Towards a New 242

By Jerome M. Segal
University of Maryland
Revised: April 26, 2009

1. Introduction

The failure of the Annapolis negotiations have led many to conclude that Israeli and Palestinian moderate governments were too weak to close a deal; that politically speaking, the most the Israeli side was able to concede fell significantly short of the least the Palestinian side could accept. On this basis, even prior to the Netanyahu government, some argued for turning away from final status issues, saying, “the gap is just too great.” However, an alternative conclusion is possible: If Palestinian and Israeli governments, even when they recognize the need, are too weak to make the necessary compromises on key issues (e.g. Jerusalem, refugees) then the international community should lift some of the burden of compromising-for-peace from the shoulders of future negotiators. This can be done by laying down clear and substantive parameters for resolution of the conflict. This memo proposes that the UN Security Council enact a resolution (a “new 242’) which provides such parameters.

2. Why Now?

Given that the new Israeli government under Prime Minister Netanyahu is distinctly disinterested in serious final status negotiations, it might be argued that such matters are irrelevant at the present, and thus now is not the time for such action by the international community. There are several reasons why this is not so:

1. When serious final status negotiations are underway, it can with some credibility be argued, that action by the Security Council runs the danger of derailing promising negotiations. It is precisely when no such negotiations are being undertaken, that the international community can act without such risks. Moreover, by acting at this point, it will put in place a framework that will make success more probable when serious negotiations are ultimately resumed.

2. The failure of the Annapolis process and the absence of any movement on the fundamental issues of the conflict creates a particularly dangerous environment on the Palestinian side. When negotiations offer no prospect of ending the occupation, the claims of those calling for violent “resistance” resonate more forcefully. Moreover, within the competition between Fatah and Hamas, Fatah’s primary advantage is that it can offer the Palestinians a path toward genuine independence and statehood. When there is no movement towards a negotiated solution, Fatah has little left to offer. Strong action by the international community in laying down basic parameters for ending the conflict, can, to some extent, address the dangers of current paralysis.

3. If in response to such action by the international community the PLO agrees to the articulated parameters, there will be increased demand inside Israel for a government that also accepts the international parameters.

3. The Substance of 242

Following a Preamble which states “the inadmissibility of the acquisition of territory by war” and the need to work for a “just and lasting peace” that would allow “every State in the area to live in security,” UNSCR 242 articulates two central “principles” on which such a peace should be based:

1. “Withdrawal of Israeli armed forces from territories occupied in the recent conflict” and

2. “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 and acts of force.”

Taken together, these two elements constituted an orientation referred to in short-hand, as “land for peace.”

In addition, the resolution went on to affirm the necessity of guaranteeing freedom of navigation through international waterways (the trigger issue of the 1967 war); a just settlement of the refugee problem; the use of demilitarized zones to promote territorial inviolability.

Finally, the Resolution called on the Secretary General to designate a Special Representative to promote the effort to reach an agreement based on the above principles and provisions.

4. The Limitations and Ambiguities of 242

Many of the silences and ambiguities of 242 were noted at the time. These include:

Land: 242 (in its English version) speaks of withdrawal from “territories occupied” but offers no guidance as to whether all, some or most of the West Bank needs to be evacuated. Moreover, 242 did not address the question of territorial swaps and whether these should be on a 1 to 1 basis.

Jerusalem: The holy city is not mentioned at all, and it is unclear to what extent it is to be included in the term “territories.” Further, there is no mention of the holy sites within the city.

Refugees: The resolution speaks of a just settlement of the refugee problem, but is silent on content.

Palestinian State: The Resolution does not even mention the Palestinians, no less a Palestinian State, its borders and sovereign prerogatives.

Settlements: The resolution only speaks about the withdrawal of Israeli “armed forces,” not anticipating the creation of Israeli settlements.

5. The Current Need

The need right now is for the Security Council to simply speak hard truths to both the Israeli and the Palestinian publics – articulating clearly and forcefully, the nature of the compromises that the international community expects of them and their governments. This will allow both governments to overcome various problems (weak institutions, coalition constraints, etc.) by accepting a formula behind which the international community is united.

In addition to setting the stage for successful negotiations in the future, and bolstering Palestinian moderates, strong outside pressure will help to relieve both polities of the years of recrimination that will undoubtedly follow core compromises, in particular on the issues of refugees and Jerusalem. Such attacks can be anticipated as part of a process of de-legitimization, and to the extent that the Security Council can absorb such animus, it will contribute to the staying power of any future accord.

6. The Message of a New 242

New parameters should be substantive, addressing the most difficult areas of the negotiations but they must not be so specific as to preclude possible formulas that negotiators might otherwise agree upon. It is suggested that the message be:

To the Palestinians:

• There will be substantial compensation for the refugees, but no significant return of refugees to Israel.
• The future Palestinian State will not be allowed to develop a military capability that can endanger Israeli security.

To the Israelis:

• Israel will have to evacuate almost all of the West Bank, with equivalent territorial exchanges for the remainder.
• Israel must relinquish much of East Jerusalem, in line with the formula “What is Arab will be Palestinian, what is Jewish will be Israeli.”

To both parties:

• The Temple Mount will not be under the exclusive sovereignty of either state.

7. The New 242 and the Arab Peace Initiative (API)

The resolution outlined above differs from the API in a variety of ways. In particular it differs in its approach to the refugee issue. The API calls for “a just solution . . . to be agreed upon in accordance with the UNGA Resolution 194.” This is a general formula that can be interpreted in multiple ways. The New 242, seeking to speak “hard truths” to both sides, makes clear that the primary solution to the refugee issue will be compensation and not a return to Israel. In this, though more forceful, it is consistent with the API as it is totally unlikely that that an “agreed” solution would go beyond this. Further, the New 242, like the API, does not mention, one way or the other, a Palestinian “right of return,” rather it focuses on the extent of an actual return.

8. Expected Reaction

242 did not meet with immediate acceptance by either side. Similarly, it should be expected that a new resolution, especially one that deals with the issues left ambiguous in 242, will be quite controversial. This should be seen as an indication of its relevance in successfully addressing the hard issues.

Israeli reaction:

• The Netanyahu government will not accept the new resolution; even a formula of accepting with reservations will be difficult for it.
• Even coming from Kadima or Labor, there may not be whole-hearted acceptance, especially prior to Palestinian acceptance. However, if PLO acceptance is forthcoming, the situation is changed. Acceptance then allows opposition parties to offer themselves as relevant future negotiators.

Palestinian reaction:

• Hamas will condemn the resolution, in particular arguing that the rights of refugees have been betrayed.
• The PLO will be divided as to how to respond. Substantively the leadership will view the resolution as both realistic and as valuable in addressing key issues. Politically it will fear losing ground to Hamas if it accepts the resolution, but it will also see it as a way to isolate the Netanyahu government and pave the way towards future negotiations. To some extent the resolution’s acceptability can be enhanced if the international community takes steps to give reality to the prospect of substantial compensation.

International reaction:

• There should be widespread support, including some, but not all, of the Arab countries.
• Even without initial Israeli or Palestinian acceptance, it is essential that the international community hold firm to the parameters once articulated. It must be borne in mind that the Israeli and Palestinian publics are target audiences, and that achieving their grudging acceptance of these realities may be necessary before there is acceptance on the political level.

Sample operational paragraph of New 242:

“The Security Council affirms the following basis for resolution of the Israeli-Palestinian conflict, and calls on all states and all parties to the conflict to affirm their support for these principles: