The following is a response to President Obama’s speech at a recent AIPAC conference. During his speech, Pres. Obama reiteratesd the proposed return of land taken as a result of an act of war perpetrated by a number of Arab nations against Israel in 1967. Professor Eidelberg’s rebuttal was first aired on Israel National radio. Prof. Eidelberg is professor of political science and founder of the Foundation for Constitutional Democracy in Israel.
Prof. Paul Eidelberg
Attorney Howard Grief’s The Legal Foundation and Borders of Israel Under International Law which is subtitled “A Treatise on Jewish Sovereignty Over the Land of Israel,” is probably the most comprehensive and incisive analysis of Israel’s legal claim to the land its repossessed in the Six-Day War of June 1967. This monumental work is actually the culmination of scholarly articles Grief began publishing in the mid-1990s for the Ariel Center for Policy Research. This should be borne in mind as I read the most salient passages of the Grief’s book dealing with UN Resolution 242. I will then proceed to consider, from a theological perspective, the failure of Israeli prime ministers to defend their people’s claim to the land in question.
On November 22, 1967, in the wake of the Six-Day War, the UN Security Council passed Resolution 242. As Grief informs us that “In regard to all Security Council resolutions relating to the Middle East, it is important to examine the question if Israel is legally bound by any of these resolutions, particularly in regard to Israel having to withdraw its armed forces from [so-called] ’occupied territories,’ as indicated by Resolution 242….
Referring to a 1969 article by the jurist Amos Shapiro, then a senior lecturer in Law at Tel-Aviv University, Grief points out that “there is a fundamental distinction between decisions of the Security Council which are binding in nature and decisions which are only advisory and not compulsory.” Shapiro’s “penetrating analysis makes clear that only those resolutions or decisions that impose legal obligations on the parties concerned, even without their consent, must be obeyed by UN members unless they are inconsistent with other provisions of the [UN] Charter. On the other hand, resolutions or decisions which are no more than recommendations, do not have to be complied with by UN members unless they freely consent to implement them.”
Grief goes on to show, by analysis of Chapter VI of the Charter, that UN Resolution 242 was a “non-binding recommendation.” He notes “There has never been any agreed-upon definitive interpretation of Resolution 242, especially as to whether Israel has to withdraw from all or only some of the territories re-conquered and repossessed from Jordan, Syria and Egypt… However, [says Grief] it can be stated without any qualification that any Security Council Resolution that aims to oblige Israel to withdraw from any land that was designated to be included in the Jewish National Home under the [Palestine] Mandate … is ipso facto illegal, since such a resolution would be in direct conflict with Article 80 of the Charter and the acquired legal rights of the Jewish People secured under previous acts of international law, to which the doctrine of estoppels applies.”
“Resolution 242 can therefore have no application to Judea, Samaria and Gaza, which were originally included in the Jewish National Home under the Mandate for Palestine. Nor should it be applied to the Golan Heights, which Israel captured in the Six-Day War of June 1967, since this territory is part of historical Palestine rather than of historical Syria, though it was improperly and illegally exclude from the borders of mandated Palestine in the Demarcation Agreement of February 3, 1922.”
Grief goes on to say that “A separate reason that can be invoked by Israel for not withdrawing to the pre-war armistice lines is that since Israel fought a war of defense against its Arab neighbors, Egypt, Jordan and Syria, it is entitled to keep those areas it re-captured in the Six-Day War from the occupying countries that expressly threatened ‘to wipe Israel off the map’ or participated in the joint Arab aggression.”
“In fact, says Grief, “Even the application of Resolution 242 to the Sinai cannot be sustained, because in 1967 when this resolution was passed, this territory did not belong to Egypt under international law, and so Israel was not obliged to make any withdrawal from Sinai since it did not constitute ‘occupied territory’ within the meaning of Article 42 of the Hague Resolutions….”
Grief also observes that, “Despite Israel’s withdrawal from Sinai … there was never any admission by Israel that Sinai belonged as of right to Egypt. That was still the legal situation prevailing when Resolution 242 was passed on November 22, 1967. Bearing in mind the legal status of the territories repossessed by Israel in 1967, at which Resolution 242 was undoubtedly aimed, the appropriateness of describing these territories as ‘occupied’ under international law is not only challengeable but definitely wrong. It is therefore a travesty,” says Grief, “to affirm that Israel is obliged under international law to withdraw from territories that are deemed to be ‘occupied’ when, in fact, they had been recognized internationally in 1919, 1920 and 1922 as being the patrimony of the Jewish People represented today by the State of Israel.”
So why did Israel accept Resolution 242? According to Grief, “Israel’s acceptance of this resolution was seen by the Levi Eshkol National Unity Government as beneficial because its text stated that ‘every state in the area’, which naturally included Israel, has the ‘right to live in peace within secure and recognized boundaries free from threats or acts of force”’ ….
“In addition it was understood from the language and content of Resolution 242 that Israel’s withdrawal to ‘secure and recognized boundaries’ did not entail complete withdrawal from all the territories described in the resolution as occupied by Israel armed forces in the recent conflict. The clear understanding that Israel did not have to make a complete withdrawal to the 1949 ceasefire lines … was reinforced by the fact that these lines could never be considered ‘secure’ borders by reputable military experts, as attested to by the constant infiltration into Israel, prior to the war, by terrorists and marauders determined to wreak murder and havoc from both Egyptian-occupied Gaza and the Jordanian-occupied ‘West Bank’….
“Despite the language of Resolution 242 and its logical consequences, Arab states, aided and abetted by Russia and its Communist allies, as well as western European powers interpreted Resolution 242 in another way, to mean Israel’s full withdrawal to the  armistice lines …. Nor was the United States very different in this regard. Under the Rogers Plan of October 1969, presented by Secretary of State William Rogers, Israel had to withdraw to the armistice lines with Jordan with only insubstantial alterations, and to the boundary that existed with Egypt just prior to the outbreak of the war. The Rogers plan did not deal with the fate of the Golan Heights.
“The Rogers Plan was followed by President Ronald Reagan’s Peace Initiative of September 1, 1982…. It described UN 242 as ‘the foundation-stone of America’s Middle East peace effort’, which, it said, applies to all fronts, including the West Bank and Gaza.”
This is where the state of Israel is today, trapped at the in a 44-year period of political impotence and ideological fatigue, a period during which one Israeli prime minister after another have failed to stand up and defend their people’s birthright. Instead, they have insanely pursued, as Professor Louis Rene Beres has brilliantly described, a never-ending Sisyphus peace process with haters of Jews and Israel. In the process, they have been undoing the miracle of the Six-Day War. This is a display of monumental ingratitude, and on an international scale which may be deemed a desecration of God’s Name. The subsequent degradation of Israel follows as night follows day.
Ingratitude is as old as Adam who was given life in the Garden of Eden, “the environment,” says Joshua Berman, “in which man can enter into communion with the divine.” “The land of Israel,” he adds, “can be construed as a conceptual expansion of the garden of Eden.” Therein was the Temple to which all mankind may come and be blessed.
Make no mistake: It was not simply the Israel Defense Forces that defeated five Arab armies in 1948. Nor was it simply the IDF that defeated Egyptian, Jordanian, and Syrian forces in six days of the June 1967 war.
To undo the miracle of that war is to expose Israel to Adam’s punishment for ingratitude. Make no mistake: Israel has been given an implacable enemy animated by a love of death. There is only one way to confront this enemy, and that is to stand for the God of Israel, the God of life.