The October 10, 2002
Note of Likud of Holland: Normally The Economist is rather anti-Israel. It
is interesting that in this article on legal matters it says that Israel on the
whole is acting legally.
Israel ignores the United Nations and has weapons of mass destruction. So why
all the fuss about Iraq?
SOON after invading Kuwait in 1990, Saddam Hussein realised that he had
made a mistake. Contrary to his expectations, the world would not after all
allow his land-grab to stand. The United States was girding for war. He
therefore began to cast around for a face-saving exit. One of the first ideas he
came up with was “linkage”. Why not trade a withdrawal from Kuwait for
Israel’s withdrawal from the territories it had occupied in 1967?
Linkage got nowhere. But as the world debates the merits of another
American-led war against Mr Hussein, the idea has returned in a new form.
Israel has violated countless UN resolutions and amassed weapons of mass
destruction, say those who oppose this war. Why then is Iraq singled out for
yet more punishment while the Israelis get off scot-free?
This question is no longer being asked by Arabs alone. “No war against Iraq,
Free Palestine” has become the slogan of anti-war demonstrators in Europe and
America. The two conflicts have become entwined in the public mind in a way
that the West’s politicians cannot ignore. When he sought last week to talk his
sceptical Labour Party into supporting action against Iraq, Tony Blair, Britain’s
prime minister, got his biggest cheer for the bit of his speech that said UN
resolutions should apply in Palestine as much as Iraq.
To many of those disturbed by the contrast between the world’s treatment of
Israel and its treatment of Iraq, it is rights and wrongs, not details of law, that
matter here. Israel’s occupation of the West Bank and Gaza has endured for 35
years, against the will of the Palestinian inhabitants, who dearly want, and in
the eyes of the world have long deserved, a state of their own.
But whereas Israel is supported economically and diplomatically by
America, America is the prime mover against Iraq. Simple justice, or so the
argument goes, requires even-handed behaviour by the superpower in the two
conflicts.
That may be so. But a quite distinct sort of claim is also made in the ‘double
standards’ debate. This holds that Israel stands in breach of Security Council
resolutions in just the way Iraq does, and therefore deserves to be treated by
the UN with equal severity. Not so.
What the law says
The UN distinguishes between two sorts of Security Council resolution. Those
passed under Chapter Six deal with the peaceful resolution of disputes and
entitle the council to make non-binding recommendations. Those under Chapter
Seven give the council broad powers to take action, including warlike action, to
deal with “threats to the peace, breaches of the peace, or acts of aggression”.
Such resolutions, binding on all UN members, were rare during the cold war.
But they were used against Iraq after its invasion of Kuwait. None of the
resolutions relating to the Israeli-Arab conflict comes under Chapter Seven. By
imposing sanctions – including military ones – against Iraq but not against Israel,
the UN is merely acting in accordance with its own rules.
The distinctiveness of Chapter Seven resolutions, and the fact that none has
been passed in relation to Israel, is acknowledged by Palestinian diplomats.
It is, indeed, one of their main complaints. A Palestine Liberation
Organisation report, entitled “Double Standards” and published at the end of
September, pointed out that, over the years, the UN has upheld the
Palestinians’ right to statehood, condemned Israel’s settlements and called for
Israel to withdraw. But “no enforcement action or any other action to
implement UN resolutions and international law has been ordered by the
Security Council.”
But what if, for the sake of argument, the main Security Council resolutions on
the Arab-Israeli conflict had been Chapter Seven resolutions? The problem
would then arise that Resolution 242 of 1967, passed after the six-day war and
frequently cited in the double-standards argument, does not say what a lot of
the people who quote it think it says.
It does not instruct Israel to withdraw unilaterally from the territories
occupied in 1967. It does not condemn Israel’s conquest, for the good reason
that most western powers at that time thought it the result of a justifiable
pre-emptive war. It calls for a negotiated settlement, based on the principle of
exchanging land for peace. This is a very different matter.
