The writer is a foreign policy analyst for the Ariel Center for Policy Research (Israel). He is a former member of the Canadian Justice Department, a past Director of the Canadian Jewish Congress (Western Office), a member of Hadassah's National Academic Advisory Board and a Contributing Editor for Family Security Matters and Intellectual Conservative. His latest book is "The Quartermasters of Terror: Saudi Arabia and the Global Islamic Jihad."
On Friday, December 23rd, 2016 the UN Security Council passed a one-sided, offensive resolution demanding that Israel cease all Jewish settlement activity in “occupied Palestinian territory, including east Jerusalem.” It was a unanimous vote that passed only because the U.S. abstained from using its traditional veto of such resolutions as it has reliably done in the past.
The consequences of this failure suggest that the entire 'West Bank' and eastern Jerusalem belong to the Palestinians. As Alan Dershowitz correctly notes: “The media reported that the UN resolution was only about the expansion of new settlements. But the text of the resolution itself goes well beyond new building and applies equally to historically Jewish areas that were unlawfully taken by Jordanian military action during Israel's 1948 War of Independence and liberated by Israel in a war started by Jordan in 1967”.
In effect, the resolution condemns all Jewish presence beyond the 1949 armistice lines as illegal. As such, it is in contravention of UN Security Council Resolution 242 (passed in the wake of the 1967 Six-Day War) and the Oslo Accords (1993) both of which state that issues relating to Jerusalem, borders, and the final status of the territories are to be negotiated directly by the parties involved. Well, apparently, now there’s nothing to negotiate since according to the UN Security Council, it’s all “occupied Palestinian territory” including Judaism’s most sacred sites!
The resolution brands the Jewish presence in any part of the 'West Bank' (the biblical Judea and Samaria) including the Jewish Quarter of Jerusalem's Old City as a “settlement” in illegally occupied territory and makes hundreds of thousands of Jews who live in those parts of the ancient Jewish homeland international criminals.
As a result, the Western Wall and the Temple Mount are now on "occupied Palestinian territory" and the resolution makes it illegal for Jews to build a plaza for prayer at Judaism's holiest site or to live in certain Jewish neighborhoods in Jerusalem that were taken illegally by Jordan in 1948 and which were subsequently re-captured during Israel's defensive war in June 1967.
It means that the access roads that opened the Hebrew University to Jewish and Arab students as well as Hadassah Hospital to Jewish and Arab patients are now illegal, as are all the rebuilt synagogues destroyed by Jordan between 1948 and 1967 in the ancient Jewish Quarter of the Old City - an area inhabited by Jews for thousands of years.
In effect, the resolution declares the current status quo (the reality on the ground that acknowledges Israel's legitimate claims to its most sacred and historical Jewish areas) to be “settlement activity” and a flagrant violation of international law.
Obama’s decision not to veto the UN resolution was not just politically wrong, but wrong as a matter of international law. As Mark Goldfeder of Emory University points out:
“In 1922 the League of Nations Mandate for Palestine established an area (which included the 'West Bank') to be a national home for the Jewish people. Article 6 of the mandate explicitly encouraged 'close settlement by Jews on the land.' ("The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in cooperation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.")
When the United Nations was formed, it affirmed existing arrangements of this nature, and after Britain announced that it would leave the area, the United Nations proposed a partition plan that was not accepted by the relevant sovereign parties (because the Arab world rejected it) leaving the Mandate lines unrevised.
Scholars such as Eugene Kontorovich and Abraham Bell have noted that under the international legal principle of uti possidetis juris, 'widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization,' emerging states presumptively inherit their pre-independence administrative boundaries, and thus international law clearly dictates that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. Israel, thus has title to the land.”
As such, Israel is the only existing inheritor of the League of Nations mandate - a Mandate that was never repealed. It has exclusive title and sovereignty over the entire area and from an international legal perspective, this is not nor has it ever been an Israeli “occupation”. If there was an “occupation of territory", it happened in 1948 when two invading Arab armies - Jordan (in the 'West Bank') and Egypt (in Gaza) - occupied territory that they took from Israel through aggressive action that is forbidden under international law. When they attacked Israel again in 1967 and lost, Israel regained the land it had originally been given under the League of Nations mandate. Thus, to require Israel to withdraw to the pre-1967 borders (or the “Auschwitz borders” as Abba Eban once referred to them) would be to retroactively ratify Jordanian aggression and support Jordanian occupation.
And there’s more. Unfortunately, UNSC Resolution 2334, by its very nature, also encourages boycotts of Israeli products manufactured beyond the 1967 borders and makes Israel's security barrier illegal despite the fact that it was erected during the Second Intifada to stop Palestinian suicide bombers from entering Israel. It also offers support in every European capital, in every international institution, and in every U.S. university campus to defame, demonize and abuse Israel through the BDS movement.
In addition, by not vetoing the resolution, the Obama administration has lent legitimacy and encouragement to the U.N.’s disproportionate and one-sided focus on Israel. While the Security Council does nothing to stop the slaughter of half a million people in Syria, it continually metes out shameful treatment to Israel - the only democracy in the Middle East.
But, the most dangerous consequence of this resolution is that it makes peace much more difficult to achieve because it sends a false message to the Palestinians that they can achieve a state by internationalizing the conflict and pressuring Israel through the UN or the European Union rather than through direct negotiations with Israel (as required by UN Resolution 242 which calls for negotiation to achieve "secure and recognized boundaries") which they have continuously rejected lest they be forced to compromise on any of their implacable positions.
In view of this resolution, why would the Palestinians want to negotiate peace and land transfers with Israel if they've been handed a Security Council resolution that basically determines that east Jerusalem and all the territories beyond the 1949 armistice lines belong to them anyway?
Sadly, this resolution has only succeeded in convincing the Israelis that the Palestinian leadership has absolutely no interest in resolving the “Israel-Palestinian problem”, but only in waging a continuing struggle to conquer not just the 'West Bank' but all of Israel from the Jordan River to the sea. Truth is, the issue of settlements is not the core of this conflict as the world media and the EU would have us believe. It remains the Palestinians' refusal to recognize Israel's legitimacy and to negotiate in good faith a lasting peace deal that would recognize Israel’s right to any part of the land west of the Jordan River.
Palestinians may profess to want an independent state, yet they have repeatedly thumbed their noses at the opportunity to have one, rejecting peace offers and rebuffing negotiations that would lead to one. Three times over the past fifteen years, the Palestinians were offered more than 90% of what they are asking for and three times they said no. Since the Oslo Accords in 1993, there have been eleven rounds of bilateral talks and all of them came out to nothing.
The reason is simple. In an October 2010 Palestinian Arab World Research & Development (AWRAD) poll, 83% of Palestinians indicated their desire to establish a single state upon the territory of present-day Israel, 'West Bank' and Gaza, and in December 2016, the Palestinian Center for Policy and Survey reported that 65% of Palestinians do not support a “two-state solution” to the conflict which explains why there is no map in the Palestinian Authority that identifies a country called “Israel” and only the name “Palestine” appears on the entire territory of Israel, the 'West Bank' and Gaza.
Taking everything into account, when a terrorist organization like Hamas praises the decision of the UN Security Council, it is clear whom this resolution serves. Bret Stephens summed up President Obama’s failure to veto this resolution recently when he wrote: “In the catalog of low points in American diplomacy, this one ranks high”. The Obama administration's abstention on this resolution and its refusal to veto it simply encourages the Palestinians to believe that they are better off avoiding peace than making it. Obama, who has claimed to be a champion of the peace process, has effectively killed it.