Israel is Not Required to Withdraw from Occupied Territory
UN Security Council Resolution 242
Statements by UN Ambassadors in November 1967
Resolution 242 Requires a Full Israeli Withdrawal
UN Security Council Resolution 338
Egypt-Israel Peace Treaty
The "Oslo Peace Process"
Jordan-Israel Peace Treaty
Arab Peace Initiatives
The South West African (Namibian) Precedent
The International Court of Justice was not asked for its opinion on whether Israel was obliged to withdraw its armed forces from territories it occupied in 1967. The question rendered to it by the UN General Assembly was limited to the legal consequences arising from the construction of the Wall.
However, it can be inferred from the ICJ's previous jurisprudence on the South West Africa (Namibia) cases, and from what it had to say on the Palestinian people’s right to self-determination, that Israel is obliged to withdraw from all the territory it occupied in June 1967.
To argue otherwise would mean that Israel could remain in Occupied Palestinian Territory indefinitely, and there is no rule of international law that would support this argument.
UN Security Council Resolution 242
On 22 November 1967 the UN Security Council adopted resolution 242 under Chapter VI of the Charter by unanimous vote (with the assent of the superpower rivals, the US and the Soviet Union, who voted in favour of this resolution at the height of the Cold War). This resolution emphasises “the inadmissibility of the acquisition of territory by war”, further emphasising 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”. Article 2 (4) of the UN Charter provides 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”.
The operative paragraphs of resolution 242 provide as following:
"1. Affirms that the fulfilment of the Charter principles requires the establishment of a just and lasting peace in the Middle East which should include application of 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.
2. Affirms further the necessity
(a) For guaranteeing freedom of navigation through international waterways in the area;
(b) For achieving a just settlement of the refugee problem;
(c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;
3. 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;
4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible".
Operative paragraph 1 affirms that the fulfilment of Charter principles requires a withdrawal of armed forces from territories occupied in the recent conflict, and for the termination of all claims of belligerency between Israel and the Arab states.
Resolution 242 is re-stating what Charter principles already provide regarding the prohibition on the acquisition and annexation of territory by forcible means. Whilst the resolution does not purport to blame either side for starting the war, it is clear that Israel cannot keep the territories it captured in that war, regardless of who was responsible for starting the hostilities. Israel is obliged to withdraw its armed forces.
The principle of the “inadmissibility of the acquisition of territory by war” was regarded as so universal that it was affirmed in the “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the UN Charter”, adopted by UN General Assembly resolution 2625 (XXV) on 24 October 1970 by acclamation of the entire UN membership, including Israel.
This resolution provides the following basic principles:
"Every State … has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect … The territory of a State should not be the object of military occupation resulting from the use of force in contravention of the provisions of the UN Charter. The territory of a State shall not be the object of acquisition by another State resulting from the use or threat of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal …"
Derek William Bowett, CBE, QC - Whewell Professor of International Law, University of Cambridge, 1981 - 1991, and author of the book Self-Defence in International Law (1957) - addressed Israel's self-defence argument (which Israel used to justify its military occupation in 1967) in an entertaining exchange of notes with another professor of International Law in 1971 in The Law Quarterly Review. At p. 475 he wrote:
"… although the UN did not condemn Israel's resort to force in June 1967, neither did any UN organ find that Israel's military action was in lawful self-defence … it is impossible to conceive of self-defence as justifying the acquisition of title to territory. Once can conceive of self-defence justifying the temporary occupation of territory but never the permanent acquisition of title, and there is no system or principle of international law which conceives of such a thing".
Resolution 242 was based on resolution S/8247 drafted by the UK and submitted to the Security Council on 16 November 1967 after five months of close and prolonged consultations with Israel, the Arab states and members of the Security Council. On 20 November 1967, during a debate in the Security Council on the draft resolution, Lord Caradon, the representative of the UK, reiterated his Government's policy on the situation in the Middle East:
“Our policy has been consistent and clear throughout. We have spoken and we have voted in the Assembly and in this Council on all the issues on the need for withdrawal and equally on the necessity for a permanent peace, and on the refugees and on Jerusalem. We stand by our votes and we stand by our declarations”.
