Donald Trump’s America

Donald Trump’s America

by

Howard Adelman

There is an extreme irony in watching Barack Obama leave power and be succeeded by The Donald, who has graduated from being Trump Two Two to being Trump Three Three Three. His self-deceit is so great that he must now reassure himself by repeating his messages no longer just twice, but three times. Trump won the presidency in good part by appealing to identity politics, not the identity politics of minorities who feel discriminated against, but the identity politics of a majority at the cusp of becoming a minority at the same time as their sense of personal identity and identification with the major direction of their nation dissolved before their very eyes. Trump did produce a revolution. He turned the heads of those who were drowning in nostalgia from looking at the receding past to looking for a chimera in the future. At the same time, he made those who strived to bring about a new future, in the words of Michael Brenner, look backwards for comfort and consolation. In terms of nostalgia, the positions of the regressives and the progressives have been inverted.

After Election Day, President Barack Obama expressed the hope that once Donald Trump became President, he would moderate his behaviour. Hope can curse one with mindblindness. But Trump proves again and again that he is deeply ethically challenged with an, as yet, inexplicable admiration for the authoritarian, Vladimir Putin. A New Yorker columnist quipped that the Donald was an advocate of “Peronism on the Potomac” as well as being a “xenophobic populist.” He has appointed cabinet members demonstrably unqualified for their positions – Betsy DeVos as Secretary of Education, a critic of public education and an ignorant one at that; Scott Pruitt, a climate-change denier charged with running the Environmental Protection Agency; Steven Mnuchin, one of five Goldman Sachs alumni appointed by Trump to the government coming from a company he once pointed to as a major source of the swamp in Washington. He repeatedly demonstrates that he is inexperienced, irrational, unstable, thin skinned, but with a deep conviction that he knows something better than anyone else, yet he shows little interest in reading or in the process of policy formation. And he often appears unhinged, as when he appeared before the American intelligence community yesterday. More and more, he presents himself as a clear and present danger to democratic government. ­

In yesterday’s Torah study group, as the rabbi pointed out, we had a rare confluence when the text being studied directly spoke to the contemporary situation, so I have an opportunity to marry biblical commentary to contemporary politics. The verse reads as follows:

וַיָּ֥קָם מֶֽלֶךְ־חָדָ֖שׁ עַל־מִצְרָ֑יִם אֲשֶׁ֥ר לֹֽא־יָדַ֖ע אֶת־יוֹסֵֽף׃

A new king arose over Egypt who did not know Joseph. (Exodus 1:8)

When the text reads, “a new king,” does it mean just a new person taking the throne of Egypt (Trump as a democratically elected monarch) or does it mean a king at the beginning of a new line of succession, neither Democrat or Republican at heart? Or perhaps it means a new kind of king. Or all three! In the biblical text, a new line of succession is at least suggested because of the omission of any reference to forebears. After all, a king’s legitimacy depended in good part on a long inheritance line. Most commentators suggest that what took place was a dynastic change, and, further, and even more importantly, a change that discarded old patterns of behaviour and initiated new and even revolutionary ones.

This is also suggested by the way the new Egyptian king took power. He arose over Egypt – עַל־מִצְרָ֑יִם. It is one thing to rule over Egypt. It is quite another to rise to power “over” Egypt, which suggests a palace coup or a revolt. Third, one manifestation of this generic change is what the king does with his power. How does he spend the government treasury – on pyramids? Or on public works or on the military? This new king spent the Egyptian treasury on the military and used the Hebrews as slaves to build new cities for stores or supplies, miskenoth –מִסְכְּנוֹת֙.

וַיִּ֜בֶן עָרֵ֤י מִסְכְּנוֹת֙ לְפַרְעֹ֔ה אֶת־פִּתֹ֖ם וְאֶת־ רַעַמְסֵֽס: And they built for Pharaoh storage cities, Pithom and Ramses. (Exodus 1:11)

See also 1 Kings 9:19; 2 Chronicles 8:4, 8:6, 16:4 and 17:12. The last makes clear that a store “city” is a fortress.

There is a fourth factor defining the new character of a ruler – who the ruler points to as the enemies of the state. In this case, the text is explicitly clear. It is the Israelites who are defined not only as the Other, but the proliferating Other, the threatening Other, the Other which can act as a Fifth Column for Egypt’s external enemies. However, the major emphasis is a fifth factor. This king “knew not Joseph.” It could simply mean that the new king had not been acquainted with Egyptian history and with Joseph’s role in that history. Not a very plausible conclusion since the generation of Joseph had just died off.

There is a much more plausible account that can connect the different strands of legitimization together. Joseph was not only a Vizier who saved Egypt through a period of famine by developing a system for collecting and storing food in the good times and then a system for distributing that food in the bad times. But he did something else as well. First, he operated a welfare state collecting the wealth of society so that all could be fed. He then exchanged bread for the livestock of the inhabitants. (Genesis :47:17) The people lost their flocks and their herds. Then when the people ran out of animals, they exchanged their land for food. (47:19) Further, they then worked the land in return for a percentage of the produce giving Pharaoh a fifth of everything they produced. 20% of gross sales, not just 20% of profits went to Pharaoh. Joseph had either converted a country of freeholders into a feudal state or converted a decentralized feudal country into a centralized collectivist economy. Further, he moved the people into cities and lauded old Jewish values which gave priority to the city, to civilization, but, in the process, probably created a mass of discontented Egyptians who likely lived just above the poverty line in an alien environment they detested. They longed for the old Egypt rooted in the banks of the Nile where rituals were attuned with the annual floods.

It is hard to believe that the new king would not know what Joseph had done. It is far more likely that the new pharaoh (initially just a king) knew precisely what Joseph had done and had rallied the ex-Egyptian herders and shepherds and landowners to overthrow the old dynasty precisely because of resentment over their new status as serfs or urbanized poor. What then could “he knew not Joseph” mean? At the very least, it meant that the new king of Egypt created a competing narrative to the one in which Joseph saved Egypt, saved the state, saved the establishment in power, but, in the new version, did so for the benefit of those in power and at the cost of the traditional way of life of the Egyptians. In the new version, Joseph and his tribe could be blamed for destroying the old social order. Since they were foreigners, they were doubly suspect.

With the background of the biblical text, look more closely at Trump’s inaugural speech. Instead of a record and narrative of survival from the threat of drought, (from the Great Recession of 2008), Trump describes a state of carnage. Not in 2007, but in 2017, ten years later. And he began, not by acknowledging traditions, not by acknowledging past accomplishments, not even by pointing to the constitution of the United States as the source of legitimation for a new ruler. “The oath of office I take today is an oath of allegiance to all Americans,” not to the constitution or even the flag.

The expression, “We the people,” is taken to its populist extreme. “We, the citizens of America, are now joined in a great national effort to rebuild our country and restore its promise for all of our people.” That promise was betrayed, not just by the previous Democratic regime, but by Republicans as well. These Washington politicians all betrayed their country and allowed it to fall into decay, into crime, into impoverishment of a whole swath of Americans. The promise, the covenant with the people of America, had been broken. It is time to restore power to the people preached Donald Trump.

As Trump said, inauguration day did not just mean the peaceful transition from one governing group to another. “We are not merely transferring power from one administration to another or from one party to another, but we are transferring power from Washington, D.C. and giving it back to you, the people.” Can you not just hear the new king of Egypt standing on the balcony of his palace and asserting that for too long, a small group in Thebes reaped the rewards while the people bore the costs, bore the burdens. “Washington flourished, but the people did not share in its wealth.” The jobs left and the factories closed. The animal herds disappeared and you the people were forced to work the land, no longer for yourselves, but to enrich those in power with the taxes imposed upon you.

“Their victories have not been your victories. Their triumphs have not been your triumphs. And while they celebrated in our nation’s capital, there was little to celebrate for struggling families all across our land.” Trump pronounced a new beginning. “All change starts right here and right now.” This is not 2017 of the Common Era, but year 1 of the Trump Era, “the likes of which the world has never seen before.” “From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first, America first.” (my italics) That is Trump Two Two speaking in his inaugural address. When he says only America, he means only me, for he sees himself as the embodiment of the American spirit. Unfortunately, in the history of politics, the phenomenon of demagoguery has been seen too often before. “What truly matters is not which party controls our government, but whether our government is controlled by the people. January 20th, 2017 will be remembered as the day the people became the rulers of this nation again.”

This is precisely the definition of a demagogue, “a leader championing the cause of the common people,” and doing so by distortions and outright lies, using false claims and even falser promises. One does not have to refer to Adolph Hitler and his promise to make Germany a great world power or Benito Mussolini’s promise to return Italy to the great and glorious days of the Roman Empire. Demagoguery is as much part of American tradition as the American constitution. Think of Huey Long, Governor of Louisiana in the 1930s, Theodore Bilbo, twice Governor of Mississippi and later a U.S. Senator (“Listen Mr. Bilbo, listen to me, I’ll give you a lesson in history” – a camp song I learned as a kid), Father Coughlin with his radio sermons in the dirty thirties, Senator Joseph McCarthy in the fifties. The bogey men may shift, but the elites are usually controlled by and/or in service to an unworthy and threatening group –  Blacks, Jews, Reds. The enemy shifts and may be Mexicans and Muslims, but the construction of an enemy alien never does. James Fenimore Cooper, in his 1838 essay “On Demagogues,” recognized the danger rooted in the deep populist strain of American politics. “The peculiar office of a demagogue is to advance his own interests, by affecting (my italics) a deep devotion to the interests of the people.”

The elements are always the same. The enemy is an elite and the demagogue opposes the elite in the name of the people with whom he establishes a visceral rather than cognitive connection rooted in agreements over policies. A demagogue connects to the people by appealing to their fears and hatreds and by pointing to the dreams and hopes that they once had and claims that they had been dashed by a powerful cabal. The new deliverer is ostensibly opposed both to that elite and the collectivities it serves. But the motivation is always the same – the narcissistic urges of all demagogues, their own inflated sense of self, their own gargantuan ambitions, and their disrespect for the norms of truth, the norms of decency, the norms of conduct and, in the end, the norms established by the rule of law.  Donald Trump is a demagogue, not only because he is the best expression of all these characteristics, but because he even disdains his own party as an institution through which he connects with the people. His connection is direct. “What truly matters is not which party controls government, but whether the government is controlled by the people.”

It is one thing in a democracy to assert that a government must be responsible to and for the people and be accountable to them. It is quite another to (falsely) claim that government is controlled by the people. It is not. It never has been. It never will be. And demagogues are the only ones who utter such a blatant lie. Plato declared that any demagogue once he gains power cannot help but drift towards tyranny. Aristotle insisted that the most dangerous form of government was one in which the people and not the law have supreme power, a false claim always made by demagogues to seize power.

The trajectory is horrific to watch. Traditions and norms that took centuries to build are destroyed in only a few years. As the opposition takes to the streets in larger and larger numbers, the new “leader” insists that order demands a sacrifice of a degree of freedom. Rule can only be exercised with a strong hand. And Trump has openly stated that he admires “order and strength” – and military parades. But, as Polybius once pointed out, the decay had set in much earlier, for without that decay, a demagogue could not have achieved power in the first place. But whatever the preparation, the demagogic storm seems to come out of the blue.  Like Cleon, who brought Athenian democracy to its knees, Donald Trump has entered the fray as a political tsunami. And what he says means precisely the opposite.

“We share one heart, one home, and one glorious destiny.” Translation – I am the only one that can take you to the promised land. “At the bedrock of our politics will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other. When you open your heart to patriotism, there is no room for prejudice.” And attendees at the inaugural time and again applauded these words of pure demagoguery.

But the proof text came in one sentence, not the plethora of lies that rewrote history and misrepresented America’s past accomplishments and current success, though these seemed to be the preoccupation of most of the media. Donald Trump said, “The Bible tells us how good and pleasant it is when God’s people live together in unity.” The Bible says no such thing. It is a tale of divisions. And there are divisions in interpreting those divisions. Take the text with which we started.

“A new king arose over Egypt who did not know Joseph.” The instant response of Jews in both the ancient and the modern world has been to pray for the welfare of the government of whatever country Jews lived in, even when the leadership of that country would turn out to be bad for the Jews as well as everyone else. In every prayer book of whatever denomination and whatever country, the Jews express loyalty to the country in which they live through a prayer, most often not in Hebrew, but in the language of that country.

When the new king arose over Egypt, one can imagine the Israelites praying for the new government, asking everyone to give him a chance and let him prove himself. But how they said it, what they said and why they said it varied. Jeremiah (29:4-7), who offered perhaps the first advice to pray for the welfare of the existing government, advised, “seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.” But the advice was strictly qualified. “Do not let your prophets and your diviners who are among you deceive you, and do not listen to the dreams that they dream, for it is a lie.”

Rabbi Chanina bar Chama of Babylon, one of the great Talmudic sages and interpreters of the Mishna who also, with Rabbi Yehuda HaNassi, went in person to pledge loyalty to the Roman government in Caesarea, in his version of the prayer for the welfare of the government, included a Hobbesian reason: “if not for its fear, a person would swallow his fellow live.” Without government, all would be anarchy and daily life would be a tooth-and-claw existence. This was the complement to the false prophet warning, the fear of the mob, of the populace, for without government (good or bad) and order, all would be chaos.

