The Ibishblog has received some very interesting responses to my recent posting on Security Council Resolution 242 and its successor resolutions and one-state advocacy, and the logical conndrum of both relying on and fundamentally opposing its internal logic.
One careful and astute reader suggests the following way out: “what if the one state advocate relies upon the 4th Geneva Convention rather than UN 242? If I remember correctly, the former forbids the transfer of a state’s population to an occupied territory, period. No one questions that Israel is now a state, nor would most have trouble recognizing that it has occupied Gaza and the West Bank, without any reference whatsoever to 242. Now we have a basis for ending the occupation which commits us to precisely nothing re our attitudes towards Israel’s legitimacy going forward.”
It’s a nice try, but it doesn’t hold together. The problem is one perforce relies on 242 in order for the Fourth Geneva Convention, which the reader characterizes perfectly accurately, to be applicable in the occupied Palestinian territories in the first place. Otherwise, there would be, as Israel claims, a dispute and not an occupation, and the applicability of the Geneva Convention would be a matter of opinion rather than a matter of fixed international law.
There are scores, probably hundreds, of circumstances around the world in which an ethnic or sectarian group claims to be under the “occupation” of some member state of the United Nations. As far as I can tell, only three of these are so designated by the Security Council under any reading, the most clear-cut case being the occupied Palestinian territories and the Golan Heights (the other two more murky instances being Western Sahara and Cyprus). In such cases the applicability of international law protecting civilians living under foreign military occupation is clear-cut and indisputable, and continuously causes Israel discomfort and diplomatic difficulty. Indeed, the entire Arab and Palestinian case against the occupation is based on this. If you remove the international legal designation of the occupation in Palestine by shifting away from 242 to something else, that Geneva Convention becomes essentially irrelevant.
Because the Geneva Convention relies on 242 as a predicate which establishes as an indisputable fact that this is an occupation and that Israel is bound by the limitations placed by the Convention and other instruments on occupying powers (Israel’s dodge is to say that it isn’t an occupying power, but it does respect the Convention’s limitations, even though it does not), dispensing with 242 means that the Convention may well not apply at all to this situation. Certainly, Israel’s case that it doesn’t would be infinitely stronger, and it would be a matter of opinion rather than a matter of law and fact.
Another esteemed reader questions the utility of 242, writing: “Even if I stipulate that 242 is somehow a legally binding resolution (which I do believe it is), the failure of the international community to enforce 242 seems to me to fundamentally devalue, or even entirely dissolve, its merits. What good is a law that is never enforced, or is enforced in an inequitable manner, such has clearly been the case with Israel and 242? How valid or useful is this law, in practical terms? If we determine that 242 is essentially void of practical or practicable merit, then does this cascade down to all the subsequent legal rulings that you discussed?”
I think these are two separate questions. It’s definitely true that neither plank of 242, which lays out reciprocal obligations of “land for peace” have been realized. Israel has not withdrawn from the occupied territories (land) and its right to exist in secure and recognized borders free from threats and the use of force (peace), and its respect for the same rights of its neighbors such as Lebanon, have not been realized. I don’t think that makes 242 invalid or anachronistic, as former Secretary of State Madeleine Albright once tried to suggest. It didn’t take, and the Palestinian cause dodged a bullet on that one. The whole Israeli political/legal case defending the occupation is based on a rejection of 242, while the Arab case demanding an end to the occupation is similarly based on upholding 242.
Moreover, subsequent Security Council resolutions pursuant to 242 have included numerous extremely important declarations (all made unanimously, including with the support of the United States) such as that Israel’s de facto annexation of Jerusalem is inadmissible and that Israel specifically is required to withdraw from Jerusalem and more recent resolutions explicitly calling for the creation of a Palestinian state (for the first time).
I definitely understand and share the frustration of this reader, and probably most of my readers, friends, and fellow Arabs and Arab-Americans at the failure to realize the requirements of 242 after so many years, indeed decades, of outrageous occupation. But I don’t think it would be right to fail to recognize the political and legal significance of this crucial designation of Israel as the occupying power (something Israel would desperately like to get out of, but thankfully cannot). And it would also be wrong to understand the diplomatic space as static just because a resolution has not been achieved. Only the most cynical and jaded would fail to see the virtue in Pres. Obama’s efforts to secure a settlement freeze from Prime Minister Netanyahu.
All this talk about settlements, indeed the whole idea that the Israeli civilian presence in the occupied territories are settlements in the occupied territories depends entirely on 242. Without 242, it would become very easy to argue that these are simply Israeli civilians living in Israeli towns in some disputed area that is and will probably continue to be under the control of Israel rather than settlers illegally colonizing occupied lands. Personally, I’m extremely uncomfortable with that, to say the least. And, I think, so should everybody else.
But one thing is for sure, you can’t have it both ways. If you accept the logic of 242, then you accept the logic of 242 in toto. Neither the Israeli right nor the Palestinian Islamic right or ultraleft can legitimately pick and choose this bit and that according to their own convenience. Anyone can walk away from this logic, but that means embracing another logic which has to be coherent and explicable. Otherwise, we are simply stuck in the realm of emotions, agendas and slogans.