Israeli and Palestinian Role and Response: UNSC Resolution 2334

Israeli and Palestinian Role in and Response to UNSC Resolution 2334

by

Howard Adelman

The Palestinian reaction to Resolution 2334 seems obvious. Ever since the Fatah faction of the PLO decided that they could not win militarily on the ground, in contrast to Hamas, even as the battle shifted from direct warfare to guerilla warfare or terrorism, Fatah resorted to trying to win in international diplomatic and legal fora. On 4 August of 2009, at the sixth general conference of Fatah held after a hiatus of six years, and specifically convened symbolically in Bethlehem next to the Church of the Nativity within Occupied Palestine and not in a foreign Arab capital, with over 2,000 in attendance, Palestinian President Mahmoud Abbas sold his movement on the proposition that Palestinians had to adopt a different form of opposition to Israeli power and focus on increasing international support.

“We should introduce new forms of resistance to attract universal public opinion” to reinforce Palestinian rights within the context of international law. Peaceful methods, though not exactly Gandhi’s form of non-violent resistance, recommended earlier by Faisal Husseini before the first intifada, would supersede, but not exclude, military armed struggle to become the foundation stone for building a Palestinian state. It was an explicit rejection of the proposal of President Benjamin Netanyahu of Israel to achieve peace through economic cooperation and integration, a proposal Bibi put forth just after he assumed office in April of 2009.

There is, of course, a huge irony in all this. While Fatah pursued the backing of international law, Abbas consolidated his monopolization on domestic power at the expense of the rule of law. “He is the president of the Palestinian Authority, head of the Fatah movement, head of the PLO’s Executive Committee and the commander in chief of the Palestinian security forces. He neglects the law (my italics) and the movement’s statutes that govern its institutions. He monopolizes power and is abusive toward those who disagree with him.” These are not my words but those of Abdel-Hakim Awad, a member of the Fatah Revolutionary Council who nominated Abbas to his position, but recently was excluded from the movement’s seventh congress in Ramallah held in December because of his criticisms. This step, along with the monopoly of the control of media and lifting the parliamentary immunity of opponents, are sure signs that a leader had turned towards adopting totalitarian methods.

In that Fatah quest for the imprimatur of international law, Jerusalem was front and centre. Not East Jerusalem, but Jerusalem. Jerusalem was to be the capital of the new Palestinian state. The target became freezing settlement activities in the West Bank and in East Jerusalem. No freeze then no peace negotiations. The cessation of settlement activities became the sine qua non for resuming peace negotiations. Settlement activity anywhere in the West Bank and East Jerusalem had to be branded as illegal.

Resolution 2334 was a peak victory in that effort. The upcoming French Peace Summit on 15 January, just next week, may be another, especially if the representatives to that summit endorse a pace plan along most of the lines proposed by John Kerry. I would not expect them to agree to sharing Jerusalem as a joint capital, but if they also get that summit to declare all settlements across the old Green Line as not just an impediment to peace, not just as illegitimate, but as illegal, it would mean defining the Jewish Quarter in the Old City and twelve very large neighbourhoods in Jerusalem as illegal as well as the settlements in Area C and beyond the Separation Barrier, not to speak even of the outposts illegal even under Israeli law. The effort to relocate the Amona settlers to land owned by ‘absentee landlords’ to legalize the settlement in accordance with Israeli law and in contravention of past practice of not putting settlements on Palestinian privately owned property, will become irrelevant.

Further, from now on, as Italian journalist Giulio Meotti wrote, “any Israeli, civilian or military, involved in the ‘settlements,’ will be liable to judgment for violating the Geneva Convention. The Israeli army, which administers areas B and C, may be indicted if it demolishes the homes of terrorists, if it expropriates the land for reasons of ‘security’, if it plans new Israeli homes. The decision is now in the hands of the Hague prosecutor, Fatou Bensouda, who has already opened an investigation about the ‘Israeli settlements,’ believing they constitute a ‘war crime.’ Israeli military personnel and politicians could be subject to warrants if they land in London, as occurred with Tzipi Livni.” Further, Israeli banks operating even in the “illegal” Jerusalem neighbourhoods could be charged under international law. The European Council on Foreign Relations has already proposed sanction against some Israeli banks – Bank Hapoalim, Bank Leumi and the Mizrahi-Tefahot Bank.

Another nail will have been driven into the coffin of Resolution 242 which indirectly gave Israel permission to trade peace for territorial acquisitions. The old armistice lines would become once more a reference point for negotiations. Further, if the Summit follows the lead of Resolution 2334 and, on the issue of violence, ignores John Kerry’s speech, Palestinian incitement and celebration of terrorism could continue as a supplementary rather than prime form of resistance. Ostensibly committed to a non-violent path to peace, documents and proposals that emerge from the Summit will only be generalized condemnation of violence with no effort to pinpoint centres of responsibility.

Further, the PA can be expected to use the International Criminal Court to pursue Israeli individuals and charge Israel with more specific legal actions. In addition, the resources of the UN, now being used to prepare the organizational ground for a more comprehensive targeted boycott of Israeli goods, will get a further impetus. Finally, the U.S., Israel’s strongest defender, will be further sidelined and the Trump administration castrated in the world of international diplomacy and international law as much as Trump might shift American policy to a much stronger pro-settler position. The U.S. has been pushed from the centre to the margins in Israel-Palestinian negotiations, a position very unlikely to dent but possibly increasingly cement the close ties on military defence and intelligence issues as well as the huge economic exchange between the two countries.

At the same time, the Trump administration with Democratic Party support will likely fight back on behalf of Israel, threatening legal action against European banks if they begin to boycott Israeli banks, bar European institutions and pension funds from American-controlled systems of economic exchange if they proscribe Israel from investments and if Israeli companies are blacklisted. Instead of the regional economic cooperation that Bibi had proposed in 2009 as a pathway to peace, we will have international economic, legal and diplomatic warfare. How can one argue that Resolution 2334 enhances the prospect of peace?

There is one illusion that has accompanied Resolution 2334. Since it was passed under Article VI of the UN Convention instead of Article VII, many interpret the Resolution as non-binding. General Assembly resolutions are clearly only recommendations, but they also influence practices and budgets of the UN administration. Recommendations of the UN Security Council under Chapter VI have no enforcement mechanisms. However, though disputed by many international legal experts, the ruling of a majority of the International Court in The Hague in 1971 declared that all UN Security Council decisions are binding. There may be no coercive power attached to them, but they have a tremendous influence politically and diplomatically and help build a widespread world consensus on certain matters. In this sense, a resolution can be morally binding even if compliance is only voluntary. One should never underestimate the power of morality even in a dog-eat-dog world.

Of course, Israel’s challenge to Obama on his home turf over the Iran nuclear deal did not help Israel win friends among many Democrats. As Martin Sherman, Executive Director of the Israel Institute for Strategic Affairs put it in a relatively understated matter, the “appalling and infuriating outbursts of vindictive pique” of Israeli politicians led by Bibi Netanyahu probably damaged the Israeli position more than anything and, as Sherman predicted, prepared the ground for the UN Resolution. Then there was a total absence of preparation for the impending storm, either through diplomatic initiatives to propose putting the two-State solution and peace negotiations back on track or, on the other hand, using the stick to get the Palestinians to back off by tightening the economic screws through which Israel primarily controls Abbas. None of these entailed freezing settlement activities.

Former Defense Minister Moshe Ya’alon also criticized Bibi for not working to prevent the passage of Resolution 2334 much more assiduously. There is not a single bit of evidence that Israel intends to accept Resolution 2334 as a basis for negotiation, notwithstanding Bibi’s endorsement of a two-State solution in his famous 2009 Bar-Ilan speech. For Israel, while ostensibly holding up that goal, did virtually everything in its power to undermine it, often through means that appeared to any reasonable observer to be disingenuous and insincere, deceptive and deceitful. This became abundantly clear when Bibi vowed that there would never be a Palestinian state on his watch. It is the height of folly to endorse a two-State solution on the one hand and then promise it will never come into being while you are in office on the other hand. Will Israel seek to engage its old European democratic partners once again in dialogue, as extensive as the disagreements are, or will Bibi go on an all-out warpath against them? Merely to ask the question reveals the answer.

The debate in Israel will shift to whether the objective should be strengthening the control and demography of Area C, while also thickening the settlements on the other side of the Separation Barrier, versus those who want to go after all of the West Bank, perhaps sharing part in a condominium arrangement with Jordan, but, in that alternative, denying the possibility of a Palestinian state coming into existence side-by-side Israel. In the wider field, Israel will increasingly become an opponent of the expansion of international law and legal norms and will have surrendered the turf of international diplomacy and law to Palestinian machinations. As Palestine becomes more authoritarian and totalitarian, ironically it increases the number of democracies at the front line of its defence.

Thus, there are divisions within Israel, the majority favouring one or other form of two-State solution and a minority aiming for territorial maximalism. Whatever the divisions, most Jewish Israelis find themselves united in opposition to the premises of Resolution 2334. Given the right-wing character of the Israeli government, the Israeli polity will ensure that not only no transportation link between Gaza and the West Bank will be established, but that Gazan students pursuing higher education degrees will not be allowed direct access to the West Bank. If a man and woman from the West Bank and Gaza fall in love, they will only be permitted to live together in Gaza. Other mechanisms of depopulating Area C of Palestinians will continue.

While Palestinians are increasingly united on the diplomatic and legal strategy but divided on their military and security strategy, on the ground barriers, between Palestinian communities grow. Abdel-Hakim Awad, a member of the Fatah Revolutionary Council and the Palestinian National Council, has attacked Abbas even though he originally made the motion to make Abbas head of the PA. He accused Abbas of excessively cooperating with Israel to maintain security in Area B. The irony is that, while legally and politically, the international community has moved to legitimize Palestinian control over all territories outside the Green Line, on the ground, that line is increasingly totally irrelevant. If a peace agreement is by some far out chance agreed to, Palestinian communities will have to be linked together by a series of sunken and exclusive roads, provided they are part of the agreement and Israel implements those clauses.