If Jeremiah feared false prophets as leaders, if he feared demagogues, and Chanina feared the irrationality of the masses, other prayers were far more circumspect, perhaps because they feared the wrath of the government turning against them. The fears are not explicitly expressed, but quotes are lifted from psalms which seem benign enough until you read the quote in the full context of the whole psalm. The allusion to the fears is located in those psalms rather than in the prayers themselves.

Many contemporary prayers for the welfare of the state leave out explicitly or even by implication any reference to fears. I would guess that just before the Inquisition, Jews did so as well. The prayer for the welfare of the government is unabashed. This is true of our prayer book in our synagogue which was our rabbi’s tweak of the older prayer in the siddur, The Gates of Prayer (1975). In Siddur Pirchei Kodesh (2011), our current Holy Blossom Temple Reform prayer book (in the U.S. Reform movement, Mishkan T’filah, 2007), the prayer for the welfare of the country is offered without either an allusion to or certainly any expression and recognition of a danger. Like most American prayers (our rabbi is from Chicago), the prayer is usually of the flavour that asks God to make those leaders the best that they can be. There is no expression that they may turn out to be the worst possible.

Should we pray for Donald Trump and his government, pray that God make him and his government the best that it can be? Or do we recognize the real dangers and pray for the collapse of that government sooner rather than later given its obvious inherent dangers?

I think readers know where I stand.

 

With the help of Alex Zisman

Barack Obama’s Farewell

Barack Obama’s Farewell

by

Howard Adelman

Nine days ago, Barack Obama delivered his farewell speech as President of the United States, not just to Americans, but to the world. But he began local. “Hello Chicago.” And then shifted to, “My Fellow Americans” after cracking a joke about how the unruly audience was proof that he was a lame duck. He then immediately pivoted to a populist beginning. Conversations [in contrast to public rallies or even town hall meetings] kept him honest, kept him inspired and kept him going. A conversation is an exchange of thoughts, not by writing essays and critiquing other ones. It is an oral exercise. And conversations only really work if you try to listen even more than you speak. The American people in the diners and farms, in the factories and fortresses abroad were, he claimed, his teachers. They gave him his energy to wake up every morning. They were also the instruments of change – “when ordinary people get involved and they get engaged, and they come together to demand it.”

This is a specific kind of populism. It is not the populism driven by economic insecurity and resentment of the rich à la Bernie Sanders that played its way in one town hall meeting after another across America last year. For that type of populism depended on a shared ideology and a shared and identified and identifiable enemy – the richest 1%. The latter populism participated in a common worldview, in ideas and ideals that were the foundation stones of their activity. It thrives when economic insecurity is pervasive in a fast-changing world in which the jobs and positions people held for years are under threat as they seem to be in our emerging post-industrial communications economy. Obama’s populism was of the more intimate kind, one in which differences were discussed rather than common passions and hatreds articulated. It is bottom-up as distinct from lateral populism, and it depends on a set of shared rules for discourse – a logic for exchanging ideas.

Nor was Obama’s logical populism of the top-down variety dependent on mass rallies and sloganeering rather than conversations or shared ideas and ideals. In this latter idiological rather than ideological populism, shared thoughts are not the basis for political action and certainly not conversations that require listening and coherence. The forces driving the idiological populist upsurge are NOT primarily economic, though that may be present, but cultural. That populism is driven by people who once saw themselves as the heart and paradigm of the polity, but now see themselves as looked down upon by a condescending elite – intellectual, professional, wealthy – reinforced when that same elite ignores rather than openly disdains them.

Idiological populism rests on the politics of resentment rather than articulating a political direction. It is the politics of anger driven by radical shifts in value far more than even economic challenges. It should be no surprise to learn that the average family income of a Trump supporter was evidently $70,000. It is this latter populism that was primarily the force behind the Arab Spring. It is the driving force of the populism sweeping across Europe. And it is this populism, not that of Bernie or Barack, that captured the White House when the opposing candidate lacked any instinct for any variety of populism whatsoever. Cultural much more than economic insecurity is its driving force.

Where Bernie saw pain, suffering and deprivation, where Donald saw unfulfilled dreams and fantasies, Barack saw, “the power of faith, and the quiet dignity of working people in the face of struggle and loss.” As Michelle put it so succinctly, “When others go low, we go high,” and Hillary could only mimic those words without any deep faith behind them. Obama claimed that his view represented “the beating heart of our American idea.” If that is the beating heart, then it is suffering from both atrial fibrillation and, even more dangerously, ventricular premature contractions. The heart of America is in a profound state of double arrhythmia.

Of the three populists, Barack Obama was clearly and by far the most conservative. For he articulated the liberal idea of self-government in which all citizens are created equal with inalienable rights to life, liberty and the pursuit of happiness. Bernie was far more concerned with economic inequalities and the failure to live up to that ideal in economic terms than with primordial and abstract ideals of egalitarianism. Trump despised egalitarianism of any kind as he fed off the energy of the people at his rallies to insult Mexicans and women, the handicapped and everyone of his competitors. No political correctness for him in the face of what he called a rigged system that allowed each individual in a mass rally to fill in the balloon above the cartoon caricature with whatever bothered that man or woman.

What did Obama have to offer in contrast but the most “radical idea”? A great gift that our Founders gave to us: the freedom to chase our individual dreams through our sweat and toil and imagination, and the imperative to strive together, as well, “to achieve a common good, a greater good.” Did Trump ever once cite the fundamental principles behind American democratic ideals? He never appealed to ideals at all, just fantasies to “make America great again,” whereas Barack insisted that America had been founded on the greatest and most radical premise ever. Greatness did not depend on abandoning that belief, but holding it even closer to one’s heart and mind. There was no common good, only an uncommon and ghostly bad that haunted the land.

If Barack saw his fellow Americans as citizens and Bernie saw them as subjects exploited by the economic power of the wealthy, Donald saw them as idolaters intensely enthralled by an entity that would be otherwise considered unworthy of worship. In fact, it was the unworthiness that was the attraction. And the fact that the unworthy displayed his wealth with garish and ostentatious enthusiasm, the fact that the calf was all glitter and gold, only added to its attraction. Trump offered the populace the fantasy of a new gold rush. Not hard work, not blood, sweat and tears, but a new beginning sui generis based on getting rid of the elites who traded American jobs for foreign deals, who created a porous border that allowed others to flow through the sieve and that lacked a defensive wall and a moat around the American castle. Mexicans, migrants, movers and shakers were all grist for his mill of grinding resentment.

Obama believed in the great God of progress, in two steps forward and one step back. Bernie believed in peaceful revolution, in up-ending the economic order and using politics to redistribute the enormous wealth accumulated by the few. If Obama believed in a zig-zag line than nevertheless always tended to move forward and up, and Bernie saw the line moving downwards and needing to be reversed, for The Donald, there was no line at all, only a direction of moving into the future by restoring an idealized pristine past created by the Hollywood films he saw in the late fifties when he was moving towards becoming his father’s son.

Obama offered evidence to back up his belief in progress. Under his watch, had not America reversed the great recession? Had it not rebooted the auto industry that was on its knees? Had it not unleashed the longest and largest job creation record in American history? Had it not reconciled America with Cuba with which the U.S. had been alienated for almost sixty tears with its music, with its rhythms, with its lust for happiness and joy? Reconciling America and Cuba was the icing on the cake of the American dream, more important for America’s dream life that the U.S. was for Cuba’s drab and deprived ordinary life. Had not the shadow of nuclear weapons now been dissipated once again in the nuclear deal with Iran as the proper follow-up to Ronald Reagan’s Reykjavik concord with Mikhail Gorbachev, and, once again, “without firing a shot”? Had Obama not taken out Bin Laden, the embodiment of evil in the modern world until displaced by the even greater evil of ISIL? Had not Obama allowed America to begin to catch up with the rest of the Western world by providing health insurance to twenty million more Americans?

We can. We should. And we did. This was Obama’s claimed record. We. Not I. In fact, not even we. But you. That is what you did. Obama never claimed that he made America great again, but that we together accomplished that task. Donald Trump boasted that he and he alone could make America great again. And Bernie promised not greatness but greater equality. Barack only held the tiller steady of the ship of state. The power driving the ship through the high seas belonged to the people.

And then the arrow that shattered that beam of shining light – the beauty of American democracy had been proven by the election and peaceful transition of power to a man like Donald Trump. Was it any surprise that his audience booed, that these citizens of Chicago whined “Noooo?” Barack Obama promised to be true to the highest and strongest premise of American democracy – the peaceful transfer of power to an incumbent who won in the Electoral College, though he lost by the greatest margin ever in the popular vote. Who could have ever imagined that the Electoral College, that had been designed in good part to protect America from the whims of the populace, would be the institution that put the gold seal of the republic on that whim! Had states surrendered to populism by surrendering to a popular vote the power state governments had to choose the electors of the Electoral College? That question was now moot. The very institution designed to prevent that outcome had become the vehicle to ensure it.

Trump had campaigned on the slogan of, “Make America Great Again.” Obama insisted that America remained “the wealthiest, most powerful, and most respected nation on earth,” even as its wealth was more maldistributed than almost anytime in its history, even as its power in the world was shrinking and even as respect for America had been on the decline ever since the Vietnam War. Sweden, Norway and Canada were each far more respected around the world than America even as everyone stood in awe of the power and creativity and accomplishments of the U.S. But a society that spent almost double its much higher Gross National Product to deliver health care that for a large minority rivalled Third World health systems did not earn or deserve respect in those areas. A country with the best and greatest universities, in most of them still reserved more spaces for the children of the 1% than the children of the bottom 20%. This was not a country to be respected, unless the obeisance given to an imperium is considered respect.

Barack Obama could say loudly and clearly that “for all our outward differences, we’re all in this together; that we rise or fall as one,” but the reining economic orthodoxy belied that claim for it celebrated an ethos of each man and woman for himself. When Obama helped pull the country in the great recession back from the brink of disaster, the economic power houses and banks and huge companies were restored to their place in the sun while millions lost their homes and little if anything was done to help them.

Barack recognized that growing inequality, but he was not a Bernie Sanders. His approach would be gradual and by the end of his term middle class incomes were finally showing real gains. He recognized the specter of terrorism and became the ghoulish controller who directed the drones that decapitated the leadership of ISIL, one or a few at a time. Only Donald Trump would promise their immediate incineration. Whereas Bernie preached greater economic equality, Barack preached greater economic opportunity. Whereas Barack saw all ships rising even as the luxury yachts rose even higher and faster than any of the other ships at sea, Bernie only saw those yachts becoming longer and more luxurious and more concerned with ostentatious display. Whereas Barack celebrated a stock market that was breaking all records, Bernie scowled at the billions more pouring into the pockets of the already super-rich. Whereas Barack pointed to unemployment at an all-time post WWII low, Bernie pointed out the low minimal wages, that were, in effect, half of what they were in 1970, the insecurity of jobs and the increased use of part time and independent members of the work force lacking both security and benefits.

Barack could promise that, “if anyone can put together a plan that is demonstrably better than the improvements we’ve made to our health care system and that covers as many people at less cost, I will publicly support it.” But, of course, a single payer universal health insurance plan would certainly do that. However, in the U.S. this was a non-starter so in that sense, Barack Obama was telling the absolute truth, though it would have been clearer if he inserted the phrase “politically feasible” alternative plan.

All three populists agreed that stark inequality is a bad thing, but they located the source of that distortion in very different locations and attributed the responsibility to very different agents. All three agreed that too many families in inner cities in the rust belt and in rural areas have been left behind. But Donald Trump, while glancing at this reality, really focused on how the values of the once great white middle class had been left in the dust as Barack Obama and his ilk pursued the god of progress. All three populists railed against government only serving the interests of the powerful and who would know that better than someone who had spent his life gaming the system and accumulating wealth while paying little if any taxes?

While Barack preached the need for a new social compact and Bernie preached the need for a radically improved contract between the middle class and those who held the levers of economic power, Donald did not even offer a glance towards either a compact or a contract, but only insisted that he and he alone could make a better deal. Deals were made piecemeal. Compacts and contracts undergird deals. But in the Trump world, they only get in the way; nothing could or should stand in the way of a deal, including the basic principles of American democracy.

Was Barack willing to put a bell on the cat? Was Barack at that point willing to confront the ideological heresy confronting Americans? No. In the name of respect for American democracy and the peaceful transition of power, his remarks could only offer subtle reminders of what was at stake. Though he celebrated the vision of a post-racial America, he pointed to the reality of an America that remained deeply racist without stating boldly that this was one of the lost values to which Trump was appealing, a time when the American white middle class lived in security in their suburbs. Barack might insist on upholding laws against discrimination, but given his marriage to civil discourse, he would not point out that the Donald had been a serial abuser of these laws when he managed his father’s apartment complexes in the Borough of Queens.

Barack could preach that we begin with the premise, “that each of our fellow citizens loves this country just as much as we do,” he would not point out that different Americans have very different conceptions of the country they love. The myth of a basic true faith for America was as much a chimera as Trump’s whimsical fantasies and Sander’s dreams of a better world in the face of a neo-liberal America. Blunt confrontation and dissing were political sport for Donald Trump that broke the laws of civility that Barack Obama insisted Americans must live by. Barack Obama could complain about citizens creeping into their own bubbles, but he lived in an intellectual bubble common to many if not most educated North Americans, for our beliefs about secular society go as deep as any religious belief and are as immune to falsification as any of them. One must always remember that Barack Obama was a community organizer and not a street brawler.

