Some 62 percent of Jewish Israelis believe that despite the United Nation’s passing of Security Council Resolution 2334, building in the occupied territories should continue, according to the latest Peace Index, published earlier this month by the Israel Democracy Institute and Tel Aviv University.
While it is true that the passing of the UN Resolution will likely not have any immediate or direct impact on Israel’s legal situation under international law, it could catalyze the passing of other initiatives that aim to punish Israel for what large parts of the international community perceives to be a violation of basic international law principles.
Even before the UN Resolution was passed, the prevailing position in the UN was that the West Bank, including East Jerusalem, are occupied territories governed by the Fourth Geneva Convention. For example, the extension of Israeli law to East Jerusalem in 1967 has been viewed as legally problematic, to say the least, as it went against the legal principle of “inadmissibility of the acquisition of territory by war,” as expressed in a number of international instruments, including in the famous 1967 Security Council Resolution 242.
Further, the Security Council itself decreed long ago that Israeli settlements in the West Bank are illegal and that construction in these areas constitute a flagrant violation of the Fourth Geneva Convention. Finally, the International Court of Justice in The Hague (ICJ) held in its advisory opinion on the Separation Fence that the construction of settlements in the West Bank is a clear violation of international law.
Therefore, the main legal implication of Resolution 2334 pertains to its timing.
The resolution was adopted at a time in which the ICC prosecutor is conducting a preliminary examination of Palestinian complaints about Israel’s violation of the Rome Statute, the ICC’s foundational document. Among other complaints, the Palestinians allege that Israel violated Article 8(2)(b)(8), which prohibits the direct or indirect transfer of the civilian population of an occupier into occupied territory.
It can be assumed that the Security Council Resolution will make it easier for the ICC prosecutor to establish that Israel’s settlement activity meets the threshold for sufficient gravity of the alleged conduct, and to proceed to launch a full-fledged criminal investigation. It might then only be a matter of time before indictments and arrest warrants against high-ranking Israeli officials would be considered and perhaps issued.
Based on these developments, Prime Minister Benjamin Netanyahu’s prediction that the Settlement Regulation Bill (a bill attempting to regulate land confiscation in the West Bank for the purpose of legalizing unauthorized settlement outposts) may result in government ministers being brought to The Hague could well turn out to be accurate, even before the bill is actually passed.
Another possible legal implication can emanate from paragraph 5 of Resolution 2334, which “…calls upon all states…to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”
This paragraph appears to be related to the UN Human Rights Council’s March 2016 Resolution L.39, which asked the UN Human Rights Commissioner to “produce a database of all enterprises involved” in the establishment of Israeli settlements in the territories, potentially encompassing construction firms, transportation companies and banks that fund construction and businesses in the territories. It may also cover settler-owned corporations whose profits are used to establish settlements, among other things.
Resolution 2334 may be interpreted as expressing broad political and legal support for the actions outlined in Resolution L.39 (that the Human Rights Council adopted, at the time, without the support of the European states, which abstained). Under this interpretation, certain countries may be emboldened to take steps to ensure their connections with Israeli companies will not support the settlement enterprise, either directly or indirectly. Sooner or later, this could lead to a demand that Israeli and international companies operating in Israel refrain completely from working in the territories.
Under this scenario, Israeli companies may begin to feel compelled to create a “Chinese wall” between their activities inside Israel and the territories as a condition for doing business with foreign countries. Note that the European Union already demands that Israeli universities affirm that European research funds will not be used for activities inside the territories. Further, the EU already has a policy to not extend preferential trade conditions between it and Israel to Israeli exporters operating inside the territories.
We may assume that foreign corporations working with business enterprises in Israel will become subject to pressures to adopt a similar policy, either out of fear of being sued or fear of public opinion backlash. Indeed, such a sentiment already led Dutch pension funds to withdraw in 2014 their investments in Israeli banks operating in Israel as well as in the territories.
Finally, it is likely that some foreign corporations, such as transportation firms and companies that sell engineering equipment, will avoid in the future conducting any business in Israel that involves operating in the territories — such as running the light rail in Jerusalem or constructing settlement houses — for fear of being blacklisted.
The primary significance of Resolution 2334, then, is that it strengthens other initiatives whose purpose is to punish Israel, its leaders and businesses for their involvement in the settlement enterprise. The Resolution underscores that Israel is on a collision course with large parts of the international community, and provides some indication of the steep price the international community will make Israel pay for what it views to be its illegal settlement policy, notwithstanding the support for this policy in Israel.
Finally, Paragraph 12 of the Resolution, requiring the Secretary-General to report every three months on the resolution’s implementation, is evidence that this matter will not just go away or be taken off the United Nations’ agenda anytime soon. A future collision thus appears inevitable.
Professor Yuval Shany is a senior fellow in the Israel Democracy Institute’s Center for Security and Democracy and a member of the Faculty of Law of the Hebrew University of Jerusalem.