What has also evaporated, Kerry’s rhetoric to the contrary, is the vision of two alternatives – an Israel that is Jewish but non-democratic or an Israel that is both Jewish and democratic because it lives within much more restrictive borders. Israel can leave out the major population of Palestinians, use various devices to ensure that Palestine does not become a full self-governing state, and remain both Jewish and democratic. The real choice is between different variations of a Jewish and democratic state.

In a very expansionist scenario, outposts will be “regularized.” In a middle range objective, only Area C will be viewed for incorporation into Israel. In a very modest and dovish proposal, but one which only a small minority of Jewish Israelis share, Israel will just keep the new neighbourhoods of Jerusalem across the Green Line and the Old City. The latter two alternatives allow for a Palestinian state alongside Israel occupying 22% of the territory of the original Mandate. The first does not. But none of these include the most extreme and aggressive Zionist option of a one state solution where there is no Palestinian state at all but where Jordan is expected to play a specific role, one to which it is very unlikely to agree.

In light of the passage of UNSC Res. 2334, what might the effect be of moving the American embassy to Jerusalem? For one, it would send a clear and unequivocal message that America is no longer bound by international law. Many others would be further alienated from both the U.S. and Israel. As Martin Indyk (no admirer of Trump) pointed out, Trump might so shake things up that the peace process could possibly be reconstituted. According to Indyk, it would start by resolving the thorniest issue of all first in contrast to my preference for bracketing Jerusalem as unresolvable. It depends on buying into Kerry’s vision of Jerusalem as a joint capital, which neither the Israelis, Trump and his supporters or even the Palestinians endorse. While Israel would run into this proposal like a bull, the Palestinians would try to bite their tongues and stay out of the fray to gain more diplomatic and legal points. The move of the American embassy will be a demonstration of even more impotence on the part of the international community and a reaction by both Netanyahu (or his successor) to install more footprints in the sand.

Indyk himself admits his proposal is far-fetched, but he felt he had to grasp for straws. I prefer to breathe the political air that is actually out there.

One of the great benefits of Kerry’s speech is that it agreed with and backed the Israeli position that no solution can be imposed from outside, but that the parties themselves would have to come to some compromise. There were other gains. Kerry specifically mentioned the need to endorse Israel as a Jewish state. He also explicitly said that the refugee issue would be resolved through compensation and not through return. However, as important as these gains are, they pale in significance compared to the diplomatic and legal costs of Resolution 2334.

The result will not only be very much increased diplomatic, legal and economic wrangling on the world stage, but greatly increased tensions within the Fatah movement and within Israeli political institutions, all likely to be at the cost of democratic practices. The tensions over democratic norms within Israel are nowhere comparable to those taking place on the West Bank. However, if the treatment of Deputy Attorney General, Dina Zilber, is any indication, democratic institutions in Israel will be roiled in conflict. Zilber’s report recommended that all settlement activities be made accountable to the government and not relegated to a non-accountable World Zionist Federation. This report was thrown in the trash heap. If this treatment is any indication, then the independent advice of professional mandarins is likely to be set aside and ignored. Highly qualified mandarins will be castrated because their professional activities frustrate the ambitions of the more extreme members of the right-wing Israeli cabinet. The civil service will become far less civil and much more partisan in exclusive service to the party then in power.

Instead of peace, Resolution 2334 has opened the floodgates to a huge expansion in the Israeli-Palestinian conflict on the world stage. As Miriam Na’or of the Supreme Court of Israel stated, “You cannot ignore international law.” Conflict will not only increase between Palestinians and Israelis, but also within both Palestine and Israeli governmental structures. In Israel, the efforts to bend Israeli law to serve partisan political purposes is bound to increase at the same time as the prospect of a peace deal between Israel and Palestinians becomes more remote each day.

With the help of Alex Zisman

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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

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

Resolution 2334 and a Two-State Solution: Part B Current Contentions and Historical Background

Resolution 2334 and a Two-State Solution:
Part B Current Contentions and Historical Background

by

Howard Adelman

What happens when an extreme dove like myself agrees with Israel’s current Deputy Minister for Regional Cooperation, Ayoob Kara, who reiterated the Netanyahu cabinet position that the key problem with respect to peace is not the settlements. Kara is also part of the faction that contends that, “There is no way to put a state between Jordan and Israel.” He and other extreme right-wingers oppose the creation of any Palestinian state whatsoever. It is very dangerous to share one point of agreement with such proponents because you risk being identified with their entire position.

What if you share two positions? Arutz Sheva published the following in an OpEd by Ted Belman on 1 January entitled, “Since when did Palestinians become entitled to a state?” “Another example of invoking a law that doesn’t exist is the clause which cites “the inadmissibility of the acquisition of territory by force”. Howard Adelman makes short shrift of this proposition. There is no such law.” The citation was based on my first blog in this series which was re-published and circulated on Israpundit. Though this is not quite the way I would have worded a summary of my position, it is not a distortion either.

