A part of work in Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud

Jewish settlement of Harmoun Hanatsave near the Arab neighbourhood of Ras al-Amud in Jerusalem on Oct. 30, 2012. (Photo: Mahfouz Abu Turk/APA Images)

The purpose of this post is to address comments that have arisen in response to the article I published on Mondoweiss titled UN resolution on settlements is a step back for Palestinians. The main points of the article were as follows:

  • UNSC resolution 2334 uses weaker language on settlements compared to prior “settlement-centric” resolutions such as UNSC resolutions 446, 452, 465 and 478 that were passed in 1979 and 1980;
  • Settler growth since 1980 has increased significantly despite the passing of aforementioned stronger resolutions because of the lack of a real enforcement mechanism;
  • UN resolution 2334, similarly, lacks a real enforcement mechanism.

Based on the above points, the conclusion of the article was that:

  • The actual impact of UNSC resolution 2334 is expected to be no better than prior (and stronger) resolutions; i.e. no impact and continued settler growth.

To be clear, I stand by all 3 points as well as the conclusion of the article. However, several interesting points were made in the Mondoweiss comments section that I felt should be addressed explicitly. As such, I will paraphrase the main points in the comments, and address them individually.

1) It is true that UNSC 2334 uses weaker language than prior resolutions such as UNSC 465 (1980). However, this weaker language has already appeared in prior resolutions, such as UNSC 1515, which was passed in 2003. As such, UNSC 2334 is not “a step back” in and of itself; that step back had already occurred over a decade ago

This point was raised by Mondoweiss commentator ‘Siberiak’. Let me start by saying that this is a fair point. As such, it puts into question the title of the article, although it doesn’t undermine the main points or the conclusion of the article listed above. Furthermore, there are two caveats worth considering and that I will expound on in detail later in this post.

For context, UNSC resolution 1515 was a resolution that passed in 2003 and that endorsed the so-called Quartet Roadmap (the Quartet refers to the US, the EU, the Russian Federation and the UN). In the first operative clause of this resolution, it states that the Security Council:

  1. “Endorses the Quartet Performance-based Roadmap to a Permanent Two State Solution to the Israeli-Palestinian Conflict (S/2003/529)”.

S/2003/529 refers to the letter, dated 7 May 2003, from the Secretary General of the UN (Kofi Annan, at the time) to the President of the Security Council and that transmitted the text of the Quartet Roadmap.

The Roadmap was essentially a 3-phase approach to “resolving” the Arab-Israeli “conflict”. As such, it is not a “settlement-centric” resolution, but a much broader document. Still, it does contain language around settlements. If we focus on that language, we see that Phase 1 of the Roadmap calls for the following:

  • “GOI immediately dismantles settlement outposts erected since March 2001.
  • Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements)”.

In Phase 2 of the Roadmap, we have the following:

  • “Creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement. Launched by the international conference. As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”.

Finally, in phase 3 of the Roadmap, we have the following:

  • “SECOND INTERNATIONAL CONFERENCE: Convened by Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders and formally to launch a process with the active, sustained, and operational support of the Quartet, leading to a final, permanent status resolution in 2005, including on borders, Jerusalem, refugees, settlements; and, to support progress toward a comprehensive Middle East settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon as possible”.

There are two key points on settlements in the Roadmap that are worth summarizing:

  1. The Roadmap calls for the freezing of all settlement activity and the dismantlement of all settlement outposts erected since March 2001 (note that “settlement outposts” tend to be smaller settlements, usually unauthorized but typically encouraged by the GOI). However, it does not explicitly mention anywhere that all settlements (including non-outpost settlements), regardless of when they were erected, should be dismantled.
  2. The Roadmap calls for a negotiated solution to “final status issues”, including (major) settlements.

These two points are substantively similar to those contained within UNSC resolution 2334. As such, it is fair to say that these points have indeed appeared within a prior UNSC resolution (specifically UNSC resolution 1515, via S/2003/529). It can therefore be said that, in one sense, the “step back” from an explicit call for dismantlement of all settlements (such as that made in UNSC resolution 465) to a settlement freeze and a negotiated solution occurred over a decade ago; so UNSC resolution 2334, in that sense, would be echoing that “step back”, as opposed to imposing a new reality.

