The US and UN Security Council Resolution 2334
While the adoption by the UN Security Council in December of Resolution 2334 condemning Israeli settlement expansion may be purely a symbolic gesture, the resolution's provision for regular three-monthly reports by the UN Secretary-General on progress in implementing it will ensure that the whole issue is kept alive internationally. Richard Falk comments.
ON 23 December 2016, the UN Security Council by a vote of 14-0 adopted Resolution 2334, notably with the United States abstaining, condemning Israeli settlement expansion. It was treated as big news in the West because the Obama presidency had finally in its last weeks in office refused to use its veto to protect Israel from UN censure.
Especially in the United States, the media focused on the meaning of this diplomatic move, wondering aloud whether it was motivated by Obama's lingering anger over Israeli Prime Minister Benjamin Netanyahu's effort to torpedo his efforts to reach agreement with Iran in 2014 on the latter's nuclear programme, or whether it was meant to challenge the incoming Trump leadership to deal responsibly with the unresolved Israel/Palestine conflict and also by indirection to mount criticism of Trump's reckless pledge to move the American embassy to Jerusalem and his apparent readiness to side openly with extremist Israeli leadership while in the White House.
The likely lasting importance of the resolution is the evidence of a strong international consensus embodied in the 14-0 vote, with only the US abstention preventing unanimity. To bring together China, Russia, France and the UK on an initiative tabled by Senegal, Malaysia and Venezuela is sending Israel and Washington a clear message that despite the adverse developments of recent years in the Middle East, the world will not forget the Palestinians or their struggle. It is also significant that the resolution calls upon the new UN Secretary-General to report back to the Security Council every three months on progress in implementing the resolution and explicitly keeps the Council seized of the issue. Such provisions reinforce the impression that the unresolved Israel/Palestine conflict will remain on the UN policy agenda in the months ahead, which by itself is extremely irritating to Israel.
It is quite obvious that Resolution 2334 is largely a symbolic initiative, which is a way of saying that nothing on the ground in occupied Palestine is expected to change even with respect to Israeli settlement policy. However, Israel responded to the resolution even more defiantly than anticipated partly because this challenge to its policies, although symbolic, was treated as more threatening than a mere gesture of disapproval. Israeli anger seemed principally a reaction to the American failure to follow its normal practice of shielding Israel by casting its veto. It may also reflect concerns in Israel about the growing civil society challenge posed by the Boycott, Divestment and Sanctions (BDS) campaign that is gaining traction in recent years, particularly in Europe and North America.
In effect, Resolution 2334 may be the beginning of a new phase of the legitimacy war that the Palestinian people and their supporters have been waging in recent years in opposition to Israeli occupation policies and practices, not only in the West Bank and East Jerusalem but also in Gaza, and to discredit its diplomacy on the world stage. If Trump delivers on his provocative pledge to move the American embassy to Jerusalem, it is likely to intensify offsetting international efforts to induce the UN to exert greater pressure on Israel to address Palestinian grievances in a manner more in accord with international law.
The motivation for the US change of tactics at the UN was greatly elaborated upon a few days later by John Kerry, the American Secretary of State. He mainly connected Resolution 2334 with a US effort to save the two-state solution from collapse. Kerry insisted that the two-state solution could still be salvaged, although he acknowledged that it was being put in increasing jeopardy by the steady expansion of Israeli settlements, which he acknowledged as signalling Israel's ambition to impose its own version of a one-state outcome on the Palestinians.
Kerry articulated the widely held belief that the formal annexation of occupied Palestinian territories would force Israel to choose to be either 'Jewish' or 'democratic'. It could not be both if the five million or so Palestinians living under occupation were added to the 1.7-million-strong Palestinian minority in pre-1967 Israel. At such a point, Israel would have to either grant all Palestinians full citizenship rights and no longer be Jewish, or withhold these rights and cease further pretences of being democratic.
Significantly, Kerry refrained from saying that such a solution would violate basic Palestinian rights or antagonise the UN to such a degree that sanctions would be imposed on Israel. Secretary Kerry relied on the practical advantages for Israel of making peace with Palestine, and refrained from warning Israel of dire international consequences of continuing to violate international law and defy the unified will of the international community.
For a variety of reasons, as suggested, Resolution 2334 and the Kerry speech were a welcome corrective to the relative silence of recent years in response to the failure of the parties to move any closer to a sustainable peace. It was also a belated indication that at least part of the American political establishment was no longer willing to turn a blind eye to Israeli wrongdoing, at least with respect to the settlements.
