Introduction: United Nations Security Council Resolution 2334
On 23 December 2016 the United Nations (UN) Security Council adopted Resolution 2334, which declares Israeli settlement activity in the West Bank, including East Jerusalem, to be a “flagrant violation” of international law and their presence having “no legal validity”. The Resolution explicitly condemns,
“all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions.” [1]
The resolution also mentions that the establishment by Israel of civilian settlements in the West Bank is “a major obstacle to the achievement of the two-State solution, and a just, lasting and comprehensive peace.”[2]
Obama, Trump and Netanyahu
The Resolution was adopted after the United States (US) abstained from the vote, choosing not to exercise their power of veto as they have done so many times in the past with similar proposed resolutions. Since 1976, the US has blocked upwards of 50 United Nations Security Council Resolutions pertaining to the establishment of Israeli settlements in the West Bank (and other occupied territories); the negative impact of the Israeli military and settlement activity upon the living conditions and rights of Palestinians; the inequitable use of resources in Israeli occupied territories, the deportation of Palestinians from Palestinian territories; the right to return of displaced Palestinians; Palestinian self-determination; and the need to send unarmed UN observers to territories occupied by Israel.
However, over the years, the United Nations, with support of the US, has also successfully passed several Security Council Resolutions concerning Israeli settlements in the West Bank and East Jerusalem and their implications on the rights of the Palestinians and a lasting peaceful solution. The text of the latest Resolution reaffirms, “resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008)”.[3]
Nevertheless, the most recent Resolution has been met with strong opposition, most notably from Israeli Prime Minister Benjamin Netanyahu and incoming US President Donald Trump. Both stating that they will not abide by the vote.
Netanyahu claims that the vote was “shameful” and “anti-Israel”[4] (an Israel that if he really was committed to the two-state solution, as he claims to be, would not exist as an occupying force that settles civilians and has jurisdiction in much of the other [Palestinian] state). Ignoring the history of the UN voting against Israeli settlement activity, Netanyahu also claims that the result of the vote on 23 December 2016 was down to the Obama administration exerting pressure on other states to vote for the Resolution and that he will “present this evidence to the new [Trump] administration through the appropriate channels. [And] If they want to share it with the American people they are welcome to.”[5]
So, in comes Trump. Despite being unsuccessful in his attempts to influence the UN vote at the bequest of the Israeli government before the Resolution was adopted (and before his inauguration as US President)[6], Trump has maintained his opposition to the Resolution since its passing. The US President-elect has promised to scrap the resolution, and has even taken the position that the controversial practice of Israeli settlement expansion should “keep going” and “keep moving forward.”[7]
The West Bank settlements
Upon Donald Trump’s election as US President, Netanyahu stated that he was looking forward to working with him “to further the twin interests of peace and security.”[8] The notion of security is inextricably linked to any Israeli presence in the West Bank. Indeed, with any religious/nationalistic claims to the West Bank holding no weight under international law, Israeli presence in the West Bank can only be argued in these terms.
The Israeli military entered the West Bank during the Six Day War of June 1967. The Six Day War was claimed to be one of anticipatory self-defence against the allegedly mounting armies of Egypt, Jordan and Syria. The aftermath of the war also saw Israel take military control of the Gaza Strip, the Egyptian Sinai peninsula and the Syrian Golan Heights. However, contra to Article 49 of the Geneva Convention (IV)[9], which prohibits the transfer of civilians into occupied territories, the Israeli government immediately set about moving civilians into each of these areas.
As a result of the Six Day War the West Bank was placed under direct Israeli military rule. In 1982 the Israeli government established a semi-civil authority there, which saw the oversight of civil matters of Palestinians transferred from the Israeli military to civil servants in the Ministry of Defence. However, the Israeli government continued their policy of civilian settlement in the West Bank and suppression of Palestinians, contra to several adopted UN Resolutions and the Geneva Convention (IV).
The most significant step in the Israeli-Palestinian peace process, of which the current two-state solution is based, came in 1993 when Israeli Prime Minister Yitzhak Rabin and Palestinian leader Yasser Arafat signed the Oslo Accords II. As a result the West Bank was divided into three areas, with some 18% put under Palestinian control (Area A), while the Israeli government maintained control of approximately 61% of the West Bank (Area C), and the rest was put under Palestinian civil control and shared Palestinian and Israeli security control (Area B).
The Oslo Accords II were meant to provide a temporary solution that would act as a springboard to a permanent settlement based on UN Security Council Resolution 242, calling for the Israeli withdrawal from all territories captured during the 1967 Six Day War. Since 1982 the population in the West Bank has increased from around 1,000 to an estimated 500,000 people living in over one hundred settlements.