Is Obama’s secular faith based on evidence as he contends or is it replete with beliefs immune to falsification? Is his belief that politics is “a battle of ideas” rather that of competing forces, as in Bernie’s world or of irresistible force, rather than Trump’s world which eschews ideas in favour of opinions and prejudices? While Barack favours “healthy debate,” his successor disregards the rules of debate altogether as he lurked and shadowed and interrupted and insulted Hillary when he was on a debating platform with her. The fact that Trump lost all three debates, but went on to win, could possibly throw some doubt on Obama’s contention that debate is the rock-solid foundation of American democracy. Is not Barack Obama guilty of the very self-selection he accuses others of, and in a more self-damning way precisely because Obama believes in evidence-based conclusions?

For Trump, selective sorting of facts is the least of his intellectual crimes. He could not care less about facts in the first place. What is real is what he believes in his own mind and he does not even trust that reality, a distrust that allows him to engage in intellectual shape-shifting all the time. Obama is not guilty of that sin, but he has his own mindblindness – ignoring, for example, the role of private capital fostering renewable energy even in the context of a polity like Texas led by two successive climate change deniers. Perhaps Trump in ignoring reality with respect to climate change might also avoid the constraints and heavy bureaucratic burden that states, so sensitive to climate change as California, have burdened those struggling to innovate.

Obama may cite his faith in the spirit of innovation displayed with Kitty Hawk and Cape Canaveral, American faith in reason and the primacy of right over might, but the winner of the last presidential election is a bully with no respect for reason at all but with an uncanny ability to innovate in what was considered a settled political order. When Trump brought the tools of entrepreneurship to the political process and first upended the Republican Party and ran a hostile takeover, and then the political process in America altogether, that is the spirit of innovation, that is the spirit of entrepreneurship, and that is what should make anyone wary about turning the polity over to the get-rich-quick boys.

You may not think, after these comments, that I do not hold Obama’s farewell speech in high esteem. In my mind, it was the greatest and best crafted political speech that I have ever heard. And it makes abundantly clear, in spite of the brilliant oratory and the rhetorical skills, how thoughtful Obama is. But he is far from perfect. And his political position has many shortcomings about which I have only hinted. In the next political blog, I will turn to the strengths and weakness of his past practices and claimed successes.

 

With the help of Alex Zisman

A Critique of John Kerry’s Analysis Resolution 2334

Resolution 2334: Why America Abstained
Part B: A Critique of John Kerry’s Analysis

by

Howard Adelman

On 28 December 2016, in the aftermath of the passsge of UN Security Council Resolution 2334, John Kerry shared his candid thoughts on the Israeli-Palestinian conflict. Did Kerry offer any analysis of this complicated and truly dialectical history in his speech? None at all! Simplistic and misleading dichotomous thinking framed his talk. There were also factual errors. The opinion polls in Palestine now indicate minority support for a two-State solution, contrary to Kerry’s claims, though his interpretation was valid in a poll conducted at the end of 2013, four years ago. Even in Israel, support for a two-State solution had slipped to a bare majority, 51%, by mid-year of 2015. Now support for a two-State solution has also fallen to a minority there as well. Though most Israelis still believe in a two-State solution as a desirable goal, most have given up believing in such a solution as a realistic one. I think this is what Kerry was really trying to get at, but which he never articulated adequately so crowded was his text with clichés about beliefs that held little correspondence with reality.

But the basic error of Kerry’s analysis is that Kerry believes the “status quo is leading towards one state and perpetual occupation.” I do not believe this is accurate. The status quo is probably leading to the prospect of Israel consolidating its control over the Old City of Jerusalem and integrating Area C unilaterally into Israel without unilaterally transferring equivalent territory to the Palestinians. As an alternative, what chance is there that either side would accept Kerry’s Principle four, making Jerusalem “the internationally recognized capital of the two states, and protect and assure freedom of access to the holy sites consistent with the established status quo”?

This is now the crunch point of the dispute. Is it better to propose a solution which both sides oppose? Or is it better to sidestep that issue and consolidate a peace in all other areas of dispute? Kerry believes that, “It is essential for both sides that the final status agreement resolves all [my italics] the outstanding issues and finally brings closure to this conflict.” I am not so sure. I am inclined to believe that since the Jerusalem issue appears to be the one insoluble one, it may be better to sidestep it. In any case, Kerry gave no arguments to justify why all issues had to be resolved. They rarely are in peace agreements.

Kerry may be correct on another point. “The U.S. and our partners have encouraged Israel to resume the transfer of greater civil authority to the Palestinians in Area C, “but has that been “consistent with the transition that was called for by Oslo?” Only in one interpretation. And even if that is accepted, it may now be obsolete given the new facts on the ground that are indeed now irreversible. Israel will continue to exercise protective military control over the settlements not in Area C, but integrating them within quasi-Israeli borders still seems decades away. In the meanwhile, there is no sign of any diminution of Palestinian governance over Gaza and over the rest of the West Bank. That is a terrible scenario as far as I can evaluate. But it is far more realistic than the picture Kerry paints of the present and immanent danger and one that has allowed him to opt for mistaken policies and very weak defences of those policies.

While Kerry went into far greater detail in depicting the violence perpetrated by Palestinians than Samantha Powers did in her UN speech on 23 December 2016, a speech directly lauded by the Palestinian Authority, Kerry’s speech, which was indirectly praised by the PA, did not explain why the Palestinian violence alone that he described, and that was not depicted in the Resolution, did not offer sufficient reason for the U.S. vetoing that Resolution. After all, the Resolution deliberately avoided pointing out an agent behind Palestinian violence. The PA, as Kerry himself noted, only paid lip service to non-violence and cooperating with the Israeli authorities in repressing political organizations behind that violence, while they feted and honoured terrorists.

Kerry in his speech said that, “Israel has increasingly consolidated control over much of the West Bank for its own purposes, effectively reversing the transitions to greater Palestinian civil authority that were called for by the Oslo Accords.” The first part of this assertion is accurate. The second part is not. The transition to greater Palestinian authority in Areas A and B, not to speak of Gaza, has not been reversed.

The Oslo Accords, as we have said, divided the West Bank into three areas, A, B and C. “Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment” and was referred to as the “populated areas.” Area C consisting of the areas of the West Bank outside Areas A and B. In Area A, the PA was responsible for both administration and internal security. It originally made up 3% of the whole area and now makes up 18% of the area under complete PA control. Area B consists of about 22% of the West Bank and is under Palestinian administrative jurisdiction, but joint Israeli-Palestinian internal security. There are NO Israeli settlements in Area B. Palestinian authority has been strengthened in Areas A and B, discounting the loss of legitimacy resulting from its own ineptness in governance.

Area C is the problem. It consists of just over 60% of the land area of the West Bank, but only 100,000-150,000 of the 2.75 million Palestinians living in the West Bank live there. The lower figure is closer to the number of Palestinians who now actually live there. The latter figure in the range refers to the number that lived there at the time the Accords were signed. Israeli policies have encouraged an out-movement. Israelis are notorious for NOT granting building permits to Palestinians in Area C. In contrast, the 110,000 Israelis who lived in Area C in 1993 has grown to almost 400,000. Demographics have been at odds with the requirement of Oslo that Area C “will be gradually transferred to Palestinian jurisdiction in accordance with this Agreement.”

Thus, the numbers cited by Kerry re settlements are more or less accurate and correspond to the figures for settlements that I cited. Does the strengthening of the settlements east of the security barrier point to a trend to eliminate Palestinian control over that territory? How can one expect 80,000 or 90,000 or even double that number, 150,000 settlers in that territory ever offset the huge disproportion of a Palestinian population of 2.75 million? Whatever Israel does to thicken those settlements, the likelihood of their being incorporated into Israel is remote. The most that can be realistically expected is that they will remain in a sovereign Palestinian authority just as there are Palestinian towns, villages and neighborhoods within Israel. I simply disagree that these settlements make it “that much harder to separate,” that much harder to transfer sovereignty let alone to imagine such a transfer. It is quite easy to imagine and not that much more difficult to realize the transfer. Unless, of course, one accepts the principle that Palestine as a state should remain Judenrein.

There is a distinction between referring to the intentions of the Oslo Accords and the realization or failure in their realization. When we factor in two other elements, context, such as what followed the transfer of Gaza, and consequences, the huge increase in the number of settlers and the decline in the population of Palestinians, the explanation for what has happened over almost a quarter of a century can be attributed to either or both Palestinian malfeasance and Israeli bad faith in its failure to live up to its commitments, in different proportions depending on your information, point of view and ideology. But if we focus on consequences rather than argue about causes or commitments, we enter a reality whereby Israel will never transfer all of Area C and evacuate 400,000 Israelis. It was barely able to succeed in transferring 9,000 from Gaza. The most that can be realistically envisioned is a transfer of some of the territory in Area C along with land now in Israel to make up an equivalent total land previously in Area C.

Kerry stated that, “Now, you may hear from advocates that the settlements are not an obstacle to peace because the settlers who don’t want to leave can just stay in Palestine, like the Arab Israelis who live in Israel. But that misses a critical point, my friends. The Arab Israelis are citizens of Israel, subject to Israel’s law. Does anyone here really believe that the settlers will agree to submit to Palestinian law in Palestine?” Well you may also hear it from critics of settlements such as myself and, as I have heard directly from a Fatah leader, we believe that some settlers would agree to submit to Palestinian law rather than return to Israel proper. In any case, the choice would be for them to make. As it should be, rather than a forced evacuation of those settlements.

Kerry is absolutely correct that those settlements cannot remain either as enclaves of Israel or as enclaves within a sovereign Palestine protected directly by the IDF. Kerry is wrong, however, that Palestinians do not have equivalent rights to build in the territories they control administratively, as all the cranes in cities such as Ramallah indicate. The problem is I Area C. Kerry is also correct that the land on the other side of the barrier cannot be broken up further if a viable Palestinian state is to be created. But does Kerry believe that this can only be accomplished by dismantling those settlements? How does he believe that this would be politically possible? At one time, it could have been. But it is far too late for such a possibility. There is no question that the settlements on the other side of the barrier pose a challenge in a peace agreement. But not an insurmountable one. Not a problem close to that of the Old City.

Further, Kerry is correct that Israel has openly discriminated against Palestinians building in Area C. Demolitions of Palestinian structures have increased. The only way this will be settled is through some kind of a peace agreement, but there is little prospect of that if the dismantling of settlements are made part of the equation. To repeat, it is just too late for that now.

There is the other matter of the illegal outposts under Israeli law, sometimes located on Palestinian owned land. Would the enforcement problem towards these outposts shift if there was international recognition that the main bulk of the settlements would be integrated into Israel in exchange for a land swap and that the other settlements on the other side of the barrier would be permitted to continue, but only if the settlers there recognized sovereign authority held by the Palestinians? If Israel domestic law is extended to the settlements in Area C inside the separation barrier, just as it has been to the Jerusalem neighbourhoods built on the other side of the Green line, why would that threaten the possibility of peace if that peace agreement as thus far articulated includes those areas within Israel?
If one focuses on the extremist one-state advocates who decry a Palestinian state and the Hamas extremists who deny the legitimacy of Israel, then is Kerry not parroting the same distortions that Samantha Powers lambasted the UN for? But if Kerry were truly both honest and fair,t, he would have to oppose the Resolution. But the Obama administration clearly supported it with qualifications about the wording around violence and the U.N.’s past positions on behalf of Israel.

Kerry argues that the danger is a unitary undemocratic Jewish state of Israel permanently ruling over an unequally-treated Palestinian population. Why is this suddenly an immanent danger? Surely the trends in 2007 when Obama first took office were almost as great then or greater. There has been a degree of quantitative difference since then, but nothing qualitative. Kerry is correct. There are no answers if Israel becomes a fascist apartheid state ruling over almost 3 million Palestinians. But does the de facto support for Resolution 2334 undercut that possibility or is it more likely to increase its probability, even if still improbable at this time?

Why does Kerry not plug for a realistic two-State solution based on previous agreements between Israelis and Palestinians? Why provide de facto support for a Resolution that makes the armistice lines prior to the 1967 Six Day War as the reference point for resolving the problem and does so without referring to “the mutually agreed swaps” referred to as a basic principle in Kerry’s principles at the end of his speech and even in the Arab Peace Initiative? Admittedly, the U.S. sits between a rock and a hard place. Did its defence of Israel in the past without the current pressure of Resolution 2334 possibly encourage and/or facilitate the growth of extremism? This is a possibility. But Kerry’s analysis does not answer that question or even ask it.

Instead, Kerry insisted that the Obama switch to allowing a de facto Resolution so one-sided criticism of Israel to pass was a last ditch effort to preserve a two-State solution. If he had analyzed the various possible two-State solutions and indicated which forces are in play reinforcing one rather than another and then concluding how such an analysis affected American policy, one might give him greater credit. But when he holds out the fear of an undemocratic Israelis state ruling over 2.75 million Palestinians in perpetuity instead of considering what elements need to be put in place to ensure this remote possibility never becomes an immanent one, then it s very difficult to take Kerry’s position as serious. Is it possible that all of the impotent efforts of the UN to put pressure on Israel on dismantling ALL the settlements has strengthened the right and the resistance to Palestinians having their own state?