The implications of the 4th Geneva Convention

[Note: The following section between stars (****) was added on 1/18/17]

**** Having said all of the above, there’s a different sense in which UNSC resolution 2334 is a “step back”. Unlike UNSC resolution 1515 via S/2003/529, which expressly avoided citing the applicability of the 4th Geneva Convention anywhere in the text, and by implication, affirming the illegality of settlements in violation of international law (essentially repeating Oslo in this regard; see here for background), UNSC resolution 2334 does explicitly cite the 4th Geneva Convention and declares the illegality of settlements, but fails to assert the implied consequences of such illegality; i.e. insisting on dismantling all settlements, as stated in UNSC resolution 465 (for example). Indeed, in the 3rd paragraph of the Preamble of UNSC resolution 2334, we have the Security Council:

  • “Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949”.

This is then followed up with operative clause 1, in which the Security Council:

  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”.

However, and as discussed in the Mondoweiss article, instead of insisting on the dismantlement of settlements as the implied consequence of such illegality, UNSC resolution 2334, in operative clause 3, merely:

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”.

In other words, in UNSC resolution 2334, the international community explicitly gives up on the critical and well-accepted notion within International Law that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed“. The “step back”, then, is the failure of UNSC resolution 2334 to forcefully insist on the linking between the illegal act (i.e. settlements) which is recognized, and the notion that reparation must wipe out all the consequences of the illegal act, which isn’t recognized (given the lack of insistence on dismantlement of all settlements). By failing to re-iterate that link, UNSC resolution 2334 introduces the moral hazard of insisting on the applicability of a principle (illegality of settlements) while failing to draw the consequences stemming from that principle (dismantlement); instead, it allows for “facts on the ground” to dictate consequences (negotiations).****

Enhancing “maximum territorial contiguity” in S/2003/529

The second point worth noting is that there doesn’t seem to be any prescriptive language in UNSC 2334 regarding the negotiated borders, whereas there seems to be in S/2003/529. Indeed, within the context of negotiations, the language used in Phase 2 of the Roadmap around the borders of a future Palestinian state contains the following:

  • “As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders”. [my italics]

In contrast, that is something you don’t see in UNSC 2334, which only states, in operative clause 3, that the Security Council:

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.”

Now admittedly, this prescriptive language around enhancing “maximum territorial contiguity” in the Roadmap is quite opaque, and so should not be overemphasized. Still, it is worth examining it in more detail.

Let’s begin with the words “implementation of prior agreements”. Although it is not completely clear what prior agreements are being referred to by the Roadmap, these are presumably the Oslo I Accord signed in 1993 (the so-called Declaration of Principles), the Oslo II Accord signed in 1995 (the so-called Interim Agreement on the West Bank and the Gaza Strip), as well as subsequent agreements whose objective was to implement Oslo II, such as the Protocol Concerning the Redeployment in Hebron (1997), the Wye River Memorandum (1998) and the Sharm el-Sheikh Memorandum (1999). Leaving aside this author’s  belief that the whole “Peace Process”, starting with Oslo I, was a sham and served to entrench the Occupation, one central element of Oslo II was to carve up the Palestinian Occupied Territories (OPT) into different Areas (so-called areas A, B and C) that Israel was supposed to gradually withdraw or re-deploy from, according to an associated timeline; a newly created Palestinian Council (which would replace the PA) would then be “in charge” of these areas after withdrawal (the phrase “in charge” is being used loosely here, as the Council would have had different levels of control over different areas). However, Oslo II (and subsequent agreements) were never fully implemented, and Israel remained in control of the vast majority of the West Bank, leaving the Council in “control” of non-contiguous islands dotting the West Bank (mostly in Area A and B). It is likely within this context, then, that the words “to enhance maximum territorial contiguity” should be interpreted. Having said that, it is crucial to note that even if these agreements were fully implemented, it is not clear how much territorial contiguity would have been enhanced given that settlements and their associated infrastructure, which dotted the landscape of Area C of the West Bank and which were under the control of Israel, were explicitly left to final status negotiations (and therefore were not part of the implementation of these agreements).

