Portside aims to provide varied material of interest to people on the left that will help them to interpret the world, and to change it.
The most significant aspect of UNSC Resolution 2334 is that it forms the first break with an otherwise absolute US policy to obstruct every Palestinian effort to resist Israeli expansion, especially during the past eight years. During his tenure, President Barack Obama has witnessed and colluded in two massive Israeli onslaughts upon the Gaza Strip, helped shelve the Goldstone Report, and adopted an unprecedented thirty-eight billion US dollars memorandum of understanding with Israel that increases US military aid to it from 3.0 to 3.8 billon US dollars annually over the next ten years. The administration used its first veto in the Security Council in early 2011 to quash a resolution condemning settlements very similar to the one that has just passed, citing Washington’s distaste for internationalizing the conflict.
If the Obama Administration was concerned with ushering a new era of the peace process, it would have abstained five years ago and not mere weeks before departing office; or during Palestine’s 2011-12 statehood bid; or in 2015 when it quietly crushed an effort to set a deadline for ending the occupation in the United Nations’s law making body. The administration’s abstention appears more like a finger to US President-Elect Donald Trump and Israeli Prime Minister Benjamin Netanyahu rather than a change of heart. At this juncture of its tenure, the Obama Administration only had two embarrassing choices: to veto law and policy it has rhetorically upheld since 1967 or to abstain and expose Israel to international scrutiny. A veto was simply more costly in this instance. The resolution itself does not obligate member states to take action and includes no enforcement mechanisms for the action it recommends. In the wake of the UNSC 2334, Israel is set to approve 618 new settlements in East Jerusalem.
So then what does the resolution mean? It all depends on the conduct of the Palestinian leadership.
The worst thing it could do is use the opportunity to resuscitate bilateral negotiations under the terms of the Oslo framework. And sadly, all indications point in that direction. But this is an opportunity to break from the self-effacing terms of Oslo and its progeny since 1993. It is an opportunity to take Palestine out of the backwaters of bilateralism and place it back on the international stage. Obamas’ abstention was a theoretical put of the issue out of the US’s absolute scope. The support of New Zealand, Malaysia, Senegal, and Venezuela in the face of Egyptian capitulation, and together with French enthusiasm to carry the mantle in lieu of the United States, indicates an international readiness to shift course.
What Palestine needs is a resistance strategy—one that is ready to confront rather than accommodate the occupation and that does not place undue faith in the United States to deliver a solution it has proved unwilling and unable to provide for nearly five decades. It should use this resolution, together with similar initiatives including the 2004 Advisory Opinion of the International Court of Justice (ICJ) as well as the 2013 UN Human Rights Council Fact-Finding Commission on Settlements to run a diplomatic marathon to pressure states to impose sanctions on Israel in order to highlight, and end, the structural violence of apartheid. It should isolate Israel and delegitimize its settler-colonial project not just to halt and dismantle settlements in the West Bank, but to highlight Israel’s demographic-based policies for what they are: racist and unacceptable. It should use this opportunity to teach the world that the Green Line is imaginary and settlements are not just in the West Bank but also within Israel as demonstrated by the impending wholesale destruction of Umm al-Hieran with the blessing of Israel’s Supreme Court. Netanyahu is already helping on this front by summoning the US ambassador to Israel, reprimanding the ambassadors of states that voted for the resolution, terminating Israeli contributions to five UN institutions and downgrading relations with states that supported the Resolution. He is doing the work of sanctions on our behalf.
Unfortunately, the Palestinian leadership does not inspire much hope or confidence. Recall how it sabotaged the Goldstone Report, failed to call for sanctions after the ICJ Advisory Opinion, mourned Shimon Peres rather than highlight his violent and racist legacy, failed to resolve the schism with Hamas, and reified a sinking ship rather than usher a new leadership at the recent Fatah conference. Yet today the ball is in its court, the choice is one between more of the same losing game, or first steps on a much-needed new course that begins by removing Palestine’s eggs from the US basket.
