Resolution 2334 and a Two-State Solution: Part A

by

Howard Adelman

Thus far, I have published two blogs in this series, one on the Fourth Geneva Convention and the Wall and a second on Demography, Settlements and Jerusalem. The point was to document both the legal issues and the facts on the ground. This blog, in its several parts, has more to do with policy and addresses the question of the two-State solution; namely, to what degree and why does Resolution 2334 depict the settlements as a threat to that solution. Usually, I indicate future installments of a series at the end of a blog. But this time I will do it up-front to assure readers that I intend to go into some matters more thoroughly in subsequent blogs. They will be, in order:
The American Approach to the Resolution;
The Israeli Approach to the Resolution;
The Consequences of the Resolution.

In defence of America’s abstention on UNSC Resolution 2334, John Kerry said that the Resolution reiterated the “vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders.” He argued that the Resolution was a last ditch effort to “stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality.” Further, he insisted that the resolution would help “create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground.” All of this was said against a background in which John Kerry has clearly stated that, although he supports Israel and although the U.S. remains totally committed to Israeli security and legitimacy, the building of settlements was identified by Kerry as the main threat to the two-State solution. Further, and perhaps more importantly, he had concluded that Netanyahu was only paying lip service to the two-State solution, and was supporting settlement policies that threatened that solution.

Key elements in the current right-wing Israeli cabinet, the most right-wing in Israeli history, are absolutely opposed to the creation of a Palestinian state living side-by-side in peace with Israel. Naftali Bennett, one of Netanyahu’s coalition partners, recently announced that, “the era of the two-state solution is over.” On the other side of the barrier, increasing numbers of Palestinians have come to the same conclusion, and did so when Bennett was merely promoting the idea and not yet declaring it a fait accompli.

Many past UN resolutions targeted settlements as a threat to a peace agreement and a two-State solution. If the United States belatedly came to this recognition, why did the Obama administration not support UNSC Resolution 2334? Why did the U.S. abstain? United Nations Security Council Resolution 242 adopted unanimously on 22 November 1967 established the principles for framing an Arab-Israeli peace agreement. It affirmed the “inadmissibility of the acquisition of territories by force” that I discussed in an earlier blog. Israeli interpreters argued the inadmissibility clause was irrelevant to Israel because the territory was acquired in a defensive war and, in any case, was not taken from a sovereign power. Most international legal experts dispute this interpretation.

According to the drafters of Resolution 242, however, the Resolution not only required direct negotiations between the disputing parties, but also required withdrawal from captured territories. But not ALL the territories. The term “all” was deliberately excluded from the draft against the opposition of the Arab states. The drafters, and those who supported Resolution 242 at the time expected that, in the negotiations, there would be some exchange of territory in a peace agreement. This may be one case in which diplomatic equivocation and the use of ambiguity – central to the art of diplomacy – may have caused more trouble in the long run compared to the short term benefit of gaining a consensus in support of Resolution 242.

Meanwhile, Israel began its program of settlements, initially for military defensive purposes, allowed under international humanitarian law, but also to make claims for territory, initially in some of the areas captured near Jerusalem. In great prescience, Jacob Talmon, the late great Israeli historian, in 1967 raged and warned about the threat expanding settlements would pose for a peace agreement, then with Jordan. Ten years after the end of the Six Day War and four years after the disastrous Yom Kippur War, Menachem Begin became Prime Minister on 21 June 1977. During his period as head of government, he made a peace agreement with Egypt and gave the Sinai in its entirety back. For that, he and Egyptian President Anwar el-Sādāt won the Nobel Peace Prize in 1978.

In the shadow and the glory of that agreement, Begin’s government passed the Jerusalem Law on 30 July 1980 which declared Jerusalem to be the united capital of Israel, but without specifying its boundaries and without formal annexation. Nevertheless, that was sufficient to stimulate an enormous international backlash. The UN Security Council passed Resolution 478 declaring Israel’s 1980 Jerusalem Law, which de facto but not de jure annexed East Jerusalem, as illegal. The vote was 14-0 with the U.S. abstaining. Further, UN legal experts contended that, even though the Resolution was passed under Chapter VI, it was still binding on all states based on a 1971 ruling of the International Court of Justice. Consequently, there are no longer any foreign embassies whatsoever in Jerusalem.