I agree with the Israeli right that the principle of the inadmissibility of the acquisition of territory by force is peculiar when it seems to be applied to only one case. I also agree with the Israeli political right that the key issue preventing peace is not the settlements, as much as I opposed settlements for years. I used to think the biggest issue was and would remain the refugee return issue, but there is now an understanding on that problem. I contend that the central issue preventing a peace agreement is Jerusalem, particularly the Old City and its immediate surroundings. Though I agree with Kara that the settlements are not the main obstacle to peace, I disagree with both him and the general thrust of and increasing tendency of the current Israeli cabinet to declare that, “First and foremost, the Palestinian issue is not relevant. There is no government and no leadership that will accept this state. Most of the citizens in the PA do not want for (sic!) Israel to leave. They want to be under the regime of Israel. Only the extremists want this state. They are trying to pretend that they want a peace process but they are liars.” Again, part of the problem when you agree on one or two points with the opposition, there is a propensity to believe you have other agreements with them as well.

The Palestinian issue is extremely relevant, and to dismiss it is the height of irresponsibility. Though there is currently no government or Palestinian leadership that will accept the Palestinian state on offer from Israel, it is blatantly untrue that they will not accept a state. The core problem is that they will not accept a state on offer from the majority of Jewish Israelis regardless of the differences among them. Further, most Palestinians do not want to be under Israeli rule. To assert that only the extremists want a Palestinian state is to engage in either delusion, propaganda or both. Why Jewish Israelis overwhelmingly do not want to give up the Old City is not a matter of security. It is a matter of identity and ideology, the same reason that the Palestinians want control of the Temple Mount or al-Ḥaram al-Šarīf. This, and no longer security, is the main obstacle to a peaceful resolution of the conflict, though security for both sides is extremely important.

However, Resolution 2334 does not reiterate, but alters, the fundamental framework for negotiating a two-state solution. It certainly does nothing except undermine the reality of Israel as a democratic state and the possibility of Palestine becoming one. Rather than stabilizing the region, the Resolution will further destabilize it. There are certainly negative trends on the ground. The expansion of settlements is definitely one of them. But the resolution attempts to reverse the negative trends on one side while only paying lip service to negative trends on the other side. In so doing, the saboteurs on both sides are strengthened, not weakened. In any case, those trends do not entrench a one-State solution as much as some might wish they do, especially the right in Israel.

There has indeed been a very aggressive effort by the Netanyahu government to both thicken and normalize the settlements. In questing for the former, thickening the settlements, he has undermined their normalization in the predominant view in the international community. But he has also entrenched the settlements more firmly as a de facto and irreversible reality, creating a significant hurdle for peace, but not the insurmountable one portrayed in the Resolution.

Under any scenario, settlements will indeed grow, but no longer in significant numbers. As a result, the possibility of a two-state solution need not recede, except for those who want to use the settlements as a propaganda instrument to advance one side, including idealist international diplomats who refuse to take realities on the ground as important components in conducting diplomacy.

The failure to recognize the above and allowing oneself to get caught up in that illusion is part of the explanation for the terrible mishandling of the Israeli-Palestinian issue by the international community. Rather than creating conditions for successful final status negotiations, the Resolution ensures that no such negotiations will take place in my lifetime. The Resolution does even more to undermine a lifetime of work on behalf of a secure and democratic Israel living side-by-side a proud and respected Palestinian state than all the efforts of either Netanyahu or Bennett on one side or Abbas and his cohorts on the other. The Resolution was a travesty and a reward for the politics of illusion and delusion rather than a politics which analyzes power and tries to constrain and direct that power by lofty values.

Will the Resolution do anything for the 100,000 Palestinians living among 400,000 Jewish Israeli, Palestinians who live under martial law and are denied equal rights with the Jewish residents of the area? Since Israel is the occupying force in the area, will the Resolution enhance and strengthen Israel’s responsibility to protect Palestinians in Area C and prevent some extremist Israeli settlers from attacking Palestinians and targeting their lands and properties? The reality is that Israeli authorities are lenient towards violent settlers, rarely charging them and even more rarely meting out proportionate punishment. At the same time, the Abbas government, while discouraging terrorism, also lauds the perpetrators and gives them honours.
Most recently, the fight over the Old City has focused on the immediate surroundings, in particular, Batan al-Hawa in Silwan. There are 50 parcels of land in Batan al-Hawa. The Ateret Cohanim Asociation now has control over nine of them. 81 families have received eviction notices. It is one thing for Israel to seek to reinforce the Jewish presence in a contested area like the Old City and its immediate surroundings. It is quite another to treat Palestinians unjustly. It is absolutely unacceptable to use Border Police and private security firms against local residents simply because they are living in properties to which they are deemed not to have legal title. It is incumbent upon Israel as the occupying power to ensure that all residents are treated with respect and dignity.

At the same time, will the Resolution do anything for the 80,000 Jews who live on the other side of the separation barrier among well over a million Palestinians, Jews who are subject to attacks by terrorists? Does it foster good will between and among those Jews as well as among the large majority of Muslims with whom Jewish Israelis live in the larger region and among whom they will likely continue to live even if and when Palestine becomes a state? Or will the resolution help perpetuate a belief that the Palestinian state should and must be Judenrein and cleansed of all Jews?

