On Friday, December 23 rd , 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.
By focusing on settlements, and not making explicit reference to Palestinian terrorism, the
resolution strengthens the Palestinian claim that the settlements and not Palestinian terrorism are
the main obstacles to peace and the two-state solution. It states that the entire West Bank and east
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”.
Resolution 2334 goes far beyond the administration’s previously expressed positions. Its blanket
condemnation of “settlements” includes bustling Jewish communities along the east side of the
green line – places negotiators on both sides have accepted will be retained by Israel in a final
settlement (in exchange for Israeli land west of the green line). 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, refugees, 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 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, the Temple Mount and the Church of the
Holy Sepulchre 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 and Jewish
cemeteries 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.
Obama’s decision not to veto the UN resolution was not just a betrayal of America’s strongest
ally in the Middle East, but violates international law. Article 80 of the UN Charter (once known
unofficially as the Jewish People’s clause) preserves intact all the rights granted to Jews under
the 1922 League of Nations Mandate for Palestine, even after the Mandate’s expiry on May 14-
15, 1948. These rights authorized “close settlement by Jews” on any part of the League of
Nation’s Mandated territory which included and continues to include the West Bank and east
Jerusalem as all of Palestine was reserved exclusively for the establishment of the Jewish
National Home and future independent Jewish State. To put it another way, no part of Palestine
was allotted for an Arab National Home or state, since Arab self-determination was being
generously granted elsewhere – in Syria, Iraq, Arabia, Egypt and North Africa – which has led to
the establishment of many Arab states from the Persian Gulf to the Atlantic Ocean.
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 (under Article 80 of the UN Charter), and after
Britain announced that it would leave the area, the United Nations proposed a partition plan that
was rejected by the Arab world 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.”
Consequently, 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 would be to retroactively
ratify Jordanian aggression and support Jordanian occupation.
Obama’s failure to exercise his veto has also had other negative ramifications. The resolution
will be invoked by states, the Palestinian Authority, Hamas and every anti-Israel public and
private group in the world to justify lawsuits, boycotts, trade restrictions and outright acts of
Passage of UNSC Resolution 2334 will encourage 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, demonized and abuse Israel through the BDS movement. And
what university administrator is now going to crack down on student groups calling for
a Judenrein Jerusalem when President Obama himself has done just that?
By not vetoing the resolution, the Obama administration has also lent legitimacy and
encouragement to the U.N.’s disproportionate and one-sided focus on Israel. The country that
designed the new iPhone 8 (Israel) that the world will be buying shortly has been condemned in
the UN in 2016 20 times versus 4 times for ALL OTHER COUNTRIES combined. And while
the Security Council does nothing to stop the ongoing carnage in Syria, the genocide of
Christians, Yazidis and other minorities in the broader Middle East, and the conflict in Yemen, it
continually metes out shameful treatment to Israel – the only democracy in the Middle East.
The injustice of this Resolution is overwhelming. Evelyn Gordon wrote recently in Commentary
quoting Eugene Kontorovich and Penny Grunseid: “the UN has never deemed any other state an
“occupying power”– not Turkey in northern Cyprus, not Russia in Georgia or Crimea, not
Armenia in Azerbaijan, etc. Yet those countries actually are occupying other countries’ territory.
Israel, in contrast, is “occupying” territory that never belonged to any other country (no state of
“Palestine” ever existed at any point in human history) and to which it has the strongest claim
under international law.”
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 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, recognition 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!
Truth is, 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 war (diplomatically and militarily) to conquer not just the West Bank but all
of Israel from the Jordan River to the sea. Israel knows full well that the issue of settlements is
not the essence of this conflict as the world media and the EU would have us believe. It remains
the Palestinians' refusal to recognize Israel's very existence 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
Palestinians may profess to the world that they want an independent state, but they have
repeatedly thumbed their noses at the opportunity to have one, rejecting peace offers and
rebuffing negotiations that would lead to one – not to mention educating their children that “Jews
are the descendants of pigs and monkeys”, naming marketplaces after suicide bombers,
celebrating these suicide bombers as “martyrs” ((shahids) and paying lifetime monthly
allowances to the wives of these terrorists and one-time grant to their families.
Three times over the past sixteen years (at Camp David in 2000, at Taba in 2001, and after the
Annapolis Conference in 2008), the Palestinians were offered more than 90% of what they are
asking for in return for peace 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. Nor have the Palestinians complied with conditions set in those Accords.
The long list of their fundamental breaches includes active support, encouragement and
financing of terror and violence against Israel and its population, and the maintenance of a vast
terror infrastructure despite obligations to dismantle it; wholesale acquisition and manufacture of
illegal weaponry for purposes of terror; daily hate indoctrination and incitement to violence and
terror through their educational system and their media; and attempts to unilaterally alter the
status of the West Bank and Gaza Strip outside the negotiating process, through unilateral
initiatives in international bodies.
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. In short, the Palestinians do want a state alongside Israel so
much as they seek a better position from which to attack Israel. No Palestinian leader can yet be
found who is willing to sign off on recognition of Israel as the state of the Jewish people or
renounce the right of return to all those who left their homes during the 1948 War of
Independence and their descendants – a recipe for the end of Israel as a Jewish state, even within
the 1949 armistice lines.
Taking everything into account, when terrorist organizations like Hamas and Palestinian Islamic
Jihad praise the decision of the UN Security Council, it is clear whom this resolution serves. 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. The U.S. must
clearly declare that whatever the political merits of Israeli settlements, they do not violate
international law. What is being demanded of Israel in its historical homeland through this
Resolution has never been demanded of any other state, and never will be. Congress must pass
legislation making clear that Israel does not violate international law by permitting Jews to live
in territories under its control.