US President Barack Obama’s record on the Question of Palestine has been so spinelessly atrocious that it almost makes one nostalgic for the days of Richard Nixon. To credit the United States for United Nations Security Council Resolution 2334, adopted on 23 December 2016, is simply laughable. It is the work of others, which Washington did not support but ultimately chose not to obstruct.
There is virtually nothing in the resolution that is new, but that does not make it insignificant. It has been a full thirty-six years since the Security Council last considered the legal status of Israel’s settlements in occupied Arab territory, when UNSC Resolution 465 of 1980 unanimously determined they have none and must be dismantled.
During this interregnum Israel’s leaders worked ceaselessly to normalise its colonies and appeared to be making significant headway, particularly in the United States and especially so during the second Clinton and Bush fils administrations. Much of East Jerusalem had been effectively apportioned to Israel by the Clinton Parameters, while Bush in correspondence with Ariel Sharon stopped just short of formally recognizing Israeli sovereignty over most settlements abutting the Green Line. During his own eight years in office Obama indulged Israeli expansionism more than any of his predecessors, thwarting each and every attempt to raise the matter in international fora—including a 2011 veto of a draft UN resolution functionally indistinguishable from the one just adopted.
Increasingly exasperated with not only Israel but also the United States, and alarmed by signals emanating from Camp Trump that it intends to detonate the global consensus on the Question of Palestine as well as by Israeli legislative and physical initiatives to make this a reality, the international community decided it needed to confirm certain long-established principles in order to preserve them. We’ll eventually learn why Washington decided to not veto UNSC 2334, but it likely has more to do with Obama feeling personally slighted by Israeli Prime Minister Binyamin Netanyahu and prematurely marginalized by President-elect Donald Trump, than with reasons that can be characterized as serious or substantive.
Be that as it may, the primary significance of UNSC 2334 is that it sends an unanimous, unambiguous and indeed definitive message from the international community that Israel’s cumulative efforts have resolutely failed to make even a single settlement one shade less illegal than in 1980. This applies equally to what Israel and the United States term “neighbourhoods” in East Jerusalem. Possession may be nine-tenth of the law, but illegal possession, as the Resolution explicitly states, “has no legal validity and constitutes a flagrant violation under international law.” The Security Council resolution in effect amplifies politically the legal conclusions reached on these matters by the International Court of Justice in its 2004 Advisory Opinion on the West Bank Wall.
The tsunami of faits accompli Israel has unleashed since 1967 in order to normalize its occupation has therefore, from a legal and diplomatic perspective, achieved precisely nothing. As stated in the Resolution, the international community “will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”. If and when meaningful negotiations to end the occupation materialize, furthermore, Palestinians will have the right to veto any proposed boundary changes, including land swaps.
To dismiss UNSC 2334 as “merely symbolic” does not quite capture the nature and scope of Israel’s defeat; everything it has done to change the status of occupied territory, and achieve recognition of such changes, has been dismissed as meaningless and irrelevant. More to the point, the Resolution provides added impetus and legitimacy to attempts to hold Israel and its officials accountable for their actions, including under Article 8.2(b)(viii) of the Rome Statute of the International Criminal Court that defines settlement practices such as those implemented in the occupied territories as “war crimes”.
Unlike Resolution 465, UNSC 2334 does not explicitly call upon Israel “to dismantle the existing settlements”, and only repeats the demand that it “completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem”. Yet, notes Norman Finkelstein, UNSC 2334 “prominently affirmed the principle of the inadmissibility of acquisition of territory by war, and the US didn't dissent from it”. It therefore seems “the United States no longer supports the interpretation of the operative clause of UNSC 242 that omits the definite article before ‘occupied territories’, as leaving room for Israel to annex territory”. Notably, adds Finkelstein, “inadmissibility was not balanced by the right of all States to live in peace and within secure borders” as it was in UNSC 242.
