UN Security Council Resolution 2334 was not just about settlements. Rather, its language directly or indirectly supports Palestinian demands on three final status issues without requiring anything substantive from them in return. There was deep dismay in Jerusalem that the US did not veto such a one-sided text, as it had done in the past. Instead, these positions are now embedded in a resolution that will be difficult or impossible to change in the future.
The Declaration of Principles that constituted the Oslo Accords (1993) stipulates that permanent status negotiations “shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.” Resolution 2334 undermines this stipulation by its positions on settlements, borders and Jerusalem.
By condemning the establishment of all settlements over the 1949 armistice line as “without legal validity,” the resolution supports the Palestinian position that the settlements are illegal. US ambassador to the UN, Samantha Power, in her statement to the Security Council, justified the US abstention on resolution 2334 on the grounds that the resolution’s position of settlements was consistent with criticism of Israeli settlements made by all presidents since Lyndon Johnson. In fact, the resolution’s position that all settlements are illegal is more extreme than prior US policy over the last 35 years. Elliott Abrams, reviewing US policy since Ronald Reagan’s presidency, found that neither Reagan nor his successors called the settlements “illegal.” The Obama administration adopted the term “illegitimate,” a political rather than a legal judgment, and refrained from terming them “illegal.” Now, the Obama administration has facilitated the “illegal” label, which might carry ominous consequences.
Regrettably, no distinction is made in the resolution among different settlements, and no acknowledgement is made of “facts on the ground” by envisioning land swaps that would leave the large settlement blocs, the new neighborhoods of Jerusalem, and at least part of the Old City as part of Israel in a final agreement, something essential for Israel.
Resolution 2334 defines everything over the 1949 armistice line as “the Palestinian Territory occupied since 1967, including East Jerusalem,” Thus, the resolution is consistent with the Palestinian demand that the border of the Palestinian state be the 1949 line, unless the Palestinians agree to a land swap. By this definition, resolution 2334 undermines a key element of UNSC resolution 242, the foundational resolution passed on November 22, 1967 in the aftermath of the 1967 war. Resolution 242 established two key principles:
* Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
* Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.
The choice of “from territories” rather than “from the territories” was intentional. As explained by Meir Rosenne, former Israeli ambassador to the US and to France, when the resolution was being debated, “the USSR proposed on November 20, 1967, to include a clause requiring Israel to withdraw to the pre-war lines of June 5, 1967, but this language was rejected.” This USSR-proposed revision was defeated because it was recognized that a full withdrawal would be inconsistent with Israel having “secure boundaries.” The clear implication was that some of the territory that Jordan called “the West Bank” would remain part of Israel in a final settlement. Now, resolution 2334 effectively means that Israel has no right to any land beyond the 1949 line, unless it pays heavily for that right in future land swap negotiations with the Palestinians.
Given that the extent of what the resolution calls “the Palestinian Territory” is defined by the 1949 armistice line, and given that the Armistice line divided Jerusalem, the resolution supports the Palestinian demand that Jerusalem be divided. The Palestinians want to establish their capital in part of Jerusalem.
This resolution not only undermines Israel politically, but is also an affront to Jewish sensibilities by categorically defining all of the Old City, including the Temple Mount, the Western Wall, and the Jewish Quarter, as “Palestinian territory.” This egregious position reinforces the reprehensible and anti-historical resolutions that were passed by UNESCO in October 2016 negating the 3,000 year historical connection of the Jewish people to Jerusalem.
Perhaps mindful of these Jewish sensitivities, Obama has generally linked the border issue with land swaps. Thus, in an important speech at the State Department on May 19, 2011, Obama declared, “We believe the borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states.” As noted, resolution 2334 did not call for swaps.
Samantha Power suggested that paragraphs 6 and 7 of Resolution 2334 offer important balance. Section 6 “Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction,…” and section 7 “Calls upon both parties…to refrain from provocative actions, incitement and inflammatory rhetoric,…”
While these clauses are nice as far as they go, they are overly even-handed by not being explicitly directed at the Palestinians. The reality is that almost all acts of terrorism and incitement are Palestinian in origin; calling on “both parties” weakens the import of these statements greatly. In any case they don’t relate to final status issues, as do the resolution’s pro-Palestinian positions on settlements, borders, and Jerusalem. Yes, in her statement to the Security Council, Samantha Power did explicitly name the Palestinians regarding terrorism, incitement, glorification of terrorists, etc., but an ambassadorial statement doesn’t have the legal status of the resolution itself.
Given the broad damage to Israel’s final status negotiating positions caused by the resolution, the US ought to have insisted on significant revisions to the text if the goal was to allow the passage of a resolution narrowly focused on settlements. Given the damage to its ally, Israel, of the actual resolution, the US should have vetoed it. It is hard to escape the conclusion that the Obama administration was well aware of the damage and chose its action accordingly.