Res. 2334: Game Changer or Not?

The United Nations Security Council on Dec. 23 passed Resolution 2334, asserting that Israeli settlements have “no legal validity” and are a “flagrant violation under international law and a major obstacle to the achievement of the two-State solution …” The resolution also advised all states “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”

The decision by President Obama to allow the resolution to pass is likely to be a mirror image of his ill-fated demand soon after his inauguration in 2009 that Israel impose a settlement freeze, something which even the Palestinians had not demanded as a condition to resuming negotiations. Rather than advancing prospects for peace, the 10-month settlement freeze, which PM Netanyahu reluctantly accepted, actually hardened Palestinian positions, as they could not accept being seen as demanding less from Israel than the United States.

Palestinian leader Mahmoud Abbas made this clear in an interview with Newsweek :

It was Obama who suggested a full settlement freeze. I said OK, I accept. We both went up the tree. After that, he came down with a ladder and he removed the ladder and said to me, jump.

While the freeze was in effect Abbas ignored it as meaningless and refused to negotiate till the last month, then demanded the freeze be extended as it was about to expire, as Secretary of State Hillary Clinton explained in 2012:

When Prime Minister Netanyahu agreed to a 10-month settlement freeze I flew to Jerusalem .. it wasn’t perfect. It didn’t cover East Jerusalem, but it covered much of the contested area in the West Bank.

And I stood on a stage with him … I said it was unprecedented for any Israeli prime minister to have done that. I got so criticized. I got criticized from the right, the left, the center, Israeli, Jewish, Arab, Christian, you name it. Everybody criticized me. But the fact was it was a 10-month settlement freeze. And he was good to his word. And we couldn’t get the Palestinians into the conversation until the tenth month.

To put it simply, President Obama’s plan backfired, making peace more difficult to achieve.

Resolution 2334 is likely to be just as counterproductive and in a similar way, but it’s important not to overstate the probable impact.

First, the new resolution is not really new – it is in many ways a repeat of Resolution 465 (1980), though the 1980 resolution actually went further by demanding that Israel dismantle settlements. Specifically, in Res. 465 the Security Council:

5. Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem;

7. Calls upon all States not to provide Israel with any assistance to be used specifically in connexion with settlements in the occupied territories;

The Carter administration voted for the resolution, though a few days later President Carter claimed that this was due to a communications error, and that he had wanted his ambassador to abstain (meaning the resolution would have still passed). See also here for Secretary of State Cyrus Vance’s explanation during a Senate hearing.

Some have expressed the view that Res. 2334 may turn Israeli “settlers and … officials into criminals in some countries, subject to prosecution there or in the International Criminal Court.”

But Res. 2334 does not add very much to Res. 465 in this regard, and does not change the legal landscape. In other words, if a country wants to indict Israeli settlers or officials based on a Security Council Resolution, Res. 2334 was not necessary – Res. 465, which has not been amended or superceded by the Security Council, would have sufficed.

In any event, both resolutions were passed under Chapter 6 of the UN Charter, are therefore advisory and do not create binding obligations or international law, and their passage does not make the settlements “illegal.” Indeed, according to Secretary Vance in the above cited document:

… the U.S. considers Resolution 465 as recommendatory rather than binding. With regard to the reference in the resolution to “Palestinian and other Arab lands”, it is our position that this phrase should not be construed as in any way prejudicing the outcome of the autonomy negotiations on the final status of the West Bank and Gaza. (emphasis added)

Politically the impact will also likely be muted, considering that President Obama has only one month left in office, and that President-elect Trump denounced the resolution, urged Obama to veto it, and according to his senior advisers on Israel supports Israel’s building of settlements, and plans to move
the US Embassy to Jerusalem.

Finally, and despite the above, it’s worth pointing out that the new resolution supposedly incorporates, but in fact blatantly misstates, Israel’s obligations under President Bush’s “Roadmap” peace plan by claiming there is an:

… obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001 …

The facts do not support the Security Council’s claim. The Roadmap was “performance-based and goal-driven … with clear phases, timelines, target dates, and benchmarks.” Accordingly, “in each phase, the parties are expected to perform their obligations in parallel, unless otherwise indicated.”

And in Phase 1 the plan did say that Israel “freezes all settlement activity (including natural growth of settlements).” But this call was not repeated in the following phases, and so could well be viewed as applying only to the initial phase, that is, as a temporary rather than a permanent freeze, with the ultimate fate of Israeli settlements to be decided as a final status issue.

Moreover, the plan also included many demands on the Palestinians in Phase 1, including that “all official Palestinian institutions end incitement against Israel,” and calling for “confiscation of illegal weapons and consolidation of security authority, free of association with terror and corruption.”

While the Israeli cabinet approved the Roadmap with reservations, the Palestinians never went beyond verbal support – the document was never placed before the PA cabinet or legislature for the required approvals. For this reason alone the Roadmap can’t be seen as establishing Israeli obligations.

But beyond failing to officially and legally accept the Roadmap, the Palestinians also never met their requirements under the document, including those mentioned above – for example, Hamas, Islamic Jihad and other terror groups were never relieved of their weapons – and so according to the Roadmap itself, any Israeli obligations, including on settlements, would not be operative.

It is a further blatant dishonesty for Res. 2334’s sponsors and supporters to invent an alleged Israeli obligation where none in fact exists.

modified 12/25/2016

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