The next question, then, is how to interpret the words “including further action on settlements”. Does the word “including” tie back to the “implementation of prior agreements” and/or to the language around enhancing “maximum territorial contiguity”? As previously mentioned, given that both the Oslo I and II Accords (as well as subsequent agreements) explicitly left discussion of settlements to final status negotiations, it is reasonable to assume that this “further action on settlements” ties back to enhancing “maximum territorial contiguity”. Indeed, one of the major sticking points in the negotiations at Camp David II and elsewhere was the lack of contiguity of a potential Palestinian state because of settlements dotting the landscape all across the West Bank. Having said that, the words “further action” are left undefined, and as such, it is not clear what this “further action” consists of.

I suspect that this language was purposefully ambiguous to allow each side to claim its favorite interpretation of the text (as an aside, all these bilateral agreements contain such ambiguous language). For example, the pro-Israeli side could interpret those words in a way that would lead to the annexation of the vast majority of settlements around the Green Line with perhaps the dismantlement of smaller settlements deep into the West Bank, which would allow for potential contiguity of a future Palestinian state but with reduced borders well within the Green Line (at best, land swaps could be executed to “make up” for Israeli annexation of territory inside the Green Line, although the quality and quantity of land received in return has always been a contentious point of negotiations). Meanwhile, a more pro-Palestinian reading could interpret those same words as implying dismantlement of all or the vast majority of settlements, since dismantlement of settlements would enhance maximum territorial contiguity of a future Palestinian state.

The pro-Palestinian reading is indeed the interpretation of Amr Mousa, the Secretary General of the Arab League, who stated at the time that “the real execution of the map is the dismantlement of all settlements and not some random ones”.

It was also the interpretation of Kieran Prendergast, the UN Under-Secretary-General for Political Affairs, who stated that “[…] those actions would not be a substitute for Israel’s compliance with other obligations under the Road Map, such as dismantling all settlements activity”.

That interpretation is also consistent with UN General Assembly resolution 61/118, which was passed in 2007 (so well after the Roadmap resolution), which, in operative clause 3:

  • “3. Notes the Israeli withdrawal from within the Gaza Strip and parts of the northern West Bank and the importance of the dismantlement of the settlements therein as a step towards the implementation of the road map”;

and then reiterates and stresses the full implementation of prior UNSC resolutions, including UNSC 465 in operative clauses 6 and 8:

  • “6. Reiterates its demand for the immediate and complete cessation of all Israeli settlement activities in all of the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, and calls for the full implementation of the relevant resolutions of the Security Council [in the preamble, it states: “Recalling also relevant Security Council resolutions, including resolutions 242 (1967) of 22 November 1967, 446 (1979) of 22 March 1979, 465 (1980) of 1 March 1980, 476 (1980) of 30 June 1980, 478 (1980) of 20 August 1980, 497 (1981) of 17 December 1981 and 904 (1994) of 18 March 1994];
  • 8. Stresses the need for full implementation of the relevant Security Council resolutions regarding the Israeli settlements”.

To be clear, I am not claiming that the “dismantlement interpretation” is the only or even the best interpretation of that language; as I previously mentioned, there are clearly other interpretations that can be applied to this ambiguous language. However, the presence of this language, as opaque as it is, does potentially afford an avenue to whoever wants to interpret it that way with something to point to. In contrast, we don’t even have that in UNSC resolution 2334.

2) UNSC 2334 provides international legal justification for BDS against settlements

This point was implied by Mondoweiss commentator ‘punterweger’, who linked to Rashid Khalidi’s NYT article and which makes this argument. To be specific, Khalidi says that “it [UNSC 2334] ‘calls upon states to ‘distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.’ This provides the international legal justification for sanctions by states, boycotts of goods produced in settlements, and divestment by unions, foundations and universities of assets in companies that support the colonization of Palestinian land.”

Khalidi is referring to operative clause 5 in UNSC 2334, which:

“5. 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”.

