Thursday, December 29, 2016

ANALYSIS: Understanding the UN Security Council Resolution on illegl Israeli colonies

Dear friends,
as you will be aware the United Nations Security Council once again in recent vote confirmed that Israel's colonies in the Occupied Palestinian Territories are illegal and that Israel is in flagrant violation of international law.   As mentioned the other in my earlier post on the vote (which you can read here), I am posting a number of articles discussing the vote.

Since the vote was taken, Netanyahu, Israel and various Zionist organisations have reacted hysterically, which is not unusual.  The reaction of the Israeli leadership (whether it be Netanyahu or any of the Israeli Prime Ministers before him) to anything which does not reiterate or tow  the Zionist narrative or policy position is more often than not accompanied by temper tantrums and hysterics.  In this case, Netanyahu dragged the various ambassadors of the states the vote for the resolution in to harass them and has acted as no other US president before Obama has every abstained on a vote in regard to Israel. This is, of course, not true, as the articles below note.  As Barak Ravid notes in his explainer, which appeared in the Israeli newspaper Haaretz since 1967, every single US president has allowed the adoption of Security Council resolution.  While the US has indeed often veto resolution votes, various administrations have also allowed 47 to pass.

It should also be remembered that Obama in September okayed aid to Israel, at a level higher than any other President of the USA - a total 38 BILLION over the next 10 years.

His administration has made clear that they will continued to support this. 

Electronic Intifada's article on Obama handing Israel the largest military aid deal in history can be read here. 

I will follow up with another post or two over the next two days some articles discussing the resolution, Israel's reaction and the dead letter of the two state solution.

In solidarity, Kim


Can Trump's administration overturn the Security Council resolution on Israeli settlements? Why didn't Putin veto it? What are the short- and long-term implications? A guide to make sense of the mess.

Barak Ravid Dec 24, 2016 HAARETZ

The resolution against Israeli settlements adopted by the United Nations Security Council Friday sent out diplomatic, political and media shockwaves. After thousands of reports, analyses and spins, here is a guide to make sense of the mess.

*Is this the first UNSC resolution concerning Israeli settlements?

No. But it is the first to deal so specifically with the settlements in over 35 years. The previous such resolution, Resolution 465, was adopted by the Security Council in March 1980 (you can read it in full here). That being said, since 1980, the Israeli-Palestinian conflict has undergone dramatic changes, the extent of the Israeli settlement enterprise has grown dramatically, and international community's focus on the settlements as a threat to the viability of the two-state solution has also increased markedly.

*Is this the first time an American president declines to veto a UNSC resolution on Israel-Palestine?

No. Since 1967, all U.S. presidents have allowed the adoption of Security Council resolutions. To this day, 47 resolutions concerning the Israeli-Palestinian conflict have been adopted by the UNSC, all during the presidencies of presidents other than Obama. President George H. W. Bush allowed nine resolutions to pass during his presidency. During President Bill Clinton's presidency three resolutions were adopted by the UNSC. In fact, this is the first time Obama refrained from using the U.S. veto in the Security Council when it came to Israel since he entered the White House eight years ago. Last time a resolution on Israel was brought to a vote at the Security Council in February 2011, a resolution also concerning the Israeli settlements, Obama vetoed it.

*Did Obama break a decades-long tradition according to which presidents don't make policy changes in the interim between administrations?

No. Quite a few presidents have used the interim period between the election of a new president and his inauguration in which they are freed from political constraints to carry out far reaching foreign policy changes, including with regard to the Israeli-Palestinian issue. For example, President Ronald Reagan used this interim period in 1988 to begin a dialog with the PLO. President Clinton used this period to present the "Clinton Parameters" in which he guidelines for the solving of key issues in the Israeli-Palestinian conflict.

Does the resolution change the legal status of the settlements, which are already illegal under international law?

No. The Fourth Geneva Convention bans nations from the moving of populations into and the establishing of settlements in the territory of another nation won in war. An overwhelming number of countries have sided for years with the position that the Israeli settlements in the West Bank and East Jerusalem are illegal and constitute a violation of international law.

*What are the immediate ramifications of the UNSC resolution?

The resolution adopted by the Security Council will have no practical ramifications for Israel. The resolution doesn't include any coercive measures or define sanctions for those who violate it, except for a mechanism by which the United Nations' secretary general will submit a report on the state of settlement construction to the Security Council every three months. The reason for this is that the resolution was adopted under the United Nations Charter's Chapter 6, and thus is non-binding and only constitutes a show of intent and a recommendation. The resolution is a form of diplomatic message to Israel and sets the international consensus on the settlements and further isolates Israel with regard to this issue. In order for this resolution to become binding and to allow for coercion or the imposition of sanctions by the international community it would have to be adopted under Chapter 7 of the United Nations Charter.

*In the long-term, what are the possible ramifications?