I have opposed settlements for five decades. So has the U.S. So have the Europeans. John Kerry offers an alternative solution as if he has suddenly discovered that the settlements have reached the stage where the two-State solution has been undermined. But U.S. administrations have always opposed settlements as obstacles to peace. And, in my estimation, they were correct to do so. But just when the time has come to forge a realistic solution that takes account of both the settlements and Palestinian aspirations, a pile up on Israel takes place. Does anyone believe that this will encourage such a stubborn and stiff-backed people to back down, especially when Donald Trump is soon to assume power and the right controls the government of Israel?

Kerry argued that if the U.S. had not abstained but had vetoed the resolution, the U.S. would have given Israel “license to further unfettered settlement construction that we fundamentally oppose.” Did the Obama administration give unfettered licence for Israel to expand settlements over the last eight years when it did not allow a U.N resolution selectively critical of Israeli settlements? U.S. Policy, as Kerry repeatedly said, always opposed settlements. Why would licenced be given now to support the growth of settlements but not before? Perhaps Kerry, without admitting it, wants to say that in vetoing and resisting previous UN resolutions in the past zeroing in on Israel and its settlement polices, the U.S. inadvertently gave a licence to expand settlement.

Obama has been a great president and a strong friend to Israel. John Kerry has been an excellent Secretary of State and one truly devoted to resolving the Israeli-Palestinian impasse. But his position recently has been ridden with inner contradictions. And his defence of his de facto support of the Resolution is weak and contradictory. If Resolution 2334 “simply reaffirms statements made by the Security Council on the legality of settlements over several decades,” why is so much emphasis given to the 1949 armistice lines as a reference point? Why has the U.S. shifted from calling the settlements an impediment to peace to calling them illegitimate and then shifted once again to calling them illegal?

I believe they are illegal according to most interpretations of international law. But why this shift so late in the Obama presidency and with so one-sided a resolution? Further, there was not just the reference to Eastern Jerusalem that includes the Old City that was problematic, it was the reference to eastern Jerusalem including the Old City as Palestinian territory. Does not this prejudge an outcome if the premise is self-determination of the largest community in an area? Why is that not the premise for Area C?

Further, Kerry’s second principle for a peace agreement required withdrawal for territory occupied in the Six Day War. He did not say “all” territory. But he also did not say that that clause of Resolution 242 also deliberately omitted the reference to ALL the territory. Why did John Kerry not make that clarification in his speech?

Kerry, to his credit, did spell out the terms now generally acknowledged by both sides to deal with the refugee issue that at one time appeared to be the most intractable problem. Return was omitted. “As part of a comprehensive resolution, they [the refugees] must be provided with compensation, their suffering must be acknowledged, and there will be a need to have options and assistance in finding permanent homes.”

Of course, the U.S. was not the manipulator behind the scenes in drafting the Resolution and pushing support for it. Such an interpretation is but part of a post-fact world. But this does not require an assertion, also made by Samantha Power, that “we [the U.S.] could not in good conscience veto a resolution that condemns violence and incitement and reiterates what has been for a long time the overwhelming consensus and international view on settlements and calls for the parties to start taking constructive steps to advance the two-state solution on the ground.” As I have written, the condemnation of violence was pro tem and had none of the specificity re agency or persistence contained in Kerry’s speech. The Resolution was not “about actions that Israelis and Palestinians are taking that are increasingly rendering a two-state solution impossible.” It was barely about Palestinian actions. And it never adequately demonstrated why those actions – by Israel or the Palestinians – made a solution not just difficult, but impossible.
“Further, to reiterate, if that Resolution was reasonable enough to allow de facto passage, why were not numerous other previous ones that differed very little from this one? The problem is that Kerry’s defence of the new American position rested on quicksand.

The real reason for the switch, I believe, emerges in one paragraph in reference to “the unusually heated attacks that Israeli officials have directed towards this Administration.” This was quid pro quo for an irrational Netanyahu and partisan treatment of the Obama administration that destroyed bipartisanship in the policy towards Israel and had given every ground for America to desert its ally.
But more on that in the next blog on Israeli policy in dealing with the Resolution.

With the help of Alex Zisman

Samantha Power and John Kerry – Resolution 2334

Resolution 2334: Why America Abstained
Part A: Samantha Power and John Kerry

by

Howard Adelman

At the meeting on Friday 23 December when the United Nations Security Council passed Resolution 2334, Samantha Power, the U.S. Ambassador to the United Nations, gave a speech explaining why the U.S. abstained on the motion. She began with a 1982 quote from Ronald Reagan. “The United States will not support the use of any additional land for the purpose of settlements during the transitional period. Indeed, the immediate adoption of a settlement freeze by Israel, more than any other action, could create the confidence needed for wider participation in these talks. Further settlement activity is in no way necessary for the security of Israel and only diminishes the confidence of the Arabs that a final outcome can be freely and fairly negotiated.”

In doing so, she set the stage for an argument that the U.S. position on Resolution 2334 was consistent with bi-partisan American policy on Israel for 35 years. In fact, she said it had been American policy for fifty years. That position is simple: there should be a freeze on settlement activity, and that freeze would be the most important condition for the resumption of peace talks with the Palestinians. Further, she added that Barack Obama thus far had been “the only president who had not had at least one Israeli-Palestinian-related Security Council resolution pass during his tenure.”

She then segued to explaining Obama’s exceptionalism. The reason the U.S. did not support the Resolution, was not because of what it said, but because it was taking place at the United Nations, which had a record of distorted criticism of Israel. In 2016 alone, 18 resolutions critical of Israel had been passed in the Security Council and 12 in the Human Rights Council. Israel for the last fifty years has been treated differently than any other member. The U.S. has repeatedly fought for the right of Israel to be given the same treatment as any other state. Thus, though the Resolution was both justified and necessary, the venue had to be taken into account. In other words, the U.S. was not supporting the Resolution because of United Nations double standards.

Two additional reasons were offered for abstaining. “It is because this forum too often continues to be biased against Israel; because there are important issues that are not sufficiently addressed in this resolution; and because the United States does not agree with every word in this text, that the United States did not vote in favor of the resolution.” [my italics] On the other hand, “because this resolution reflects the facts on the ground – and is consistent with U.S. policy across Republican and Democratic administration throughout the history of the State of Israel – that the United States did not veto it.”

In other word, the U.S. agreed with the thrust of the Resolution and it reflected U.S. policy over decades. We agree, but we have a few quibbles. If the Resolution does not impose a solution nor threaten Israel’s security, why even consider a veto? Since Kerry suggested that security was the fundamental issue for Israel, but Resolution 2334 did not properly address the security problem, why not veto the Resolution? Further, although security is a fundamental issue, in my estimation, it is not the fundamental issue since Israel is now the predominant military power in the region.

There were other factors for not vetoing the Resolution. “The settlement problem has gotten so much worse that it is now putting at risk the very viability of that two-state solution,” an argument that would be expanded upon by John Kerry a few days later. The numbers of units have increased. There are now 90,000 (my figure was 80,000) settlers living outside Area C. A program of land seizures, settlement expansions and legalizations has been underway. New plans are in process for additional units. There is even a proposed law in the Knesset to legalize outposts and it was that factor that the U.S. claimed was the catalyst for bringing Res. 2334 forward.

And then the nub of the case for the Resolution. “One cannot simultaneously champion expanding Israeli settlements and champion a viable two-state solution that would end the conflict. One has to make a choice between settlements and separation.” I have tried to argue that this disjunction is incorrect. As much as one might oppose settlements as an impediment to peace, it is not correct that thickening existing settlements stands in the way of a two-State solution. It just means that the two-State solution that might emerge would be unacceptable to the Palestinians. But as I have tried to demonstrate, any two-State solution that does not transfer the Old City to the Palestinians is unacceptable to them. Freezing settlements would not cut that Gordian knot.

Why then did the U.S. not veto the resolution as it did in 2011 that focused on settlements as the main impediment to a two-State solution? The reasons offered were that this Resolution was more balanced pointing to the threat of violence as well. Only, as I indicated before, the agents of violence were not identified in the Resolution but were in Samantha’s address. “The most recent wave of Palestinian violence has seen terrorists commit hundreds of attacks – including driving cars into crowds of innocent civilians and stabbing mothers in front of their children. Yet rather than condemn these attacks, Hamas, other radical factions, and even certain members of Fatah have held up the terrorists as heroes, and used social media to incite others to follow in their murderous footsteps. And while President Abbas and his party’s leaders have made clear their opposition to violence, terrorism, and extremism, they have too often failed to condemn specific attacks or condemn the praised heaped upon the perpetrators.”

It is clear that the general clause about violence was introduced so that the Americans would not veto the Resolution, even though everyone understood the thrust of the Resolution to be the same as the 2011 effort. Samantha never explained why the wording about violence in the Resolution was considered sufficient to restrain from exercising a veto, especially in light of her remarks that identified the main, though not exclusive, source of the violence.

Power reiterated, and Kerry would later stress, that Israel could not remain both a democracy and a Jewish state if it continued on its present course. But this is a distortion. If Israel were to incorporate Area C into Israel as well as the Old City, and if the new state of Palestine were to allow the 80-90,000 resident to stay as citizens of Palestine, while possibly also allowing them dual citizenship, Israel could remain both democratic and a Jewish state. It is only if the extremists in the Israeli cabinet push through their one state option that being a Jewish state and being a democratic state become, at one and the same time, though not impossible, very improbable.

Power offered one final argument for not vetoing the Resolution. The U.S. was absolutely committed to Israel’s security. However, “continued settlement building seriously undermines Israel’s security.” Power and the State Department were not claiming the buildings themselves threatened Israel’s security, or even the increased population in the settlements actually did. It was sufficient that these initiatives on the ground provided an excuse or rationale at the very least for undermining the peace process and the vision of a two-State solution. And perception in politics is almost everything.

On 28 December 2016 at the Dean Acheson Auditorium in Washington, John Kerry offered his own remarks, not just on Resolution 2334, but on Middle East Peace as the title indicated– note, not Israeli-Palestinian peace. Yet his opening statement stated, “Today, I want to share candid thoughts about an issue which for decades has animated the foreign policy dialogue here and around the world – the Israeli-Palestinian conflict.” Was this a Freudian slip? Was John Kerry of the opinion that the key to peace in the Middle East – after what has happened in Iraq, in Syria and Turkey – is the resolution of the Israeli-Palestinian conflict?

After this, Kerry offered some truisms, the first identical to one offered by Samantha – Obama has been deeply committed to Israel and its security – a proposition right wing supporters of Israel not only question but insist is false. He then cited a premise rather than a truism, a premise based on futurology rather than a record of fact and history. It happens to be one I share: “the two-state solution is the only way to achieve a just and lasting peace between Israelis and Palestinians.” That is because I believe that a single state with equal rights and opportunities for both Jews and non-Jewish Palestinians is a complete delusion, though if I am incorrect, it would ensure just and lasting peace. No other one state solution would be either just or lasting.

But as I have written earlier, there are many two-State solutions, not just one. To which was he referring? He never explained at this point, but went on to put forth his conviction that such an outcome of an Israel as a Jewish and democratic state living in peace and security beside a Palestinian state that offered its citizens freedom and dignity was “now [my italics] in jeopardy.” Not earlier! Not next year! But now. If this did not take place, it would be bad for Israelis, bad for Palestinians and bad for U.S. interests in the region. “Both sides must act now to preserve the possibility of peace,” Kerry intoned. That set out one objective of the speech – explaining why that possibility of peace was now in jeopardy.
The second and related objective was to explain why the U.S. had abstained from voting on the Resolution. For it had become clear that Samantha’s remarks had not done the job. None of the reasons offered by Samantha either explained why the U.S. did not support the Resolution, for the reasons for not doing so seemed mundane. And if they were given any significant importance, then the U.S. should have vetoed the Resolution. Further, the question of “Why now?” needed to be answered. With Samantha’s emphasis on continuity in policy over five decades, the puzzlement over why America did not veto the Resolution grew rather than diminished. Further, the reasons for abstaining – mainly the UN’s double standards – seemed to indicate that this was precisely a time when the U.S. should not permit any anti-Israel UN resolution to pass since, as she had herself documented, that double standard seemed to have gotten much worse in 2016.

Kerry now openly declared that the U.S. abstained so that the resolution could pass. The U.S. not only favoured the Resolution but viewed it as a crucial step to getting both parties back on the road to resolving their differences. That could only be done, he indicated, if he filled in the details of how those differences could be resolved. And he was propelled to do that because vital American interests and values were at stake. Further, those values now made it imperative that the U.S. stand aside and allow the Resolution to pass. He could not allow a “dangerous dynamic to take hold.” Now? Suddenly? Had not the trends in settlement policies by the Israelis been even worse in the past?

It may be the case that “friends need to tell each other hard truths,” so the question rose as one listened to his speech whether it would deal with those hard truths. Would John Kerry admit that the settlement policies had gone too far and for too long to reverse and dissolve most of the settlements, that attempting to do so would destroy Israel, that reversing the settlements would instigate a civil war in Israel that would of necessity impact on the Palestinians, that a two-State solution was available that would not involve dissolving the vast majority of the settlements, that such a solution was available if only Israel would surrender its claims on the Old City and that the vast majority of Jewish Israelis were united on not surrendering such a claim, and that the Palestinians would not agree to accept the continuity of the vast majority of the settlements, with different clusters of settlements having different solutions, unless the Old City fell under Palestinian sovereignty?

Well certainly not before Kerry created a number of defensive barriers against criticisms. It was certainly true, contrary to the delusions of the Israeli and American right, that Obama has extended himself enormously on behalf of Israel’s military security through intelligence cooperation, through joint military exercises, through American assistance to the Iron Dome defensive system, through a consistent opposition to the BDS campaign, and through a memorandum of understanding that offered Israel $38 billion in military assistance over the next ten years, a commitment that counted for 50% of America’s Foreign Military Financing. Nor should there be any doubt about John Kerry’s sincere commitment both to the security of Israel and the dignity of Palestinians.

Kerry then repeated:” the two-state solution is now in serious jeopardy.” And as we know from Torah studies and the study of Shakespeare, repetition signals a profound message. He cited violence, terrorism, incitement on the one hand, without connecting it with a specific agent or agency, and, on the other hand, settlement expansion and seemingly endless occupation where the agency was unequivocally clear as responsible for the clear and present danger. There was no mention that violence was now under greater control than perhaps at any time in Israel’s history and that the puffball of the so-called Third Intifada of stabbings and rammings was but a symptom. There was also no mention that the multiplication of numbers and locations of settlements had been on a severe decline as the thickening of settlements had accelerated. It was not very clear why current levels of violence and current levels of settlement building were now posing such an extraordinary danger to peace when both had much more clearly done so in the past.

Trends on the ground are combining “to destroy hoped for peace”? That is a self-evident truth? The problem really is that Israel has grown more physically secure as it has consolidated its occupation, but grown much more politically insecure as Israel has been losing the international diplomatic war to the Palestinians. Has Obama’s unqualified support for Israel’s military security contributed to that situation? Kerry not only never answered that question, he never asked it.

And this was his riposte to the idealist dream of a single unitary state with equal rights for Jews and Palestinians. “If the choice is one state, Israel can either be Jewish or democratic – it cannot be both.” Oh, but he was not speaking of a unitary state with equal rights for Jews and Palestinians. He was speaking of a Jewish state that established permanent rule over Palestinians and relegated them to an inferior status. That is a theoretical possibility, but believing that it is an imminent threat ignores the trends of facts on the ground.

Palestinians have come far too far in the process of self-government to put up with any such political rule over them. Nor would the world allow it. If the extremists in Netanyahu’s cabinet win, highly unlikely, then Israel would lose. The prospect of a Jewish state between the Jordan and the Mediterranean is almost as delusionary as the prospect of a unitary democratic state. Neither is a realistic option. One is an idealist impossible dream and the other is a fascist nightmare with only a slightly greater chance of coming into being. Kerry poses a false dichotomy as well one with each of the poles highly unlikely while leaving out the more realistic various options of two-State solutions.

Bad arguments often start with false dichotomies. Kerry’s argument falls into that category. Nor does Kerry have a very good grasp of history. He made his first trip to Israel in 1986. When he claims that, “After decades of conflict, many no longer see the other side as people, only as threats and enemies,” as if this perception of the other emerged and consolidated itself only recently. The reality s that both Jewish Israelis and Palestinians deserve more respect. Both sides have viewed the other as enemies, but to different degrees by different factions. Both sides have recognized that the other are people, but with many interests and objectives at odds with their own, even as both groups demonstrated a number of shared interests and values.

Has the situation become worse? In many ways it has. Hamas is in power in Gaza and Hamas denies Israel’s right to exist. If a fair election were held in the West Bank today, polls indicate that Hamas would emerge the victor. On the Israeli side, it has the most extreme cabinet in the history of Israel, one with a strong faction totally opposed to the creation of a Palestinian state living alongside Israel. On the other hand, even in Gaza, the Palestinians have developed many of the instruments and institutions of self-government. Israel and Palestine are the closest trading partners with the other. There are efforts at cooperation and joint projects in many areas. However, the trend lines are worrisome.

But are settlements the reason for those trend lines? The Israeli cabinet has grown more extreme, I venture to say, in part in answer to those who focus most of their attention on the alleged threat the settlements pose to a viable peace agreement. I personally concur that an agreement might have been much easier if most of the settlements in Area C and the settlements on the other side of the Protection Barrier had not been built. But that fact might also have removed any pressure from the Palestinians to make peace. Historical counterfactuals are so difficult to calculate.

On the other hand, historical realities are not. Never before have you had a government in power in parts of Palestine and with the imminent possibility of acquiring power over all of Palestine that is dedicated to the eradication of Israel. When Fatah held that view, it lacked any power. Only in dealing with the realities of power and the need for compromise has Fatah accommodated itself to the reality of Israel. But not without a cost – a cost in support that cannot simply be traced to its unaccountable and poor governance.

With the help of Alex Zisman

Resolution 2334 and a Two-State Solution: Part C: Analyzing the Resolution Itself and Its Effects on Negotiations

Resolution 2334 and a Two-State Solution:
Part C: Analyzing the Resolution Itself and Its Effects on Negotiations

by

Howard Adelman

Following the war in 1948, the borders recommended by UNSCOP, the United Nations Special Committee on Palestine, shifted. Beginning with the United States, many countries recognized the new state of Israel. This was before the war broke out. After the war, these states, and the numbers increased, which recognized Israel, did not differentiate between the borders approved by the UN and the territory between those borders and the new armistice line. The latter was not referred to as “occupied territory” within the enlarged borders of the armistice agreement. It is more than noteworthy that the Fourth Geneva Convention (Geneva Convention relative to the Protection of Civilian Persons in Time of War) which defined the rights of a victor over territory and the treatment of local inhabitants, as well as the right to move or give permission to move its own population into those territories captured in that war, was not adopted until August 1949.

The inclusion of Jerusalem and the West Bank within Jordan was not generally recognized. Nevertheless, Jordan’s control and administration of Jerusalem and the West Bank and its subsequent annexation into Jordan became the de facto reality until 1967. In that year, UNSC Res. 242 set up a new framework for recognition. Israel was required to withdraw from occupied territories, and explicitly not the occupied territories. The drafters of that resolution explicitly did not recognize the 1948 armistice lines as borders. The big change was that Israel was now the occupying power of the West Bank, the Old City, East Jerusalem and Gaza. According to the generally established, but not universally accepted, interpretations of the Fourth Geneva Convention, a power that exercises military occupation of a territory following a war – and it does not matter whether that territory was the sovereign territory of another state or territory occupied by another power or legal state or whether the territory was captured in a defensive or an aggressive war – that power was not allowed to alter the demography of that territory by moving its population into that territory or even allowing its citizens to move in to occupy parts of that territory.

The left in Israel took advantage of the clauses that allowed changes “for military purposes.” The right in Israel claimed, that under the Balfour Declaration and its international endorsement, that territory was to be a homeland where Jewish people could settle. Others claimed that the Fourth Geneva Convention trumped those allowances of the 1920s. But the point became moot because international treaties between the parties in contention would trump both the Geneva Convention and the exercise of de facto coercive power and administrative control on the ground.
Which brings us to Resolution 2334. Resolution 2334 alters previous arrangements and does so in fundamental ways. It reaffirms, as I have previously explained, a general principle, but one only applied to Israel after 1967, the inadmissibility of the acquisition of territory by military force. It reaffirms the Fourth Geneva Convention about the transfer of populations and defines the creation of the barrier/wall/fence as a breach of that Convention and not justified by military or security needs, at least where it is located on territory administered by Israel. Israel’s actions were once again determined to be in contravention of the Fourth Geneva Convention. Resolution 2334 explicitly condemns altering the demographic makeup of the territory, more significantly, biases any negotiations by calling the occupied territory Palestinian territory and not simply the West Bank, and specifically includes East Jerusalem which encompasses the Old City in its nomenclature.

Resolution 2334 adds to these old assertions, now somewhat modified in language, a “grave concern” that the continuous construction of settlements threatens the two-State solution. The Resolution explicitly adds, “based on the 1967 lines,” and leaves out any reference to land swaps. In this Resolution, the 1967 lines now acquire a status as a border reference. The Resolution goes even further to point to the settlements as THE obstacle, that is the major, though not exclusive, barrier to concluding a peace agreement between Israel and the Palestinians. And it is, if you accept the Old City, East Jerusalem and all of the West Bank as Palestinian territory. And that is what the UN Security Council did in passing that Resolution. It effectively trumped Resolution 242 which had only required withdrawal from some territory and not all territory. Resolution 2334 effectively trumped OSLO by setting the 1967 armistice borders as the reference point rather than any swap of territories already agreed to between the Palestinian Authority and Israel.

In effect, the weight of international recognition of what was Palestinian territory was added to the weight of the dominant interpretation of international law to offset the weight of coercive power and administrative Israeli authority over parts of that territory. In the near term, the Resolution seems to have had a stimulant effect, spurring the formalization of settlements and outposts underway or in the planning stage, as occurred at the beginning of the twenty-first century when another UN Security Council Resolution was passed. UNSC Resolution 1515 adopted unanimously on 19 November 2003, endorsed the Road Map proposed by the Quartet envisaging an exchange of territories to satisfy Israeli security concerns and the creation of a Palestinian state alongside Israel. The threat of terrorism featured prominently. In that phase, the establishment of new settlements, at least legally, by and large effectively ceased.

The focus of Israel became “natural” expansion. This is precisely and explicitly what Resolution 2334 mentioned. Did Resolution 1515 passed in 2003 indirectly accept the settlements built before 31 March 2001? Was their legality reinforced in distinguishing between settlements after 2002 from those authorized before 2001? Resolution 2334 seemed to state that this was not the case. The only changes to the 1967 lines that will be recognized are those made between the two parties. Does that mean that Resolution 2334 recognizes the lines between areas A, B and C? Quite the reverse. By not mentioning them, they are given no international imprimatur. Does that mean Resolution 2334 recognizes the tentative agreement on the territorial swap? Quite the reverse. By not mentioning that swap agreement, it is given no international imprimatur. These may be incorporated into a final negotiated agreement, but the diplomatic trading hand of the Palestinians has been greatly strengthened.

In the last eight years under the Obama administration, the number of Israeli settlers in the West Bank, excluding Jerusalem neighbourhoods, has grown to about 400,000, a gain of more than 100,000 largely through the “thickening” of existing settlements. The number of “settlers” in East Jerusalem has grown to roughly 208,000, only 15,000 more than when Obama took office. The emphasis in policy of Israel has been on strengthening the West Bank settlements. Almost 13,000 new settlement units were initiated or completed in the West Bank. What Israel has lost in diplomatic leverage in the international arena it has tried to offset by facts on the ground and de facto coercive and administrative control.

Unlike the efforts at the beginning of the twenty-first century, the 2016 Resolution called on reversing the situation. Further, contrary to the contention of that Resolution, there is little evidence suggesting that efforts to grow and expand existing settlements entrench a one-State reality as claimed in Resolution 2334. But the clinkers come in the clauses much more than in the preamble. Those clauses reiterate that the settlements established anywhere in the occupied territories after 1967 are illegal., a flagrant violation of international law and impediment to a two-State solution and a just and lasting solution to the conflict. Resolution 2334 demands cessation of all settlement activities.

And what is a settlement activity. Expanding buildings? Repairing buildings, Working? Eating? Driving? Or is it just the collective initiatives such as providing for infrastructure and administration? The real substantive elements are the repeated references to the 1967 borders as the fundamental reference, the repeated reference to East Jerusalem, including the Old City, as falling within that reference point as not only occupied territory but occupied Palestinian territory, the call for reversal of trends that have significantly fallen off since the beginning of the twenty-first century, and the call for other states to differentiate, not only in trade, but in all dealings between what happens in the occupied territories and what happens within the 1967 lines recognized as sovereign Israel. The supplementary clauses denouncing violence on all sides appear pro tem, especially because the resolution explicitly excludes reference to activities which reinforce or encourage terrorism (such as treating terrorists as heroes and martyrs) while the targeting of demolitions is spelled out and focused solely on Israel.

In August of 2016, following a denunciation of settlement thickening expansion plans by 200 American rabbis, the U.S. sent Israel an unequivocal message that if demolitions proceeded in the Palestinian village of Sussia, a red line would be crossed. This echoed protests made by EU foreign ministers on 20 July 2016 following warnings General Mordechai delivered to the Bedouins. 340 of them live in the village. The fact that these disputes, so badly handled by Israel, may have virtually nothing to do with Israeli settlement activities and everything to do with Bedouin resistance to Israeli urban development strictures, whether in Israel proper or the West bank, seem to have had no influence on the wording of the resolution.
Quamar Mishirqi-Assad, a lawyer dealing with this issue on behalf of the villagers, claimed that Israel simply wanted to move the village to or near Area B and out of Area C, an area in which 400,000 Israeli live and only 100,0000 Palestinians do. The fact that the villagers were forced to move in 1986 and the homes they built on their agricultural land were demolished in 2001, rebuilt and demolished again in 2011, was not considered as part of the analysis. This demolition would be the third time since the village was built thirty years ago. Nor did the fact that the Israeli Supreme Court ruled in favour of the government in 2015 seem to count. Nor, finally, did it seem to matter that this was a new village built during occupation.

