UN resolution on settlements is a step back for Palestinians

With much controversy and fanfare, the United Nations Security Council (UNSC) passed UNSC resolution 2334 on December 23rd 2016 by a vote of 14-0-1 (with the United States abstaining), ostensibly re-iterating the illegality of Israeli settlements in the Occupied Palestinian Territories (Gaza and the West Bank, including East Jerusalem). The resolution, initially proposed by Egypt only to be withdrawn under pressure after a December 22nd phone call between Egyptian President Abdel-Fattah El-Sisi and U.S. President-elect Donald Trump, was re-introduced by Venezuela, New Zealand, Senegal and Malaysia, essentially forcing a vote on it. The passing of the resolution was criticized by the usual suspects, with Israeli Prime Minister Benjamin Netanyahu calling the resolution “distorted and shameful”, and leading him to recall ten ambassadors of UNSC countries who voted for the resolution as well as halting aid to Senegal as punishment for its sponsorship of the resolution. On the other hand, the passing of the resolution was hailed by the Palestinian Authority’s chief negotiator Saeb Erekat as a “historic day and a victory for international legitimacy, international law and international documents”, and by Nabil Abu Rudeineh, the spokesman for Palestinian President Mahmoud Abbas, as a “big blow for Israeli policies”.

Weaker Language than prior UNSC resolutions

It is difficult to understand the Palestinian Authority’s enthusiasm for the passing of this resolution given that it uses weaker language than four prior and separate UNSC resolutions 446, 452, 465 and 478 that were passed in 1979 and 1980 and that specifically targeted Israeli settlements (these resolutions are cited in the first perambulatory paragraph of UNSC resolution 2334). Indeed, in operative clauses 5 and 6 of UNSC resolution 465, which are the main clauses dealing with settlements, the UNSC:

5. “Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

6. Strongly deplores the continuation and persistence of Israel in pursuing those policies and practices and calls upon the Government and people of Israel to rescind those measures, to dismantle the existing settlements and in particular to cease, on an urgent basis, the establishment, construction and planning of settlements in the Arab territories occupied since 1967, including Jerusalem”.

In comparison, clearly weaker language is contained in UNSC resolution 2334, which states in operative clauses 1 and 2 that the UNSC:

1. “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;
2. 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 wording here is important, as the language in UNSC resolution 465 “calls upon Israel to dismantle the existing settlements” as well as to “cease, on an urgent basis, the establishment, construction and planning of settlements”, whereas UNSC resolution 2334 merely re-iterates the demand for Israel “to cease all settlement activities”. This is not a minor point, especially when coupled with operative clauses 3 and 4 of UNSC resolution 2334, which state that the UNSC:

3. “Underlines that it 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” [italics mine];  

4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution”.

When these clauses are taken in conjunction with the remaining text of the resolution, it becomes clear that the main thrust of UNSC resolution 2334 is to attempt to rescue the floundering “Two-State Solution” paradigm that the settlements threaten, while explicitly incorporating legal language that would allow Israel to keep whatever settlements already exist beyond the 1967 lines  “through negotiations”, as opposed to insisting on the widely-accepted notion within international law that all settlements are illegal, and should therefore be dismantled, as already stipulated in UNSC resolution 465.

Lack of enforcement mechanism

Turning now to the practical effects of UNSC resolution 2334, it is wildly optimistic to believe that even the limited scope of this resolution will have any material impact on the ground regarding the halting of the Israeli settlement enterprise. Indeed, despite the passing of the aforementioned stronger resolutions, the Jewish settler population in the West Bank (excluding East Jerusalem) rose from 22,800 in 1983 to 406,302 as of December 31 2015, based on the latest information released by Knesset Member Yaakov Katz from the Population Registry of Israel’s Interior Ministry, while the Jewish settler population in East Jerusalem rose from 76,095 in 1983 to potentially 350,000 based on an estimate from former Israeli Minister of Construction Uri Ariel (older and more conservative estimates put Jewish settlers in East Jerusalem at 200,000). This entails that the total Jewish settler population in all of the West Bank (including East Jerusalem) has risen from about 100,000 in 1983 to potentially over 750,000 today; that’s a compounded annual growth rate of 6.5% over a 30+ year period. Looked at differently, given that Israel’s Jewish population today is 6.4 million, Jewish settlers in the West Bank constitute nearly 12% of the overall Jewish population, whereas they constituted less than 3% of the Jewish population back in 1983 (based on an overall Jewish population of ~3.4 million).

The reason for this growth in the settler population despite the passing of these prior resolutions is straightforward: all of these resolutions lack a robust enforcement mechanism backed with real consequences to ensure that Israel adheres to the letter of the law, as these resolutions were adopted under Chapter VI of the UN Charter, dealing with “Pacific Settlements of Disputes” (in contrast, resolutions adopted under Chapter VII typically invest the UNSC with more robust mechanisms to enforce resolutions in order to deal with “Threats to the Peace, Breaches of the Peace, and Acts of Aggression”). If we examine operative clauses 8 and 9 of UNSC resolution 465, we notice that it merely states that the UNSC:

8. “Requests the Commission to continue to examine the situation relating to settlements in the Arab territories occupied since 1967, including Jerusalem, to investigate the reported serious depletion of natural resources, particularly the water resources, with a view to ensuring the protection of those important natural resources of the territories under occupation, and to keep under close scrutiny the implementation of the present resolution;

9. Requests the Commission to report to the Security Council before 1 September 1980, and decides to convene at the earliest possible date thereafter in order to consider the report and the full implementation of the present resolution”.

These clauses are toothless, in the sense that they are devoid of any coercive power to force Israel to comply with the resolution, let alone to see the “full implementation of the present resolution”; as such, it is no surprise to see the lack of any material impact on Israel’s settlement project. Similarly, UNSC resolution 2334 was also adopted under Chapter VI of the UN charter, and as such, also lacks a coercive mechanism to fulfill its directives (in fact, the language used to enforce the resolution is again weaker than that of UNSC resolution 465). Indeed, operative clauses 11 and 12 simply state that the UNSC:

11. “Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;

12. Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution”.

As such, given the lack of a real enforcement mechanism in UNSC resolution 2334 coupled with its weaker language relative to prior resolutions that have had no practical effect on the ground regarding the halting and dismantling of Israel’s settlement enterprise, it is a mystery why anyone would be celebrating this latest iteration.