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

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

The Data on Settlements and the Effects on the Peace Talks

The Data on Settlements and the Effects on the Peace Talks

by

Howard Adelman

Between January and June 2013 before the talks began, there were 1,708 housing starts compared with 995 during the same period the year before. In all of 2013 there were 2,534 housing units completed in the West Bank, slightly more than double the 1,267 units completed in 2012. When these figures were released by the Central Bureau of Statistics in Israel (www.cbs.gov.il) in early March 2014, is it any surprise that Israeli news headlines read:

“Settler housing  starts up by 124% in 2013” Jerusalem Post 3;

”Settlement construction more than doubled in 2013,” Haaretz;

“West Bank housing starts rise by more than 120 percent,” Jewish Journal;.

“Settlement housing starts nearly triple, in 2013,” The Times of Israel.

So what do you expect news outlets around the world from Fox News to the Japan Times to report?

Of the units completed in 2013, 853 had been started in 2012 and a further 1,421 units were under construction in 2012. So 90% of the units completed in 2013 had been started in 2012.

On 11 August, Uri Ariel announced plans to expand housing in Leshern as well as other West Bank settlements totaling about 400 new homes plus approximately 800 in areas of East Jerusalem that are part of Jewish Jerusalem. Another over 1200 units were announced later in the month. The breakdown of housing units approved and started in August 2013 were as follows:

Date                Approved    Started   Constr. Complete         Area

August 6         239                                                                  Ma’on

August 8         878                                                                              Jordan V, Binyamin, Etzion

August 12       890                                                                              Gilo Jerusalem

                                           63                                                 Jabal Mukabir, E. Jerusalem

                       392                                                                   Ma’ale Adumim, Ariel, Betar

August 27      942                                                                   Gilo

                                          66                                                  Neve Yaakov

                      283                                                                    Elkana

                   3,624            129

Uri Ariel, Israel’s Housing and Construction Minister, predicted the talks would fail, but did not acknowledge that the new housing starts would contribute to or be a key cause of that failure, although I believe he certainly hoped so.  While Israel insisted these planned housing units were in accord with an understanding not only with the Americans but with the Palestinians, Nabil Abu Rdeneh, President Mahmoud Abbas’ spokesman, issued a statement: “We don’t accept any settlement bids and Israel should stop these acts to give negotiations the opportunity to succeed. For us, all settlements are illegal and Israel should stop putting obstacles in the way of peace and all its acts in this regard are illegal and void.”

When the talks had been underway for almost four months, in October 2013, just after the Israeli negotiating team once again met with John Kerry in Israel, the government announced that 1500 more housing units would be built in Jerusalem. Further, Netanyahu approved tenders for 2500 housing units in the West Bank, though the actual breakdown of approvals did not total 2,500.

The Palestinians protested by suspending talks for two weeks. The announcement timing seemed to offer a quid pro quo to the Israeli right because it immediately followed the release of 26 more Palestinian prisoners. The Jerusalem housing units were to be built in the non-Arab populated bare hills of East Jerusalem as fill-ins of existing suburbs. Similarly, the housing units for the West Bank were fill-ins rather than expansions of the boundaries of those settlements.

Date                Approved    Started   Constr. Complete         Area

October 10      58                                                                    East Jerusalem

October 31    582                                                       

                               296                                                           Bet El

                               160                                                           Yakir

                                 96                                                           Almog

                     640

By December, both the EU and the USA strongly lobbied with the Israeli government officials not to announce any new government housing activities as they anticipated such announcements would correspond with the release of more prisoners at the end of December, an anticipation confirmed by Netanyahu himself. The warnings were ignored, though the announcement was delayed. Israel announced tenders for 1400 housing units in the West Bank and Jerusalem in the second week of January. Although earlier leaks had indicated that the announcement would be for 2000 rather than 1400 new starts already downgraded from early December leaks of 1500 units for Ramat Shlomo in East Jerusalem and 3500 for the West Bank, actually, 2,553 units were approved.

The pattern is clear. Leak news of new announced housing starts to time with a scheduled prisoner release. Then, following the release, announce a smaller number than the numbers leaked and ignore European, American and Palestinian warnings that such announcements jeopardized the talks. The actual starts could be smaller still. The Israeli right and the Israeli left were united in the propensity to exaggerate housing figures in the West Bank and Jerusalem.

The breakdown for January 2014 were as follows:

Date                Approved    Started   Constr. Complete         Area

       6                       22                                                            Karnei Shomron

                              250                                                            Ofra

      10                    227                                                            Efrat

                                78                                                            Alfe Menashe

                                86                                                            Karnei Shomron

                                40                                                            Ariel

                                75                                                            Adam

                                24                                                            Betar Illit

                               102                                                           Emmanuel

                               169                                                           Elkana

                               600                                                           Ramot

                               182                                                           Pisgat Zeev

                                56                                                            Neve Yaacov

     21                     381                                                            Givat Zeev

     22                     256                                                            Nofie Prat

                                  5                                                            Ariel 

Three months later, Netanyahu postponed the prisoner release and the government also announced the construction of 700 new housing units, Kerry let it be known that he blamed Israel for the breakdown in the talks because of reneging on the prisoner release and for the continued building of new houses in the settlements though Kerry never overtly made the statement that was originally planned.

The announced housing starts before and after the talks began were as follows:

Date                                        East Jerusalem             West Bank          Total 

Jan-June 2013                                                                                         1708

August 2013                              800                              400                    1200

October 2013                          1500                            2500                    4000    6908

January 2014                                                                                                      1400

April                                         1400                             700                                2100

Total over period of peace talks                                                                      10,408

Total over 16 months                                                                                       13,116      

Actual authorized units totaled 8,217.     