All of this must be understood also within the context of diplomacy conducted over the last six years. The Americans refused to declare the settlements illegal in 2011 when the Palestinians attempted to declare their status as a state at the United Nations in the Palestine 191 initiative. How did Israel respond? It doubled down and announced the building of additional settlement units in response to the Palestinian diplomatic initiative. The Europeans resisted. Germany moved to stop delivery of submarines capable of carrying nuclear weapons to Israel. The following year, if some European states previously abstained, they then supported Palestinian statehood. If they previously opposed, they abstained in 2012 voting. The diplomatic war was running against Israel and criticisms mounted against home demolitions, expropriation of land and the refusal to grant construction permits to Palestinians.
These countries and their diplomats contended that Israeli actions and initiatives in the West Bank were completely contradictory to the stated and agreed aim of arriving at a two-State solution. But as I tried to demonstrate in my previous analysis, that depends on what you define as the two-State solution since there are many variations. If the plan is simply to incorporate Area C along with the accepted Jerusalem neighbourhoods into Israel, and to transfer equivalent Israeli land to the new Palestinian state, such thickening activities do not undermine a two-State solution. But if the reference point is the 1967 armistice lines, then such activities do conflict with a very different two-State solution. More importantly, by making the 1967 lines the reference point and by defining the occupied territory as Palestinian territory, the diplomatic hand of the Palestinians is significantly strengthened.

The situation, to say the least, has not been helped by the way Bibi Netanyahu conducts diplomacy in terms of domestic politics. He has bragged that his government is more committed to settlements than any Israeli government in history, in spite of the evidence to the contrary when comparing the expansion of the number of settlements under Arik Sharon’s government compared to Bibi’s. Further, Naftali Bennett and others in Bibi’s cabinet openly declare the two-State solution in any form dead. Donald Trump has appointed an ambassador to Israel, David Friedman, who dubs the two-State solution in any form an illusion. All of these responses of the Israeli government stimulate an equal and powerful reaction from Western governments sympathetic to some kind of a Palestinian state being created side-by-side Israel.
As more Israeli politicians not only believe in but advocate implementing a one state solution unilaterally, increasing numbers of Palestinians have moved to advocate a bi-national state between the Jordan River and the Mediterranean attracting idealist support and that of many European nations. But those efforts are NOT identified as a threat to the two-State solution because they ostensibly emanate from idealist principles rather than what is perceived to be a crass power grab.
In one interpretation of Resolution 2334, the world is trying to save Israel from its worst propensities, propensities likely to be reinforced by the new Trump government. In a very different interpretation of the very same international diplomatic initiatives, a sustained effort has been mounted to strengthen the Palestinian hand in negotiations and to keep the threat of terrorism at bay. As Israeli settlers marched from Ma’aleh Adumim to the Jerusalem neighbourhoods built on territory captured in the Six Day War (February 2014), when in 2016 Bennett openly advocated formally annexing those territories, the counter-movement strengthened.

Those who argue that settling people to mark territory is illegal under the dominant interpretation of international law, and, further, that such efforts are unsustainable, in turn, strengthen the hands of Israeli extremists demanding total annexation. The extremes are enhanced and the most reasonable compromises are undermined from both sides. This is especially true when the idealists and opponents charge Israel with creating an apartheid state – which is not outside the realm of possibilities. Certainly, hatred of Jews has been increasing among Palestinians. Suspicion and fear of Arabs, reinforced by extremist Islamic actors in the Muslim world, has increased among Israelis.

In response to my last blog, one reader wrote and asked, “To whom does the land belong?” I quipped back as if I were writing a Donald Trump tweet, “To God. We are merely the custodians.” The reader wrote back, “Well, that may be theological, but I’d like a more practical answer.” I offered a more serious response as follows:
“You are right to do so [object to my terse response]. In part, but only in part, this was written tongue in cheek. The reality is that the borders of a territory and the country that controls that territory are products of coercive power, administrative legal authority, legal treaties between and among nations and recognition by others. Is Taiwan part of China? Is Tibet part of China? According to the first two criteria above, the answer in both cases is yes. Over the last seventy years, the answer to the 3rd and 4th criteria has also increasingly been “yes,” even though there is often a distinction made between de facto and de jure recognition.”

Are the settlements illegal and does that mean they should all be condemned and torn down? Illegal means unlawful, but does not entail that what took place is a criminal act. Civil disobedience is illegal in many countries. Trespassing is illegal but not a criminal offence. Further, some practices are illegal, but the laws against them are not enforced. Some acts are considered illegal but the requisite authority lacks any enforcement mechanism. Most international legal experts in humanitarian law deem it illegal to transfer a conqueror’s population into the territory under occupation. Many Israeli experts in humanitarian law argue that if the territory is taken in a defensive war AND if the territory was never the possession of a sovereign state, settling the population of the new occupier in the conquered territory is not illegal and many even regard the territory as not occupied.

Since the International Court in The Hague has sided with the first set of interpreters, and those interpreters are in the majority, I simply take it as a descriptive fact that, currently, international law deems the settlements in the West Bank to be illegal. However, I myself believe that law is not the only determinant and often not the main factor in international affairs. The removal of such a large number of people would be immoral and politically catastrophic and those ethical and political considerations far outweigh the considered legal opinions of most international humanitarian legal scholars and even the interpretations of The Hague court.

Further who gives the recognition is critical. If it is a major power, that is one thing. If it is Honduras, that is quite another. Sometimes occupied territory is recognized as part of a state passively – namely by muting criticism of that occupation. This happened with the territory Israel won in the 1948 war. It has not happened with the territory won in the 1967 war. In fact, the vocal and legal opposition to the ownership by Israel of the “occupied territories” has grown. At the same time, the control via power and demography of some of that territory has increased. The next two decades will set the direction of the resolution of the recognition of new borders based on an admixture of these factors, but the determination will not be unilateral determined by Israel’s coercive power or formal administrative authority alone.

Those other factors will be significantly affected by influence, the growing role of Israel in wealth and in the world economy and the other kind of influence that is non-material, the respect Israeli politicians and friends earn for Israel on the international stage. The latter is usually called diplomacy.

It is in this context that I want to move on and examine the American approach to Resolution 2334 compared to the Israeli one.

With the help of Alex Zisman

The Fourth Geneva Convention and the Wall

The Occupation, Acquisition and Annexation: The Fourth Geneva Convention and the 9 July 2004 Advisory Opinion of the International Court of Justice

by

Howard Adelman

Before I deal with why the 2004 advisory opinion of the International Court of Justice has been included in the preamble of a resolution focused on the illegality of building settlements, I want to clarify the difference between the “acquisition” of territory versus mere occupation, on the one hand, or the much more radical step of annexation. The last blog dealt with the issue of acquisition of territory. I perhaps should have started by explaining at least the difference between occupation and acquisition and between acquisition and annexation.

The issue of acquisition of territory under international law goes back to the competition among Western colonial powers dating back to the fifteenth century and the competition for colonial territories in disputes between Spain and Portugal and then between those two powers, backed by the interpretations of international law by the Pope, and the refusal of the other powers, most specifically the Netherlands, Britain and France, to comply with those international rulings. In a future blog I will discuss when an international authority in determining international law – currently a political entity like the UN or a legal entity like the International Court – loses respect for its jurisdictional authority.

There were two relevant mechanisms for acquiring new territories – so-called “discovery” of the territory and, second, conquest. Discovery has long been irrelevant, whether or not it was ever really just, but conquest has remained an issue. As I tried to point out in my first blog in this series, international law has attempted to prohibit the acquisition of territory by force of arms, particularly since the end of WWII, but this effort is most notable for the frequency of the breaches rather than the universality of its application either in time or space.

Given the hypocrisy with respect to acquisition, there exists a tension between occupation, the temporary control and jurisdiction over a territory, and annexation of such territory that ends an occupation, not by ceding the territory back to another power, but by making that territory an extension of the territory already under the governance of a power. Annexation by means of prescription, cession and accretion are not relevant here and, in any case, are now considered obsolete. The two modes of asserting sovereignty have been by occupation and by conquest. A main thrust of international law over the last century, but particularly since WWII, has been to deny the right of powers to acquire permanent jurisdiction over a territory and extend sovereignty by either conquest, occupation, or both.

Currently, international law overwhelmingly protects the rights of an existing population in a territory to determine the sovereignty over that territory. It also deems illegal the transfer of populations into that territory under the auspices of military conquest in order to change the demographic makeup such that the resident population and demographic shifts effect sovereignty claims. Yet, as I tried to show, in Crimea, Tibet, Kuwait, East Timor, Cyprus, the Western Sahara, Eritrea-Ethiopia, Kosovo (I dealt with this case in a number of articles and a book), as well as other areas that I did not discuss, sovereignty was determined in fact by power politics – sometimes one way and sometimes the other, but virtually never by international law. Thus, there is a real tension between international law and military force. In that tension, international law has won a number of rhetorical victories, but in virtually no case has it determined outcomes. Further, because of this failure, many would contend that international law has been placed in disrepute and the “law” that might is right has been reinforced.

The issue may be when an occupied territory or parts thereof can legally be transferred to the sovereignty of an occupying power. Note that a country can be in occupation of a territory even if the reasons for that occupation are totally legitimate under the laws of war. The ethics of conduct applicable to an occupying power under the rules of jus ad bellum are relevant solely on the ground of whether humanitarian international law is applicable. A “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

It does not matter whether the occupying power has or does not have legal rights or claims on the territory in question. If the political and/or military power did not have administrative control of the territory before the belligerency and does so after, it is an occupying power and in occupation of the territory in question. Further, the reasons for calling it an occupying power relate to humanitarian considerations with respect to the treatment of the local population and not with regard either to the justice of such occupation or the legal rights to ownership of the territory in question. As we shall see, the two issues, while distinguishable, are related.

This, the politicians on the right in Israel may and do refer to the territory of the West Bank as Judea and Samaria to press forward a legal claim to the West Bank territory, but that is of no relevance for determining whether the West Bank is occupied territory or whether Israel is an occupying power. Simply put, Israel is an occupying power; the West Bank, including East Jerusalem and the Old City, are occupied territories under international law. That situation of occupation continues until there is recognition of the party having legal jurisdiction AND that legal party also exercises de facto control over that territory. It is the latter point that gives rise to claims, whether valid or not, that Gaza remains occupied territory even though governance is now under the jurisdiction of Hamas. As long as a territory is under the control of foreign troops without the consent of local authorities or the local population, the territory is considered under occupation.

Thus, occupation says absolutely nothing about sovereign rights. Further, occupation is regarded as temporary even when, as in the case of the West Bank, it has lasted for almost fifty years. The occupying power must respect local laws already in place with two exceptions: a) if the local law undercuts international humanitarian law, and b) local law threatens the security of the occupying power. It is the latter tension between the responsibilities to humanitarian law, on the one hand, and to the security of the occupying power that are critical.

It is understandable why a reader might find it strange that the Fourth Geneva Convention concerning humanitarian law and, in particular, the protection of persons in time of war, may seem odd in a document concerned with halting and even reversing Israeli settlements in the West Bank. For, bracketing the issue of settlements for the moment, under any reasonably objective standards, Israel is exemplary by and large in adhering to humanitarian norms with respect to protection of the civilian population. That civilian population is guaranteed protection as long as the majority of individuals there do not become nationals of the Occupying Power. This is a major reason why East Jerusalamites, by and large, never took up the offer of citizenship in Israel when Israel annexed that territory and extended the boundaries of Jerusalem.

In addition to its own security, an occupying power has a responsibility for ensuring public order and safety while, at the same time, respecting the rights of all civilians under its jurisdiction, including not deporting, ethnically or religiously cleansing that population (article 49 Fourth Geneva Convention – henceforth I will cite only the relevant article). The Convention prohibits forced labour, (art. 51) and insists that the occupying power, offer workers protection (art. 52), respects municipal laws and the administration thereof (art. 54), ensures health services (arts. 55-57), protects the local religions (art. 58), provides welfare as needed (arts. 60-63), and ensures the administration of criminal law (arts. 64-78).

However, there are articles which Israel has been charged with abusing, such as prohibitions against confiscation and the destruction of property (art. 53) owned privately, cooperatively or collectively. The problem has not been the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences. To the greatest extent, these have been respected. However, property seized for security purposes or taken over for the construction of settlements for Israeli Jews under the guise of security concerns have been viewed as breeches of international humanitarian law. The seizure of such property is allowed only if the property is absolutely required for security purposes and, even then, only during the conduct of hostilities.

There is this reservation. Confiscation of property is permitted when “absolutely necessary for military purposes” and imperative military requirements demand such confiscation. It is up to the military occupying power to make such a determination. However, international humanitarian law does NOT permit the occupying power to simply cite such military considerations. The latter must be demonstrated and cannot be used as a cover for clearly other purposes, such as the transfer of Israelis into the territory in question. That would be a bad faith application of the exemption provision. The criteria of reasonableness and proportionality apply.

A second area concerns the internment of locals because of security concerns (most of the remaining 159 articles), but comparatively speaking, Israel has treated individuals interned for security purposes well and has never exercised the use of capital punishment which is permitted under the Fourth Geneva Convention. Israel has never subjected the domestic population to forced labour for the occupying authority and certainly never subjected the civilian population to military conscription.
The most relevant of the articles of occupation that Israel has been found to breach is the prohibition against the transfer of the civilian population of the occupying power into the occupied territory. It does not matter whether that population is transferred there by the state or individuals and families move voluntarily on their own. It does not even matter whether that population moves to retake ownership of property once held, whether in the Old City or in parts of the West Bank. Under the Fourth Geneva Contention, the general principle is that such movements of peoples are not permitted. This is a key relevant element with respect to a Security Council motion against settlements and a reason for inclusion of this reference.

If the reference to the Fourth Geneva Convention helps clarify the areas of dispute and contention, why is there a reference to the 9 July 2004 advisory opinion of the International Court concerning the construction of a wall (though along most of its length it is a fence) in the Occupied Palestinian Territories? The answer is in the title. The territories are by the fact of the make-up of the existing population “Palestinian.” Hence, under the law, the Court deemed hat the construction of the wall (fence) was contrary to international law.

Israel denied the jurisdiction of the Court on this issue because the occupying power had not consented to its jurisdiction according to the rules of the Court. In so doing, the Israeli case for military necessity was never made and there is no reference in the considerations as to whether the construction of the wall/fence served a military purpose in protecting both the civilian populations of the territory under occupation and/or the territory under the sovereign authority of Israel. Rather, the advisory opinion has been written in the context of the efforts of twentieth century international law to reverse centuries of practice in which settlement activity and annexation were used to determine sovereignty and convert an occupied territory into a legal extension of existing territory under the sovereign authority of the occupying power.

Further, the Court claimed jurisdiction because the General Assembly, which requested the opinion by resolution ES 10/14 of 8 December 2003, was authorized to do so by Article 96, paragraph 1, of the Charter. The Court did not explain why the UN Charter provision trumped the rules of the court requiring consent by both contending parties, except to assert that its opinion was only advisory and not determinate. “The lack of consent by a State to its contentious jurisdiction has no bearing on its jurisdiction to give an advisory opinion.” The Court did attend to the prohibition against the General Assembly acting on its own and not fulfilling the requirement that the Security Council first authorize such a request by determining that the Security Council had failed to fulfill its responsibilities to maintain international peace and security in this case.

The Court ruled in an advisory capacity to the UN General Assembly, which had referred the question with respect to the issue of legality of the activity, that “the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.” With respect to continuing action, “Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.”

Third, with respect to remedial action, the Court ruled that “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.” Fourth, with respect to the obligations of other states, “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” Fifth, with respect to the continuing obligations of the UN and specifically the Security Council, “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
The nub of the issue was that the wall was perceived, not primarily as a security measure, though no consideration was given to the extent to which the wall-fence significantly reduced acts of sabotage and terror in Israel proper. Rather, the wall was perceived as a de facto instrument of annexation, especially since the wall included a number of Israeli settlements within an enlarged Israel.

The route of the wall as fixed by the Israeli Government includes within the Closed Area (between the wall and the Green Line) some 80 percent of the settlers living in the Occupied Palestinian Territory. Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a flagrant violation of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law. It further considers certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine; it considers that the construction of the wall and its associated régime create a fait accompli on the ground that could well become permanent, in which case . . . [the construction of the wall] would be tantamount to annexation. The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel, and deplored by the Security Council, with regard to Jerusalem and the settlements, and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory. It finds that the construction [of the wall], along with measures taken previously, . . severely impedes the exercise by the Palestinian people of its right to self determination, and is therefore a breach of Israel’s obligation to respect that right.

The inclusion of the reference to the Fourth Geneva Convention and the International Court’s advisory opinion on the wall/fence were not just rhetorical gestures to repeat past claims and determinations, but were directly relevant to the core diplomatic, political and legal debate on settlements and, in particular, whether an enlarged Jerusalem annexed by Israel and other territories with large settlement properties could be traded for land elsewhere without the full consent of the Palestinians.

With the help of Alex Zisman

Inadmissibility of the Acquisition of Territory by Force

The UN Resolution on Israeli Settlements
Part I: Inadmissibility of the Acquisition of Territory by Force

by

Howard Adelman

This series of blogs on the UN Security Council resolution condemning Israel for its continuing expansion of settlements in the West Bank, a resolution passed on Friday, offers an opportunity to investigate the Israeli-Palestinian conflict once again, but in the context of what has taken place over the last fifty years, within the current context in which we are witnessing the largest tectonic shift in the way politics has been conducted over the last century, and in the context of an even larger shift in the modes of communication we use to understand the world and converse about it in the first place. But I begin, not with these large themes, but with one specific motion passed 14-0 with one abstention, that of the United States, in response to the United Nations Security Council condemning Israel for its policy of expanding settlements in the West Bank. My effort is in the tradition of the oldest and almost obsolete mode of communication, a detailed analysis and a hermeneutic for comprehending what is happening and what is at stake within the emotional context of a lament.

For those who like their political analysis to be terse and to the point, that is easy enough. For the last forty years, I have been active, not on the front rows, but as a bit player on the world scene as the drama of the Israeli-Palestinian conflict unfolded even further than it had previously. I was a very active member of the Canadian Professors for Peace in the Middle East (CPPME) and, for one year following the death of Harry Crowe, served as its president. I was part of one of sixteen known Track II efforts of international diplomacy, that is, the use of academics to advance a peace process in a context where either side could participate, but never take responsibility or be accused of taking positions. The politics of deniability was at the heart of Track II diplomacy.

I was also a scholar who had studied refugees in general and the Palestinian refugee situation in detail, not only for scholarly purposes, but as an advisor to a Canadian diplomatic team as Canada gavelled the most important of the five sets of multilateral talks dealing specifically with the Palestinian refugee question. For that set of talks was also about deception as many of the matters that could not be sorted out in the bilateral talks, matters that had nothing to do with the refugee issue per se, were resolved in the refugee talks through the expertise and good offices of Canadian diplomats – issues such as: who spoke for the parties, who could represent them, how they were to be recognized.

During that time, I could be clearly labeled politically. I was an extreme dove, supporting the two-state solution and believing that Israel would have to give back most of the territory captured in the 1967 war, including East Jerusalem. while never expecting Israel to agree to the last part of that position. I was especially surprised when two different Israeli Prime Ministers, one from the right of centre and one from the left of centre, both Ehud Olmert and Ehud Barak, made unprecedented offers of peace that I had never expected, offers that included the provision of turning over East Jerusalem to the Palestinian state. Ehud Olmert in 2007 would go on to insist that unless Israel strongly pursued a two-state solution, the nation risked being compared to South Africa as an apartheid state by the world community. Not risked becoming an apartheid state, as many mistakenly interpreted his statement, but being identified as one.

During the last eight years, I have watched President Barack Obama spend a considerable amount of international and domestic political capital in what his administration perceived as a last chance at forging a two-state solution, only to conclude at the end of the process that the prospect was very dim. Further, publicly he placed almost the total blame for that failure on Prime Minister Benjamin Netanyahu of Israel. Finally, he indicated that in the light of those events, the U.S. would have to re-assess “aspects” of its relationship with Israel. One of those aspects became very clear as the U.S. did not veto but abstained on Resolution 2334 passed 14-0 in the Security Council on Friday just as the United States was on the verge of Donald Trump taking power, the Donald who clearly has a very opposed view on the Israeli-Palestinian conflict and a radically different approach than the one that had been used over the last forty years of my involvement in dealing with international conflicts.

The passing of that resolution on Friday was not an expression even of a last hurrah, but a de facto confession of moral impotence and hypocrisy that has been a deep part of the failure in dealing with the Israeli-Palestinian conflict. It is important to understand why this is so, why the movers of the motion felt so impassioned about it, why the passing of the resolution received such sustained applause and why the Obama administration and why Benjamin Netanyahu had such opposite responses when the motion was passed. The motion was really a pronouncement that the two-state solution was dead. The motion was a claim for rhetorical victory by the losing side, much as the United States in 1972 had claimed victory in extracting itself from the Vietnam War only to watch North Vietnam take over the south three years later. While many applauded and others raged at the passage of the UNSC resolution, I cried. Literally!

This series of blogs is intended to explain my position in great detail. I begin with the dissection of the resolution itself – in this blog dealing with the principle of the inadmissibility of the acquisition of territory by force. In subsequent blogs, I will deal with other issues in international politics, law and ethics – the principles of protection of civilians in times of war, the role of International Courts of Justice in dealing with highly complex international political issues, the demographic character of East Jerusalem and the West Bank, the danger of continuing Israeli settlements imperiling the two-state solution based on the 1967 lines (my italics), the role of past UN resolutions demanding a freeze on settlement activity, including freezing any opportunities for natural growth, the dismantlement of illegal outposts of the settler movement, and the compatibility of all these moves with the vision of the region in which two democratic states, Israel and Palestine, live side by side in peace within secure and recognized borders.

All of these elements of the resolution have to be analyzed within an historical pattern of perception in which all trends on the ground are simply perceived in negative terms because they are looked at strictly from the position of a defense of preserving one version of the two-state solution and the increasingly forlorn hope of the resurrection of a position I have defended and worked on for forty years, but for which there is no longer any realistic prospect. Further, all this is happening in a context in which the conduct of international politics and the even larger context of international political communication are both undergoing a seismic shift.

I have included the full UN Security Council resolution at the end of this blog, though it is preferable if it is read, and repeatedly read, before each step in the analysis. I also must explain that my blogs may be more irregular as much of my time increasingly goes to my new position as a nurse’s aid. Eventually, I will cover all the key problems with the resolution, the reasons for the American abstention and neither supporting nor vetoing the resolution, Donald Trump’s role in its passage, the response of the Israeli government as well as the leading opposition parties in Israel, the analysis of those who pushed the resolution and their rationale, the role of Egypt, the larger context of international diplomacy and communications, and the long term consequences of the resolution on all the relevant parties.

The Inadmissibility of the Acquisition of Territory by Force

On 23 December 2016, the UN Security Council passed UN Resolution 2334 included at the end of this blog. I have added the bolding. The relevant clause discussed in this blog is the first principle cited in the preamble and it reads as follows:

Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force.

Is it inadmissible to acquire territories by force?

The principle of the inadmissibility of the acquisition of territories by force is embodied in UNSC Resolution 242 passed on 22 November 1967 in the aftermath of the Six Day War. Chapter VI of the UN Charter calls on member states to settle their disputes by peaceful methods (inquiries, negotiations, mediation, conciliation, arbitration, judicial settlement, etc.) rather than war. In cases of failure to reach agreement, the issue must be referred to the Security Council. Chapter VI allows any state or consortium of states to bring a resolution before the UN Security Council. Note that Chapter VI only allows the UN to pass resolutions that are recommendations; resolutions that are passed, do not bind the member states engaged in a dispute. This is unlike resolutions passed under Chapter VII which are deemed obligatory. Resolutions under Chapter VI are commendatory, particularly since the UN has no enforcement mechanism.

If territories are acquired in a defensive war, not through intentional conquest, why is it inadmissible to hold onto such territories, particularly if the territory is largely being held both for defensive reasons and as bargaining chips in a future peace negotiation? The inadmissibility is directly tied to efforts to settle populations on that territory as distinct from acquiring those territories? What is the definition of acquisition of a territory by a state?

Further, since the Six Day War, Israel concluded two peace agreements, one with Egypt in which Israel gave back all territory captured as part of a full peace agreement. The other was with Jordan, a country which had walked away from any responsibility for the territory it had captured and annexed in the 1948 war. Article 2, paragraph 5 of the UN Charter requires states to refrain from using force “against the territorial integrity or political independence of any state.” Such a clause is only possibly applicable to the Golan Heights which Israel captured from Syria in 1967 and subsequently annexed. However, the bone of contention driving Res. 2334 is the West Bank, including East Jerusalem, captured in the 1967 war and claimed, not by an existing state, but by an aspiring Palestinian state.

It is notable that the supposed universal principle of the inadmissibility of the acquisition of territory by force only refers to Resolution 242 applicable to only one area of the many occupied by one state and taken from another, and then only after Israel acquired further territory following the Six Day War in 1967; it is not applicable to the additional territory Israel captured and annexed in the 1948 war.

Look at many of the other areas of the world to which the principle has not been applied. In 1975, Morocco occupied just over 100,000 square miles of desert flatlands in the Western Sahara (formerly the Spanish Sahara) that was also claimed by Mauritania when Spain gave up administrative control of the territory. The Polisario Front also fought to make the territory an independent self-governing state (the Sahrawi Arab Democratic Republic), even though the population totalled only about half a million. In the war that ensued, the Polisario Front was left with at most a third of the territory, while Morocco controlled the rest, including the whole Atlantic Ocean coast line, all in defiance of a 1975 decision by the International Court of Justice that upheld the right to self-determination of the people of the Western Sahara.

In contrast, the U.S. politically recognized Morocco’s right to the territory even when, subsequently, Morocco and the Polisario National Front agreed that a referendum would be held in which the people of the Western Sahara could determine their fate. That referendum has never been held, though periodically there have been diplomatic efforts to resolve the impasse. Under Trump, it is highly unlikely that the U.S. will bring pressure on Morocco and King Mohammed VI to sort out the problem of voter eligibility and the mode of conducting the referendum, especially given the access Morocco provides U.S. military forces to Atlantic ports and aircraft refueling. Thus, though the U.S. launched a war against Iraq in 1991 that could theoretically have been on the principle of the inadmissibility of conquering the territory of another state when Iraq invaded Kuwait, the U.S. used the Moroccan conquered territory as part of its war effort. In current U.S. policy stretching back to those years, including both Bush and Clinton administrations, the U.S. does “not automatically reject a territorial transfer brought [about] by force.”

The question arises: why is the U.S. willing to exempt Morocco from acquiring territory by force, especially given three factors – Morocco, unlike Israel, is an autocratic monarchy not a democracy; Morocco engages in extensive human rights abuses; finally, like the Israeli-Palestinian conflict, the tension is a source of instability in both areas – the Maghreb and in the former territory of the Palestinian mandate. Yet the Obama administration never challenged Morocco. President Obama even lauded the monarchy for its efforts at “deepening democracy” and “promoting economic progress.” Trump’s foreign policy will undoubtedly stress even more favouritism towards allies rather than rights of self-determination and the inadmissibility of the conquest of territory by force.

However, the key question raised in Friday’s vote was the policy of the UN. The UNSC this year renewed its peacekeeping mission in the Western Sahara (MINURSO) that was also passed on a Friday (almost eight months earlier on 29 April). In spite of a much greater UN presence there as a peacemaker than in Israel-Palestine, and perhaps because of that and the risks a more activist diplomatic stance might make on the security of its peacekeepers, the UN has not placed any significant pressure on Morocco. It has not even passed any resolutions on Morocco to cease and desist from its policies of expulsion in the area. When Ban Ki-moon visited the territory this past year and even called it “occupied,” a diplomatic firestorm ensued.

The original Res. 379 of 2 November 1975 simply urged the contending parties to desist from unilateral actions and instructed the Secretary General to report back. The stronger 6 November 1975 Resolution 380 deplored a march held by Morocco in the territory, called on Morocco to withdraw its troops and asked the contending parties to cooperate with the UN. The very recent 29 April 2016 Morocco resolution continued the pattern of its predecessors, including Res. 2218 of the previous year, renewing the peacekeeping mandate for an additional year while endorsing the efforts of UN envoys to reconcile the position of the parties and congratulating both parties for their positive efforts to reach a compromise. Nothing was ever said about the inadmissibility of the acquisition of territory by force.

The full resolution 2218 on the Western Sahara conflict can be found at the end of this blog.

This was not the case when Indonesia invaded East Timor, also in 1975, and the UNSC passed resolution 384 on 22 December 1975. Though that very much stronger resolution required all states to respect the territorial integrity of East Timor and the inalienable right to self-determination, the resolution never invoked the principle of the inadmissibility of the acquisition of territory by force. What forced the Indonesian withdrawal was the weakened state of the Indonesian economy and the active intervention of the Australians, propelled in good part by their oil interests in the area.

Only in the case of Kuwait, an independent state and full member of the UN, did the UN Security Council pass a resolution (660), but it authorized member states to take military action to resist and overturn the conquest. The members passed that resolution, not under the principle of the inadmissibility for the acquisition of territory by force, but under a much harsher Chapter VII principle of maintaining peace and security in the region. The resolution endorsed military intervention.

When North Vietnam conquered South Vietnam in 1975, no resolution akin to the anti-Indonesian one was passed. In no other case that I can find has there been the invocation of the principle of the inadmissibility of the acquisition of territory by force of arms.

Though the UN and other states put pressure on China to accede to the independence of Mongolia in 1961, the Chinese military takeover of Tibet in 1950 and its repression of the Tibetan uprising in 1959 never involved any invocation of the principle of the inadmissibility of the conquest of territory by force. At best, the General Assembly of the UN periodically took up the question of Tibet, but even China’s strongest critics never invoked the principle of the inadmissibility of the conquest of territory by force. Perhaps some resolutions had been morally stronger – charging China with acts of genocide in the fifties and insisting that Tibet had previously been an independent state, but the principle of the inadmissibility of the conquest of territory was not invoked.

The principle is applied exclusively to Israel. Further, the resolution applies only to Israel following the 1967 war.

There are many other cases. Do we need to add the supine character of the UN when it came to the Russian takeover of Crimea, Moscow’s coercive interventions in eastern Ukraine, never mind Russia/s military invasion of Georgia in 2008 ostensibly on behalf of self-determination in South Ossetia and Abkhazia. A United Nations member was being dismembered by force, and the UN was impotent to act.

In the case of Ethiopia’s two-year war with Eritrea which began on 6 May of 1998, the two parties reached a peace agreement. That agreement provided for an arbitration commission to determine borders. That commission found in favour of Eritrea and against the claims of Ethiopia that most of the territory of the border region it occupied belonged to Ethiopia, specifically the hundreds of towns and villages along the border in which the Ethiopian army destroyed the buildings and infrastructure in the area occupied, particularly that of the border towns of Senafe and Tsorona- Zalembessa. The UNSC proved unable to enforce a ruling by an independent boundary commission awarding the bulk of disputed border territory to Eritrea.

Ethiopia ignored the findings and continued to occupy the border territory and integrate it into the territory of Ethiopia. This was another example of a seizure of territory by force never condemned by the UN Security Council as a breach of the principle of the inadmissibility of the acquisition of territory by force. Instead, based on a report of the UNSC Monitoring Group, the UN reprimanded Eritrea for violating the UN resolution by importing weapons and ammunition from eastern Sudan and claimed that it had evidence that Eritrea supported the Ogaden National Liberation Front, the Tigray People’s Democratic Movement and Ginbot Seven. Eritrea had also been condemned by a human rights commission for arbitrary arrests, torture, rape, enslavement, murder and reprisals against family members of dissidents inside the country. There is no equivalent report on human rights abuses in the West Bank and Gaza except by Israel.

When Turkish forces took over Northern Cyprus and continued to administer the territory as if it is an extension of Turkey rather than part of the territory of an independent state and member of the UN, it did so under the pretext that Turkey had no jurisdiction or control over the territory of the Turkish Republic of Northern Cyprus which Turkey, but no other country, recognized as an independent de facto state. Turkey claimed that Northern Cyprus was not a “subordinate local administration.” The European Court of Human Rights had already previously ruled that Turkey exercised effective control over northern Cyprus. Nevertheless, the UN Security Council had never ruled that Turkey’s effective control was an example of the inadmissibility of the acquisition of territory through force.

Comparative historical examinations of other situations as well as of the case of Israel before 1967 clearly points to the fact that the Security Council has been using the language of a general principle to apply to one and only one case, thereby undermining that principle as a norm of international conduct and reinforcing the position that the acquisition of territory through force is, in fact, the accepted practice and not its obverse.

Next Blog: The UNSC Res. 2334 Part II: Occupation and Acquisition:
Legal Obligations and Responsibilities Under the Fourth Geneva Convention

Appendix 1:

Security Council Resolution 2334
Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),
Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,
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, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,
Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,
Recalling also the obligation under the Quartet roadmap for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons,
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction,
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,
Stressing that the status quo is not sustainable and that significant steps, consistent with the transition contemplated by prior agreements, are urgently needed in order to (i) 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, and (ii) to create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground,
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;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
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;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
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;
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, calls for accountability in this regard, and calls for compliance with obligations under international law for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism;
7. Calls upon both parties to act on the basis of international law, including international humanitarian law, and their previous agreements and obligations, to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace;
8. Calls upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process and within the time frame specified by the Quartet in its statement of 21 September 2010;
9. Urges in this regard the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation;
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement;
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;
12. Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution;
13. Decides to remain seized of the matter.

Appendix 2: The UN Security Council on the Western Sahara:

“The Security Council,
“Recalling and reaffirming all its previous resolutions on Western Sahara,
“Reaffirming its strong support for the efforts of the Secretary-General and his Personal Envoy to implement resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014),
“Reaffirming its commitment to assist the parties to achieve a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect,
“Reiterating its call upon the parties and the neighbouring states to cooperate more fully with the United Nations and with each other and to strengthen their involvement to end the current impasse and to achieve progress towards a political solution,
“Recognizing that achieving a political solution to this long-standing dispute and enhanced cooperation between the Member States of the Maghreb Arab Union would contribute to stability and security in the Sahel region,
“Welcoming the efforts of the Secretary-General to keep all peacekeeping operations, including the United Nations Mission for the Referendum in Western Sahara (MINURSO), under close review and reiterating the need for the Council to pursue a rigorous, strategic approach to peacekeeping deployments, and effective management of resources,
“Expressing concern about the violations of existing agreements, and calling on the parties to respect their relevant obligations,
“Taking note of the Moroccan proposal presented on 11 April 2007 to the Secretary-General and welcoming serious and credible Moroccan efforts to move the process forward towards resolution; also taking note of the Polisario Front proposal presented 10 April 2007 to the Secretary-General,
“Encouraging in this context, the parties to demonstrate further political will towards a solution including by expanding upon their discussion of each other’s proposals,
“Taking note of the four rounds of negotiations held under the auspices of the Secretary-General and welcoming the commitment of the parties to continue the negotiations process,
“Encouraging the parties to continue cooperating with the Office of the High Commissioner for Refugees in implementing the January 2012 updated Plan of Action on Confidence Building Measures,
“Stressing the importance of improving the human rights situation in Western Sahara and the Tindouf camps, and encouraging the parties to work with the international community to develop and implement independent and credible measures to ensure full respect for human rights, bearing in mind their relevant obligations under international law,
“Encouraging the parties to continue in their respective efforts to enhance the promotion and protection of human rights in Western Sahara and the Tindouf refugee camps, including the freedoms of expression and association,
“Recognizing and welcoming, in this regard, the recent steps and initiatives taken by Morocco to strengthen the National Council on Human Rights Commissions operating in Dakhla and Laayoune, and Morocco’s ongoing interaction with Special Procedures of the United Nations Human Rights Council, including those planned for 2015, as well as the planned visit of the Office of the High Commissioner for Human Rights (OHCHR) in 2015,
“Also welcoming the implementation of the enhanced refugee protection programme developed by the Office of the United Nations High Commissioner for Refugees in coordination with the Polisario Front, which includes refugee and human rights training and awareness initiatives,
“Reiterating its request for consideration of a refugee registration in the Tindouf refugee camps and inviting efforts in this regard,
“Welcoming the commitment of the parties to continue the process of negotiations through the United Nations-sponsored talks,
“Recognizing that the consolidation of the status quo is not acceptable, and noting further that progress in the negotiations is essential in order to improve the quality of life of the people of Western Sahara in all its aspects,
“Affirming full support for the Secretary-General’s Personal Envoy for Western Sahara Ambassador Christopher Ross and his work in facilitating negotiations between the parties, and, welcoming to that effect his recent initiatives and ongoing consultations with the parties and neighbouring states,
“Affirming full support for the Special Representative of the Secretary-General for Western Sahara and Head of MINURSO Kim Bolduc,
“Having considered the report of the Secretary-General of 13 April 2015 (S/2015/246),
“1. Decides to extend the mandate of MINURSO until 30 April 2016;
“2. Reaffirms the need for full respect of the military agreements reached with MINURSO with regard to the ceasefire and calls on the parties to adhere fully to those agreements;
“3. Calls upon all parties to cooperate fully with the operations of MINURSO, including its free interaction with all interlocutors, and to take the necessary steps to ensure the security of as well as unhindered movement and immediate access for the United Nations and associated personnel in carrying out their mandate, in conformity with existing agreements;
“4. Welcomes the parties’ commitment to continue the process of preparation for a fifth round of negotiations, and recalls its endorsement of the recommendation in the report of 14 April 2008 (S/2008/251) that realism and a spirit of compromise by the parties are essential to achieve progress in negotiations;
“5. Calls upon the parties to continue to show political will and work in an atmosphere propitious for dialogue in order to enter into a more intensive and substantive phase of negotiations, thus ensuring implementation of resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014), and the success of negotiations;
“6. Affirms its full support for the commitment of the Secretary-General and his Personal Envoy towards a solution to the question of Western Sahara in this context and calls for renewed meetings and strengthening of contacts;
“7. Calls upon the parties to continue negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments, with a view to achieving a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect;
“8. Invites Member States to lend appropriate assistance to these talks;
“9. Requests the Secretary-General to brief the Security Council on a regular basis, and at least twice a year, on the status and progress of these negotiations under his auspices, on the implementation of this resolution, challenges to MINURSO’s operations and steps taken to address them, expresses its intention to meet to receive and discuss his briefings and in this regard, and further requests the Secretary-General to provide a report on the situation in Western Sahara well before the end of the mandate period;
“10. Welcomes the commitment of the parties and the neighbouring states to hold periodic meetings with the Office of the United Nations High Commissioner for Refugees to review and, where possible, expand confidence-building measures;
“11. Urges Member States to provide voluntary contributions to fund confidence-building measures agreed upon between the parties, including those that allow for visits between separated family members, as well as food programmes to ensure that the humanitarian needs of refugees are adequately addressed;
“12. Requests the Secretary-General to continue to take the necessary measures to ensure full compliance in MINURSO with the United Nations zero-tolerance policy on sexual exploitation and abuse and to keep the Council informed, and urges troop-contributing countries to take appropriate preventive action including predeployment awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel;
“13. Decides to remain seized of the matter.”