(See para. 19 in UN Document S/PV.1381 of 20 November 1967.)
On 21 June 1967, British Foreign Secretary George Brown enlightened the General Assembly as to what his Government understood by the words “territorial integrity” used in Article 2 (4) of the UN Charter. He said the words “territorial integrity” have:
“… [a] direct bearing on the question of withdrawal, on which much has been said in previous speeches. I see no two ways about this; and I can state our position very clearly. In my view, it follows from the words in the Charter that war should not lead to territorial aggrandizement".
(See para. 15 of UN document A/PV.1529 of 21 June 1967 at the 1529th plenary meeting of the General Assembly in New York.)
Statements by UN Ambassadors in November 1967
Statements were made before and after the vote for UN Security Council resolution 242, which was adopted unanimously. There were other draft resolutions by the US, Latin American countries, the Non-Aligned Movement and the Soviet Union, but they were not put to the vote. Only the draft submitted by Lord Caradon on behalf of the UK was considered. The 15 members of the Security Council (which at the time was comprised of Argentina, Brazil, Bulgaria, Canada, Denmark, Ethiopia, India, Japan, Mali, Nigeria and the five permanent members) convened at a meeting in New York on 22 November 1967. The United Arab Republic (Egypt and Syria), Jordan and Israel were present.
During the debate on the draft, statements were made by various members of the Security Council about the text they were voting for (which can be ascertained from the Council debate and verbatim record located in UN Document S/PV.1382 at the 1382nd meeting on 22 November 1967):
Before voting started Mr. Makonnen, the representative of Ethiopia, emphasised (at para. 33) the "inadmissibility of acquisition of territory by war", and said it was imperative that "all Israel armed forces be withdrawn from the territories occupied as a result of military conflict".
Mr. Parthasarathi, the representative of India, said (at para. 52) that it was his country's understanding "that the draft resolution, if approved by the Council, will commit it to the application of the principle of total withdrawal of Israel forces from all the territories" occupied as a result of the conflict which began on 5 June 1967.
After the vote took place Mr. Adebo, the representative of Nigeria, reiterated (at para. 76) his Government's view of the "inadmissibility of territorial aggrandizement by military conquest" and that as a consequence Israel should withdraw its forces "from all the territories that they occupied as a result of the recent conflict".
Representing France, Mr. Berard (at para. 111) said:
"… on the point which the French delegation has always stressed as being essential--the question of withdrawal of the occupation forces--the resolution which has been adopted, if we refer to the French text which is equally authentic with the English, leaves no room for any ambiguity, since it speaks of withdrawal 'des territoires occupés', which indisputably corresponds to the expression 'occupied territories'".
Mr. Kuznetsov, representing the Soviet Union, said (at para. 119) that the phrase "withdrawal of Israel armed forces from territories occupied in the recent conflict" in the resolution adopted by the Security Council “becomes the first necessary principle for the establishment of a just and lasting peace in the Near East”.
He said his Government understood the decision taken to mean “the withdrawal of Israel forces from all … (and he repeated) … all territories belonging to Arab States and seized by Israel following its attack on those States on 5 June 1967”.
This, he said, was borne out by the preamble to the UK draft resolution which stressed the “inadmissibility of the acquisition of territory by war”.
Kuznetsov said the provision contained in that draft relating to the right of all States in the Near East “to live in peace within secure and recognized boundaries” could not serve as a pretext for the maintenance of Israeli forces on any part of the Arab territories seized by them as a result of war.
Representatives from Brazil (Mr. De Carvalho Silo at paragraph 127), Bulgaria (Mr. Tarabanov at paragraph 139), Argentina (Mr. Ruda at paragraph 162) and Mali (Mr. Kante at paragraph 189) all reiterated their Governments' view that resolution 242 was based on the principle that the occupation or acquisition of territories based on use of force should not be recognised. They also agreed that Israeli forces should withdraw from all territories occupied in June 1967.
The position of the US can be inferred from what their representative Mr. Goldberg had to say about the American draft resolution at a meeting of the Security Council on 15 November 1967. Although the American draft was never put to the vote (they decided to vote in favour of the British draft), they did touch upon the question of withdrawal. Goldberg emphasised that Israel must withdraw. He referred to the US draft, which stipulated in the operative paragraph that the “concept of a state of just and lasting peace is the withdrawal of armed forces from occupied territories”. He said the term “armed forces“ was “always intended to refer, to the armed forces of Israel”.
(See UN Document S/PV.1377 paras. 63 and 64 of 15 November which refers to the verbatim record at the 1377th meeting of the Security Council in New York.)
Resolution 242 Requires a Full Israeli Withdrawal
Journalists tend to place too much emphasis on a strictly textual analysis of the words that appear in UN Security Council resolution 242, in particular the words: “Withdrawal of Israel armed forces from territories occupied in the recent conflict”.
The Israel lobby has argued that it is not obliged to withdraw from all territories it captured in 1967 because the text does not include definitive articles such as the words “the” or “all” before the phrase “territories occupied in the recent conflict”.
One often comes across letters written by members of the public and commentaries by people who claim to have “expert status” in the British press claiming that the phrase “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” does not mean what it says, alleging that Israel is not required to withdraw from all territories, and that this is up for negotiation.
A commentary by Anne Applebaum (“This gamble by Sharon is at least based on reality”, in The Daily Telegraph, 18 April 2004) is a case in point:
“After extensive negotiations, the infamous UN resolution 242, which followed in the wake of that war, was actually changed in order to let Israel withdraw from some of the occupied territories, not all of the occupied territories. It might seem a pedantic distinction, but it's one the Israelis have always clung to”.
She is probably right when she says most Israelis believe that resolution 242 was changed to allow the Israelis to withdraw from only some of the territories they captured in 1967. If you keep repeating something, even if it is based on a false premise, eventually everyone will start believing it. In this instance, the Israel lobby has been successful. However, in terms of international law, their point of view simply does not stand up to judicial scrutiny.
The plain meaning of the withdrawal phrase is clear. The text refers specifically to “Israel armed forces” and to no one else. It then refers to “territories occupied in the recent conflict”. This obviously refers to territory Israel captured in June 1967, and not to territory the pre-1948 Yishuv (Jewish settler community in Palestine) and their militias captured in 1948.
In October 2002, Solicitor John McHugo, Visiting Fellow at the Scottish Centre for International Law at Edinburgh University, wrote an article about resolution 242 for the International and Comparative Law Quarterly: He wrote at pp. 874 - 875:
“Records released from the archives of the British Mission to the United Nations add a further gloss on the evolution of the wording. [Abba] Eban [Israel's Ambassador to the UN during the 1967 war] may have succeeded in securing the absence of 'all' or 'the' before territories, but in the negotiations over the wording he also suffered two significant defeats. When [Lord] Caradon [Britain's Ambassador to the UN during the 1967 war] started from the bland American text, he knew the Arab states were concerned specifically that it would not require a full Israeli withdrawal. Aware that he would need to reassure them, Caradon added two things to his draft. The first was the words 'in the recent conflict' after the reference to occupied territories. By this addition, it became clear that a specific category of territories was meant … the wording of the Withdrawal Phrase implies that these territories are to be treated as a unity, and a partial withdrawal would only be a partial compliance with the principle. Eban sensed this”.
According to McHugo, Eban stated in a diplomatic note:
“The words 'in the recent conflict' convert the principle of eliminating occupation into a mathematically precise formula for restoring the June 4 map”.
(See the 'Comment by Foreign Minister of Israel' and Telegram 3164, UK Mission in New York to Foreign Office, 12 No 1967, FO 961/24).
McHugo continued:
“The other insertion was the preambular ‘Emphasising the inadmissibility of the acquisition of territory by war’ ... This insertion was made a couple of days later. Eban fought hard to persuade Caradon to delete this phrase as well. He may have enlisted the support of the American, Canadian and Danish delegates in support of both deletions. All three delegates saw Caradon jointly and tried to persuade him to delete both phrases. But Eban was unsuccessful in achieving this goal as well. His attempt to have both phrases deleted shows that he appreciated the significance of the wording, and how it would make the Right-wing Interpretation untenable. The deletion of ‘all’ (or, rather, the failure to add ‘all’ to the text) was not quite the triumph for Israeli diplomacy that it is often alleged to be”.
It is important to stress that the countries that voted in favour of resolution 242, including prominent veto powers, would never have agreed to the text if it meant anything other than a full withdrawal from territories occupied in June 1967, including East Jerusalem, the West Bank, the Gaza Strip, the Golan Heights and the Sinai Peninsula. The British draft was an accommodation: allaying Israel’s fears about its security, territorial integrity and political independence, whilst emphasising the inadmissibility of the acquisition of territory by war.
The Security Council never sanctioned Israel’s occupation of the territories captured in 1967, nor has it ever recognised its annexation of East Jerusalem or the Golan Heights. On the contrary, it has repeatedly rebuked Israel regarding its policies and practices in these territories.
UN Security Council Resolution 338
On 22 October 1973, the UN Security Council passed resolution 338 in response to the outbreak of hostilities (the “Yom Kippur” war) between Israel, Syria and Egypt. This resolution called upon “all parties to the present fighting to cease all firing and terminate all military activity immediately …”
It also called upon the parties concerned "to implement Security Council resolution 242, immediately after the ceasefire, in all its parts". The mandatory language used in operative paragraph 2 would seem to bring it within the scope of Article 25 of the UN Charter, which provides that “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
It is important to note that the Security Council did not condemn Egypt and Syria for attacking Israel in October 1973 to recover the territory they lost to Israel in June 1967.
Egypt-Israel Peace Treaty
It should be recalled that the preamble to the Treaty of Peace between Egypt and Israel specifically provides that the parties are "[c]onvinced of the urgent necessity of the establishment of a just and lasting peace in the Middle East in accordance with UN Security Council resolutions 242 and 338". Operative Article 1 (2) of the Egypt-Israel Peace Treaty further provides that:
"Israel will withdraw all its armed forces and civilians from the Sinai behind the international boundary between Egypt and mandated Palestine… and Egypt will resume the exercise of its full sovereignty over Sinai".
Israel withdrew from all of Egyptian territory in exchange for peace and normal relations with Egypt after the signing of the Peace Treaty in 1979.
During the withdrawal, a dispute arose over the location of 14 demarcation pillars along the Egyptian-Israeli border on the Sinai Peninsula. Article 4 of the Peace Treaty created a "Joint Commission" to determine, among other things, the location of nearly 100 pillars demarcating the boundary between Egypt and Israel.
A five-member tribunal was appointed consisting of Ruth Lapidoth, Hamed Sultan, Gunnar Lagergren, Pierre Bellet and Dietrich Schindler.
They held by a 4-1 majority that the Egyptian position was to be accepted on the most important dispute, the location of the southernmost pillar denoting “Ras Taba on the western shore of the Gulf of Aqaba”, where a popular holiday resort is located. On the 13 remaining pillars in an uninhabited desert region, the position of Egypt was accepted in nine instances and Israel in four. On 15 March 1989, Israel transferred to Egypt sovereignty over the Taba area in its entirety, including the resort facilities located there.
In exchange for peace, Israel withdrew from all Egyptian territory in accordance with resolutions 242 and 338. Israel was not allowed to keep Taba in exchange for peace, or to “swap” Egyptian territory for Israeli territory. It simply withdrew, and as a result it has had peaceful relations with Egypt ever since.
The "Oslo Peace Process"
During the “Oslo Peace Process” in the 1990s, Israel and the Palestine Liberation Organisation signed numerous agreements on self-governing arrangements for the Palestinian Authority.
According to Article 1 of the "Declaration of Principles on Interim Self-Government Arrangements", the aim of the Israeli-Palestinian negotiations signed in Washington D.C. on 13 September 1993 is, among other things, to “establish a Palestinian Interim Self-Government Authority, the elected Council, for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973). It is understood that the interim arrangements are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council resolutions 242 (1967) and 338 (1973)”.