While many have pointed out that the international community has done virtually nothing to implement similar resolutions adopted since the Security Council began censuring Israel’s colonialist practices in 1967, and that this latest resolution too lacks enforcement mechanisms, UNSC 2334 does call upon member states “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This entails a clear obligation by states that recognize and/or trade with Israel to differentiate between it and the occupied territories, including East Jerusalem. Application of this principle will necessarily require far-reaching sanctions against institutions and corporations based in Israel because these almost uniformly and often deliberately ignore the existence of the Green Line. It also exposes foreign entities that conduct themselves similarly to the prospect of criminal prosecution.
UNSC 2334 does not tread any new legal ground but rather confirms established principles and positions—albeit padded with silly references to “incitement and inflammatory rhetoric” to save a gutless American’s face. It is precisely for this reason that the Resolution is above all a political statement. The problem is that—as demonstrated by Egyptian President Abd-al-Fattah al-Sisi’s pathetically craven attempt to kill his own government’s draft resolution—the current Palestinian and Arab leaderships are wholly unqualified to translate its articles into meaningful achievements, and without their lead others are unlikely to follow. The Palestinians will not have another thirty-six years to produce movements, strategies and leaders capable of rising to the occasion.
The legacy of Obama’s presidency is now subject not only to its own imperial machinations but also to the triumph of the right and the celebrity of stupidity that will define Trump’s rule. In the twelfth hour of Obama’s eight-year term, the theater of the United Nations witnessed some unexpected events. First and foremost is the United States government’s abstention on a resolution denouncing the policies of its prodigal child, the state of Israel. It will be this move, while not historically unprecedented, that journalists and commentators will focus on the most. For Israel’s prime minister, it is a source of US betrayal of the now decades long “special relationship” between the two settler colonies.
Yet there was another unexpected turn in this late December vote at the United Nations; Egypt’s withdrawal of its own draft resolution shortly after it was formally submitted to the Security Council and just before it was to be put to a vote.
It was expected that Egypt’s strongman Abd-al-Fattah al-Sisi would embrace the logic of the leaders he sees himself closest to: Israel’s Benjamin Netanyahu and US President-elect Donald Trump. While the Egyptian government had worked alongside the Palestinian Authority to draft the resolution, which after all is simply a reinforcement of conventional international law, Sisi decided to withdraw it at the last hour. His office stated this act came after a telephone call from Trump. Closer observers know that the ties between Sisi and Netanyahu also bore some credit. The two leaders have been fostering these ties since Sisi’s overthrow of Egypt’s first democratically elected president in July 2013. Those ties were at their most explicit during Israel’s brutal assault on Gaza in 2014, when Sisi’s closure of Rafah sealed the only exit for over a million Palestinians in an open-air prison. It was then that Netanyahu insisted to John Kerry that Israel would only negotiate a ceasefire with Sisi.
So what then is so unexpected about last week’s Egyptian drama? The shift here comes from Sisi’s unabashed rejection of the rhetoric of state-led pan Arabism. Scholars have long shown that Arab regimes and their initiatives and policies, at best, have been disinterested, duplicitous, and damaging to Palestine and the Palestinians. Egypt is not exceptional in this regard. But Egypt has been the nation that birthed the ill-fated and misguided state-led pan-Arab project. It has been a nation whose citizens have sacrificed lives and limbs in various wars and conflicts. It has been a nation that has served as the intellectual and cultural refuge for so many Palestinians. For Egypt to withdraw a resolution confirming the illegality of Israeli settlements in occupied Palestinian territory, is a rhetorical first. It is effectively, the final unmasking of the long-standing fallacy of regime led pan-Arabism. Since that fallacy has been rotting for decades now, perhaps Sisi has done us a favor. We can finally leave the wake and bury the corpse.
Observers looking for historical precedent will find it in the many other Security Council and General Assembly resolutions that Israel has ignored over the decades. As many journalists have pointed out, Obama has had the worst record of any recent President when it comes to Security Council resolutions criticizing Israel, vetoing every one that was put for a vote until last week. In contrast, George W. Bush and his father allowed six and eleven, respectively, to pass.