Politics and law
In his 2002 book The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, and a 2012 study, The Law of Belligerent Occupation in the Supreme Court of Israel, David Kretzmer, Professor of International Law at the Hebrew University of Jerusalem and Professor of Law at Sapir Academic College, examines cases brought to the Israeli High Court of Justice and Israeli Supreme Court regarding the establishment of new and expansion of existing settlements in the West Bank.
Despite the aforementioned protocol of the Geneva Convention (IV), the Israeli authorities have argued that civilian settlement in a strategic position, facilitates defence of the area and was therefore a military need which could justify the requisition of private land.[10] Indeed, this view has been approved by the Israeli High Court of Justice. However, the Court has also ruled that “if the motivation for establishment [of settlements] was political, rather than security, requisition of private land would be unlawful.”[11]
In making their judgement the Court relied on the wording of the Hague Regulations that permit the requisition of property for the needs of a military occupation. However, in accordance with international law, the Israeli High Court of Justice has also ruled that as well as the security needs of the occupying force, military occupation must also ensure the welfare of the local population.[12]
The Israeli High Court of Justice has at times taken a different view to security than that of the Israeli authorities. In cases presented to them the Court has rejected a widening of the term that includes “an ideological, political view of the long-term interests of the state”[13], including the exploitation of resources for the economic gain of the occupying state and welfare of its citizens over and above those of the native population of the occupied territory, ruling that:
“The commander is not allowed to consider the national economic or social interests of his own state, to the extent that they do not have implications for his security interests in the area or the interests of the local population.” [14]
Despite at times upholding the international legal order, Kretzmer outlines the politicised nature of the Court’s judicial process and how this has allowed Israeli civilian settlements in the West Bank to increase in size and number over the years. One crucial example being the refusal to enforce the Geneva Convention (IV) in ‘domestic courts’.[15]
The Peace Process going forward
The inequity and loss of rights endured by the Palestinians as a result of the presence of Israeli settlements in the West Bank is well-documented and has been routinely condemned by the international community, being referenced as the basis for several UN Resolutions calling for Israel to withdraw from the West Bank. Moreover, Kretzmer notes a colonial edge to the occupation:
“The existence in the Territories of a large number of settlers, who enjoy the full democratic rights of Israeli citizens and for whose benefit scarce land and water resources have been harnessed, has made the regime there much closer to a colonial regime than one of belligerent occupation.” [16]
This is not to mention that because of the Israeli military and civilian presence in the West Bank, Palestinians have been subjected to arbitrary detention; forced displacement; collective punishment; restricted freedom of movement; and a general deterioration of living conditions – facts that are referenced in several UN Resolutions, and many of the draft resolutions vetoed by the US.
In Netanyahu’s, and seemingly Trump’s vision, no link is seen between the actions of the Israeli government and violence committed against them and their citizens, of which it is widely regarded as providing a root cause for much of the violence committed by Palestinians.[17]
Failing to see a link between Israeli military and settlement activity in the West Bank, and the suffering endured by the Palestinians, and violence committed by Palestinians, has allowed for the argument that to better the security of the State of Israel what is needed in the West Bank is more settlements.
However, even if one were to ignore any of the factors that contribute to Palestinian violence against Israel, another assessment of Israel’s policy of settling civilians in the West Bank for reasons of security is still possible: that it simply isn’t working. The year-upon-year increase in the number of new settlements established in the West Bank since 1967, and the fact that they necessitate their own security (both in a narrow and wider sense) suggests so.
Nevertheless, in violation of international law the settlements do exist, as do the mal-effects for the Palestinians as a result of them. Now it is up to the Netanyahu and Trump to change the situation and work towards a policy that is acceptable to all parties in achieving their aims; security for Israel and a viable Palestinian state.[18]
This would most certainly have to include a freeze on any new settlements being established in the West Bank. Furthermore, the existing settlements should be begun to be dismantled. Taking into account that according to international law and the two-state solution, and the Israeli Courts, that any Israeli presence in the West Bank should be temporary, both Netanyahu and Trump are in theory be open to this.
Also, movements of people in such a manner are not unprecedented. One relevant example here being the movement of Jewish people into the region ever since the British Mandate of Palestine was established in 1923. Another, the dismantling of Israeli settlements as part of the Israeli-Egyptian peace deal in 1982, which saw 18 settlements and thousands of Israeli settlers evacuated.
