- The Washington Times - Friday, December 8, 2000

Interjecting himself into the current fray of Arab-Israeli tensions, President Carter has mistakenly seen a thorny and complicated problem as one-sidedly simplistic. Claiming the primary reason for the current violence and failure of diplomacy is Israeli settlements, he chooses to ignore the role of implacable Palestinian hostility. This only serves to reward those who reject compromise in favor of armed struggle, including terrorism, in pursuit of their aims.

Another casualty is the truth about U.S. foreign policy in the region. In a Nov. 26 article on the op-ed page of The Washington Post, Mr. Carter contended that: (1) the U.S. government has interpreted U.N. Security Council Resolution 242 (1967) as calling for full Israeli withdrawal from all territories occupied as a result of the 1967 war; (2) that the United States has consistently taken the position that East Jerusalem is, as a matter of law, indistinct from the other occupied territories (the West Bank and the Gaza); and (3) that the United States has consistently condemned Israeli settlement activity as both unlawful and counterproductive to peace efforts. President Carter is wrong on each of these counts.

(1) Contrary to Mr. Carter's assertion, the United States government has never taken the position that the preamble (which is generally considered to not be legally binding) to U.N. Security Council Resolution 242 "emphasizing the inadmissibility of the acquisition of territory by war" must be interpreted as requiring total Israeli withdrawal. To the contrary, it is a time-honored principle of international law that a nation that enters foreign territory in self-defense the U.S. position on Israeli entry into the West Bank and Gaza as a result of the 1967 war has a right to continued occupation pending conclusion of a peace treaty or its equivalent. Moreover, in negotiating the terms of such an arrangements, territorial adjustments are appropriate. A contrary rule would simply encourage aggression by making it cost-free. Thus the U.S. position has always been this: outstanding territorial issues are the subject of negotiations. A former U.S. ambassador to the United Nations, Justice Arthur J. Goldberg, who negotiated the text of resolution 242, frequently pointed out that its call for "withdrawal from territories," with deliberate omission of the definite article "the" to modify "territories," was meant to indicate that withdrawal was to occur from some, but not necessarily all, the territories. Indeed, this was the underlying premise of the Oslo peace process between the Palestine Liberation Organization and Israel. Without such an understanding by all concerned parties, the process never would have begun.

(2) To be sure, President Carter sent his emissary to the United Nations, Ambassador Donald McHenry, to vote in favor of a U.N. Security Council resolution which for the first time would have put the United States on record at the United Nations in declaring East Jerusalem "occupied Arab territory." But resolution 465 of March 1, 1980, was, however, later repudiated by Secretary of State Cyrus Vance. During the Reagan administration, the United States repeatedly vetoed draft resolutions containing that formulation. President Reagan personally met in April 1982 with Arab ambassadors in Washington to reaffirm America's longstanding position that the future legal status of Jerusalem was a matter that could only be finally determined by negotiations between the parties, not by U.N. fiat. That remained steadfastly the U.S. position during the Reagan years. However, during the concluding days of the Bush administration, the United States acquiesced in a Security Council resolution deeming Jerusalem as occupied territory in the context of a call to an end to the Israeli policy of expulsions. That change was later reaffirmed by during the early part of the Clinton administration. Yet, as a matter of practice, it was acknowledged in all the ensuing diplomatic negotiations that Jerusalem's future would be dealt with separately from the general treatment of the West Bank and Gaza.

(3) The Reagan administration, in contrast to that of the legal adviser in the Carter administration, took the position that "settlements are not unlawful," while acknowledging that they may be a hindrance to peace. Indeed, during the period of Arab rejection of peace overtures, settlements made it clear there would be a price to pay for failure to come to the table to negotiate peace. Since peace negotiations began in earnest between Israel and the Palestinians, settlements have been high on the agenda and by all reports, until the current eruption of violence the sides were close to reaching agreement for a practical solution that would have involved dismemberment of most settlements with others being left under some form of joint rule.

It is hard to believe a former president of the United States could misstate U.S. policy on the thorniest issues of Middle East peace. Yet, President Carter has. The result, unfortunately, is to discourage resumption of negotiations and, indirectly, to promote violence: the exact opposite of what U.S. policy in the region has tried to achieve though three successive administrations.

Allan Gerson, an international lawyer, was counsel to the U.S. Delegation to the United Nations 1981-1985, and is the author of "Israel, The West Bank and International Law."[p]

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