By: Mr. John McHugo *
This paper was presented by Mr. John McHugo at the Conference on “The Eurpean Foreign Policy towards the Palestinian Issue” that was held by Al-Zaytouna Centre for Studies and Consultations in Beirut, on 3-4/11/2010
The Balfour Declaration
Britain has had a longer involvement with the Palestine issue than any other Western country, going back to the Balfour Declaration. This is not a history lecture, and I take a background in the basic history of the Palestinian issue for granted when addressing this distinguished audience, but I would like to begin by drawing attention to a certain vagueness, an imprecision, in that specifically British document: the Balfour Declaration in 1917.
The Declaration begins by stating that “His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object….” It then continues with a safeguard: “it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…”
The single sentence that makes up the declaration is stuffed full of ambiguity and a lack of clarity. “Palestine” is not defined, and there was no single Turkish administrative unit or group of administrative units that could be said to unambiguously constitute “Palestine” in 1917. “Palestine” is therefore unclear. It is also unclear whether the intention is that the declaration should apply to the whole of “Palestine” or just a part of it. Perhaps even more crucially, it did not say what it meant by “a Jewish national home”. Note that it did not say “the Jewish national home”.
The words “national” and “home” are not spelled with capital letters, so there is no reason why it should not just have been referring to one of several “Jewish national homes”. Another element of lack of clarity is introduced by “the Jewish people”. Note also that, once again, there is no capital letter before the noun “people”.
Did Balfour mean by his “national home” for the Jewish people a sovereign, independent State? This is far from clear from the text of the Declaration itself, and at least one key British official, Sir Ronald Storrs, was able to delude himself that a sovereign Jewish State was “just the idea of a few extremists” among the Zionists. One could indeed argue that the safeguard in the Declaration “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine” might suggest a Jewish sovereign state was never intended.
Nevertheless, we all know that the establishment of a predominantly or exclusively Jewish State was always the intention of the Zionist leadership. The lack of clarity in the Balfour Declaration gave them an open door at which they could push. Perhaps, over half a century before Henry Kissinger, it was a case of so-called constructive ambiguity.
The idea behind constructive ambiguity is that wording is agreed that will allow each party to maintain a position which is incompatible with that of the other party. Each party’s face is thus saved for the time being, and – if we are optimistic – perhaps other points of disagreement will be resolved, thus defusing the contentious issue. It may even happen that the importance of the contentious issue will diminish with the passage of time, and it will become irrelevant.
Nevertheless, the risks are great: hopes that the contentious issue will be subsequently resolved may be dashed, and these shattered hopes may cause the acrimonious breakdown of negotiations. Each party may become more entrenched in its own view of the contentious issue as time passes, which may make a resumption of serious negotiations harder. Even worse, constructive ambiguity can lead to perceptions of bad faith and a breakdown in trust between negotiators.
I came across a case in which this happened when I was working on the boundaries between two Gulf states. A no doubt well-meaning but slightly devious and not very intelligent British political officer brokered an agreement between two rulers. This agreement was written in 1944 – again, well before Henry Kissinger, the arch-practitioner of “constructive ambiguity”. It was an agreement for a return to a status quo ante, with neither party accepting the claims of the other. It was a disaster, and led to a breakdown of trust and much acrimony over the next two generations.
Resolution 242 as another example of constructive ambiguity
I will now fast forward to Resolution 242 and ask whether the same ambiguity and lack of clarity can be found in it as in the Balfour Declaration, because the question unfortunately needs to be posed: has Britain’s policy on the Palestine issue been tainted throughout with constructive ambiguity, and is Resolution 242, exactly half a century after the Balfour Declaration, another example of it? Certainly, 242 is frequently cited as an example of constructive ambiguity, and many discussions of constructive ambiguity, including the Wikipedia entry on the topic, begin with an examination of 242 as a case study.
My analysis of the text
Nevertheless, as some of you may know, I made the case some eight years ago in the International and Comparative Law Quarterly that 242 is a clear and unambiguous document. I will pause here to summarise the arguments I adduced in 2002:
(1) The crucial wording is the phrase “Withdrawal of Israel (sic) armed forces from territories occupied in the recent conflict”. Now the absence of the words “all” or “the” in front of “territories” does not mean that the words “some of the” should be supplied instead. To infer that less than total withdrawal was intended by this wording would establish a very dangerous precedent. In my article I suggested an imaginary notice: “Dogs must be kept on the lead near ponds in the park” as an example to prove my point. Common sense tells us that the notice applies to all dogs and to all ponds.