In the medium-to-long-term the resolution may have serious ramifications for Israel in general and specifically for the settlement enterprise. The reason for this stems from the two main clauses of the resolution. The first clause states that the settlements have "no legal validity and constitutes a flagrant violation under international law." The International Criminal Court in The Hague is currently conducting a preliminary investigation concerning a suit filed against Israel by the Palestinians. One of the issues raised in the suit is the construction of settlements. International law takes form through different measures including Security Council resolutions. Thus, this decision, at this time, could influence the preliminary investigation and could provide cause for the ICC prosecutor to order a full investigation of Israel settlement construction.

Another clause in the resolution calls on the nations of the world "to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967." This is a precedent in UNSC resolutions concerning the Israeli-Palestinian conflict, and actually calls on countries to cut ties direct and indirect with the settlements. This clause may create a path for countries, international organizations such as the EU, and corporations to impose sanctions on the settlements. The Foreign Ministry's assessment is that the EU would have to pass a similar resolution in its institutions and base practical steps and legislation from it.

*Will President-elect Donald Trump's administration be able to overturn the resolution or pass an opposite resolution?

Theoretically yes, though in practice not really. In order to overturn the resolution Trump would have to pass an opposite resolution, which will in fact state that the settlements are legal and are not an obstacle to peace, get the support of at least eight members of the Security Council not including the U.S. and ensure that Russia, China, France, and the U.K. don't veto it. This is unlikely to say the least. Minutes after the resolution was adopted Trump tweeted that after January 20th, things in the UN will look differently. Trump will be able to influence the work of the UNSC from here on out, but history proves that there is a not insignificant chance that he too will find himself avoiding the use of a veto on the Israel-Palestinian issue.

*Will the Trump administration or Republican lawmakers stop the U.S. funding for the UN?

Some senior Republicans, including Lindsey_Graham, who is chairman of the Subcommittee on State, Foreign Operations, and Related Programs, have already announced that they will take action to cut and even stop completely the U.S. funding of UN institutions in response to the adoption of the resolution. The U.S. has taken similar action with respect to the UN's cultural arm UNESCO, when it accepted Palestine as a full-pledged member. The result has been that the U.S. has lost its vote in UNESCO and its influence on the organization has dramatically ebbed. This adversely affected Israel, which could no longer count on the U.S. to stop anti-Israeli measures taken by UNESCO.

*If the relationship between Netanyahu and Russian President Vladimir Putin is so good, why didn't Russia veto the resolution?

The allegedly close relations between Netanyahu and Putin fall short when it comes to Russian interests and UN votes. Russia is one of the main supporters of the Palestinians over the last 50 years. During those years and today as well Russia has been voting against Israel in every possible international forum. It is possible that things will change in the future, but at least at this stage a Russian veto on a UNSC resolution concerning the Israeli-Palestinian conflict belongs to the realm of science fiction and not diplomacy.

Israel's colonies are illegal under international law.

Security Council Resolution 2334: An Old-New Approach to Palestine at the United Nations?

Following the passage of resolution 2334 by the UN Security Council on 23 December 2016 concerning Israeli settlements in occupied Palestine, it is useful to briefly address some of what it means in both legal and political terms. In short, the resolution can best be described as the embodiment of an old-new approach to one of the thorniest issues in the Israel-Palestine conflict.

Legally, the resolution’s principal focus—Israel’s colonization of the occupied Palestinian territory with approximately 600,000 Jewish settlers since 1967—offers little new. In affirming the international illegality of the settlements, the applicability of the Fourth Geneva Convention, and the inadmissibility of the acquisition of territory through force, resolution 2334 merely repeats what the Council and other organs of the United Nations, including the General Assembly and International Court of Justice (ICJ), have repeatedly affirmed. In addition, like its predecessors, this resolution is not formally binding on states as a matter of UN law. Under article 25 of the UN Charter, only “decisions” of the Council are binding on Member States, and resolution 2334 was not drafted in the form of a decision. This does not mean that the resolution’s substantive affirmations of international law are not legally binding on states under general principles of international law, however, but only that the Council has not made it binding on them as Member States of the Organization. Moreover, this does not deprive the resolution of its essentially political character.

What lends the resolution some legal novelty resides not so much in its affirmations of relevant international law concerning the settlements, but in the scope of their recitation. No previous Council resolution has been as fulsome in its denunciation of the settlement enterprise as this, including through making clear linkages with other ongoing illegal actions of Israel in the Occupied Palestinian Territory (OPT) such as the construction of the Wall, confiscation of Palestinian land, demolition of Palestinian homes and displacement of Palestinian civilians. While not determinative, this resolution will not go unnoticed in other fora, including the Office of the Prosecutor of the International Criminal Court who is currently engaged in a preliminary examination on whether to investigate the situation in occupied Palestine including the crime of civilian settlement of an occupied territory of the territory it occupies.