It is also true — as those who want to end this most horrible year on the least optimistic note can point to — that the Resolution is grounded in Chapter VI rather than Chapter VII of the UN Charter, meaning that it has no enforcement mechanism (from sanctions to the use of force) to compel Israel to implement it, but rather can only press for negotiations towards that end.
Nonetheless, I think it is both unfair and inaccurate to consider the resolution “toothless,” as many critics are labeling it. There are several reasons why it in fact has some very deep teeth, if they haven’t been that exposed yet. Some of these teeth are contained in the Resolution itself, which once and for all puts to the lie any possible Israeli claim that it has the legal right to indefinitely occupy, never mind build settlements upon, any square meter of the territory it conquered in 1967. Specifically, Article 1 of the Resolution’s text (crucially not part of the preamble, which has less direct legal force) “reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”
This serves two purposes. First, by “reaffirming” the illegality of the entire settlement enterprise it reminds Israel that it has long been told that the settlements are illegal; thus its half-century policy of creating “facts on the ground” as a way to normalize the Occupation and the settlement enterprise it has always been intended to support, has been for nothing. This statement will no doubt give impetus to the International Criminal Court’s ongoing investigation of whether it should take up the Palestinian call to rule on the settlements. While a Chapter VI-based resolution doesn’t have enforcement mechanisms, it does have powerful legal validity, serving essentially as a judgment of international law in the same way a Supreme Court decision decides on the ultimate constitutionality of an American law. The settlements have now been unequivocally defined as illegal by the highest authority on earth when it comes to defining and making international law.
The settlement enterprise is the heart and raison d’etre of the Occupation, which exists to perpetuate it. So in judging the entire enterprise to be illegal the Security Council is, in theory, declaring that the Occupation built around it is also inherently a violation of international law. This opens Israel up to further potential prosecution for crimes committed in the pursuance of the Occupation.
To be sure, no one imagines Israel will simply pull up stakes and uproot over half a million settlers, especially in East Jerusalem and the main settlement blocks. But the Resolution does hand a huge amount of negotiating leverage to Palestinians—more in fact than they have ever had—if and when final status negotiations begin, and the mandating of tri-monthly reports by the Security General on Israel’s implementation—or more likely, lack thereof—of its terms will keep the pressure publicly and diplomatically on the Israeli government and strengthen calls to bring the ICC and ICJ into the mix.
More directly, since the entirety of the settlements are illegal (the third clause continues that the Council “will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”), Israel will have to pay a far higher price in land swaps or other negotiating positions in order to expect Palestinians to relinquish what have now been clearly recognized legally as their territory. Suddenly, shared sovereignty in East Jerusalem and even a larger number of refugees allowed into Israel proper would seem to be possible in any plausible peace deal.
In “reiterat[ing] its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard,” the second clause has used the most forceful language possible. The Security Council could merely have “called upon” or used similarly less compulsory language. Instead it has demanded an immediate and complete halt not only in construction, but “activities.” Resolution 2334 might not have built-in mechanisms to enforce it, but it’s clearly far more than a “recommendation” to Israel, as those who believe Chapter VI resolutions have no binding authority or enforcement power would have us believe (as one colleague who specializes in international law put it to me, “With no enforcement mechanisms it’s largely symbolic. [At best] one step forwards, two steps back”).
Since Israel has already declared its refusal to comply with UNSCR 2334, the stage is now set for an ICJ and/or ICC option and decision that would further place Israel in criminal violation of international law. Moreover, there is little doubt these two bodies will fail to rule on the systematic war crimes committed by Israel (and also, quite likely, by Hamas), which in their routinization and constant repetition have reached the level of crimes against humanity. It is quite conceivable that the actions of senior Israeli leaders, and of Hamas as well, could be determined to be war crimes by the ICJ, and/or various officials indicted for them by the ICC, with far-reaching and extremely positive ramifications for ordinary Palestinians and Israelis alike.