I still stand by my example, but you might like also to consider the wording of the armistice agreement that ended fighting on the western front at the end of the First World War. It is entitled “Conditions of an Armistice with Germany”. Article One reads as follows: “Cessation of hostilities on land and in the air six hours after the signature of the Armistice”. Did this mean “a complete cessation” or “a partial cessation”? Did it refer to “all land” or to “some land”? Did it refer to “all the air” or just “some of the air”? Could anyone seriously suggest it only intended a partial cessation of some, but not all, hostilities? Obviously, the answer to all these questions is “no”. The actual wording of the Withdrawal phrase in 242 does not, I submit, imply that a partial withdrawal is the intention. This is my first argument.
(2) My second argument is as follows. The wording of the Withdrawal phrase must be interpreted in the light of both the immediate context in which it occurs (the text of the Resolution when taken as a whole) and the less immediate context (the statements made in the Security Council debate and the battle of drafts in the history of the drafting process – the travaux prepratoires). Both contexts, I argue, support my interpretation. These statements and the travaux preparatoires make the intentions of the members of the Security Council clear, and my analysis passes the test contained in the rules of interpretation set out in Articles 30-3 of the 1969 Vienna Convention.
(3) My third argument is of a general nature. A clear interpretation -if it is possible to arrive at one- must be preferred over an ambiguous one. The Israeli interpretation was inherently ambiguous, but I believe that I showed conclusively that there was no need to reach an ambiguous interpretation since a clear interpretation was available. Therefore, it is wrong in principle to prefer the ambiguous interpretation.
In addition to these three arguments, which are really three limbs of one single argument, there was yet another argument set out in my article. This that the words “Withdrawal of Israel forces” refers to troop movements, nothing more. The question of territorial sovereignty is dealt with elsewhere in the Resolution, in the words “Emphasising the inadmissibility of the acquisition of territory by war” which incorporate a provision of customary international law directly into the Resolution. This wording provides that Israel cannot acquire sovereignty over occupied territory by unilateral acts. It means that, even if Israel’s argument over the Withdrawal Phrase were sustainable, it would be irrelevant.
The lack of reaction
After my article appeared, I waited to see what the reaction would be. The article was well-received by some scholars, and the Negotiations Affairs Department of the PLO obtained permission from the publishers for it to be placed on their web-site. But did it lead to a debate? No, it did not. As this conference is about European policy – as well as British policy – you may be interested that in June 2007 the highly respected Konrad Adenauer Stiftung organised a conference in Jerusalem on Resolution 242 jointly with Dore Gold’s self-styled Jerusalem Center for Public Affairs.
It was an egregious Propagandafest, if you will excuse my language. There was no serious attempt to investigate what 242 really meant: it was an occasion for what I have called the Right-wing Israeli interpretation of the withdrawal provision in 242 to be celebrated and uncritically propagated to the world. Rather than attempt to deal with my arguments, the organisers of the conference ignored them.
Michael Lynk’s work
The Canadian scholar Michael Lynk revisited 242 in 2007 in his article Conceived in Law: the legal foundations of Resolution 242. He went into the question more thoroughly than I had done in 2002 and came to broadly the same conclusion as myself. He looks at the attempt by scholars favourable to the official Israeli position to argue that 242, “does not compel Israel to make more than a partial withdrawal from the captured territories; that the waging of a defensive or pre-emptive war does not force Israel to surrender the lands that it conquered; and that Israel’s occupation is legal until a final peace agreement establishes ‘secure and recognised borders’.”
His analysis of their work shows how these scholars who have attempted to give respectability to the Israeli position have only been able to do so “by cherry-picking the diplomatic record and diluting the liberal purposes of modern international law”. Like the speakers at the 2007 conference in Jerusalem, they can only do this by ignoring and refusing to engage with the arguments which their opponents – such as Lynk and myself – have produced. As Lynk has eloquently put it, “In all of the 1967 territories, Israel settled its civilians in state-subsidized colonies as a prelude to claiming permanent control and title over the lands, an act expressly forbidden by international law. Israel remains in deliberate non-compliance with a number of clearly expressed Security Council resolutions that flow from 242, including its annexations of East Jerusalem and the Golan Heights, and its civilian settlements in the occupied territories.
Viewed through this good faith requirement, Israel’s constricted interpretation and application of the withdrawal provision is less the product of a genuine and rationally-held (albeit minority) interpretation of international law, and more the disfigured reading of law to justify the deliberate evasion of legal responsibilities.”