In one notable development, the resolution offers a first in calling “upon all States . . . to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.” This is important, for it affirms the Council’s view that third States should remain aware that their bilateral relations with Israel—political, civil, economic, social, cultural—cannot continue as usual. For far too long, Israel has been able to weather the occasional diplomatic and public relations fallout from its illegal and immoral policies in the OPT, knowing that this will result in little actual change in bilateral engagement with influential policymakers and business people in third States. This call by the Council therefore signals a shift with potential implications that can theoretically result in more robust legal, economic and political sanction of Israel abroad, including through measures encouraged by the global Boycott, Divestment and Sanctions campaign.

Politically, the resolution’s repeated references to negotiations as the framework within which the end of Israel’s half-century occupation is a reflection of an old and, by now, bankrupt approach to this conflict at the United Nations. To be sure, negotiation is always the preferred option in the way of peaceful dispute resolution. In the face of drastically increased levels of violence in recent years, the Palestinian leadership’s continued commitment to a negotiated two-state resolution is nothing short of remarkable. But where there is a clear lack of good faith on the part of the infinitely more powerful party—as demonstrated in this case by calls by Israeli ministers to illegally annex portions of occupied Palestine, “legalize” settlement outposts that are, under Israeli domestic law, “unauthorized”, and publically reject the very notion of a Palestinian State being established—it is more than incredulous to continue the mantra of bilateral negotiation between that party and its captive interlocutor as the only means to ending the latter’s subjugation and the realization of peace for both. How does a weaker party successfully negotiate the return of stolen property with the more powerful one responsible for its theft? Based on the historical record, it is not certain whether any new form of multilateral negotiations can level the playing field. What is clear, is that as Israel’s regime of apartheid and colonialism in the OPT enters its fiftieth year, it is increasingly apparent that a much more principled approach to ending it forthwith—that is, decoupling its immediate end from bilateral negotiations which have enabled it to consolidate, not relinquish, control—is required.

In this regard, it is notable that the resolution calls upon all parties to launch credible negotiations “within the time frame specified by the Quartet in its statement of 21 September 2010”. In that statement, “[t]he Quartet expressed its strong support for the resumption of Israeli-Palestinian negotiations, which can resolve all final status issues within one year” (emphasis added). Reference to this statement by the Council may signify a potential silver lining. In the event negotiations commence but are proven incapable of resolution within one year, the Council has left open the possibility of adopting more robust measures to end the occupation, including requiring that Israel do so unilaterally, unconditionally and forthwith. As I have argued elsewhere, even if a permanent member blocks such Council action, it is possible for other principal organs of the UN, including the ICJ and the General Assembly, to adopt such an approach. If they do, it is conceivable that a useful political momentum against the continued illegal presence of Israel in occupied Palestine can emerge within the United Nations, and one that requires Israel to end that presence unilaterally, based inter alia on precedents of Iraq’s illegal occupation of Kuwait, and South Africa’s illegal occupation of Namibia.

Finally, the significance of Israel not being able to rely on a United States veto of resolution 2334, although notable, is not without precedent nor does it signify any significant shift in their special relationship. To be sure, over the past eight years Prime Minister Benjamin Netanyahu has taken great pains to publically undermine the Obama administration, most notably following US-led negotiations on Iran’s nuclear program. Nevertheless, the administration’s complete capitulation to the Israel lobby was more than amply demonstrated by President Obama’s approval of a thirty-eight billion US dollars aid package to Israel in September 2016. By all accounts, President-elect Trump has made it clear that he will continue and even amplify this trend.

“The secret of change”, Socrates said, “is to focus all of your energy not on fighting the old, but on building the new.”  While based on a great deal of old affirmations and positions of the United Nations on the question of Palestine, Resolution 2334 also offers some new elements that can prove useful in the way of ending Israel’s fifty-year occupation of Palestine. While healthy skepticism of the role of the United Nations in building the new is warranted, it is vital that we acknowledge the indispensability of that role in any way forward. In this respect, it is important to acknowledge the many doubtful voices that may find the real-world added value of international law, let alone Security Council resolutions, limited.

Given the relatively weak global reaction to the many Security Council resolutions that already exist on the question of Palestine, one could be forgiven in believing international law and the United Nations pointless at a time like this. But to take this view would be a crucial error, given that it would be based upon a mistaken impression that law and the United Nations, in and of themselves, offer the perfect remedy for internationally wrongful conduct. In a world still dominated by state sovereignty, obedience to law by states cannot be taken for granted. In the absence of a centralized and universally applicable source of coercive authority, therefore, adherence to international obligations is overwhelmingly less a matter of enforcement as it is observation. In such circumstances, and particularly where powerful states are involved, the successful use of international law and institutions depends as much, if not more, on concerted political will and action to ensure that enough of a cost is brought to bear on malfeasant, aiding or abetting states to ensure voluntary compliance. Viewed in this way, recourse to law, including through the United Nations, can offer incremental value added. Not as an end in and of itself, but rather as a tactical means to one. It is in this overall context that Security Council resolution 2334 should be viewed.

No comments: