The Significance of UNSC 2334
IPS Senior Fellow and Jadaliyya Co-Editor Mouin Rabbani examines various aspects of the UNSC Resolution 2334.
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.