In this article the author, Dr. Cynthia Day Wallace, demonstrates cogently that the 1967 lines are not  “borders” under international law. Therefore, this word should not be used to create and perpetuate the impression that Israel has illegally transgressed the borders of another State.

Dr. Cynthia Day Wallace is a Senior Fellow of thinc. She is the author of ‘Foundations of the International Legal Rights of the Jewish People and the State of Israel—and the implications for the proposed new Palestinian state (2012, 2018)’.

 

 

As a point of reference for a new Palestinian State, there is constant mention of withdrawal to the “1967 borders”. Firstly, this terminology is legally incorrect. The word “borders” is commonly used in international law to mean “national boundaries”, which the “1967 lines” categorically are not. The definition of a “border” under international law is “a boundary between one nation (or a political subdivision) and another”.[1]

Under the customary international law[2] principle of uti possidetis juris, the borders of new states emerging from colonies are based on the territorial boundaries existing at the time of independence. This principle has been cogently argued[3] to apply to the case of Israel emerging from the 1922 British Mandate for Palestine, just as it was applied to each of the other League of Nations Mandates emerging from the post-World-War I breakup of the Ottoman Empire.

The Hague Statement of jurists on the Israel-Palestine Conflict (2017) states:

 

Application of this doctrine (known as uti possidetis juris) to the Mandate for Palestine means that the State of Israel has a legitimate claim of sovereignty up to the territorial frontiers of the Palestine Mandate as of May 1948 when Israel became an independent state, inclusive of Jerusalem, the Gaza Strip and the “West Bank”.[4]

 

Indeed, by the time the State of Israel was declared and recognized as an independent sovereign nation in 1948, her borders under the Mandate had been reduced to—but included essentially all of—the former Palestinian territory west of the Jordan River, apart from a few adjustments resulting from bilateral treaty arrangements and land swaps involving neighboring countries.

Thus, with or without uti possidetis juris, Israel’s borders were prescribed under the terms of a Mandate unanimously adopted by the League of Nations, with the legal force of an international treaty. Any subsequent changes to the borders were achieved through negotiated bilateral treaty or mutually agreed land swap. Since the international law of treaties takes precedence over customary international law,[5] in the case of Israel, uti possidetis juris simply serves to confirm the territorial boundaries prescribed by the Mandate in 1922 and any subsequent bilateral treaties with Israel’s neighbors. The mandated territory already included Judea and Samaria (the “West Bank”), all of Jerusalem, and the Gaza strip.

Worthy of note here is that Jerusalem was neither singled out in the British Mandate nor in any subsequent treaty or land swap. Even when the British recognized Jordan’s illegal annexation of the “West Bank”, they distinctly refused to recognize the annexation of Jerusalem, while the Arab League refused to recognize any part of Jordan’s annexation, including Jerusalem. Jerusalem has never ceased to be under the sovereignty of the State of Israel.

The term “1967 lines”—so often heard today in reference to Israel’s “borders” and Arab Palestinian aspirations—is used to indicate the lines up to which the Israeli military moved into their own sovereign territory to counter the attacks of five Arab armies on the day following the declaration of an independent State of Israel on 14 May 1948. These are the lines where Israel was made to stop in successfully defending and reclaiming her legally rightful territory in a defensive war against foreign aggression. These lines (also called the “Green Line” because they were originally marked out on a map with a green marker by military officers negotiating a ceasefire) are armistice demarcation lines, resulting in the armistice agreements signed in 1949 between Israel and its Arab neighbors—Egypt, Jordan, Syria and Lebanon.

These 1949 armistice lines do not—nor did they ever—represent national boundaries, nor have they ever been defined as national borders in any legal document pertaining to “Palestine” or Israel. They are purely military no-cross lines, identified as such in every related ceasefire agreement and expressly repeated in subsequent Israeli-Palestinian agreements to neither represent national borders nor prejudice the future bilateral negotiation of same.

Thus such “lines” being construed as “borders” can be derived from neither “history, law nor fact”.[6] They were dictated exclusively by military considerations and were never intended to extend beyond “the transition to permanent peace in Palestine”.[7] This transitional, provisional character of the ceasefire lines was emphasized in all of the respective armistice agreements.