Is there any gain for passing the Resolution in advancing peace in the region? Or is the purpose of the Resolution to assuage the guilt of idealists who have proven so impotent in the past and have become even more determined than ever to reaffirm that impotence? Those so-called idealists, those pretenders to the throne of advancing Palestinian rights, never face up to the repeated question of why Israel is cited as the main villain in repeated resolution after repeated resolution while heinous crimes all over the world are relatively ignored? Will those movers and shakers face the possibility that efforts on behalf of the Palestinians have done more to harm the development of democracy within that proud and estimable community than the cumulative wrongs imposed on Palestine by the settler movement?

North Korea with its mad leader will become an effective nuclear power next year. There were twenty resolutions put before the UN denouncing Israel in 2016. One, Resolution 2270, imposed fresh sanctions on the Democratic People’s Republic of Korea (North Korea) as the UN denounced in the most vigorous terms nuclear testing by North Korea. The UN has done nothing really and deeply effective to stop North Korea’s march, “in violation and flagrant disregard” of a succession of UN impotent measures, towards becoming an actual real nuclear power.

The Israeli right, joined on this issue by the centre and even the moderate left, are never given an answer for the query of why Israel is isolated for such focused attention and given such a persistent priority and such negative treatment in the UN. Have the idealists defending the just cause of a Palestinian state living side-by-side Israel ever asked themselves the question why such efforts have rarely worked? Demonstrating outrage is a poor substitute for a demonstrable lack of political acumen, especially when it is expressed in such a one-sided and distorted way. Is it not at least understandable why many Jewish Israelis and many other Jews around the world have come to believe that this form of criticism of Israeli politics is but a new form of anti-Semitism?

Why is the UN prone to demonstrate repeatedly that it is unable to wed lofty ideals with effective action? In the waning days of the Obama administration, why has the U.S. joined in this chorus of false moralizing? As the Oslo peace talks showed, the settlements are not the major barrier to peace between Israel and a nascent Palestine. The disposition of Jerusalem, particularly of the Old City, is, and its problematic status has little to do with the issue of settlements. Yet the resolution conflates the two issues and does so on such a weak historical foundation that it would be laughable if it were not so troublesome.

The Resolution went out of its way to explicitly condemn Israeli settlements in East Jerusalem and failed to distinguish between the Jewish Quarter in the Old City from the West Bank or even the rest of Eastern Jerusalem. Instead, the Jewish Quarter of Jerusalem’s Old City and the Western Wall, the holiest place where Jews pray, are treated and referred to as occupied territory. The failure of distinction in the Resolution is a travesty.

Is that not the most provocative claim that one could throw at the Jewish orthodox community such that it undermines any possibility of sympathy for the other side emerging? This mindblindness undermines any sincere effort to decrease the momentum in Israel for refusing to accept the idea of a Palestinian state. The Jewish quarter of Jerusalem goes back much more than two millennia. Making it part of an Arab Palestine free of Jews is such a flagrant betrayal of history. Resolution 2334 is an important landmark in promoting Jewish ethnic cleansing.

The Resolution does designate every home in the Old City as well as every home on French Hill and in Gilo and the other neighbourhoods of West Jerusalem as violations of international law. The Resolution predetermines the basis for negotiations by designating those populations as living on “occupied Palestinian territory,” not just occupied territory. But today, fifty years later, the effort to continue to condemn those settlements already built and occupied as not only the major obstacle to peace, but also illegal and even further, that they were built on Palestinian territory, prejudges the results of negotiating a peace agreement and favours the Palestinian cause, however just that cause of creating a Palestinian state may be. This step is as foolhardy as the initiative to build many of the settlements originally.

For the unmistakable fact is that they have been built. Hundreds of thousands of Jews live in them. The vast majority of those Jews will only be removed if Israel is destroyed as a predominantly Jewish state. Further, Palestinians in their negotiations understand that. They have negotiated land swaps for those settlements becoming part of Israeli territory. What the Palestinians have not agreed to, what, as far as I can see after following the negotiations over decades, they will not agree to is recognizing not only East Jerusalem but the Old City as part of Israel. It is a perfectly understandable position. But it is also a position which remains as the one obstacle to a final peace agreement, not all the settlements.

Right wing Israelis and Jews worldwide are fond of going back to the Balfour Declaration of 1917 as promising that the mandatory area of Palestine would be a “homeland” for Jews, though not a Jewish state. They leave out the latter. The Balfour Declaration was endorsed by the League of Nations in 1922. But that document did not designate Israel and the West Bank as a “Jewish national home” in the sense of a state, but as a home where Jewish nationals could live. In fact, the League of Nations document almost one hundred years ago created a recognized single legal territory of Mandatory Palestine out of the sanjak of Nablus, the sanjak of Acre, a segment of southern Syria and the southern portion of the Beirut Vilayet as well as Jerusalem. Until 1917, and until the recognition given to the British 1917 document by the international community, there was no Palestine. Following the Treaty of Lausanne, Palestine came into existence on 29 September 1923 and with it Palestine Arabs and Palestine Jews.

At the same time, Jordan also came into existence as a recognized international state in which the promise of its use for settlement of Jews was explicitly removed. The principle of all of Mandatory Palestine as a homeland for Jews had a very short lifespan and that authorization was now restricted to Mandatory Palestine West of the Jordan River. The territory east of the Jordan was ruled out for resettling Jews. Originally also a mandatory territory, it became recognized as an independent state in 1946.

