The Weekly Standard, Mar. 24, 2003, Volume 008, Issue 27, pp. 17-18
LAST DECEMBER, in his Nobel Peace Prize acceptance speech, former President Jimmy Carter linked the United States' responsibility to lead the world in implementing U.N. Security Council Resolution 1441, passed last November, more than a decade after Iraq's unlawful invasion and annexation of Kuwait, to its responsibility to implement U.N. Security Council Resolution 242, passed in November 1967, five months after the Six Day War.
Making the rounds these days --- at scholarly conferences, in liberal churches, and of course throughout European capitals --- is a version of this linkage that accuses the United States of rank hypocrisy: Where does the Bush administration, the accusation runs, get off suggesting that the U.N. Security Council authorizes U.S. use of military force to disarm Saddam Hussein? After all, the accusers say, like previous U.S. administrations for more than 35 years, the Bush administration displays contempt for the United Nations and for international law by failing to compel Israel to comply with Resolution 242, which, the accusers maintain, requires Israel to immediately withdraw from all the territories it seized in 1967. The accusation is bogus.
Resolution 242 stands on an entirely different footing from 1441. Resolution 242 affirms the need for negotiations based on two mutually dependent principles, consistent with the U.N. Charter, that should govern the establishment of "a just and lasting peace in which every state in the area can live in security." It does not articulate the concrete terms that constitute such a peace.
The first principle affirms that peace depends on Israel's withdrawing "from territories occupied in the conflict." It does not, as is commonly asserted (including by Carter last December in Oslo), require Israel to return to its pre-1967 borders. Which territories and the extent of the withdrawal are questions 242 deliberately leaves open.
The second principle, which 242 links to the Israeli obligation to withdraw, requires of the Palestinians and other states in the region "termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity, and political independence of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."
Much can be said about the obstacles to implementing 242 created over the years by Israeli settlement policy. But no serious conclusions can be drawn that overlook the obstacles to peace created by the policies of the Palestinians and states in the region that long remained, or remain today, at war with Israel. In July 1968, in open and flagrant rejection of 242, Yasser Arafat's Palestine National Council presented to the world the "Palestine National Charter." It called for "the retrieval of Palestine and its liberation through armed struggle." The odious provisions of the Palestinian National Charter that called for the destruction of Israel were not formally revoked until 1996. They live on in the battle cry of Palestinian youth in and out of Hamas, Islamic Jihad, and other terrorist organizations. They reflect Syrian state policy. The continuing war against Israel has been as massive an obstacle as there is to full implementation of 242.
The accusation that the United States has somehow failed in its obligations arising out of 242 is false. Resolution 242 makes no demands whatsoever on the United States. Moreover, from the successful 1978 Camp David meetings between Menachem Begin and Anwar Sadat presided over by Jimmy Carter, to the failed 2000 Camp David meetings between Ehud Barak and Yasser Arafat presided over by Bill Clinton, and right up through the Bush administration's various undertakings in the spring of 2001, every American president has sought to broker a peace between Israel and the Palestinians and the states in the region, and has done so on the basis of the principles set forth in 242.
In contrast to 242, U.N. Security Council Resolution 1441 (like 16 previous resolutions following Saddam's unlawful 1990 invasion of Kuwait) issues to Iraq utterly unambiguous orders. Declaring that since 1991 Saddam has been in "material breach" of his legal obligations to furnish "accurate, full, final, and complete disclosure" of his weapons of mass destruction and prohibited ballistic missiles, to provide to the U.N. inspectors "immediate, unconditional, and unrestricted access" to these weapons, and to disarm and destroy them, 1441 gives Saddam one last chance to comply. Emphatically rejecting half measures and partial compliance, 1441 provides that failure to immediately disclose his weapons and to completely disarm "shall constitute a further material breach of Iraq's obligations," and will cause Iraq to face "serious consequences."
Thanks to Hans Blix's reports and Colin Powell's February 5 address to the Security Council, everybody knows that Saddam has failed to cooperate immediately and completely with the U.N. inspectors, and so is in further and continuing material breach of his obligations under international law. And everybody knows that under 1441 such material breach triggers "serious consequences," a euphemism for the use of military force to separate the ruthless dictator from his forbidden arsenal.
Jimmy Carter was right. Resolutions 242 and 1441 are linked. Those who seek to enforce one and disregard the legal requirements imposed by the other are indeed guilty of hypocrisy. The United States, however, is not one of those countries. It has rightly and repeatedly sought to promote negotiations between Israel, the Palestinians, and states in the region on the basis of the principles of Resolution 242. And in contrast to the folly and fecklessness of other members of the Security Council, the United States has sought to enforce the unambiguous, nonnegotiable, and legally binding imperatives contained in Resolution 1441.
Peter Berkowitz teaches at George Mason University School of Law and is a research fellow at the Hoover Institution at Stanford University.