The exact language of the Israel-Jordan Armistice Agreement, signed on 13 April 1949 and typifying all the respective agreements, reads:

 

The basic purpose of the Armistice Demarcation Lines is to delineate the lines beyond which the armed forces of the respective Parties shall not move.[8]… [as] agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto [emphasis added].[9]

 

All of the 1949 armistice agreements expressly provide that such lines have no political or legal significance that could in any way prejudice future arrangements or agreements under international law. Nothing has ever changed this, and in fact the inclusion of the “without prejudice to future…boundary lines” clause was at the insistence of the Arab parties to the treaties.

Thus the 1949 armistice lines remained valid only until the outbreak of the 1967 Six-Day War, at which time Israel succeeded in recapturing the territories occupied and subsequently  illegally annexed by Jordan in the aftermath of the 1948 war. (This illegal annexation was never recognized by the community of nations, not even by the Arab League.)

Accordingly, the most accurate, appropriate and transparent term for the “Green Line” would be the “1949 armistice lines” or the “pre-1967 armistice lines”, or an abbreviated “pre-’67 lines”. Falsely associating them with the 1967 War—where lost territory was recovered by the Israeli Defense Forces—fosters the erroneous notion that these are ill-gotten national “borders”, thus highly prejudicing the issue and its outcome.

In the aftermath of the Six-Day War, even the United Nations was forced to recognize that the armistice lines were not appropriate for the assurance of protection against aggression. Accordingly, UN Security Council Resolution 242 of 22 November 1967, which formed the “conceptual foundation”[10] for an eventual bilaterally negotiated peace settlement, is aimed at guaranteeing that all States in the region have “secure and recognized” borders. Even Resolution 242, which has been interpreted in many different ways, did not seek to determine where those boundaries should be drawn, and there was no provision calling for a return to the 1949 armistice demarcation lines.

The various interpretations of Resolution 242 have revolved around the ever controversial clause relating to the “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.”[11] The French version added the definite article to read “from the territories” (“des territoires”, implying all the post-1967-”occupied” territories), and the Spanish translation actually added the word “all” (“de todos los territorios”).

To the Anglophone drafters of Resolution 242, the omission of the word “the” was not an oversight; it was not only deliberate but determinative. The intent of the framers of the resolution was to leave some flexibility for negotiation between the parties, to not draw a hard line—in their view, “the wrong line”.

Indeed, in their own words regarding their own deliberations the major drafters (Lord Caradon, Eugene Rostow, Arthur Goldberg and Baron George-Brown) were explicitly opposed to the (pre-)’67 lines serving as boundaries for withdrawal and thereby evolving into a “permanent frontier.”[12]

The very fact that all Israel’s armistice agreements of 1949 contained language stipulating that the demarcation line (the “Green Line”) was not to be construed—then or at any future time—in any sense as a political or territorial boundary, and [was] delineated without prejudice to rights, claims or positions of either Party to the Armistice as regards ultimate settlement of the Palestine question”,[13] was at the insistence of the Arabs themselves.

Lord Caradon, the British UN Ambassador at the time he introduced Resolution 242 to the Council, and the resolution’s principal drafter, referred to these lines as nothing more than “where the troops happened to be on a certain night in 1948 … [with] no relation to the needs of the situation,”[14] asserting as well: “You couldn’t have a worse line for a permanent international boundary.”[15]

Even the Soviet delegate, who fought persistently for language that would mean total withdrawal from all territories reclaimed in the Six-Day War, ultimately acknowledged that the resolution gave Israel the right to “withdraw its troops only as far as the lines which it judges convenient.”[16]

The U.S. ambassador to the UN at the time, former Supreme Court Justice Arthur Goldberg, pointed out some years later that the fact that the resolution deliberately omitted to call for total withdrawal to the pre-’67 lines was in recognition of the fact that “Israel’s prior frontiers had proven to be notably insecure.”[17]

Similarly, Lord Caradon later reflected that: “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial.”[18]

Moreover, according to Eugene V. Rostow, U.S. Undersecretary of State for Political Affairs in 1967 and another principal drafter of Resolution 242, as summarized in a telegram from the State Department, there were certain pre-conditions that needed to be fulfilled on the part of the Arabs, “which, as [a] practical matter, and as [a] matter of interpreting [the] resolution, had to precede withdrawals” [emphasis added and telegraphic style modified.][19]

A New York Times article of 19 February 1991 reported that Resolution 242 stipulates the establishment of “a just and lasting peace in the Middle East,” affirming that “[u]ntil that condition is met, Israel is entitled to administer the territories it captured—the West Bank, East Jerusalem and Gaza Strip—and then withdraw from some but not necessarily all of the land to ‘secure and recognized boundaries free of threats or acts of force.’”[20] This same principle was deeply engrained in the minds and deliberations of the original drafters, as ultimately embodied in Resolution 242.