Authorizing Mandatory Palestine as a homeland for the Jewish people explicitly did not entail Jewish sovereignty over the territory as either an aspirational goal and certainly not as a reality. The relevant and much repeated Balfour Declaration affirmed in the 1919 Peace Agreement provided: “Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” Usually omitted by the heirs of Jabotinsky and the right in Israel is that the British and French together rejected drafts that recognized, “the historical connection of the Jewish people with Palestine and the claim which this gives them to reconstitute it their national home.” The Jews were not given the right to create a sovereign Jewish state. Nor was the Jewish historical connection with the land ever recognized. All that was recognized is that Jews had grounds and a claim for reconstituting a national home.

With the creation of the United Nations, the Mandate of Palestine from the Jordan River to the Mediterranean Sea came under the auspices of the UN as a trusteeship of Great Britain, a trusteeship Britain “threatened” to abandon. The abandonment was endorsed by the United Nations Special Committee on Palestine, UNSCOP, in 1947 and affirmed in a UN General Assembly Resolution. That committee recommended dividing the Mandate into three entities, one as a national home for the Jewish people, one as an independent Arab state, and the city of Jerusalem was to become an international city administered by the United Nations. In fact, those three territories became three very different territories with the cease fire lines of the 1949 armistice agreement serving as a de facto border between what was declared as the independent state of Israel, Jordan which occupied and annexed what became known as the West Bank and East Jerusalem, and Gaza occupied by Egypt, not because all of them were able to “stand alone,” as the previous colonial language had provided, but because new rulers were in place which were the de facto governing powers.

The territory governed by Israel after the 1949 Armistice Agreement became a sovereign state and was no longer occupied territory. The West Bank and Jerusalem continued to be occupied territory, occupied by Jordan, while Gaza was occupied by Egypt. When Egypt and Jordan were defeated by Israel in 1967, those territories were then occupied by Israel. What must be recognized is that throughout the one hundred years since 1917 and the defeat of the Ottoman Empire, there has always been a disjunct between legal instruments recognizing administrative authority,
geographical references and sovereignty claims. Only the territory occupied by Israel in 1949 has been recognized as a sovereign territory, one governed by the State of Israel. The governing and administration of the other territory in former Mandatory Palestine has changed de facto over the years, but without de jure sanction since 1948. De jure sanctions are influenced by usage, but treaties or accession agreements are needed to determine the final internationally recognized areas under sovereign control. Unilateral annexation, whether of the Golan or an enlarged Jerusalem, does not change that, though sufferance of the governance of a territory over years does tend to shift towards legal legitimation as decade after decade passes.

The League of Nations document did authorize Jewish settlements in all of the Mandatory territory. The partition agreement changed that, but the outcome of the 1948 war, rather than UN Resolutions, effectively brought into being three territories, an Israeli State occupying a much larger territory than the one recommended in the partition resolution. West Bank and Jerusalem had been annexed by Jordan. Gaza was administered by Egypt. The West Bank and Gaza had been made Judenrein in that war. At the same time, 720,000 residents of Palestine, including 35,000 Jews, fled or were forced to flee and become so-called refugees, though most were internally displaced persons who continued to live in what used to be called Mandatory Palestine. A minority lived outside the borders of these three new entities.

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.”

Independent Jewish Voices – BDS Redux I

BDS Redux: Part I IJV

by

Howard Adelman

Since the end of the Association for Israel Studies (AIS) meetings last Wednesday in Jerusalem, among the newsfeeds I have received and read over the last four days, ten dealt with BDS, the Boycott, Divestment and Sanctions Movement targeting Israel. I have written about BDS before. Last year at the AIS meetings at Concordia, I read a paper on BDS. In that essay, I took on the persona of a radical supporter of the Palestinian cause to critique BDS, but from a very opposite perspective than is customary with respect to virtually all anti-BDS papers at AIS, even though some criteria, such as effectiveness, were common to both angles of analysis. That paper stood in place of the usual defensive feeds one reads in Jewish and public media sources. I begin this series revisiting the BDS issue, but starting with a review of a selection of very recent news stories on BDS, with a specific focus on stories on IJV, Independent Jewish Voices, an organization of Jews explicitly dedicated to advocating on behalf of BDS.

One story on BDS itself was headlined, “15 years since the Durban Conference: ‘We need an idea to go against BDS’.” Like most BDS stories (but not all, as shall be seen), the headline alone evoked a sense of failure as well as panic at the advancing tide of this enormous wave called BDS. The report covered the presentation of Dr. Nachman Shai, a Kadima member of the Israeli Knesset and its Deputy Speaker, a former spokesperson for the IDF, journalist and communications expert who insisted that the strategies developed at Durban, embodied in its step-child, the BDS movement, continued to pose a threat to the State of Israel. The Jewish organizations and Israel itself had developed tactics and strategies to counter BDS, but they needed a counter anti-BDS idea. BDS was based on an idea. When one looks at the counter-BDS movement, Shai found that it was bereft of an idea behind it.