The period from 1980 to the Oslo Accords marked a new phase of settlement activity under the leadership of a party that claimed all of the West Bank as rightfully belonging to Israel. Begin’s government began an aggressive program of expansion of settlements that clearly lacked even the pretence of any defensive military function. But the greatest fiery storm was set off, not by the settlements, but by what happened on the Temple Mount or what the Arabs call al-Ḥaram al-Šarīf, or the “Noble Sanctuary.” On 8 October 1990, when Bibi Netanyahu was Deputy Minister for Foreign Affairs, Israeli Border Police killed 17 Palestinians and wounded many more in a so-called riot on that site. They were killed because, according to Netanyahu who treated truth with as much reverence as Donald Trump, the Palestinians were throwing stones down on worshipers at the Wall in a deliberate attempt to deflect attention away from Saddam Hussein’s invasion of Kuwait two months earlier on 2 August 1990.

It so happened that there were no worshipers at the Wall that day. They had been removed for their own safety. Instead, the Temple Mount Faithful, a group of Jewish Zealots promoting the reconstruction of the Temple on its original site, announced a plan to march on the Temple Mount in contravention of an explicit Israeli court order not to do so. To confront the Zealots, an extreme group of Palestinians gathered on the Temple Mount with rocks to confront the Jewish Zealots. In confusion, set off by an explosion of unknown origin among the gathered Palestinians, the Palestinians began throwing the rocks at the Border Police. The Border Police retaliated with live ammunition, initially killing one Palestinian.

That instigated a full-scale riot. With reinforcements, the Israeli Border Police launched an assault on the Temple Mount killing 17 and wounding many more. The uproar was not caused by the Temple Mount Faithful, even though their initial announcement had been an instigating factor. Nor had it been caused by Palestinian Zealots resisting them or raining rocks down on innocent worshipers at the Western Wall as Bibi then contended, though the Palestinians had indeed prepared themselves with rocks to protect the grounds of the Noble Sanctuary. The prime cause was the use of excessive military force in a volatile situation. (For a very recent recounting of the incident, read Barry Lantos’ blog published on 3 November 2016. He was one of the investigative reporters who had covered the story.)

James Baker, head of the State Department in the President George H.W. Bush administration, in 1990 banned Netanyahu from the State Department, not as rumoured because of disputes with American officials over policy or over the West Bank or the Temple Mount, but because of the same type of lies and distortions Netanyahu repeatedly made, especially in reference to American diplomatic efforts.

The situation changed with the election of Rabin and the conclusion of the Oslo Accord in 1993 and the 1995 extensions. In Oslo, settlements were recognized as matters for negotiation. Further, the territory of the West Bank was divided into three different areas, Area A under the administrative and security authority of the Palestinian Authority, Area B under the administrative authority of the Palestinian Authority and Area C under both the administrative and security authority of Israel. The situations of Gaza and East Jerusalem were left unchanged. The establishment and growth of settlements, as recognized in the Oslo Accords, did not indicate where the lines would be drawn between the Israeli and Palestinian states.

After a burst of expansion of settlements before Oslo and under the initial Netanyahu administration, by far the greatest expansion of settlements in the West Bank took place under the early years of Arik Sharon, who was Prime Minister from February 2001 to 2006 until he suffered a stroke. Resolution 2334 repeats resolution 1515 endorsing the 2003 Quartet Roadmap that required a freeze on settlement growth, including so-called “natural” growth, and dismemberment of all settlements constructed since 2001.

Why 2001? 22 settlements were established in 2001 and 19 in 2002 – Alt 468, Ancient Susiya Synagogue, Asa’el, Bat Ayin West, Elmatan, Gal Outpost, Gilad Farm, Gival Assaf, Givat Sal’it, Hakaron, Harro’eh, Kochav Ya’akov West, Migron, Mitzpe Lach, Mitzpe Yitzhar, Neve Danile North, Nofei Nehemia, Ramat Gilad, and T’koa D. In contrast, there were only two in 2003 (Kochav Ya’akov East and Mitzpe Eshtamoa), three in 2004 (Bnei Adam, Mishpatei Eretz and Ofra Zion Mizrah, and only one in 2005 – Omer Farm. The period of enormous expansion of numbers of settlements was over, but not the expansion of the size of Israeli settlements recognized as legal by Israel.

That period afterwards and before made the Oslo years seem an exception to the expansionist phases of settlements from 1980 to 1992 and then again after Rabin was assassinated. What changed from 12 or 13 years ago to suddenly make settlements the threat to a two-State solution for the United States at this time, but did not back then? Why not 2007 when Obama first came to power? Why not in 2014 following Bibi Netanyahu’s announcement that 1,260 new housing units would be built in East Jerusalem, 600 units to be constructed in Ramat Shlomo in north-eastern Jerusalem, a settlement founded in 1995 adjacent to Shuafat and Beit Hanina in the same year when the extensions to the Oslo Accords were agreed upon. Another 660 units were to be built in Har Homa established in 1997 in south-eastern Jerusalem near Beit Sahour with a view of nearby Bethlehem.