Yet Resolution 2334, and especially the Kerry speech, do not depart from fundamentally mistaken presentations of how to move diplomacy forward. There is no mention of the widely held belief in civil society that the train carrying the two-state baggage has already left the station, stranding the hapless diplomats on the platform. In fact, both the resolution and Kerry seek to breathe life into an opposite impression that the only feasible peace arrangement must be based on achieving two independent, sovereign states; no consideration is given to the alternative of a secular one-state solution with equality for the two peoples based on democracy and human rights.
The second serious misrepresentation of the situation is the assertion of a false symmetry as between the parties rather than a necessary recognition of disparities in capabilities and responsibilities that have doomed the 'peace process' from its inception. The Palestinians are living under a harsh occupation regime, in refugee camps spread around the region or in a worldwide diaspora, while Israelis are living in freedom, prosperity and relative security. Israel violates international law in numerous systematic ways, while Palestine endures an oppressive occupation that it is unable to challenge.
In this spirit, Kerry declares that both sides are responsible for the lack of diplomatic progress, which overlooks the consequences of Israeli settlement expansion, ethnic policies in Jerusalem, and the blockade of and attacks on Gaza. Reasonable expectations about how to move forward should be grounded in the realities of these disparities and how to overcome them. A start would be to acknowledge that Israeli compliance with international humanitarian law, especially the Fourth Geneva Convention, is a precondition for the resumption of any further negotiations.
Considered more carefully, it is probably not surprising that Resolution 2334 is somewhat more critical of Israel than the Kerry speech, which is not nearly as 'anti-Israeli' as the mainstream Western media would have us believe. The resolution not only condemns recent settlement expansion moves but declares in its first operative clause that all of the settlements established by Israel since 1967 in occupied Palestine, including those in East Jerusalem, have 'no legal validity' and constitute 'a flagrant violation under international law'. Kerry deep in his speech, almost as an aside, acknowledges the continued US acceptance of this wider illegality of the settlements, but simultaneously reassures Israel that it is taken for granted that land exchanges would enable Israel to keep its largest settlements if future peace diplomacy ever does lead to the establishment of an independent and sovereign Palestine. In effect, the fact that these largest settlements built on the best land in the West Bank are widely considered flagrantly unlawful from the time they were established is treated as essentially irrelevant by Kerry with respect to working out a deal on peace.
Even more telling, Resolution 2334, while affirming the international consensus supportive of a two-state solution, does not go on to give any indication of what that might mean if transformed into political reality. Kerry outlines the American vision of such a solution with ideas which, if carefully considered, would make the plan unacceptable to Palestinians even if we make the huge and currently unwarranted assumptions that Israel might in the future become a sincere participant in a peace process, including a willingness of its government to substantially dismantle the settlement archipelago.
For instance, Kerry reflects Washington's view of a two-state solution by presupposing that if any Palestinian state is ever established, it would be entirely demilitarised while Israel would retain unlimited options to remain as militarised as it wished. Such one-sidedness on the vital matter of security is affirmed despite an expectation that in the course of allowing a Palestinian state to come into existence, the 2002 Arab Peace Initiative would be fully implemented. Such a development would allow Israel to count on demilitarised regional security cooperation with the entire Arab world, including full normalisation of economic and cultural relations. Even if the Palestinian Authority were persuaded to accept this fundamental inequality in the sovereign rights of the two states, it is doubtful that the Palestinian people would accept such a humiliating and compromised status over time. In effect, the Kerry outline of peace expresses a continuing commitment to pro-Israel partisanship and is less a formula for a sustainable peace between these two peoples than it is a presumably unintentional setting of the stage for an indefinite continuation of the conflict under altered conditions.
Yet there are two qualifying considerations that should be taken into account. There are reliable reports that Kerry wanted to make his speech of late December two years ago and was prohibited from doing so by the White House, which feared a backlash that would burden its already difficult task of governance. In effect, as with such famous retirement speeches as Eisenhower's caution about the military-industrial complex a half-century ago, the citizenry is warned when it is too late even to attempt to address the problem until a new leadership takes office. In my view, even if Kerry had been allowed to speak when there was still time to act, there would have been little behavioural effect because Israel is now unconditionally committed to the Greater Israel image of a solution, there was insufficient political will in Washington and around the world to push Israel hard enough, and because the image of 'peace' was too one-sided in Israel's favour to be either negotiable or sustainable.