By adding up the figures based on early leaks, one gets the total of 14,000 new unit approvals publicized by Peace Now. By including the first six months before the talks formally starter, one gets a figure of just under 14,000. Whichever way Peace Now made its calculations, the actual figures were much less.

Further, if the data from the Israeli Central Bureau of Statistics, which everyone regards as the most reliable source, are used, since the beginning of 2013, 32,290 construction sites for housing units were slotted across all of Israel in 2013, an increase of 5.5% compared to the corresponding time frame in 2012. Work actually began on 2,534 new housing units, 1710 apartments and 824 homes, in the settlements in 2013, compared to 1,133 in 2012, that is, roughly one-third of the units approved Nevertheless, the total of new units that were constructed more than doubled rather than increased by just over 5%., though still only 50% of the units started under Barak in 2000. Further, 40% were subsidized public housing units, twice the normal percentage within Israel proper. This suggests a very deliberate government policy of expanding the settlement housing units beyond that required by any consumer demand as indicated in the following chart.

For Sale   Sold         Demand   

17,114     18,860     35,974 R       2009

17,584     22,786     40,370 R       2010

20,516     19,737      40,253 R      2011

20,251     22,526      42,777 R      2012

18,716     24,547      43,263 R     2013

Thus, the overall rate of housing construction over Israel, East Jerusalem and the West Bank increased by about 7.5%. But the amount of approvals, and especially of construction in the West Bank increased disproportionately. This is particularly significant because demand fell significantly for the purchase of housing units in the West Bank. Of the total number of 11,146 units built in all of Israel, 500 were for Judea and Samaria (the West Bank) and 1,227 were for Jerusalem. Announcements of newly constructed units in the West Bank far exceeded demand which no where came close to the number of units approved for construction. The demand figure for 2014 fell even further than in 2013 to 212 in the West Bank, though 1891 for Jerusalem. Housing for sale took significantly longer to sell than in the rest of Israel. Further, housing on the market took longer and longer to sell – up to 8 months on average for new units. The number of housing units announced are clearly not a response to demand; the announcements, as well as the denunciations, are driven by political goals.

This is clearly indicated by the actual number of housing starts versus the numbers authorized, Announced numbers far exceed actual construction. Of those built on public land (all land in the West Bank is public land), and since housing is built on both government and privately owned land in an approximate 50/50 ratio, of the over 21,000 units to be built on public land in 2013, almost 40% were to be built in the West Bank or East Jerusalem. In reality, abut 30% were actually built, most in Jerusalem.  

Let me summarize what I believe is going on. For political reasons, presumably to both satisfy the demands of the far right critical of any peace talks, housing permission for starts are announced that greatly exceed demand or actual construction and disproportionate to housing starts in the rest of the country. and deliberately insensitive to public opinion, or rather, official public opinion in Europe, America or Palestine. Further, the permits for housing starts and actual starts are now confined to fill-ins within the established border of settlements or to connect with outlier sections to create continuity.

While headlines parade the more than doubling of West Bank construction in 2013, the reality is that the doubling is an aberration caused by the depressed number of starts over the previous few as the chart below indicates and do very little to make up for the depressed number of starts from 2010 to 2012. Further, 80% of units completed in 2013 were started in 2012.

The reality is, whatever the far right insists about ambitions for Greater Israel, that plan is dead. What is alive is the plan to consolidate settlements and trade them for other land to reinforce Israel’s security position and the thrusts it has already established consistent with Ariel Sharon’s strategic objective to “thicken” Israel’s narrow waist. Israelis generally concur that the settlement blocs of Ma’ale Adumim, Gush Etzion, Elkana and Ariel will remain within sovereign Israel as part of a final status agreement. Since the Palestinian Authority has agreed to these land swaps and the real debate is still over sufficiency with the exception of parts of Jerusalem – this suggests that settlements are a key part of the rhetoric of peace talks for the far right, for the left critics, for Palestine and for both Europe and America, but they are not the insurmountable obstacle to peace negotiations.

So although I have always disagreed with settlements activity, my criticism now is mostly about bad public relations. What may be needed for peace on Netanyahu’s domestic political front plays very badly on the international arena and offers the Palestinian Authority free reign to win that public relations battle. Further, since both sides know they cannot agree on Jerusalem, Netanyahu has calculated that domestic political peace is of greater value than international public relations. Since Tzipi Livni clearly knows the full story, she recognizes this is a rhetorical and not primarily a political battle on the ground. The question for her remains whether a deal can be made on Jerusalem.

That remains the elusive target. Though housing starts are also about the Jerusalem issue, most of the blather about settlements is a public relations issue which in part explains why the American negotiators dumped on Netanyahu for sabotaging the talks. Someone had to be blamed. Netanyahu had been set up for blame right from the start, even though he had not agreed to a settlement freeze. Blaming Netanyahu is the clear easier choice. Otherwise, to focus on the central dilemma would lead to questions about why the initiative was taken in the first place. 

Finally, I personally applaud the initiative in spite of the failure and in spite of the political use of the blame game because the talks have really narrowed the end game. Since I do not see the conflict as resolvable at this time, I think the next stage will be more well thought-out unilateral moves by Israel to reduce frictions at minimal risk while further consolidating claims on territories Israel plans to annex. However, I am not imaginative enough to envisage how land swaps can be managed unilaterally. However, in order to understand how any unilateral moves can be made in light of the terrible experience with Gaza, and with Lebanon earlier, it is important to understand the nature of the newly announced realignment of Fatah and Hamas and the Palestinian position..

That is for tomorrow.