Moreover, while the Resolution doesn’t call for immediate sanctions against Israel, the fifth clause “calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.” This clearly is an invitation for boycotting any Israeli products or services that in any way are tied to the settlements, which in turn gives impetus by the slowly implemented EU policies to label, isolate, and punish, if not prohibit, these products. This is not a full endorsement of the BDS movement by any means, but it’s a huge step forward for raising international public opinion and awareness about the settlements and will have a major impact on their political economy.
Indeed, by “call[ing] upon both parties to act on the basis of international law, including international humanitarian law” the seventh clause reminds everyone that international law is still in force in the Occupied Territories and thus ongoing violations by Israel or Hamas will ultimately not go unpunished, even if the arc of justice remains long.
It is clear, then, that the Resolution does have teeth, even if they’re not being immediately bared. But there is also another equally important consequence of this Resolution, and that concerns U.S. domestic policy. Specifically, the Resolution has shown precisely the split in the Democratic Party and the American Jewish Community, between the true progressives who will be the backbone of any resurgent populist party that can speak to the concerns of the millions of voters who put Trump into power, and those of the corporate elite, epitomized by Chuck Schumer and Hillary Clinton and the entire establishment behind the presidential election catastrophe, who are the main reason for this present sorry state.
We can expect the “Amen corner” of the Republican Party to go nuclear over even the slightest criticism of Israel, just as we can expect the Jewish establishment to do (as the ZOA’s Morton Klein put it, “Obama has made it clear that he’s a Jew hating, anti-Semite”). What we see with the support by Bernie Sanders and progressive Democrats for the Resolution, and by the rising tide of truly progressive Jewish organizations such as Jewish Voice for Peace, IfNotNow, and even J Street — and of course, Tikkun and its related communities— is that uncritical, over-the-top support for Israeli colonialism squares quite well with support for neoliberal, ultimately anti-poor, and racist policies among Democrats.
In other words, the growing bonds between progressive Jews and the Movement for Black Lives, the Palestine solidarity movement, Native Americans as epitomized by Standing Rock, and for other movements grounded in the ongoing oppression of people of various colors other than (politically and economically) white is clearly going to divide the Jewish community—hopefully permanently—between those who support a Judaism based on the prophetic principles of righteous anger, justice, and compassion and those who support the idolatrous Judaism of money, power, and settlements (as Rabbi Michael Lerner has long and presciently described them in the pages of Tikkun magazine as well as in books such as Jewish Renewal and Embracing Israel/Palestine).
What this means is that the emerging generation of progressive Jews no longer has to choose between progressive values on the one hand, and the Jewish community establishment and Israel on the other. The establishment has made the choice for them, and as we’ve seen with the emergence of groups like Open Hillel, the new generation will not fall into the pro-Occupation line. The coalition of the future, the one that will not only heal American Judaism (and ultimately, Israeli Judaism as well), but help restore a progressive politics against the chauvinism and fascism of Trump and his minions, is now clear and is for once the same on both the domestic and foreign policy arenas.
Security Council Resolution 2334 makes one final point to the world, which has implications far beyond Israel/Palestine: Human rights and international law can still matter — if they’re allowed to function as they were intended. One of the great tragedies of the postwar era has been the architecture of the UN Security Council, which included a veto for the five permanent members of the Security Council that has been abused horrifically by all of them in order to enable themselves and/or their allies and clients to get away with literally mass murder and crimes against humanity (whether it’s been the U.S. murdering three million Southeast Asians and more recently the disastrous invasion of Iraq or supporting the Israeli Occupation, or Russia’s ruinous wars in Afghanistan and Chechnya and now direct participation in the slaughter in Syria). Unfortunately, the veto power of the P5 can only be ended by a vote by the Security Council, which naturally the P5 would have no interest in passing.