In 2015, Netanyahu responded angrily when the Jerusalem municipality froze the planned expansion of Har Homa by 1,500 homes. There was certainly a fight in 2014 over settlements. One Obama administration official called Netanyahu a “chickenshit,” echoing an insult directed at Netanyahu by an official in the Clinton administration. Why did the U.S. not officially declare settlements illegal then? Why did the U.S. at that time not depict settlements as an imminent and existential explicit threat to a two-State solution? Instead settlements were then called obstacles to peace and were sometimes dubbed illegitimate. But they had not been labeled illegal by the U.S.

Part of the difficulty in understanding the problem is that there are at least four two-State solutions. Settlements impact on each differently. But let me mention the various one-State solutions first. There is the vision held by a few right-wing Israeli extremists in Netanyahu’s cabinet who believe in incorporating all of the West Bank as Israeli sovereign territory. In one variation, many Palestinians who refused to pledge loyalty to Israel would be expelled. In another variation, Palestinians would be given permanent residency status, but not citizenship, but would be expelled if they proved to threaten Israeli security.

In a second version, there would be one sovereign state encompassing Israel, Area C and East Jerusalem. Areas A and B would have an independent internal self-governing authority as a satrap of Israel. In a third version, there would be a single state in all of the old mandate territory, including the Gaza Strip. Jews and Palestinians would have equal citizenship and equal rights in a single state. This is a vision that went back to idealists like Martin Buber and is still upheld today by current idealists. In a fourth version, Israel-Palestine would be a federated state with two provinces – Palestine and Israel with Jerusalem operated as a federal district. The federal authority would have responsibility for security, foreign relations, trade and monetary policy. Clearly, there could be many variations of all of these versions. Perhaps there are even one or two more versions, but the likelihood of anyone of them coming about is slim to none.

I could, of course, be wrong. After all, I was wrong about the extent that settlements would develop. I never believed that the settlement activities would take place to the extent that they did. But, in spite of the extent of the settlements, I still believe that a two-State solution is the only realistic option, though some of the versions of this option are as unrealistic as any of the one-State solutions. There is the vision of two states based on the 1967 cease- fire lines. Secondly, there is the vision of two states in which the settlements around Jerusalem are incorporated into West Jerusalem as the capital of an Israeli state but East Jerusalem, including the Old City, would become part of a Palestinian state. There is a version in which Israel assumes control of the Old City with religious rights guaranteed to Palestinians and, indeed, all Muslims. In a version John Kerry seems to favour, Jerusalem would remain united, but as a capital of both states. All of these versions, I believe, are unrealistic, but John Kerry’s is, I believe, the most unrealistic.

A more likely version would be that Area C would be transferred to Israeli jurisdiction with some deletions while an equivalent amount of Israeli territory would be transferred to the Palestinian state so that state would have approximately 22% of the Mandate territory, the amount under Arab control before the Six Day War. Though this option, given Oslo, is the one most likely, that likelihood is undercut by the argument over Jerusalem. In one variation, the Israelis in the settlements being transferred to the Palestinians would become dual citizens of both Palestine and Israel. In another scenario, the settlers would be offered an economic benefit in exchange for returning to Israel. In a quite different variation, everything would be settled except for the Old City; it would remain under Israeli jurisdiction until an agreement could be made about it. This seems the most likely outcome. The thickening of the existing settlements in the suburbs of Jerusalem and in Area C does nothing to threaten this version of the two-State solution.

The threat to the two-State solution now comes primarily from the issue of Jerusalem, not the settlements. The Palestinians see East Jerusalem, including the Old City, as the capital of their future state. Most Israelis support an undivided Jerusalem as the capital of Israel, though some of them would exclude East Jerusalem but not the Old City. The reality is that settlements have always threatened a two-State solution. They did in 1967 when they were created to assert claims on Jerusalem and to establish military defense positions in the West Bank – and then under a Labour government. Establishing new settlements reached a peak threat in the first years of this century. There is little reason to declare that the last few years, with the main focus on “thickening” the existing settlements, poses any greater threat than ever before. In fact, the pattern of settlements suggests that de facto borders are being made on the ground between an Israeli and a Palestinian state. That may not have been the scenario I defended for years, but it does take the reality into account that Israel will not be willing or able to resettle 400,000 of its citizens. It barely managed to resettle 9,000 from Gaza.

With the help of Alex Zisman

To be continued.