Resolution 242 was reaffirmed in 1973 by Security Council Resolution 338, unanimously adopted following the Yom Kippur War and calling for (direct) negotiations between the Israelis and the Palestinians toward the establishment of “a just and durable peace”.[21] According to Undersecretary Rostow, Resolutions 242 and 338:

 

…rest on two principles, Israel may administer the territory until its Arab neighbors make peace; and when peace is made, Israel should withdraw to ‘secure and recognized borders,’ which need not be the same as the Armistice Demarcation Lines of 1949.[22]

 

Security Council Resolutions 242 and 338 were explicitly acknowledged to be the basis for the Oslo Accords, negotiated between Israel and the PLO between 1993 and 1999, involving “permanent status” negotiations, with a view to implementing these two UN resolutions and settling all the main issues, including the borders question.

Since Resolutions 242 and 338 have been invoked as the foundation for Israeli-Palestinian negotiations, including the Israeli-Egyptian Camp David Accords and the Quartet “Road Map”, in addition to the Oslo Accords—and reportedly even influenced the peace treaties with Egypt and Jordan and preliminary talks between Israelis and Palestinians—there is no question about the influence of these two resolutions, despite the non-binding character of UN resolutions generally.

Yet the fact remains that, for five and a half months in 1967, various delegations (above all, the Soviet Union, India, and the Arab nations) had tried repeatedly—and with many creative linguistic and semantic improvisations—to introduce motions to oblige withdrawal from all the “occupied territories”; yet these motions were persistently defeated, in both the General Assembly and the Security Council.

The reasonable conclusion to be drawn here is that there would not even have been a Resolution 242, had the English text contained the definite article “the”, implying “all”, or the actual word “all”, itself. Indeed, Baron George-Brown, who helped draft the resolution, is quoted as having said: “It would have been impossible to get the resolution through if either of these words had been included.”[23] This alone should override all other arguments as to the “letter”, language, and intent of this resolution, as ultimately approved by the Security Council.

To sum up, then, the intent of the architects of Resolution 242 to refrain from specifying the extent of the withdrawal it “required” from territories “occupied” after the Six-Day War is unequivocal. The fact remains that five and a half months of effort on the part of certain delegations to bind Israel to the strictest terms of withdrawal—to an arbitrary “Green Line” with no legal or innately political significance beyond the expediency of a moment in time—was consistently met with rejection. This leaves no doubt that any translation or interpretation of the resolution as inferring withdrawal from “all” the “occupied” territories materially alters the meaning of Resolution 242 and is contrary to the drafters’ intent and the final Security Council vote approving the English text.

It has recently been pointed out by law professor Eugene Kontorovich[24] that the Israel Defense Forces have already withdrawn from well over 95 per cent of the territory reclaimed in the Six-Day War—in particular the Sinai Peninsula, the Gaza Strip, parts of the “West Bank”, and small parts of the Golan Heights.[25] In his view this should go some way in satisfying any requirements Israel might have under Resolution 242.

On the basis of international law—the law of nations, and not non-binding UN resolutions—the State of Israel should be reclaiming all of her rightful territory, not withdrawing from any or all of it. There is no international legal obligation for Israel to withdraw in whole or in part from the territories legally granted under the League of Nations-approved San Remo Resolution and Mandate for Palestine in 1922 and subsequently reclaimed in the defensive Six-Day War of 1967, to the extent of uti possidetis juris, based on the borders as they stood at the declaration of independence in 1948 (marginally modified since 1922 by bilateral treaties and mutually agreed land swaps).

To conclude with a point of subtle but critical distinction, the references in Resolution 242 to an Israeli “withdrawal” are in any case meant to signify a withdrawal of her defense forces from “disputed territories” (once a durable peace has been established), not to a withdrawal of her rightful national sovereignty over those territories, and should not be allowed to evolve into any such misinterpretation or misrepresentation. The mandated territories—at least as they stood in 1922—where they have not since been affected by treaty or legitimate “land swap”, belong to Israel by right under international law.