In contravention of lots of resolutions
In the case of Iraq, the Security Council has instructed Mr Hussein to take
various unilateral actions that he is perfectly capable of taking. Resolution 242
cannot be implemented unilaterally, even if Israel wanted to do so.
Why? First is the question of borders. Some of the diplomats who drafted
Resolution 242 said afterwards that they intended to allow for some changes in
the armistice lines that separated Israel and its Arab neighbours before the war
of 1967. There has been a dreary argument for three decades over the meaning
of the absence of a definite article (in the English text) before the phrase
“territories occupied in the recent conflict”. The Arabs maintain that the
resolution requires a complete withdrawal from every inch. But even if this were
so, the resolution cannot be implemented without arriving at a negotiated
agreement.
For example, the resolution calls for a “just” settlement of the Palestinian
refugee issue. Meaning what? The Palestinians say that a UN General Assembly
resolution, 194 of 1948, gives all the Palestinian refugees of 1948 the right to
return, or to get compensation.
Israel, denying responsibility for their flight, says that the same
resolution stipulates that these refugees had to be willing to “live at peace with
their neighbours” and that the Palestinians, having rejected the UN-sanctioned
partition of Palestine, were not prepared to live in peace with the new Jewish
state.
More than half a century later, the refugee population has grown from
about 700,000 to at least 3.8m, making the return of all of them an
impossibility, says Israel. It may be possible to negotiate a compromise on this
issue, as Yasser Arafat and Ehud Barak attempted without success at Camp
David in 2000. But there exists no Security Council blueprint to solve it.
Israel says that it has already implemented much of 242, and that it stands
ready to implement the rest of it. It returned land to Egypt and Jordan in return
for peace. Two years ago, when he was prime minister, Mr Barak offered the
bulk of the Golan Heights in return for peace with Syria.
All the agreements made between Israel and the Palestinians under the
Oslo peace process were predicated on Resolution 242. Israel subsequently
withdrew from the main Palestinian population centres (although it has returned
to them since the intifada) pending negotiation of a final settlement.
And though there are strong grounds to question his sincerity, Israel’s
new prime minister, Ariel Sharon, claims to accept George Bush’s peace
“vision”, set out in June, of an Israeli withdrawal and a free Palestine based on
the borders of 1967.
It is commonly asserted that Israel’s occupation is “illegal”. This is
questionable. In March, for the first time ever, Kofi Annan, the UN’s
secretary-general, called Israel’s occupation illegal, but it is no accident that he
has not repeated this claim.
In the view of Sir Adam Roberts, professor of international relations at
the University of Oxford, it was a “serious mistake” to describe the occupation
itself, as opposed to some of Israel’s actions as an occupier, in this way.
In a subsequent letter to the New York Times, Mr Annan’s spokesman
admitted as much. The secretary-general, he said, had not intended to refer to
the legality of Israel’s occupation of the territories during the war of 1967, only
to breaches of its obligations as an occupying power.
This is where Israel has put itself squarely on the wrong side of the Security
Council. Since 1967, the UN has rejected all Israel’s attempts to change the
legal and demographic status of the captured territories, by annexing
Jerusalem, applying Israeli law to the Golan Heights and planting Jewish
settlements in the West Bank and Gaza. How can vigorous attempts to colonise
the occupied territories be reconciled with Israel’s claim to accept 242 and the
principle of land for peace that underlies it?
They can’t. The plain fact is that Israel, citing history ancient and modern
(Jerusalem has had a Jewish majority since the 19th century), decided after
conquering its Jordanian half in 1967 to make the city its eternal “unified”
capital. The Labour governments of that period also began to dot the Jordan
valley and Golan Heights with Jewish settlements, ostensibly in order to guard
the new borders against a still hostile Arab world.
After 1977, the Likud governments of Menahem Begin and Yitzhak
Shamir set out frankly, for religious-ideological reasons, to make the occupied
territories part of a Greater Israel, in defiance of the UN and of the logic of 242.
