The American author, Philip Kindred Dick, explored many themes in his works, including monopolistic corporations, and authoritarian governments. Given the recent developments in Israel, it is perhaps appropriate to refer to one of his many referred to quotes, namely his position that “Sometimes the appropriate response to reality is to go insane”. This is of course tongue in cheek, but the relevance is plain for all to see.
On 23 December 2016, the UN Security Council adopted Resolution 2334 (2106) demanding that “Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” The vote passed overwhelmingly with 14 votes in favour and none against. The overwhelming support for the Resolution was far from surprising considering the issue concerned the illegality of Israel’s settlement policy. What was surprising to some was that the United States chose not to use its ‘veto’ and subsequently defended its position with a blistering attack on the Netanyahu administration.
The Obama Administration has been commended for not exercising its power of ‘veto’ and for criticising the Netanyahu Administration. U.S. Secretary of State, John Kerry stated in defending the Resolution and the Obama Administration’s policy position towards Israel “If we had vetoed this resolution … the United States would have been giving license to further, unfettered settlement construction that we fundamentally oppose.” If that is truly the position of the U.S. Government then why not support the Resolution? Why not put the well weight of the Obama Administration behind the Resolution. With less than a month remaining was this not the perfect opportunity. Former U.S. President, Jimmy Carter, has called on Obama to recognise the State of Palestine before he leaves office in January.
Critics of the Resolution have argued that it will serve as a barrier to peace and will prevent a diplomatic solution the Israel-Palestine Conflict. As an international lawyer focusing on issues of transitional justice I find such a statement to be devoid of any merit. Accountability is an essential part of the peace process; not an obstacle. There can be no peace without justice.
President-elect, Donald J. Trump, has sought to undermine the significance of the UN and promised his 18 million Twitter followers that the UN will be different after 20 January. The Office of the Israeli Prime Minister, Benjamin Netanyahu, stated that “Israel rejects this shameful anti-Israel resolution at the U.N. and will not abide by its terms…” and Obama for failing to “protect Israel against this gang-up at the UN.” The statement went further declaring that “Israel looks forward to working with President-elect Trump and with all our friends in Congress, Republicans and Democrats alike, to negate the harmful effects of this absurd resolution.” In the U.S., Senator Lindsay Graham, Chair of the Senate Appropriations Committee, announced that he would “form a bipartisan coalition to suspend or significantly reduce” funding to the UN. Incredibly, he further declared that countries receiving U.S. aid could also be penalized for backing the Resolution. A number of Democrat Senators also condemned Obama’s Administration for failing to veto the Resolution, with Senator Richard Blumenthal, calling the abstention “unconscionable” and Senator Chuck Schumer terming the UN as a “fervently” anti-Israel body and that “whatever one’s views are on settlements, the UN is the wrong forum to settle these issues.”
Netanyahu interestingly stated that friends don’t take friends to the UN. The question is whether the Israeli Government has been willing to listen to advice from any of its ‘friends’, particularly when the counsel is critical. If the UN Security Council is a quasi-judicial political body then it should be considered as a forum of last resort. That clearly demonstrates the frustration experienced by 14 members who voted in favour of the Resolution. There have been numerous attempts to restart the peace process; all have failed.
Resolution 2334 was clearly an effort of last resort and with every poorly advised client, resorting to attacking your Tribunal is the least likely to bring about favourable outcome. A properly advised client would have accepted the loss, brushed the dust off, and got on with the business of dealing with a sensible solution. Regrettably, when Israel’s counsel is advising the ‘go nuclear’ strategy of undermining the Tribunal, withdrawing its funding and targeting politically its sponsors it fails to recognise the futility of its actions.
Sometimes the appropriate response to reality is to go insane – no it really is not!
Two years ago, in December 2014, I wrote on the very point of justice and accountability being fundamental components of peace and reconciliation when it emerged that the U.S. Secretary of State, John Kerry, may have urged the Palestinian Authority not to ratify the Rome Statute of the International as this would interfere with the peace process. I argued, that if the allegation were true, it would represent a deeply disturbing development. All parties to the peace process must respect the rule of law and not circumvent it for its own interests. I further argued that it was in Israel’s own interest to apply the rule of law without discrimination and to ensure that a politically and economically viable stable Palestinian State. It is clear that militancy thrives on poverty, oppression and political instability, not on stability and democracy.
UNSC Resolution 2334 (2106) represents a common position and it represents a clear and unambiguous principle of international law. It does not affect Israel as an independent sovereign State. It does not negatively impact on Israeli Jews or Israeli Arabs. It merely reaffirms the position of the United Nations that the settlements are illegal, represent a barrier to peace and stability and must end.
