On March 1, 1980, the United States voted for Un Security Council Resolution 465. In that resolution the Security Council "determines" that Israeli acts in "Palestine and other Arab territories occupied since 1967, including Jerusalem" have "no legal validity," and that Israel's settlements policies there "constitute a flagrant violation of the Fourth Geneva Convention."
Two days later the US indicated that it had intended to abstain on the resolution; that a communications failure was responsible for the vote; and that American policy condemning Israeli settlements as violations of "international law" remain unchanged.
The true depth of our government's confusion cannot be appreciated by focusing merley on US Middle East policy and our delicate position as a friend for all sides in ongoing negotiations and political maneuverings. To an international lawyer the American vote and reversal have deeper meanings with regard to the integrity of the Security Council and the UN system as a whole, and with regard to the very important international law of belligerent occupation.
The Security Council, unlike the UN General Assembly, has the legal power to make binding decisions.Article 25 of the UN Charter says: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." The US and Israel are members of the UN.
Now, in one of its less well-reasoned opinions in 1971 the International Court of Justice advised the Security Council that some of its resolutions were legally binding even though exhortatory language rather than mandatory language was used. The resolution before the court at that time dealt with South Africa's continued occupation of Namibia and its key words were similar to the key words of Resolution 465 in some respects. Of course, the government of South Africa ignored the Security Council resolution and the court's opinion of its binding force.
The result of this was to degrade the legal power of the Security Council and diminish its capacity to influence events that threaten international peace and security. Another result was to convince states concerned with really using the tools of the UN to help solve real problems that Security Council resolutions might be too strong a legal tool for delicate situations.
It must be obvious that in these circumstances it is wholly inappropriate for the US to use a Security Council resolution as a messenger for sending "signals" to Israel regarding its occupation policies or the future of the occupied territories.
Moreover, Egypt has been placed in a position where nearly any retreat from the harshest line would be properly regarded as giving away the legal "rights" of "Palestinians" or "Arabs;" since Egypt legally cannot give away rights it does not itself have, further negotiations become almost impossible. Or is it expected that Israel will jeopardize what it regards as its national security by acknowledging that all that it has done in the interests of that security since 1967 is "illegal?"
Now all those interested in true peace and security for all parties in the Middle East must either argue that a Security Council resolution is not binding despite the International Court of Justice's interpretation of the UN Charter, or agree to ignore the law expressed in the resolution. The entire peace and security machinery of the United Nations has been degraded.
It is not clear what provisions of the Fourth Geneva Convention Israel is supposed by the Security Council and the US to have violated. The arguments on the point in the General Assembly and Security Council have been patently polemical and Israel's purported responses have not been addressed seriously by anybody. The subject is technical and complex, drowned in a welter of claims and fact-distortions.
I have been reserving my own opinion. But the quoted language of Resolution 465 seems to say that "territory" identified as "Palestinian" or "Arab" cannot legally be occupied by Israel; some will surely argue that it implies that the mere existence of Israel as a state in the Middle East is a violation of the Fourth Geneva Convention.
The US cannot take that position without appearing to condemn Egypt for its willingness to conclude a peace agreement with Israel. Since even the total disappearance of Israel seems hardly likely to abate the rivalries of the Arab states in the Middle East or stabilize the price of oil, from a strict American policy perspective that position is irrational.
As to the technicalities of the law of belligerent occupation, the usual rule of thumb for international lawyers is to ask if we could live by the rule ourselves that we assert against others. Did the US as an occupying power in Okinawa and Berlin seize property owned by local civilians? Did we permit civilian Americans to enter, buy land, or do business in the occupied territories? Any general assertions of Israeli illegality that we would not want cited against us are on their face questionable.
It would be helpful at this time for the United States to cool down its rhetoric and publish a coherent analysis if it feels impelled at all to continue to express firm opinions on these issues.