While the Israeli withdrawal from the Egyptian Sinai peninsula in 1982 may be quoted as an important step in achieving peace between two warring states, the situation concerning Gaza since Israel withdrew from there in 2005 may be quoted against. And here we come to the next part of the security rhetoric promoted by Netanyahu and Trump among others. It is argued that should Israel withdraw from the West Bank and a viable Palestinian state created, then this would be used as a base for further attacks against Israel proper.
However, despite the withdrawal of Israeli forces and civilian settlements, Gaza is still defined as occupied by the United Nations.[19] The reason being, the Israeli blockade on Gaza, which has seen the Israeli military assume control of Gaza’s borders, airspace and coastline, resulting in the rot of the local economy and a deterioration in living standards for most Gazans. During the Israeli attack on Gaza in 2014, the then UK Prime Minister David Cameron acknowledged that the Israeli actions had effectively turned Gaza into an open air prison.[20] That is to say, since the Israeli withdrawal from Gaza the living conditions for Palestinians there have not improved and considering the periodic and ferocious attacks by Israel may have worsened.
The point here is that for a peace to be lasting, it must be just. Given the rights that they are entitled to under international law, along with the associated rise in living conditions that this would entail, Palestinian violence against Israel would lose any possible/rational basis for justification and would largely cease. Like the withdrawal of settlements this may be a gradual process, but the road map, which also places constraints on the Palestinians for any further violence committed against Israel, exists, should Trump and Netanyahu wish to act in the interests of peace and security for all.
Footnotes
1. ^ http://www.un.org/webcast/pdfs/SRES2334-2016.pdf
2. ^ http://www.un.org/webcast/pdfs/SRES2334-2016.pdf
3. ^ http://www.un.org/webcast/pdfs/SRES2334-2016.pdf
4. ^ http://www.bbc.com/news/world-middle-east-38425512
5. ^ http://www.haaretz.com/israel-news/1.761470
6. ^ http://edition.cnn.com/2016/12/22/politics/un-vote-israel-settlements/ and http://www.bbc.com/news/world-middle-east-38425512
7. ^ http://www.dailymail.co.uk/news/article-3571403/Trump-insists-Israel-building-West-Bank-settlements-says-Netanyahu-moving-forward-Palestinians-fired-thousands-missiles-Jewish-state.html?ITO=1490&ns_mchannel=rss&ns_campaign=1490
8. ^ http://www.jpost.com/Israel-News/Benjamin-Netanyahu/Netanyahu-will-work-with-Trump-on-twin-interests-of-peace-and-security-472707
9. ^ “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/WebART/380-600056
10. ^ Kretzmer, D., (2012) The law of belligerent occupation in the Supreme Court of Israel https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf
11. ^ Kretzmer, D., (2012) The law of belligerent occupation in the Supreme Court of Israel https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf
12. ^ Kretzmer, D., (2012) The law of belligerent occupation in the Supreme Court of Israel https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf
13. ^ Kretzmer, D., (2012) The law of belligerent occupation in the Supreme Court of Israel https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf
14. ^ Kretzmer, D., (2012) The law of belligerent occupation in the Supreme Court of Israel https://www.icrc.org/eng/assets/files/review/2012/irrc-885-kretzmer.pdf
15. ^ Kretzmer, D., (2002) The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories p. 43
16. ^ Kretzmer, D., (2002) The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories p. 75
17. ^ Indeed, United Nations General Assembly Resolution 1514, also known as Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted in 1960, was passed in the context of victorious national liberation movements referencing their “passionate yearning for freedom and the decisive role of such peoples in the attainment of their independence”.
For further reading on Palestinian self-determination in the context of international law and the granting of independence to colonial countries, please see my previous blog article: https://peaceinthestreetsblog.wordpress.com/2015/10/05/watch-this-space/
18. ^ The understanding that the stronger party, Israel, should make concessions to the weaker party, the Palestinians, for such progress to be made is even present in modern Israeli discourse. Not long after the Israeli war on Gaza in 2014, the Israeli newspaper Hareetz published a story detailing that 106 Israeli retired military generals and spy chiefs called on Israeli Prime Minister Benjamin Netanyahu to make the effort to push for peace with the Palestinians.
http://www.haaretz.com/news/diplomacy-defense/1.624251
19. ^ http://www.ohchr.org/EN/HRBodies/HRC/CoIGazaConflict/Pages/ReportCoIGaza.aspx#report
20. ^ https://www.theguardian.com/politics/2010/jul/27/david-cameron-gaza-prison-camp
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