In Cairo, Egypt, on 4 May 1994, Israel and the PLO signed the “Agreement on the Gaza Strip and the Jericho Area”. The preamble to this agreement reaffirms that the parties are to have understood that the interim self-government arrangements, including those in the Gaza Strip and the Jericho area, “are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council Resolutions 242 and 338”.
The preamble to the “Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip”, signed in Washington D.C. on 28 September 1995, recognises that the aim of the negotiations are to lead to “a permanent settlement based on Security Council Resolutions 242 and 338”; and reaffirms “their understanding that the interim self-government arrangements contained in this Agreement are an integral part of the whole peace process, that the negotiations on the permanent status, that will start as soon as possible but not later than May 4, 1996, will lead to the implementation of Security Council Resolutions 242 and 338, and that the Interim Agreement shall settle all the issues of the interim period and that no such issues will be deferred to the agenda of the permanent status negotiations”.
Not only is Israel obliged to withdraw from Occupied Palestinian Territory under international law, but it is also contractually obliged to withdraw by agreements it has signed with the PLO in good faith, and witnessed by the international community.
Jordan-Israel Peace Treaty
On 26 October 1994, Israel concluded a Peace Treaty with Jordan. The preamble to that treaty aims at the “achievement of a just, lasting and comprehensive peace in the Middle East based on Security Council resolutions 242 and 338 in all their aspects”.
According to these resolutions, Israel and the Arab States are obliged to terminate all claims or states of belligerency; and to respect and acknowledge the sovereignty, territorial integrity and political independence of every State in the area, and their right to live in peace within secure and recognised boundaries.
Arab Peace Initiatives
Since 1967, Egypt and Jordan have concluded peace treaties with Israel, and Israel has withdrawn from some (i.e. Egyptian territory), but not all of the territories it occupied in 1967. In recent years, Syria has made peace overtures to Israel. The Arab League (representing all Arab states) has twice offered Israel peace, security and normal relations if Israel withdraws from all territory it captured in the 1967 war; which includes East Jerusalem, the West Bank, the Gaza Strip, the Shebaa Farms in Southern Lebanon and the Golan Heights. These offers were made in Beirut in 2002 and Algiers in 2005.
The Government of Israel has rejected both these offers.
The South West African (Namibian) Precedent
In its advisory opinion on South West Africa in 1971, the International Court of Justice found that South Africa’s continued presence in Namibia was illegal. South Africa was therefore obliged to withdraw its administration immediately.
Although Namibia and Palestine are not entirely analogous, they do share similar characteristics as former mandated territories subject to military occupation.
Although it is not always prudent to engage in speculation, it could be inferred from the ICJ's prior jurisprudence that it might have reached a similar conclusion had it been asked a question on “the legal consequences arising from Israel’s prolonged military occupation of Palestinian territory”.
This is especially so since the Court concluded in its opinion on Israel's Wall (at para. 162) that “this tragic situation can be brought to an end only through implementation in good faith of all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338 (1973)”, which call for a withdrawal of Israeli armed forces from Occupied Territory.
For further reading:
See John Dugard’s article “Namibia (South West Africa): The Court’s Opinion, South Africa’s Response, and Prospects for the Future”, in volume 11 of the Columbia Journal of Transnational Law, published in 1972 at pp. 14 - 49.
See the exchange of notes between Derek Bowett and G. Hart on "International Law Relating to Occupied Territory: A rejoinder", in volume 87 of The Law Quarterly Review (1971), pp. 473 - 475.
See John McHugo, "Resolution 242: A Legal Reappraisal of the Right-wing Israeli Interpretation of the Withdrawal Phrase with reference to the Conflict between Israel and the Palestinians", in volume 51 of the International and Comparative Law Quarterly, October 2002 at pp. 851 - 882.
See the “Boundary Dispute concerning the Taba Area”, in volume 27 of International Legal Materials (1988), at pages 1421 – 1538. See also the commentary by Haihua Ding and Eric S. Koenig in volume 83 of the American Journal of International Law (1989) at pp. 590 - 595.