Annan's Careless Language

March 21, 2002

By GEORGE P. FLETCHER

A redefinition of the Middle East conflict occurred last
week when Secretary General Kofi Annan of the United
Nations called Israel's occupation of lands acquired in the
1967 Six Day War "illegal." A new and provocative label of
"illegality" is now out of the chute and running loose,
ready to wreak damage. The worst prospect is that
Palestinians will dig in with a new feeling of
righteousness and believe that the international community
will force Israel to withdraw from its "illegal
occupation."

In Middle Eastern politics, memory enables each side to
nurture its grievances but there is little collective
memory that might facilitate negotiations on the basis of
shared assumptions. Few seem to care anymore that the 1967
war was a war of self-defense for Israel or that United
Nations Security Council Resolution 242 referred to
withdrawal from "territories" rather than from "the
territories" - a crucial distinction that shows that the
resolution does not necessarily require withdrawal from all
of the land occupied in 1967. In this time of crisis and
forgetfulness, using the term "illegal" is destructive and
dangerous. For the uninformed, the discussion will start
with the secretary general's labeling of the occupation as
a violation of law.

Those who pay attention to the details of history know
better. Resolution 242, passed right after the 1967 war,
envisions a just resolution of the conflict and calls for
withdrawal and mutual recognition, but it says nothing
about legality. Resolution 338, passed after the 1973 Yom
Kippur war, imposes an obligation on Israel and the Arabs
to negotiate peace. Because it insisted that the
Palestinians negotiate an end to the Israeli presence, the
Security Council could not have thought the occupation
itself violated international law.

Later Security Council resolutions - numbered 446, 452 and
465 - do indeed condemn Israel's policy of building
settlements in the occupied territories and declare that
these settlements have "no legal validity." Yet these
rebukes against Israeli policy were about the settlements -
not about the legality of the occupation. And even then,
the Security Council stopped short of actually saying that
all settlements are illegal. Some of the settlements might
be acceptable under the language of Resolution 242, which
recognizes that Israel has the right to live within "secure
and recognized boundaries." However, there is room for
debate about whether Israel's support for the settlements
violates the prohibition in the Fourth Geneva Convention
that states that "the occupying power shall not deport or
transfer parts of its own civilian population into the
territory it occupies."

Even supposing that the settlements are found to be
contrary to international law, it does not follow that the
occupation as a whole is illegal. Israel has dismantled
settlements before - in the agreement with Egypt on the
return of the Sinai - and it could do so again. Indeed, the
person in charge of the uprooting of the Sinai settlement
of Yamit was none other than Ariel Sharon, who was then
Israel's defense minister. It is unfortunate that the
dubious policy of building settlements and the military
actions of the Israeli Army are getting confused, in the
public's mind, with the legality of Israel's holding
unannexed lands until a peace agreement is signed.

It is not illegal for victorious powers to occupy hostile
territory seized in the course of war until they are able
to negotiate a successful peace treaty with their former
enemies. The Palestinians have failed to recognize this
fact. As former President Bill Clinton stressed at a recent
conference in New York, the Camp David proposal was the
most sweeping peace effort ever made, and the Palestinians
said no.

Still, it's true that Israel's recent military incursions
may be provoking violent countermoves by suicide bombers.
The proper focus of criticism should be these military
actions, not Israel's maintaining a presence while it waits
for the Palestinians to negotiate a compromise for peace.
Injecting the word "illegal" into the conversation will
only shift the focus away from calming the situation and
increase intransigence by the Palestinians. Even the vision
of Crown Prince Abdullah of Saudi Arabia to normalize
relations with Israel presupposes that under the spirit of
Resolution 242, Israel's presence in the occupied
territories is consistent with international law. In this
context, the choice of the words "illegal occupation" is a
perilous threat to the diplomatic search for peace.

George P. Fletcher is a professor at Columbia University
School of Law and author of the forthcoming "Romantics at
War: Glory and Guilt in the Age of Terrorism."

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