As we reach the end of the Obama presidency, U.S.–Israeli relations are in a state of turmoil after the administration abstained on the UN Security Council vote of December 23, 2016 regarding Resolution 2234, which, among other things, “Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied by 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.”
To say that this resolution has not been well received in the United States is something of an understatement. The House of Representatives, for instance, recently issued a nonbinding resolution that condemned the UN act as “one-sided and anti-Israel.”
At this point, it is imperative to take a close look at what the resolution says to see whether or not this and similar charges raised against it can be sustained. That inquiry in turn has to deal with two issues, one legal and one political. The first question is whether the Israeli settlements are in fact a flagrant violation of international law. The second asks whether the settlements are a serious impediment to the creation of a two-state solution. I conclude that the UN resolution overstates its condemnation of Israel, and join the chorus of those who think that the Obama administration stumbled badly when its abstention allowed the Resolution to become official UN policy.
As is often the case with poorly crafted resolutions, this one goes astray with its very first word. To say that the UN “reaffirms” the current status quo implies that, on some earlier occasion, it had voiced the same position that it does today. But the earlier positions taken by both the UN and the United States were far more nuanced than this latest one..
The most relevant document for these purposes is Resolution 242 of November 22, 1967 in the aftermath of the Israeli victory in the Six Day War that started when Egypt, Jordan, and Syria engaged in military action intended to destroy the state of Israel. The short resolution in effect adopted the land-for-peace formula that has guided American policy for close to 50 years. The Israelis agreed to withdraw from “territories occupied in the recent conflict” in exchange for a deal that resulted in the acceptance by all powers within the region of the legitimacy of the state of Israel with secure and defensible borders. At no point was it required that the Israelis return to the de facto borders that had been established under the 1949 armistice. Instead it could keep some territories to rationalize its national boundary lines in ways that allowed it to obtain defensible borders.
But this no longer applies after Resolution 2234, which “Reiterates 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 resolution was not invoked under the UN’s so-called Chapter VII powers that address “threats to the peace, breaches of the peace, and acts of aggression.” Instead, it relies on Chapter VI, which is intended to deal with peaceful resolution of disputes. There is more than a whiff of complexity in this resolution. First, it condemns all Israeli settlements post-1967, including those in the Jewish quarter in East Jerusalem. But it is not clear how much further it goes, given that the phrase “completely cease all settlement activities” can easily be read to say that the Israelis are under an obligation not only to not expand existing settlements, but also to dismantle all settlements in the West Bank, or at the very least to stop all “natural growth” in Jewish populations within the settlements—a futile proposal that became national policy under Obama after, as Elliot Abrams reports, it had been explicitly rejected by George W. Bush’s administration.
It may therefore be an open question as to whether Israel is under a further obligation to turn over effective administration to Palestinian control, given what has been condemned as a flagrant violation of international law. No one can be sure, but texts less emphatic have been subject to broader interpretations. Indeed Hamas was quick to “emphasize the need to turn such a resolution into action, not only to halt settlements but to eradicate Israel’s occupation in all its forms,” including, of course, the occupation of all territories within the 1949 armistice lines. Clearly, the Resolution does not go that far, but on any reading it represents a major shift from the earlier views that Israeli settlements, especially those in or near Jerusalem, could continue to accept more people on the ground that they would be incorporated into Israel as part of any final settlement.
In light of its announced transformation, it is fair to ask, how solid is the legal foundation on which the new Resolution rests, especially compared to Resolution 242? Given its categorical denunciation of the Israeli position, we should expect to see unassailable evidence in support of its position. But the record is, in my view, far weaker than advertised. In dealing with this issue, Resolution 2234 points to two major sources of authority, both of which require some explanation. First, there is the Fourth Geneva Convention concerning the Protection of Civilian Persons in Time of War of August 1949, and second there is an advisory opinion rendered by the International Court of Justice in July 2004. At no point does Resolution 2234 discuss the rationales of these two key documents. This omission is troubling.
Most relevant to this discussion is the short text in Article 49 that provides simply: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Yet the widespread consensus treats Israel as an occupying power. But it is not clear how this provision applies given the complex history of the region. The first point to note is that the phrase occupying power does not quite capture the Israeli-Palestinian dispute. Context matters.
The Fourth Geneva Convention was adopted in the aftermath of World War II, when there was an urgent humanitarian need to take care of refugees and other persons who had been displaced by the war. The Convention does deal extensively with occupied territories, but it offers no definition of what counts as such a territory. The clear cases of occupation are those in which one nation takes over the territory of another during armed conflict, which happened for example when the Soviet Union occupied the Baltic States in June 1940, in the aftermath of the notorious Molotov-Ribbentrop Pact that partitioned Eastern Europe into a Soviet and German spheres of influence. The occupation was then followed by the mass deportation of local citizens and the mass transfer of Russian citizens into the Baltics.
By linking the term “deport” with “transfer,” it is arguable, perhaps probable, that the abuse targeted was not the voluntary migration of individuals into occupied territories, but the Stalinesque activities of the forced transferal of a nation’s own people into occupied territories against their will, which happened in the aftermath of the occupation of the Baltics. None of this means that Palestinians do not have legal protection under the Geneva Conventions, but the ongoing security issues in these cases make it difficult in the abstract to determine just how far they run. But right now there is a serious debate, pro and con, over the condemnation with full compensation of vacant and uncultivated land on which to build Jewish settlements.
Set against this background, it is far from clear as a textual matter exactly how Article 49 applies to the Israeli occupation of the West Bank in the aftermath of the Six-Day War. The war began as an act of aggression against Israel by Jordan, and the legal status of those territories had not been resolved by the 1949 Armistice. The Israelis had their own historical claims to these territories, the status of which was disputed at the time. In their view, as developed here, these territories are “disputed territories” to which the Geneva Convention does not apply at all. To make matters more complicated, at the close of the Six-Day War, the only party that had a legal interest in the territories was Jordan, who had exercised de facto territorial sovereignty prior to the onset of hostilities. There was at that time no Palestinian nation either in the West Bank or in Gaza, which was then part of Egypt.
The Jordanians were, of course, no friends of the Palestinians. Indeed, in September 1970 there was a fierce conflict, known as Black September, in which the Palestinian Liberation Organization forces led by Yasir Arafat were defeated by the Jordanian forces led by then-King Hussein, and were forced into exile after the death of thousands. Just what would have happened to Palestinian national ambitions if the territories had been returned to Jordan so that the Fourth Convention would no longer apply? We shall never know the answer to that question because Jordan never sought to regain the territories and indeed in 1988 renounced all claim to the West Bank in part to clear the path to Palestinian claims. Note that the Jordanians did not—nor could they have—transferred their claims to Palestine which did not (and still does not) have statehood status. At this point, we have the novel situation in which the stripping away of the initial sovereign leaves Israel without a genuine competitor for sovereignty over the territories. Nothing in the Fourth Convention covers these unique circumstances. And it is a political, not a legal, issue that governs the implementation of any potential two-state solution.
Nor is the situation made any clearer by the 2004 Advisory opinion, which addressed the legality of the wall that Israel erected around the West Bank to protect itself against widespread Palestinian terrorist attacks. Clearly the wall separated the West Bank from the rest of Israel, and it was condemned for that reason as illegal by the ICJ, which heavily relied on notions of customary international law that have never been supported by a consistent practice that requires nations to remain immobile in the face of systematic terror threats. To be sure, Resolution 2234 condemns terrorist activities, but only in a disembodied sense that makes no reference to the constant activities of Hamas or the active support for terrorist activities that is fully institutionalized by the Palestinian authority, which offers financial support for individuals and the families of those who kill or maim Israelis. Generalized pronouncements make it appear that Israel and the Palestinian Authority are equal offenders in the commission of terrorist acts, when it is highly likely that the Israeli security measures would be vastly curtailed if there were credible assurances that the bombings, shootings, and stabbings would come to an end.
The one-sided treatment of these legal issues is consistent with the general UN approach that obsessively condemns Israel while mostly overlooking the atrocities that have ravaged the greater Middle East. In light of these issues, it is somewhat odd to treat the settlements as though they were the major obstacle to the two-state solution. Remove them tomorrow, especially in response to the UN resolution, and the most likely outcome is that the PA and Hamas would intensify their activities to destroy the Jewish state, just as they did in 1948, 1956, 1967, and 1973 when Israel fought wars of survival, knowing full well that the first defeat would be the last one, even if the 1949 Geneva Convention places strict limitations on how occupying powers have to behave toward conquered people.
The Israelis know this all too well. They also know that the lesson of the 2005 withdrawal from Gaza led to the rise of Hamas and to repeated military actions and missile attacks between 2006 and 2014. Any unilateral surrender of lands in the West Bank to a new Palestinian state opens up the possibility that greater hostilities could be launched against an Israel weakened by successive rounds of fatal concessions. The Israelis claim that the only path to peace is through bilateral negotiations between the parties, backed by the US and the UN. Those negotiations were apparently close to success in 2000 and 2008, but the deal was never closed because of the Palestinians.
At this point, Resolution 2234 has killed the prospects for any negotiated peace in the foreseeable future. The Palestinian Authority will treat compliance with a ruinous Resolution as a precondition for further negotiations. The Israelis cannot live in a world that requires them to surrender territories under their control before 1967. The terms of the UN Resolution thus have put an effective end to all negotiations between the two sides. The Israelis are likely to continue the dangerous game of expanding settlements in the West Bank, as the only credible way of punishing the Palestinians for their continued delay. Whether this strategy will work, or should work, is a hard call. But much of the blame for the current impasse lies at the feet of Secretary of State John Kerry who never did understand the political dynamics of the Israeli-Palestinian negotiations.
*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.