Israel's Position on Resolutions 242 and 338 Clarified

Document: Elyakim Rubenstein's clarification regarding application of 242 and 338 to the Palestinians

Aaron Lerner Date: 8 March 2001

Prime Minister Ariel Sharon's letter to the National Union-Yisrael Beiteinu Party states that "What is said in the government guidelines regarding UN resolutions 242 and 338 is subject, of course, to the Israeli interpretation of these resolutions. Relating to this I would like to refer you to the recommendation of the Attorney General's [Elyakim Rubinstein] recommendation of 28.6.00 attached to this letter, which I accept, that summarizes the Israeli position relating to this, as it was also presented in diplomatic negotiations.

The following is IMRA's translation of Rubenstein's letter as forwarded by the Attorney General's Office to Susie Dym:

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Jerusalem
28 June 2000
Letter No: 2000-0004-16786

In light of various comments concerning UN Security Council Resolution 242 as it relates to the negotiations with the Palestinians, the Attorney General would like to make clear - from a legal standpoint - as follows, in summary:

(1) Resolution 242 was not intended to apply to a Palestinian entity, since at the time of its adoption such an entity did not exist and its establishment was not even on the agenda. Palestinians are not mentioned in the Resolution (with the exception of mention of the refugee problem).

(2) It was agreed in the past with the Palestinians that Resolution 242 will be the basis for an arrangement with them and that the permanent agreement will lead to the implementation of the Resolution. But along with this, basing on Resolution 242 does not mean, from a legal standpoint, that arrangements along the lines of those taken with Egypt, with Jordan, or relating to Lebanon (Resolution 425), should be adopted vis-a-vis the Palestinians, and this in light of the highly significant differences that make it impossible to implement the Egyptian precedent or another precedent on Israel's borders in the Palestinian track.

A. The interpretation and implementation of the Resolution should be in light of the aforementioned fact that it was not originally intended to apply to the Palestinian entity.

B. The instructions of the Resolution, in principle, relate to states.

C. The Resolution relates to secure and recognized borders. There are not, nor ever were, such borders with the Palestinians, in contrast to the historical situation - in various forms - regarding the states on Israel's borders. It goes without saying that the "Green Line" of the cease fire agreement was not an international border.

D. The status of the territories of Judea, Samaria and the Gaza Strip are substantially different than the standing of the Sinai Peninsula, for example, since these areas were not under a recognized sovereignty of any state in the period of the outbreak of the Six Days War. That is to say, there never was a recognized border between Israel and the areas of Judea, Samaria and the Gaza Strip.

E. Resolution 242 talks of withdrawal "from territories" and not "the territories", and this was set in order to allow for withdrawal from only part of the territories.

F. The negotiations should be based, among other things, on the historical and religious ties to the areas of Judea, Samaria and Gaza; on geographic data and their effect on Israel's security needs; the size of the settlements; and the tight ties to Israel and Israeli national interests.

(3) Beyond this it is proper to emphasize that the inclusion of Resolution 242 within the framework of the invitation to the Madrid Conference, that was the first table where Palestinians sat in formal negotiations with Israel, was based to a large extent on that a joint Jordanian-Palestinian delegation was set there.

(4) As mentioned, "secure borders" should be emphasized according to its simple meaning.

(5) The result is that from a legal standpoint the way that Resolution 242 was implemented in arrangements with the Egyptians has no relevance to the Palestinian track. Resolution 242 in no way applies in the Palestinian context in a way that is the same as it applies to states in the region covered by this Resolution, that had a common international border with us. It applies only to the extent that its principles are relevant to the Israeli-Palestinian negotiations.

(6) There is no similarity between the this situation and that in Lebanon relating to Resolution 425, as there was a historic international border.

(7) The aforesaid does not exhaust Israel's legal arguments on the subject.

(8) This is also Israel's negotiating position, and it was expressed also in the positions presented by prime ministers in the past.

Dr. Aaron Lerner, Director
IMRA (Independent Media Review & Analysis)

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