Here Israel cannot plead innocence. All it can enter is a plea of mitigation.
Legal or not, the occupation has lasted a terribly long time. But this is not solely
Israel’s fault. In 1967, it was the Arabs who rejected Resolution 242. They
certainly did not accept Israel’s new post-war borders, but nor did they
recognise its pre-war borders. They did not, in fact, acknowledge Israel’s right
to exist at all. This posture persisted for a dozen years after 1967, until Egypt
alone made peace.
The Palestinians, pledging still to “liberate” all Palestine and dissolve the Jewish
state, waited longer. Not until the late 1980s, some 40 years after Israel’s birth
and 20 years after the 1967 war, did Mr Arafat’s PLO indicate an interest in a
two-state solution. Under the rules of “belligerent occupation”, Israel should not
have mucked about during those 20 years with the status of the captured
lands. But it is not wholly surprising, given the continuing rejection and siege,
that it did.
When the Palestinians decided that they were no longer bent on its extirpation,
Israel responded. In 1993 it signed an agreement with the PLO under which the
two sides undertook to implement Resolution 242 by negotiation, thus putting
all the contentious issues – Jerusalem, the settlements and the refugees – on the
bargaining table. Two years ago the talks failed, to be followed by a new
Palestinian intifada and the election of the unyielding Mr Sharon.
The Israelis claim that their agreement to negotiate the thorny issues with the
Palestinians supersedes the relevant UN resolutions on settlements and the rest,
a view which the Security Council might accept if the negotiations got back on
track. In the meantime, the council’s rulings on Jerusalem and the settlements
stand.
The nuclear shadow
Over the past two years, the intifada has given rise to a new batch of
resolutions. Some rebuke the Israelis for using “excessive” force, others make
specific demands. Resolution 1435, for example, calls on Israel to pull out of
the Palestinian cities it has recently reoccupied and back to the positions it held
before the violence started in September 2000. It has been ignored.
But like most recent resolutions, this one cuts both ways. It makes
demands of the Palestinians, too, which have also been ignored. In this case,
the Palestinian Authority is instructed to cease all violence and incitement, and
to bring “those responsible for terrorist acts” to justice.
In the long and intractable conflict over Palestine, both sides consider
themselves victims. The Palestinians say that their national rights were usurped
by an intruder; the Israelis that the Palestinians never accepted the Jewish right
to self-determination.
The UN’s approach has been to recognise the complexity of these
respective claims, lay down broad principles, and urge a negotiated peace. The
case of Iraq could hardly be more different. That country is in conflict with the
UN itself, having refused to comply with the clear instructions, under Chapter
Seven, to give up its weapons of mass destruction.
What, though, about Israel’s nukes? Does its status as an undeclared nuclear
power put it on a par with Iraq, which has tried to become one? No. In 1981,
Resolution 487 scolded Israel for sending its aircraft to destroy Iraq’s Osiraq
reactor, which Israel said was being used to manufacture a nuclear weapon,
despite having been given a clean bill of health by inspectors from the
International Atomic Energy Agency.
Noting that Israel had not signed the nuclear non-proliferation treaty
(NPT), as Iraq had, the UN called on Israel to put its own nuclear facilities under
the IAEA safeguards, as the NPT requires.
Two decades on, Israel has still not signed the NPT. This infuriates the treaty’s
supporters, who have been striving to make it “universal”.
But, as with any other treaty, governments are free not to sign. What
they are not free to do is sign, receive the foreign (civilian) nuclear help to
which signing entitles them, and then try to build a bomb secretly. This, it is
now ruefully accepted, is what Iraq tried to do, and may still be trying to do.
Israel is thought to possess a large nuclear arsenal, about which it is not being
open and honest, and this is provoking to its neighbours. But it is not evidence
of “double standards”. Being a nuclear-armed power is not, by itself, a breach
of international law.