He, of course, meant a competing positive idea. For the anti-BDS movement did seem to have a negative idea, to paint the BDS movement as, at heart, not a supporter of a two-state solution, but in favour of the elimination of Israel as a state in the Middle East. One example that could have been offered was the effort to paint “Independent Jewish Voices” (IJV) as anti-Jewish as well as an anti-Israel movement that used the celebration of Al Quds Day as a hate-fest against the Jewish people.

IJV was founded in Canada in 2008 and endorsed BDS in 2009. One method used to oppose BDS was to paint it, and other groups that supported BDS, as opposed to the Jewish state. Further, such groups were depicted as either explicit Holocaust deniers or ones that flirted with Holocaust denial and associated with deniers. (More on this in the next blog.)

However, IJV describes itself very differently, as representing Canadian Jews (for IJV Canada) who have a strong commitment to social justice and universal human rights. Independent Jewish Voices Canada (IJV) is purportedly a national human rights organization whose mandate, it claims, “is to promote a just resolution to the conflict in Israel and Palestine through the application of international law and respect for the human rights of all parties.” IJV claims that there are currently ten chapters of IJV in cities across Canada in addition to a growing number of student clubs on major university campuses. IJV supports the right of Canadians to criticize and challenge the current laws and policies of the State of Israel, including the Boycott, Divestment and Sanctions (BDS) movement. IJV’s policies and operations are claimed to rest on the following principles:

1. Human rights are universal and indivisible and should be upheld without exception. This is as applicable in Israel and Occupied Palestine as it is elsewhere.
2. Palestinians and Israelis alike have the right to peaceful and secure lives.
3. Peace and stability require the willingness of all parties to the conflict to comply with international law.
4. There is no justification for any form of racism, including anti-Semitism, anti-Arab racism or Islamophobia in any circumstance.
5. The battle against anti-Semitism is vital and is undermined whenever opposition to Israeli government policies is automatically branded as anti-Semitic.

Leaving aside the problem of what constitutes Occupied Palestine, on first glance I would think that IJV might represent me. However, when I read the policies it endorses, I am appalled.
1. Israel withdrawing to the Green Line of 1967, a position set aside by Oslo and which even Palestinian peace negotiators advancing a two-state solution have not pursued;
2. Support of the universal right of refugees to return – refugee return is NOT a universal right (see Adelman, Howard and Elazar Barkan (2011) No Return, No Refuge. New York: Columbia University Press) – or receive compensation; the original clause about refugee return and compensation (Resolution 194) was commendatory rather than a statement of universal obligation and was subject to negotiations and an agreement with Israel;
3. Dismantling the Separation Wall which, whatever one thinks of the wall and fence, did enormously reduce Palestinian terrorist attacks against Israel, and there is no statement against Palestinian terrorism or on the security issue more generally;
4. Dismantling ALL Israeli settlements on the West Bank and the Golan Heights, even in those cases where the settlements were re-creations of Israeli settlements prior to the War of Independence where the Jordanian government practiced complete ethnic cleansing and wiped out every Jewish settlement in the area it occupied; again this position runs counter to interim agreements on peace already negotiated between the Palestinians and Israelis;
5. Correcting laws and practices within Israel that discriminate against the rights of non-Jews, but says nothing about discrimination against the rights of Jews in Palestinian territory;
6. Is ostensibly neutral on the one-state or two-state solution when the overwhelming number of those promoting peace in the Israeli-Palestine conflict support a two state solution and oppose both the one state option which would eliminate Israel and the one state option which would deny Palestinians in the West Bank and Gaza a state of their own; further, this is an explicit misrepresentation of BDS’s own published views attacking Israelis who advocate an annexationist policy – BDS is unequivocally opposed to a one state solution where Israel is the one state.

IJV has criticized the Liberal government claiming that, “Since the Liberals came back to power, the Trudeau government has voted against defending Palestinian human rights at the United Nations; voted with the Conservatives in support of a motion condemning Canadian individuals and organizations promoting the Boycott, Divestment and Sanctions (BDS) movement; and smeared Canadian international law expert Michael Lynk by calling for the UN to “review” his appointment to Special Rapporteur for the Occupied Palestinian Territories.”

Take the last issue first. Is Michael Lynk an independent examiner? He is independent in the sense that he is not dependent for his income on an organization connected to the issue. Further, the proposed position is unpaid. However, independence also connotes a detached examination of a dispute. It suggests an effort to be impartial. In that sense, judges and commissioners of inquiry are supposed to be independent and should not pre-judge issues. Though more moderate than Professor Penny Green from the UK who was initially pushed for the position, Michael Lynk is not independent in that sense since he has not only pronounced himself frequently and vociferously in denouncing Israel as a serial violator of Palestinian rights in the West Bank and Gaza, but has, to the best of my knowledge, never denounced the abuse of human rights of either Hamas or the Palestinian Authority. He evidently even blamed the West for provoking the 9/11 attack citing global inequalities and Western disrespect for international law. He has associated himself with Palestinian “popular resistance” and supports branding Israel as an Apartheid State. As one might expect, he has accused Israel of committing war crimes in Gaza.