I believe that my work and that of Lynk has shown that there is a real difference between the Balfour Declaration and 242. The latter is clear, the former is not.
Pushing at an open door
During the Mandate, the Zionist leadership used the text of the Balfour Declaration as an open door at which it could push. The ambiguities of the Declaration led to the acceptance by the Mandatory authorities that the Jewish Yishuv and the Palestinian Arabs should be treated as two separate peoples, to the first proposal for partition of Palestine by the Peel Commission in 1937, to the abandonment of the 1939 White Paper, to the UN partition resolution and ultimately to the establishment of the state of Israel. It was successful in gaining these advantages precisely because of the Declaration’s ambiguity.
Israel tries to do the same today with Resolution 242. It uses its interpretation to back up its propaganda campaign that it has the right to annex parts of the territories it occupied in 1967. The ambiguity which Israel claims to find in Resolution 242 thus lies behind its illegal annexation of Jerusalem, its sectarian settlement policy, its pillaging of the occupied territories of their resources, and its blatantly racist attempts to draw a distinction between the land of the territories and the indigenous people who inhabit it.
I strongly suspect that it is because of this alleged constructive ambiguity that Israel has agreed to the use of Resolution 242 as the basis of attempts to negotiate peace. Indeed, perhaps this is a successful example of “constructive ambiguity” in its true, if cynical, meaning. Thus, there is a special reference to 242 in the preamble to the 1979 Israel-Egypt peace treaty, while Article 1 of the Declaration of Principles between Israel and the PLO of 13 September 1993 begins by stating that the negotiations “will lead to the implementation of Security Council Resolutions 242 and 338”. I strongly suspect that Israel was happy to accept the reference to 242 in the 1993 Declaration of Principles precisely because it believed this gave it an open door at which it could push.
When constructive ambiguity is not ambiguous
But, as has been shown above, the truth of the matter is that Resolution 242 is incapable of sustaining the Israeli interpretation. This brings us to two questions:
(1) What is the position when a party decides to rely on what it considers to be constructive ambiguity, but there is actually no constructive ambiguity in the case in question – or it subsequently transpires that it was mistaken in its view that there was constructive ambiguity?
(2) What is the position when that party relies on alleged constructive ambiguity for its own, self-seeking purposes, and is able to do so to the detriment of the other party because it is politically and militarily by far the stronger?
The answer to the first question is, I think, simple. If two parties to an agreement dispute its meaning and go to court – perhaps years after the agreement was signed – they are bound by the meaning which the court finds to be the right one, and must implement it. This is surely self-evident. A mistaken interpretation of Resolution 242 cannot be used by Israel to support policies which are unacceptable in terms of the text of the resolution, or under international law.
By arguing a position of ambiguity, and relying on its own interpretation of the ambiguity to the detriment of the other party, I would also suggest it should be precluded, or estopped, from denying the rights which the true meaning of the resolution accords to the other party.
We need to look more closely at the second question. The Zionist exploitation of the ambiguity in the Balfour Declaration was successful because the Zionists were the stronger party viz a viz the Palestinian Arabs, something that is amply demonstrated by their ability to bring greater influence to bring to bear on the conduct of the Mandatory power than the Palestinian Arabs, as well as by the Zionist successes in the fighting on the ground during the last six months of the Mandate.
The future state of Israel would be the beneficiary of all this. Now the fact that Israel is today a sovereign state for the purposes of international law, and the fact that the PLO has accepted the 1949 cease-fire lines in a manner that constitutes a waiver of Palestinian claims to sovereignty over the territory on the Israeli side of those lines, mean that the ambiguity of the Balfour Declaration is no longer of relevance in the search for a peace settlement.
But what about Resolution 242? If the Yishuv was the stronger party during the Mandate, how much more powerful is Israel compared to the Palestinians during the period from 1967 until today! In its attempts to use 242 as an open door at which it can push, Israel has been systematically abusing its position as an occupying power in international law.
Yet the Security Council, in its subsequent pronouncements, has left Israel no wiggle-room. The Resolutions condemning Israel’s purported annexation of East Jerusalem and the Golan Heights all re-iterate the principle of the inadmissibility of the acquisition of territory by war – in other words, they are consistent with the interpretation of Resolution 242 which both Lynk and I have put forward, but not with that of Israel.
Although the provision in the Resolution which calls for every state in the area to have “the right to live in peace within secure and recognised boundaries free from threats or acts of force” may lead to a renegotiation of boundaries, and some diplomats involved in negotiating Resolution 242 (including the British representative, Lord Caradon) subsequently stated that the old armistice lines needed adjustment, only adjustments which are on the basis of freely agreed territorial swaps would be consistent with Resolution 242.
This brings us, at last, to British policy. What is Britain’s position on Resolution 242? On two separate occasions in the Security Council debate Lord Caradon, stated that the wording was clear. He also implied (in his comments on the Latin American draft Resolution which expressly provided for a complete withdrawal) that he supported a complete withdrawal, and explicitly linked the withdrawal phrase with the emphasis on the inadmissibility of the acquisition of territory by war in the preamble, both of which provisions he regarded as “clear”.
On this basis, I felt confident stating in my ICLQ article that Britain was one of the ten members of the Security Council that went on the record to the effect that the Resolution gave Israel no right to acquire any of the territories it occupied in 1967. We must now ask, does subsequent British policy confirm this?
To answer this question, I searched under Resolution 242 on the Foreign and Commonwealth Office’s web-site, because I am well aware that all statements put on the web-site will have been carefully scrutinised to ensure that they reflect current government policy. I also looked at Dr Rosemary Hollis’ s study, Britain and the Middle East in the 9/11 Era, which was published this spring and deals with Britain’s policy towards the Peace Process, Iraq and other questions concerning the Middle East throughout the premiership of Tony Blair.
I found twenty-two references to Resolution 242 on the FCO web-site. They were all published on it during the period 2008-10 and are thus positions which the British government wishes to emphasise today, although some of them are statements by British ministers made on earlier occasions going back to 2002. Most of them need not detain us, and are merely statements to the effect that Resolution 242 is one of the foundations for a just peace, but without specifying what it provides.
Thus, David Miliband, the British Foreign Secretary, stated that Resolutions 242 and 338 provided “the agreed foundation for progress” at the Annapolis summit in 2007. Yet, interestingly, his predecessor, Jack Straw, stated at a reception in 2002 that a comprehensive settlement between Israel and Palestine should involve a two state solution “with borders based on Security Council Resolutions 242 and 338”, and the Israeli country profile on the web-site is adamant that the British government’s view is that the provisions concerning withdrawal of Israeli troops apply to East Jerusalem.
These seem to me to point to my interpretation of 242 being shared by the British government. Jack Straw did, however, spell this out a little more in the parliamentary debate before the vote was taken to invade Iraq on 26 February 2003. Trying to defend Britain against the charge of double standards over Palestine, he said:
“We deal with this charge, however, not by ignoring outstanding United Nations obligations, but working ever harder to see them all implemented. The key ones on Israel/Palestine – 242, 338, 1397 – impose obligations on three sets of parties, on the Palestinians to end terrorism, on the Arab countries to end the support of terrorism and to recognise the State of Israel, on Israel fully to cooperate in the establishment of a viable State of Palestine with borders broadly based on those of 1967…”[emphasis added]
Even more significant, is the report of an interview given by the British Consul-General in Jerusalem, Mr Barry Marston, to Al Quds newspaper on 30 May 2006 contains the following, highly significant statement in response to a question about settlements: “All settlements on the Palestinian territories are illegal. UN Resolution 242 calls for the dismantling of the settlements”.
Now you know as well as I do that the words “dismantle” and “settlements” do not occur in Resolution 242. What was Mr Marston referring to? It can only have been to the following position, which we are entitled to assume is that of the British government: Resolution 242 forbids the acquisition of territory by war. This therefore makes all the settlements automatically illegal, and Israel is under an obligation to dismantle them. No arguments brought on the basis of Israel’s spurious and dishonest interpretation of the Withdrawal phrase in 242 can affect this.
International humanitarian law, in the form of Article 49(6) of the Fourth Geneva Convention of 1949, of course also prohibits an occupying power from transferring its civilian population into occupied territory. Mr Marston could have referred to this provision if he had wished, and it would have given him sufficient authority for his assertion. But he chose instead to base his statement on Resolution 242.This can only have been intentional. It shows that the British Government’s policy is to uphold the clear and unambiguous effect of Resolution 242 which I have set out above. Wouldn’t it be wonderful if the British Government could take just one more small step and say this in so many words?
* Mr. John McHugo: John McHugo is the chair of the Liberal Democrat Friends of Palestine and a member of the Executive of the Council for Arab British Understanding (CAABU).
Al-Zaytouna Centre for Studies and Consultations, 31/12/2010