How the UNSCR 2334 scuttles hope for a Palestinian state

Widely condemned by Israelis from all sides, UNSC Resolution 2334 was seen as a stab in the back. It was not; it was a stab in the chest. And, given the hostility of the Obama administration and members of the Security Council, it was predictable and unavoidable. Ironically, however, the resolution may have created the basis for legitimizing Israeli annexation and sovereignty in Judea and Samaria.

The resolution changed the rules of the game: it abrogates the Oslo and interim agreements that divided Judea and Samaria into Areas A and B, under the Palestinian Authority, and Area C, in which Jewish communities (“settlements”) were built under Israel control. The issue of settlements was left for final status agreements, along with the issues of return of Palestinian “refugees” to Israel, and the status of Jerusalem. By seeking to impose an Arab Palestinian state without negotiations, as a fait accompli, and declaring settlements to be illegal, the UNSC Resolution 2334 has wiped out all prior agreements.

The question is who should be the responsible authority in the disputed areas? If that goes back to 1967, it can’t be the Palestinian Authority, since it did not exist then. Moreover, the new UNSC Resolution seems to contradict 242 and 338, which recognized Israel’s legitimate claims.

Jordan cannot be considered the authority, since it renounced all claims to Judea and Samaria, which it had acquired by force in 1948, and was never recognized as the legitimate sovereign in those areas. The only legitimate claimant of sovereignty in what was called Palestine by the international community according to the League of Nations and the British Mandate is the State of Israel, the “Jewish national home.”

The recent UNSC Resolution has made the issue even more complicated, by declaring that all Israeli settlements and buildings beyond the 1949 Armistice Lines (“the Green Line”) are “illegal according to international law,” which the International Criminal Court could declare a war crime. But, what is “the law”?

The “law” is the Fourth Geneva Convention (FGC) as interpreted by the International Committee of the Red Cross (ICRC). Acting as judge and jury, the ICRC decided unilaterally and in secret that “Israeli settlements violated Article 49 of the FGC.” Although the FGC does not mention Israeli settlements, the ICRC decided that Israel has “illegally occupied Palestinian territory (OPT).” And, strangely, its position has never been challenged by any government, including Israel.

Moreover, since Area C of Judea and Samaria is under “military occupation” by the IDF, the government of Israel, the Prosecutor’s Office and the High Court appear to concur.

According to the recent UNSC resolution, not only would individual Jews who live in the “occupied territories” be vulnerable to criminal charges, Israeli civilian and military officials who supported building settlements would be at risk. And, although unlikely, Arabs who were employed in building projects over the Green Line would also be culpable.

It gets worse. If Israeli building on land claimed by Arab Palestinians after 1967 is illegal and a war crime because it was acquired as the result of a war, then, logically, this should also apply to Israeli acquisitions of Arab land as a result of the war in 1948-9.

Moreover, if Israel has committed the crime of allowing its citizens to live in “occupied territory,” it should apply to every Israeli citizen who has moved to the disputed areas, not only to Jews. This would include thousands of Bedouin and Israeli Arabs who moved into eastern Jerusalem neighborhoods like Jebel Mukaber, Bet Sahour, Bet Safafa, Beit Hanina, and Shuafat, and built tens of thousands of illegal homes and businesses. If UNSC 2334 is enforced, it should also apply to non-Jews as well.

And, what about Arabs who moved from areas controlled by the PA and those from Arab countries into Area C? Are they also criminals?

Rather than promoting a Palestinian state, by adopting Arab demands, UNSC Resolution 2334 has scuttled it and ensured the UNSC’s irrelevance. The ball is now in Israel’s court.