The Dangers of UN Security Council Resolution 2334 (2016)
Amb. Alan Baker - The Jerusalem Center for Public Affairs
http://jcpa.org/dangers-un-security-council-resolution-2334-2016/

The December 23, 2016, resolution adopted by the UN Security Council
regarding Israel’s settlement policy has been received with mixed and even
extreme reactions.

The Palestinian leadership, having initiated the resolution, is celebrating
its adoption as an affirmation by the international community, including the
United States, of its claims against Israel.

Israel sees this resolution as a major impediment to continued peace
negotiations in light of the fact that it by-passes the negotiation process
in an attempt to prejudge central issues that are on the negotiating table.
As such, it seriously prejudices any possible return to the negotiating
process.

Israel considers that the resolution provides political incentives to those
in the international community hostile to Israel. It advances boycotts and
sanctions and could even be used to support possible litigation against
Israeli leaders.

Summary of Implications

Following is a brief summary of the legal and quasi-legal implications of
the resolution:

1.The resolution (as all previous resolutions regarding Israel) was adopted
under the sixth chapter of the UN Charter (Pacific Settlement of Disputes)
and as such is not mandatory. It contains a series of political
determinations and recommendations to the international community. The
resolution does not make law, and as such, the determinations as to the lack
of legal validity of Israel’s settlements are no more than declaratory.

2.Much of the terminology repeats UN terminology and language used in
previous Security Council and General Assembly resolutions (“inadmissibility
of acquisition of territory by force,” “Palestinian territory occupied since
1967 including East Jerusalem,” “secure and recognized borders,” “violation
(serious or flagrant) under international law,” the references to the lack
of legal validity of settlements, and their being an “obstacle” or “major
obstacle” to achieving a two-state solution).

3.References in the tenth preambular paragraph to the fact that “the status
quo is not sustainable” and “entrenching a one-state reality” are new and
would appear to be inspired by, or even direct quotes from statements by
President Obama, Secretary of State Kerry, and Vice President Biden.

4.Similarly, expressions not previously included in major Security Council
resolutions regarding the peace process, such as “two-state solution based
on the 1967 lines” (operative paragraph seven), as well as the references in
the ninth paragraph to the “Arab Peace Initiative” and the “principle of
land for peace” as additional bases for peace, clearly are intended to
instill concepts that have never been agreed-upon elements in the
negotiating process.

5.The call upon states in the fifth operative paragraph to distinguish
between dealings between Israel-proper and the territories will also be used
by BDS activists and states to buttress their boycott campaigns.

6.The reference in the third operative paragraph to the “4 June 1967 lines”
as a basis for negotiations would appear to be a new element, echoing
statements by Obama and Kerry, and running counter to the 1967 Security
Council resolution
242, which is the basis for all of the Arab-Israeli peace process, which
calls for negotiation of “secure and recognized boundaries.” The
Israeli-Palestinian Oslo Accords make no specific reference to the 1967
lines. As such this reference would appear to be an attempt to prejudge or
unduly influence the negotiating issue of borders.

7.Despite the declaratory and recommendatory determinations in the
resolution attempting to prejudge the status of the territories, east
Jerusalem, borders, and settlements, the resolution nevertheless would
appear to contradict itself in that it goes on to reaffirm the call for
negotiations on “all final status issues” (operative paragraph eight) and
for “a comprehensive, just and lasting peace.”

Analysis

1.While the resolution does not replace Security Council Resolution 242,
which is the accepted and agreed basis for the Israel-Arab peace process, it
nevertheless contains elements that attempt to modify Resolution 242 and to
sway the negotiating process in a particular direction.

2.The resolution cannot, in and of itself, serve as grounds for legal
proceedings in the International Criminal Court (ICC) or other international
tribunals. But clearly, it will be used by the Palestinian leadership as a
political tool to buttress existing complaints. This despite the fact that
the issues of Palestinian status vis-à-vis the ICC and the court’s
jurisdiction regarding the territories have yet to be reviewed juridically.
The fact that the ICC Prosecutor has recognized the accession of “the State
of Palestine” to the ICC Statute and has accepted their complaints are
political decisions.

3.The United States, through its decision not to veto the resolution,
enabled acceptance of a Security Council resolution referring to “occupied
Palestinian territory including East Jerusalem.” This indicates U.S.
acceptance of the fact that the territories and east Jerusalem belong to the
Palestinians. This despite the claim that the United States has consistently
agreed with Israel that there has never been any legal determination,
agreement, treaty, or other binding source determining that.

4.This represents a serious, and even irresponsible departure from U.S.
policy which has consistently advocated negotiated settlement of the issues
of permanent status, Jerusalem, and borders.

5.This position taken by the United States (as well as the other members of
the Security Council) also undermines the basic obligation of the Oslo
Accords, signed by the PLO and witnessed by the United States (as well as
the EU, Russia, Egypt and others), that the permanent status of the
territories, the issues of Jerusalem, and borders are to be negotiated.

6.While the United States and Israel have entertained basic disagreements on
settlement policy, the United States has consistently rejected, as a matter
of basic policy, any attempt by the international community to prejudge this
or the other permanent status negotiating issues.

7.The outrage voiced by Israel with both the resolution itself and the Obama
administration’s enabling it to pass stems from five basic components:
-The text of the resolution, which is unprecedented in the extent of the
condemnatory language used.
-Israel’s frustration at the irresponsible behavior by the Obama
administration.
-The evident irreversibility of the resolution and the potential for future
damage.
-The imbalance between accusations of Israeli violations of the Oslo Accords
and the Palestinians’ blatant violations of international law in their
incitement and payment to terrorists.
-The issue of settlements is not the core of the conflict. It remains the
Palestinians’ refusal to recognize the Jewish State and its right to any
part of the land west of the Jordan River.

About Amb. Alan Baker

Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the
Jerusalem Center and the head of the Global Law Forum. He participated in
the negotiation and drafting of the Oslo Accords with the Palestinians, as
well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He
served as legal adviser and deputy director-general of Israel’s Ministry of
Foreign Affairs and as Israel’s ambassador to Canada.