Editor’s note: Few Americans are informed about the degree of distortions in Israeli life and repression of Palestinian rights inevitably accompany the Occupation of the West Bank, that are the background for the U.N. Security Council resolution passed last week which made clear that Israeli settlements in the West Bank are illegal under international law. Here are a few headlines for one typical day (December 27, 2016) from the Israeli newspaper Ha’aretz: “Israel Wrecks 18 Palestinian Structures for Every One It Licenses in West Bank’s Area C”; “Israel Education Minister Yair Lapid (ed note: from the ‘centrist’ Yesh Atid party) promotes bill that would ban anti-Occupation group from Israeli schools (ed note: group is called Break the Silence–a group of former Israeli soldiers who tell stories of what they had been ordered to do while enforcing the Occupation of the West Bank and the invasions of Gaza by the IDF); and an editorial entitled “Trump and Netanyahu: An Alliance of Bullies” (referencing in part Netanyahu’s threats to punish countries that voted for the U.N. resolution). Please read Tikkun magazine’s contributing editor Mark LeVine whose analysis (below) of why the U.N. vote last week has greater importance than the U.S. media has yet to acknowledge should be widely circulated–so please do so. –Rabbi Michael Lerner RabbiLerner.Tikkun@gmail.com
Why Security Council Resolution 2334 Matters a Lot More Than We Think
by Mark LeVine
Those who long ago succumbed to cynicism and hopelessness when it comes to the Israeli-Palestinian conflict can find many reasons to discount the importance of Security Council Resolution 2334, passed unanimously (14-0 with the U.S. as the only abstention) on December 23. It is certainly true that Israel will ignore and indeed work actively to undermine the Resolution just as it has ignored innumerable other resolutions demanding a halt to settlement construction or expansion. As one activist tweeted shortly after its passage, in all likelihood Israel will expand the seizure of Palestinian land and construction of settlements just to thumb its nose at the UN (and the departing President Obama) and to demonstrate the irrelevance of the UN when it comes to the Occupation.
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.
Mark LeVine is professor of history at UC Irvine, distinguished visiting professor at the Center for Middle Eastern Studies, Lund University, a contributing editor at Tikkun, and author of numerous books, including the just published Struggle and Survival in Palestine/Israel, co-edited with Gershon Shafir (UC Press).