Sunday, September 25, 2011

More on Israeli Settlements

(Map of the West Bank in June 2011 from B'tselem)

Further to the recent posts on the (il)legality of Israeli settlements in the occupied territories, (shown above in the latest map from B'tselem) and the threat of a US veto of a Palestinian UN membership application, I was interested in looking more closely at what current US policy is on the issue of Israeli settlements.  Israel, remember, claims that settlements themselves are legal as the Fourth Geneva Convention doesn't apply in the Occupied Territories, though it accepts that there are some settlements that are illegal under Israeli domestic law, e.g. Migron. This analysis is wrong as a matter of international law, as the Geneva Conventions have customary - and therefore binding - status on all States, a fact underscored by UNSCR 827 in 1993, itself binding on all UN Members as it was adopted under Chapter VII.

In particular, I was curious about whether US policy was as lock-step behind the current Israeli Likud administration on the question of legality? It is certainly true that America's detractors and opponents would like the rest of the world to believe that the Obama Administration is in the pocket of the Likudniks, and that therefore the US was fundamentally flawed as an interlocutor in the Middle East.

(To their detractors, puppet and puppeteer. If true, which is which?)

Digging through the record, it's clear that this isn't the case, despite the visuals. 

As long ago as 1979, the UN Security Council has held that Israeli settlements constructed on land captured by Israel in 1967 are illegal through the passage of Resolution 446 on 22 March 79. UNSCR 446 was adopted 12-0-3, with Norway, UK and USA abstaining - meaning that the US allowed passage.

On 18 Feb this year, the UNSC sat for its' 6484th meeting, and considered a draft UNSCR which was proposed by 100 states in the UNGA*. The draft UNSCR's Operational Paragraphs stated:

1. Reaffirms that the Israeli settlements established in the Palestinian Territory occupied since 1967, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of a just, lasting and comprehensive peace;

2. Reiterates its demand that Israel, the occupying Power, immediately and completely ceases all settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;

3. Calls upon both parties to act on the basis of international law and their previous agreements and obligations, including under the Roadmap, aimed, inter alia, at improving the situation on the ground, building confidence and creating the conditions necessary for promoting the peace process;

4. Calls upon all parties to continue, in the interest of the promotion of peace and security, with their negotiations on the final status issues in the Middle East peace process according to its agreed terms of reference and within the time frame specified by the Quartet in its statement of 21 September 2010;

5. Urges in this regard the intensification of international and regional diplomatic efforts to support and invigorate the peace process towards the achievement of a comprehensive, just and lasting peace in the Middle East;

6. Decides to remain seized of the matter.

For the UN, this is strong stuff; and it was duly defeated by a US veto, 14-1-0.

So far, so normal for the US's critics who assert that the US is simply a nebbish covering up for Israel's illegal excesses.

(The estimable US UN Ambassador Dr. Susan Rice).

After each Security Council vote, the UNSC members may choose to speak explaining what just happened. These speeches are known, (with a stunning lack of diplomatic originality) as "Explanation of Vote", or EOVs. Here's what Ambassador Rice had to say after the US vetoed the draft in the face of unanimity on the rest of the Security Council and against the wishes of 100 UN member states:

"The United States has been deeply committed to pursuing a comprehensive and lasting peace between Israel and the Palestinians. In that context, we have been focused on taking steps that advance the goal of two States living side by side in peace and security, rather than complicating that goal. That includes a commitment to work in good faith with all parties to underscore our opposition to continued settlements.

Our opposition to the resolution before this Council today should therefore not be misunderstood to mean we support settlement activity. On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity. For more than four decades Israeli settlement activity in territories occupied in 1967 has undermined Israel’s security and corroded hopes for peace and stability in the region. Continued settlement activity violates Israel’s international commitments, devastates trust between the parties and threatens the prospects for peace.
The United States and our fellow Council members are also in full agreement about the urgent need to resolve the conflict between the Israel and the Palestinians on the basis of the two-State solution and an agreement that establishes a viable, independent and contiguous State of Palestine once and for all. We have invested a tremendous amount of effort and resources in pursuit of that shared goal, and we will continue to do so. But the only way to reach that common goal is through direct negotiations between the parties, with the active and sustained support of the United State and the international community. It is the Israelis’ and Palestinians’ conflict, and even the best-intentioned outsiders cannot resolve it for them."

The language is direct, and strikingly similar to that used by President Obama in threatening a veto on the Palestinian application for UN membership: if nothing else, the US was being entirely consistent. It is also heartening to hear that the US "reject[s] in the strongest terms the legitimacy of continued Israeli settlement activity", by which I presume were are suppose to understand that the US considers them illegal under international law, though they don't actually want to say so.

What is missing, of course, is successful economic or political pressure from the US to force the Israelis to freeze the settlements as a prelude to negotiations. But that is a political, not a legal matter. 

(*For the record, the co-sponsors of the draft Resolution were: Afghanistan, Algeria, Argentina, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, the Plurinational State of Bolivia, Botswana, Brunei Darussalam, Chile, Comoros, Costa Rica, Cuba, Cyprus, the Democratic People’s Republic of Korea, Djibouti, Ecuador, Egypt, Finland, Greece, Grenada, Guatemala, Guinea, Guyana, Iceland, Indonesia, Iraq, Ireland, Israel, Jordan, Kuwait, the Lao People’s Democratic Republic, Lesotho, Liechtenstein, Luxembourg, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Namibia, Nicaragua, Norway, Oman, Pakistan, Papua New Guinea, Peru, the Philippines, Qatar, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia, Slovenia, Somalia, the Sudan, Sweden, Switzerland, Tajikistan, Tunisia, Turkey, Turkmenistan, the United Arab Emirates, Uruguay, the Bolivarian Republic of Venezuela, Viet Nam, Yemen and Zimbabwe.) 

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