The draft resolution was initially proposed by Egypt, hardly the embodiment of fundamental human rights and democratic principles, but it was a valiant move. However, following pressure from Tel Aviv and U.S. President-elect, Donald J. Trump, it withdrew the draft resolution at the eleventh hour. It is unprecedented that a President in waiting would intervene in such a process, but it should serve as a stark reminder as to what the position of the Trump Administration is likely to be after inauguration. Trump tweeted that his administration would seek to reverse the Resolution, a theoretical possibility, and a number of influential U.S. policy makers have supported the acrimonious criticisms of the resolution as being ‘shameful’ and smacking of ‘hypocrisy’. Trump has repeatedly declared that the UN would be quite different after 20 January. Regrettably, it’s unlikely to be just the UN that is destined to change once Trump takes office is his recent tweeting is anything to go by.
Israeli Prime Minister, Benjamin Netanyahu, immediately condemned those States that voted in favour and accused the Obama administration of orchestrating the timely vote on the Resolution before the 20 January 2016 inauguration of the Trump Administration.
Israel claims to have ‘concrete evidence’ to clearly demonstrate that the Obama Administration was behind the Resolution. That remains to be seen, but if the incumbent President was the driving force then his administration should be applauded for pushing through a resolution based on fundamental principles of international law, foreign policy and accountability. As Secretary of State, John Kerry, stated in a blistering defence “it is not this resolution that is isolating Israel. It is the permanent policy of [Israeli] settlement construction that risks making peace impossible.”
Following the adoption of UNSC Resolution 2334 (2016) the response of Israel has been staggering. Israel repeatedly considers that it is unfairly targeted by the biased UN and is the only true democracy in the Middle East. Whilst it may be disproportionately brought in front of UN bodies it is quite rightly criticised for its polices in the Occupied Palestinian Territories and for persistently and flagrantly violating international humanitarian law and for once, the UN Security Council has shown its teeth. The settlements are but one issue in the Israel-Palestine conflict, albeit a serious one.
Israel’s response has been to condemn the resolution as shameful and biased. It has threatened to diplomatically sanction those States that supported its passing and to sanction the UN by withdrawing funding and support. It has suspended ties with the Embassies of twelve Security Council members. It has in effect put into place the ‘insanity response’.
This is not the first-time Israel has been condemned for its settlement policy. It will certainly not be the last time. The settlements have been declared in breach of international law and that such activities constitute a flagrant violation of international humanitarian law and may as yet be investigated by the ICC Prosecutor as a war crime. It is disappointing, to say the least, that the State of Israel, a so-called democracy based on the rule of law, is protesting for being told to stop committing a war crime. Would this be tolerated elsewhere?
The UNSC Resolution reaffirmed that the settlements in the Occupied Palestinian Territory have no legal validity and constitute a flagrant violation of international law. This is not a novel interpretation of international law. For an occupying force to seize land of the occupied State is clearly set out in the Fourth Geneva Convention and constitutes a war crime.
The UNSC Resolution calls for the cessation of all Israeli settlement activity; something the Israeli Government has in unequivocal terms refused to abide by and will press ahead with, what the Israeli Ambassador to the UN stated was the “…peak of hypocrisy…” and that Israel would “…continue to be a Jewish State proudly reclaiming the land of our forefathers.”
Israel has now suspended all contact with those nations that voted in favour of the Resolution, has refused to meet with the foreign ministers of those countries, has vowed to end its portion of funding to the UN, and suggested that it will no longer fund those aid programmes and arms of the UN that it has in the past.
It is notable however, that despite the majority of Israel’s ire being directed at the US and the Obama administration, it will still willingly accept the billions of dollars in aid, including billions of dollars in military aid from the administration.
Israel would appear to be adopting the position of a belligerent child. It fails to appreciate the irony of its position in refusing to honour its aid obligations, and refusing to continue funding groups that are reliant on that aid, as a reaction to the position being adopted by the UN. Is this really any different from the BDS movement’s attack on so-called apartheid policies by the State of Israel? The irony is plain for all to see.
To repeat: accountability is not an obstacle to peace; it is integral part of that process.
The State of Israel must support the rule of law and not circumvent it for its own interests. It must also recognise that it is in Israel’s best interest for the rule of law to be applied without discrimination and for a politically and economical stable Palestine to emerge from the peace process. Militancy thrives on poverty and oppression, not stability and democracy.
The simple fact of the matter, is that there is an ongoing crisis in Israel and the wider occupied territories, that must, for the sake of all citizens, be brought to a peaceful conclusion.
The peace process must be revived. It must be aimed towards a two-state solution that is in the interest of all citizens. Both the State of Israel and the State of Palestine must be recognised as independent States with sovereign borders with equal support from the international community. The UNSC Resolution goes some way to achieving that, but what follows may well decide the fate of both Israel and Palestine and future stability in the region.