It is not clear why Khalidi believes that this clause provides the legal international justification for BDS against settlements. As Khalidi surely knows, there is a mountain of international law that already exists and that explicitly considers all Israeli settlements as illegal. Indeed, per Wikipedia’s entry on International Law and Settlements:

“The international community considers the establishment of Israeli settlements in the Israeli-occupied territories illegal under international law, because the Fourth Geneva Convention of 1949 prohibits countries from moving population into territories occupied in a war.[1][2][3][4][5] Israel maintains that they are consistent with international law[6] because it does not agree that the Fourth Geneva Convention applies to the territories occupied in the 1967 Six-Day War.[7] The United Nations Security Council, the United Nations General Assembly, the International Committee of the Red Cross, the International Court of Justice and the High Contracting Parties to the Convention have all affirmed that the Fourth Geneva Convention does apply.[8][9]

Numerous UN resolutions have stated that the building and existence of Israeli settlements in the West Bank, East Jerusalem and the Golan Heights are a violation of international law, including UN Security Council resolutions in 1979, 1980,[10][11][12] and 2016.[13][14] UN Security Council Resolution 446 refers to the Fourth Geneva Convention as the applicable international legal instrument, and calls upon Israel to desist from transferring its own population into the territories or changing their demographic makeup. The reconvened Conference of the High Contracting Parties to the Geneva Conventions has declared the settlements illegal[15] as has the primary judicial organ of the UN, the International Court of Justice[16] and the International Committee of the Red Cross“.

Logically, if settlements are illegal and a violation of international law, then clearly:

  • Anyone dealing with Israeli settlements is in violation of international law.
  • There is a distinction being made, ipso facto, between “Israel proper” and settlements (given that Israel is legally recognized under international law).

This logic is furthermore reflected in policies already in place by numerous countries. Indeed, the European Commission adopted “on 11 November 2015 an interpretative notice on the indication of origin of goods from the territories occupied by Israel since June 1967” to clearly distinguish them from “Israel proper”. Furthermore, the council of the European Union, on January 18 2016, first re-iterated that settlements are illegal under international law:

“7. Recalling that settlements are illegal under international law, constitute an obstacle to peace and threaten to make a two state solution impossible, the EU reiterates its strong opposition to Israel’s settlement policy and actions taken in this context, such as building the separation barrier beyond the 1967 line, demolitions and confiscation – including of EU funded projects – evictions, forced transfers including of Bedouins, illegal outposts and restrictions of movement and access. It urges Israel to end all settlement activity and to dismantle the outposts erected since March 2001, in line with prior obligations. Settlement activity in East Jerusalem seriously jeopardizes the possibility of Jerusalem serving as the future capital of both States”.

Then, they made sure to distinguish between “Israel proper” and the settlements in the very next clause:

“8. The EU and its Member States are committed to ensure continued, full and effective implementation of existing EU legislation and bilateral arrangements applicable to settlements products. The EU expresses its commitment to ensure that – in line with international law – all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967. This does not constitute a boycott of Israel which the EU strongly opposes.”

In other words, the EU has already been distinguishing in its dealings between “Israel proper” and the settlements and is using already existing international law to justify that (as a side note, I would recommend reading the entire EU council statement; it is remarkable how similar certain parts are to UNSC 2334). As such, there’s nothing preventing other states from doing so as well, regardless of UNSC 2334. Therefore, operative clause 5 in UNSC 2334 does not provide the legal foundation for anything; at best, it explicitly states what is already and clearly implied within existing international law and what many countries are already doing.

3) UNSC 2334 is supportive of BDS, and provides impetus to the BDS movement

This is another point raised by Mondoweiss commentator ‘punterweger’. It is quite possible that this resolution will provide some impetus to the BDS movement, although how to quantify that is an open question. Furthermore, it is important to remember that this resolution (via operative clause 5) is supportive of BDS only against settlements. The BDS movement, on their website, “urges nonviolent pressure on Israel until it complies with international law by meeting three demands:

  • Ending its occupation and colonization of all Arab lands and dismantling the Wall
  • Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality
  • Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194″.

BDS against settlements is not an explicit objective of the BDS movement. At best, it could be read into the first BDS objective, but even then, it is not a primary objective. Indeed, even if BDS against settlements was completely successful, and all settlements were dismantled, that would not end the occupation and colonization of all Arab lands, nor would it recognize the fundamental rights of Arab-Palestinian citizens of Israel to full equality, nor would it impact the implementation of the right of return. As such, operative clause 5 of UNSC 2334 could be construed as “supportive of BDS” only in a very limited and (at best) secondary sense, and as previously discussed, does not add anything new to international law that the BDS movement couldn’t already point to.

Editorial note: this post was updated on 1/18/17 to reflect a missing section in the original blog post (the section has been clearly identified between stars ****).