Similar partisan features undermine the credibility of other aspects of Kerry's advocacy of how best to proceed. While recognising the importance of the refugee issue, Kerry calls for some kind of solution that allows Palestinian refugees to receive monetary compensation and the right to return to the state of Palestine, but not to their homes or villages if located in present-day Israel. And nowhere is Israel's unlimited right of return available to Jews worldwide, however slight their connection with Israel or Judaism might be, questioned.
Kerry went out of his way in the speech to demonstrate that the US abstention in relation to Resolution 2334 was in no way intended to rupture the special relationship between Israel and the United States. In this vein, Kerry pointed to the fact that the Obama administration had been more generous than its predecessors in bestowing military assistance upon Israel and had over its eight years protected Israel on numerous occasions from hostile initiatives undertaken in various UN venues. His point was that Israel's defiance on settlements made it politically awkward for the United States to be an effective supporter of Israel and created tension between its preferred pro-Israeli posture and the more pragmatic pursuit of national interests throughout the Middle East.
Despite this friction between Washington and Tel Aviv, the US was the only member of the Security Council to refrain from supporting Resolution 2334, limiting its departure from Israel's expectations to refusing to block the resolution, while it apparently toned down the criticism through threatening to use its veto if the language used was not 'balanced'. Kerry went out of his way to celebrate the recently deceased former Israeli president Shimon Peres as a heroic peace warrior, which amounted to a none-too-subtle dig at Netanyahu. Kerry quotes approvingly Peres's self-satisfied assertion that 78% of historic Palestine should be enough for Israel, which Peres was comparing against the excessive demands for even more land by the settler one-staters. Of course, 78% gives Israel much more than the 55% it was awarded in 1947 by UN General Assembly Resolution 181. At the time, the entire Arab world and Palestinian representatives rejected this UN proposal as unacceptable despite being given 45%, or more than double the territory of Palestine after Israeli withdrawal from Palestinian land occupied since the 1967 War.
Beyond this, Kerry's inclusion of land swaps as integral to his version of the two-state solution would result in further encroachments on territory left to the Palestinians, a result obscured to some extent by giving Palestine uninhabitable desert acreage as a dubious equivalent for the prime agricultural land on which the unlawful Israeli settlements are built. At best, territorial equality would be achieved quantitatively, but certainly not qualitatively, which is what counts.
At the same time, there are some positive aspects to Kerry's speech. It did create a stir with its sharp criticism of Israel's policies on settlements, as well as open doors to debate and break the silence that was enabling Israel to proceed with its plans for territorial expansion. It is worth noting that James Zogby, long a dedicated advocate of Palestinian rights who has persevered in the face of the constraints of the American setting, has expressed his strong appreciation for Kerry's speech in the following words: 'To some, especially Palestinians, this may seem like "too little, too late". But as someone who has been a part of the effort to create an American debate on Israeli policies, Kerry's intervention is both welcome, validating and empowering. He laid down markers that should help liberals and progressives define a policy agenda on the Israel-Palestine conflict - exactly what we need as we enter the challenges of the Trump era.'
Overall, the impact of Resolution 2334 is likely to be greater than it would have been if Israel had not reacted so petulantly. Even if Trump reverses the US' critical approach to further Israeli settlement expansion, the UN has been reawakened to its long-lapsed responsibility to find a peaceful solution for the conflict and end the Palestinian ordeal that has gone on for an entire century since Lord Alfred Balfour gave a British colonial green light in 1917 to the Zionist project to establish a Jewish homeland in historical Palestine. As well, civil society activists who have thrown their support behind the BDS campaign and governments critical of Israel's behaviour are likely to feel encouraged and even empowered by this expression of virtual unity among the governments belonging to the most important organ of the UN system.
Of course, there have been many resolutions critical of Israel in the past, and nothing has happened. The harsh occupation persists unabated, the dynamics of annexation move steadily forward, and the Palestinian tragedy goes on and on. Despite this intergovernmental step at the UN, it still seems that the Palestinian fate will be primarily determined by people, above all by various forms of Palestinian resistance and secondarily by the extent of global solidarity pressures. Whether resistance and solidarity on behalf of justice is sufficient to neutralise the iron fist of geopolitics and state power remains the key question.
Richard Falk is an international law and international relations scholar who taught at Princeton University for 40 years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies. He also chairs the Board of the Nuclear Age Peace Foundation. The above article is reproduced from his Global Justice in the 21st Century blog (richardfalk.wordpress.com).
*Third World Resurgence No. 316, Dec 2016, pp 43-46