Strip rests on a misapprehension. The proponents of “Palestinian self-determination” in this sense believe that such a step would eliminate the only point of dissension between the majority of the Arabs and the West: Palestine. They cannot bring themselves to believe that the object of the campaign for a third Palestinian state is not a peaceful solution of the Palestine problem, but the destruction of Israel.
Eugene Rostow (1913-2002) served in the U.S. government as Under Secretary of State for Political Affairs and Director of the Arms Control and Disarmament Agency.