The only hope would be to apply so much pressure from the General Assembly on the major powers that they feel compelled to allow a change to the P5 veto (either necessitating more than one “no” vote by a permanent member or getting rid of it entirely) as part of the inevitable expansion of the permanent membership of the Council to include major emerging powers like India, Brazil, Indonesia, and/or South Africa. Such a change in the architecture of the Security Council would be the single most important event in diplomatic history since the creation of the United Nations, for it would finally force every country on earth equally to face the consequences of their actions before international law. Israel’s panic at this latest Resolution has shown us a glimpse of what a future would be like when those who’ve for so long been held unaccountable to international law suddenly feel themselves potentially slipping into its grasp. As the Putin-Trump era begins to unfold, the countries of the world would be wise to consider forcing the UN to give the rest of us a fighting chance before it’s too late.
If UN Security Council Resolution 2334 regarding Israel’s illegal settlements in the Occupied Palestinian Territories is to be worth the paper it’s written on, certain tangible steps must be taken. Failure to act will make it worthless.
First and foremost, there must be a serious review of Israel’s membership of the world body. Ever since it was carved out of the land of Palestine, Israel’s leaders have projected their country as something exceptional and thus entitled to special treatment. Israel is indeed unique; it is the only state in the world that owes its very existence to a UN resolution – 181 (II). Its membership was, however, conditional, and remains so.
Upon admission to the world body, the new entity gave a solemn undertaking to respect the General Assembly Partition Resolution (of Palestine) and the status of Jerusalem contained therein. This included the requirement to allow Palestinian refugees to return to their homes and land. Israel has repudiated these conditions. The UN is, therefore, well within its rights to suspend Israel from participating in all of its bodies and institutions, as it did with the South African apartheid regime in 1974 and the former Yugoslavia in 1992.
After decades of burying their heads in the sand there is now a growing realisation among Western leaders that Israel’s exceptionalism is actually a destabilising factor, not only the Middle East but increasingly so in the West. Recent intelligence documents leaked by Edward Snowden revealed that Britain’s Government Communications Headquarters (GCHQ) had warned in 2008 that “the Israelis remain a real threat to the stability of the region…”
Inevitably, Israeli officials have poured scorn on the latest Security Council resolution. Prime Minister Benjamin Netanyahu’s office described it as “shameful” and vowed not to abide by its terms. Rightfully, the resolution calls for an end to all “settlement activities” on Palestinian territory occupied since 1967, including East Jerusalem, noting that they have “no legal validity.”
Though such contempt for the will of the international community is not something unique to Israel, it is precisely such open defiance of the rule of law which has created the current chaos in the Middle East. Failure to act will only make matters worse. The threat posed by Israel’s intransigence must not be taken lightly. Already, it has announced that it “looks forward to working with president-elect Trump and with all our friends in Congress, Republicans and Democrats alike, to negate the harmful effects of this absurd resolution.”
Instead of awaiting this eventuality, the General Assembly must act to suspend Israel from UN bodies. Should this corrective measure fail to bring about the desired compliance, it must then resort to economic, diplomatic and travel sanctions of the kind imposed successfully against the racist South African apartheid regime.
Secondly, on the regional level, the League of Arab States must ensure that the current Egyptian government is never again entrusted with any peace initiative on Palestine, even if this means that the organisation’s headquarters has to be moved from Cairo. It has become patently clear that the current Egyptian government under Abdel Fattah Al-Sisi cannot be entrusted with any leadership role on the Palestine issue. Without the backing of Israel and the US, the coup leaders who toppled the country’s democratically-elected civilian government could not have survived for one week. They are now evidently beholden to the extremist government in Tel Aviv and their ilk; this alone has to be a valid enough reason to question its ability to act independently and resolutely to support the Palestinian people.
Furthermore, instead of acting to protect the legitimate aspirations of the people of Libya, Yemen and Syria, the Egyptian regime has pursued policies that can be described as dubious at best and obstructive at worst. In Palestine, Sisi has allowed Egypt to take a partisan stance, supporting one faction against another instead of promoting a genuine dialogue and reconciliation. Its latest shenanigans at the UN, during which it succumbed to Israeli blackmail, must be the final warning that it is not fit to be entrusted with strategic regional interests.
[Dr. Daud Abdullah is Director of Middle East Monitor (MEMO).]