An Argument For The Legality of the Settlements

U.N. Security Council Resolution 242

November 22, 1967

Following the June '67, Six-Day War, the situation in the Middle East was discussed by the UN General Assembly, which referred the issue to the Security Council. After lengthy discussion, a final draft for a Security Council resolution was presented by the British Ambassador, Lord Caradon, on November 22, 1967. It was adopted on the same day.
This resolution, numbered 242, established provisions and principles which, it was hoped, would lead to a solution of the conflict. Resolution 242 was to become the cornerstone of Middle East diplomatic efforts in the coming decades.

The Security Council,

Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
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;

Affirms further the necessity

For guaranteeing freedom of navigation through international waterways in the area;
For achieving a just settlement of the refugee problem;
For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

Requests 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;

Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.
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Since the military withdrawal is from "territories," not "all territories," that Israel can stay on some of the territory must imply that who all the territories will go to is an open question. If it's an open question, then ownership is an open question. If so, one can't say definitively that it's all Palestinian land because if it was then the U.N. would have had no right to let Israel stay on some of it. How could it? If that is so, that unclarity, that proprietary open-endedness, demanding resolution by negotiation, ousts the clear applicability of Fourth Geneva Convention Article 49(6). That being so, who can say that Israel with all of its historic ties to the land cannot settle some of the lands, those settlements subject to ultimate resolution as was the case in Gaza, resolution in that case coming from its unilateral withdrawal, with the settlements dismantled?

Roiduboulois:

Won't fly as you must also contend with UNSC 476 and 478, making clear that the USNC does not construe 242 to allow any unilateral change in status, and the opinion of the ICJ that the settlements are illegal.

Your two arguments fail to address the core problem: as long as the status of the territories is "occupied," they cannot be settled, except to the limited extent that security can be understood so to require (zero in practice). There is no sense in which 242 "structures" the Fourth Geneva Convention, and there is no exception for purportedly "temporary" civilian settlement. For years Israel made just this argument, that the settlements were not illegal because they could be terminated as part of a final agreement. The Palestinians said that, cloaking itself with a false claim, Israel was unilaterally altering the status of the territories and avoiding the obligation to settle their status by negotiation. In the event, the Palestinians turned out to be right.

I think there is a good argument that Israel is not in violation of the Fourth Geneva Convention in Jerusalem as that territory is no "occupied" but incorporated. It may be illegally incorporated -- as UNSC resolutions state -- but that is a distinct issue. Of course, there is a question whether the Fourth Geneva Convention continues to apply in territory illegally incorporated. I don't myself see how because its terms don't make much sense as applied to incorporated territory, but it is a question.

Also, the background of 242 is such that the possibility of Israel remaining in some territory was understood to be related to security, not to settlement. It is therefore well within contemplation that Israel would retain a security presence, continued occupation, in the Jordan River Valley where there is a significant security justification made even more urgent by the experience of Gaza. There is no security justification for the settlements. Just the reverse. They are a security liability.

The single most important fact is that Israel governs the territories under military occupation government. Their status as occupied is not in question. The rest follows.

Me:

I appreciate the distinction between incorporated and occupied and I have not as of yet given the legal issue of Jerusalem and East Jerusalem a lot of thought. My immediate thought is if settlement is verboten, then incorporation must be even more so and reflects a much more flagrant breach. Conversely, if incorporation escapes illegality, why doesn't as well its lesser, settlement, as a step, and waiting place along the way, to ultimate resolution contemplated by 242's explicit language?

But here are my immediate thoughts in answer to your comments.

Your first answer does not go to the underlying point arising from "territories" compared to "all territories." The implication arising from that distinction, the argument goes and I repeat, is that ownership of the territories is up for grabs to be resolved ultimately by negotiation. You assert that occupation precludes settlement or some moving in. But what is the basis for that assertion if ownership of which territories is up in the air? Adding to that, you say:

...For years Israel made just this argument, that the settlements were not illegal because they could be terminated as part of a final agreement. The Palestinians said that, cloaking itself with a false claim, Israel was unilaterally altering the status of the territories and avoiding the obligation to settle their status by negotiation. In the event, the Palestinians turned out to be right...