In a word, the 1967 lines are not “borders” at all, and this word should not be used to create and perpetuate the impression that Israel has illegally transgressed the borders of another State, when this is demonstrably not the case.

 

 

[1] Black’s Law Dictionary, 8th ed., Bryan Garner, ed. (Thomson West, 2004).

[2] “Customary international law” is described by the Statute of the International Court of Justice (Art. 38.1.b) as “evidence of a general practice accepted as law” and is considered as one of the primary sources of international law, based on consistent state practice and opinio juris (“a belief that this practice is rendered obligatory by the existence of a rule requiring it.” (North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)).

[3] See e.g. Abraham Bell and Eugene Kontorovich, “Palestine, Uti Possidetis Juris and the Borders of Israel, 58 Arizona Law Review (2016), pp. 633-692.

[4] The Hague Statement of jurists on the Israel-Palestine Conflict, discussion paper, The Hague, October 2017 (available at http://www.thinc.info/publications).

[5] See Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969 (U.N.T.S. 1155,1-18232), Preamble, in which customary international law is made subsidiary to the Convention. See also Article 26. “Pacta sunt servanda”: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.“Custom” is essentially unwritten law as opposed to actual legal instruments such as treaties, conventions, etc., which are codified law.”

[6] See Alan Baker, “The Fallacy of the ‘1967 Borders’—No Such Borders Ever Existed”, Jerusalem Issue Brief, Vol. 10, No. 17, 21 December 2010, at p. 1. (Amb. Allen Baker is former Legal Advisor to Israel’s Foreign Ministry.)

[7] See UN Security Council Resolution 62 of 16 November 1948.

[8] Israel-Jordan Armistice Agreement, Article IV(2).

[9] Ibid., Article VI(9).

[10] Eli E. Hertz, “No Return to the 1967 Borders”, Myth and Fact, 29 April 2011.

[11] UN Security Council Resolution 242 of 22 November 1967 (S/RES/242(1967)), para. 1(i).

[12] Institute for the Study of Diplomacy, U.N. Security Council Resolution 242, at p. 13.

[13] Egyptian-Israeli General Armistice Agreement, 24 February 1949, done at Rhodes, Island of Rhodes, Greece, Article V(2). ( U.N. doc. S/1264/Rev. 1, Dec. 13, 1949.) See also infra note 77 and accompanying text.

[14] Lord Caradon, in an interview for the Journal of Palestine Studies, Spring – Summer 1976, pp. 144-45. For this and other quotes and selected excerpts hereinafter, see generally [Amb.] Danny Ayalon [Deputy Foreign Minister of Israel at the time of writing], “Israel’s Right in the ‘Disputed’ Territories”, Wall Street Journal, Opinion Europe, 20 May 2011. See also, “Security Council Resolution 242 According to its Drafters”, Committee for Accuracy in Middle East Reporting (CAMERA), 15 January 2007.

[15] Lord Caradon, ibid.

[16] Vasily Kuznetsov, as quoted in United Nations Security Council Official Records, Meeting no. 1373 of 11 September 1967 (S/PV. 1373), at p. 112. See also Ayalon, supra note11.

[17] Arthur Goldberg, speaking in 1973, as quoted in Ayalon, ibid. also in Decoding the Conflict between Israel and the Palestinians, Charles River Editors, Chapter 8, (unnumbered) first page, para. 5.

[18]   Lord Caradon, in an interview for the Beirut Daily Star on 12 June 1974.

[19] Telegram from the Department of State to the U.S. Interests Section of the Spanish Embassy in the United Arab Republic, summarizing Rostow’s conversation with Soviet Ambassador Anatoly Dobrynin, as quoted in CAMERA, supra note 11.

[20] “Don’t strong-arm Israel,” As quoted in CAMERA, ibid.

[21] UN Security Council Resolution 338 of 22 October 1973 (S/RES/338 (1973)), para. 3.

[22] Jerusalem Post, “The truth about 242,” 5 November 1990, as quoted in Ayalon, supra note11; also CAMERA, ibid.

[23] As quoted in George A. Brown, In My Way: the Political Memoirs of George-Brown, St. Martin’s Press, New York, [1971], at p. 233.

[24] Professor of Law at Northwestern University, Chicago, and a member of the Kohelet think-tank in Jerusalem.

[25] From an interview in “Whose Land?”, documentary film by Hugh Kitson, 2017, www.whoseland.tv.

 

 

March 31, 2018