Michael presented a paper, “Partition, federalism and the future of Israel-Palestine” at a Conference in March of 2009 at my home university, York, called, “Israel/Palestine: Mapping Models of Statehood and Paths to Peace.” It was a conference from which I withdrew my paper after I concluded that the meeting included too many non-scholars presenting advocacy papers rather than independent intellectual analyses on one state versus two state approaches, though I respected many of the papers by fellow academics who supported a one state solution as much as I differed with them. (http://www.yorku.ca/ipconf/documents/program21may.pdf)

Michael Lynk is clearly and unequivocally a partisan on the issue and not impartial. Certainly, neither is BDS nor IJV which supports BDS and condemns “the racist policies of the Israeli state.” IJV associates with the International Jewish anti-Zionist Network and speaks for anti-Zionist Jews, yet even when I was an anti-Zionist, I would not have wanted IJV to represent my views. It is not independent. It is not fair. It insults as much if not more than it is insulted. And does so as if it stands on the high ground of universal human rights.

In 2015, IJV provided a social link to an article written by Alan Hart, former Middle East Chief Correspondent for Independent Television in the UK, author of a three-part series, Zionism: The Real Enemy of the Jews, and his weighty two volume Waiting for the Apocalypse. Hart believes that Israel-Palestinian conflict will be settled, and only be settled, with the end of Zionism. Unless this happens, the world will come face to face with Armageddon. IJV identifies with Hart and strongly condemns anti-Semitism and Holocaust denial of any kind, but disassociates itself from Hart’s conspiracy theories, but not Hart’s theory that the Zionist lobby controls American Middle East policy. Hart insists that the destruction of the World Trade Center took place as a result of planes fitted with transponders planted and controlled by Mossad. Those transponders were used to guide the planes to hitting the World Trade Center.

IJV cited a website for Hart’s article of Veterans Today, an organization that IJV now acknowledges as promoting wild conspiracy theories as well as Holocaust debunking. IJV has admitted that the citation was thoughtless and careless and apologized for it. IJV removed the link since it purportedly advocates “rigorous, factual discussion and debate on Israel and Palestine.” I do not believe it does, but neither do I believe it knowingly associates with Holocaust-deniers and anti-Semites. Further, IJV does not agree with Hart’s advocacy for de-Zionizing Israel and turning it into a Jewish state in which “the most powerful force would be the moral principles of Judaism,” for IJV seems to be critical of the notion of a Jewish state in itself.

IJV has been very active is getting two, and there are only two, foreign policy resolutions on the agenda of the annual Green Party meeting in Canada in August. Both resolutions deal with Israel. One calls for the support of BDF. The other calls for the decertification of the Jewish National Fund (JNF) as a Canadian charity. BDS has succeeded in getting Elizabeth May, the leader of the party, to co-sponsor the latter resolution with Corey Levine of IJV to rescind JNF’s charitable status. Given that the Green Party has nothing to say about ISIS or Islamic extremism from Indonesia to Nigeria, has nothing to say about the cruelties of the Assad regime, nothing to say about the enormous increase in refugee numbers, nothing to say about the prospect of Brexit, nothing to say about the crisis in Venezuela, nothing to say about human rights in Saudi Arabia, nothing to say about the deforestation and reforestation policies of Brazil and their effects on indigenous peoples of the Amazon, nothing to say about North Korea’s pursuit of a nuclear arms capability, nothing to say about the human rights abuses of Iran, might it not be reasonable to suggest that this exclusive focus on Israel alone indicates a bias against Israel?

What has been Elizabeth May’s defence? She in the past claimed that she has raised human rights concerns about many nations – which does not explain why these are party policy issues and not just expressions of a leader’s concern and why these are the only two foreign policy resolutions at the convention. Her answer: the Green Party, unlike other parties, has no process for screening resolutions placed on the convention floor. Current party policy opposes the use of BDS to influence the policies of the Netanyahu government – itself an indication of possible bias since it may imply that only the Israeli government needs to be influenced to advance a peaceful resolution of the conflict. May defends the right of party members to propose changes in policy. Further, according to B’nai Brith, when May discussed human rights in the context of Jews, “when Parliament convened in February of 2015 specifically to discuss the global rise in antisemitism, May’s sole contribution to the debate was to argue that criticism of Israel should not be considered antisemitic.”

The fact is everyone agrees that criticism of Israel is not anti-Semitic per se. Certain types of criticism are. The B’nai Brith response suggested that May’s criticism risked falling into the latter category since she cited IJV as her source for the claim. Even more critically, IJV is the same organization that sponsored the two resolutions.

With respect to the JNF resolution, she does not take back that she is a sponsor of the resolution, but has said that she has invited Josh Cooper, CEO of JNF Canada, to speak to the resolution if it comes to the convention floor. However, the resolution may never reach the floor if it is defeated in online voting. We will have to see what happens. But in the next blog I want to turn to the efforts of Jewish organizations in Canada, in particular, B’nai Brith, to attack IJV and BDS. As we shall see, Nachman Shai may be very correct in his charge that BDS is only being combated with defensive attacks, and possibly distorted ones, rather than Shai’s call for a competing idea.

With the help of Alex Zisman