This is a historical, not a legal, vindication of competing legal arguments. I'd want to know, and I'm asking the same question again, the legal basis for the flaw in the Israeli argument if ultimate ownership of which territories is unsettled and to be negotiated. And as a historical and not a legal matter, doesn't Gaza vindicate the Israeli position; and doesn't the deal offered by Olmert vis-a-vis the West Bank settlements vindicate it too?

Finally, it was my initial assumption before coming to the argument I'm trying to clarify that "Territories" as opposed to "all territories" was driven by security concerns and therefore as you say settlement is, so to speak, beyond the ambit of that distinction and not allowed by 242 or by 242 read in conjunction with 46(9).

But 242 does not say security and could have, the argument is, if that is what was intended. (242 speaks everywhere of a negotiated resolution of all issues, including borders, related to the territories.) If 242 does not say security as such, then the application of 46(9) seems, at least textually, problematic to me.

To put all this in a nutshell, what is the precise and obvious legal ground precluding settlement during occupation when ownership of what is occupied is itself unsettled and must be ultimately either negotiated or unilaterally forsaken as in Gaza? The content of that nutshell is my immediate problem with your last sentence: I question whether the rest so easily follows.

Gerry:

Itzik -- I want to respond to your note re #242 etc in a lawerly fashion. But not being a lawyer I can only proceed by examining my kishkes -- and the entrail still come up indicating that it matters not a whit what any UN resolution says because in the end the onlyset of words that course through any historical analysis of the relationships between Israel, the Palestinians and the world are my bobbes vert -- SHVER TSU ZAYN A YID. Israel has no friends. It has momentary allies -- like Turkey and the U.S. Yes, I know, Turkey has found it expedient to give Israel the finger. Will the U.S. do the same? Not in the same way -- but it will do what is expedient for as it tries to rebuild itself into a shell of what the American Psyche told itself it was. So, Israel and its cowboys Netanyahu and Lieberman, will offer nothing, because the other side offers nothing and there will have to be a war. It doesn't matter how small -- there will have to be a war; the palestinians to once again miss the opportunity to take advantage of any opportunity, and the Israeli's to not have to put words they don't believe in into practice. There's no other understanding of what Israel is offering the Palestinians than the idea of being happy in a reservation. How long will Israeli troops be stationed along the Jordan so that Israel will be able to defend what is geographically undefendable given the scope of modern weapons. I believe the right wind Christians looking for the end of days are correct in thinking, ot, ot, nisht lang. I don't think there will be complete destruction. I do think that the "European Jews" will leave. The right wing frumes will stay and not be bothered by Sharia law which after all is an echo of their own beliefs.

As I've told you many times, I've never been a Zionist. My thinking about the Zionist state through all the years has been that the Jews were no smarter than other people in building a state that would a) be accepted by the neighbours it dispossessed and b) no smarter in fashioning a poltical facade that didn't exhibit the faults and poisons of party politis in any state.

Having said that, I have been a defender of Israel (in sane terms) because I understood the attacks on it to be, in large measure a continuation of the anti-semitism that didn't die with auchwitz. Shver tsu zayn a yid.

Me:

Gerry, I particularly appreciate your heart felt and thoughtful words. While I was confining myself to a small, very small, exercise in legal analysis, I agree with a lot of what you say. I don’t see Turkey as an ally; I think the U.S. Israel relationship is sturdier than do you; I wonder, don’t have a view, whether in fact Netanyahu could be brought to a moderate position if there was anything moderate coming from the Palestinians—which in my view there will not be; I don’t have a view that another war is inevitable, but it may well come to that; I think, given the Olmert offers, the essence of the problem is Arab rejectionism; what inevitably secular (European ) Jews will do I do not know.

You’ve got me thinking about a particular thing that I never really before considered—whether I’m a Zionist. I suppose in a passive sort of way I am. If Zionism is "...a Jewish political movement that, in its broadest sense, has supported the self determination of the Jewish people in a sovereign Jewish national homeland,” then I agree with this and it means a lot to me though I'm inactive with respect to it.

My defence of Israel –such as it is—stems from an irreducible, tribal particularism: me being a Jew and Israel meaning very much to me as a result of the traumatic legacy of the Holocaust and, even subsuming that, our miraculousl history as a people.