Security Council Resolution 2334: Legal Aspects and Implications

On the 23rd of December 2016, the United Nations Security Council adopted a resolution on the Israeli settlements in Palestinian Territories occupied since 1967, including East Jerusalem. Resolution “2334” which was originally presented by Egypt before withdrawing it under an American-Israeli pressure, was put forward again by Malaysia, New Zealand, Senegal, and Venezuela. The resolution passed with 14 votes in favor and the abstention of the U.S.A. no Veto was used.

Background

Israeli settlements are Jewish civilian communities constructed on the Palestinian territories occupied after the war in 1967 (West Bank, East Jerusalem, and Gaza Strip). In 2005, the last Israeli settlement on Gaza Strip territory was evacuated, while the number of settlements on the West Bank and East Jerusalem territories has multiplied insanely since then.

Israel which has control over East Jerusalem and 60% of the West Bank known as Area C, has constructed more than 230 settlements on the occupied territories, while Palestinian research centers assure that the number of Israeli settlements in Occupied Palestine reaches 503 settlements, 474 in West Bank and 29 in East Jerusalem, with more than one million settlers living thereon.[1]  According to a Human Rights Watch report, there were more than 560,000 Israeli settlers living in the West Bank and East Jerusalem as of the year 2015.[2]However, some reports suggested that the number exceeded 750,000 by the end of 2015.[3] A 2016 report by the International Middle East Media Center provided that the number of Israeli settlers and Settlements has multiplied by 600% with a growth rate of 5.8% since signing Oslo Records in 1993. The report also stated that the number of land confiscations and home demolitions in the West Bank and East Jerusalem has increased by 450 % in 2016 compared to 2015 to facilitate the construction of new settlements.[4]

Many national and international organizations drew attention to the seriousness of the settlement activities in Occupied Palestine, including the UN General Assembly and UN’s judicial organ: Court of Justice in its advisory opinion on Israeli Separation Wall in 2014.

However, resolution 2334 comes after eight years of silence from the Security Council side. The last resolution addressed the Palestinian Israeli conflict in the Security Council agenda was passed in 2009; while the last resolution that addressed settlements specifically was resolution 465 passed 1980. Although there was a trail to pass a similar resolution that criminalizes Israeli settlements on the West Bank territories in 2011, Obama’s first administration used the veto power and thus aborted the project. The USA veto allowed the Israeli settlements to expand rapidly and create an actual threat to the peace process, which according to the current Obama administration was the main motive behind the American abstention in the last resolution.

Content

Resolution 2334 aiming at determining the legal status of Israeli settlements on Palestinian Occupied Territories starts its preamble with listing legal violations committed by Israeli government through its continuous construction of settlements contrary to its obligation as an occupying power under International Law. The preamble stresses the serious negative role of the settlement projects in entrenching a one-state reality, putting all peace and negotiation process to create a two state solution in danger.

The resolution refers to the Israeli establishment of settlements on the occupied Palestinian territories as an action that lacks legal validity and constitutes a “flagrant violation” under International Law which endangers the peace process and the two states project. Therefore, the resolution demands Israel to respect its obligations as an occupying power and immediately stop all its settlement activities on the concerned territories, as well as reverse all negative steps taken on ground that comes in violation of such obligations and responsibilities.

On the one hand, the resolution calls on the two concerned parties: Palestine and Israel to take all feasible steps and measures to comply with their obligations under international humanitarian law and other relevant resolutions and decisions including: their obligation to condemn and end acts of terror against civilians from both sides, and continue their efforts to achieve a just and final peace through negotiations based on two states solution.[5]

On the other hand, the resolution requests states parties to international community to “distinguish in their relevant dealings between the territory of the state of Israel and the territories occupied since 1967.”[6] States parties are also encouraged to continue their efforts to end the Israeli occupation on the Palestinian territories started in 1967[7] and take initiatives to achieve a just and lasting peace in the Middle East with regards to the Palestinian- Israeli conflict.[8]

 

 

 

 

Legal aspects

International Law standards on Settlements

Under International Humanitarian Law

Israel, according to international law, is considered an occupying power on the Palestinian territories occupied after the six days war in 1967. This mere fact stressed by resolutions and decisions taken by the United Nations different organs entitles Israel to many obligations under International Law. Such obligations are mainly listed in Fourth Geneva Convention of 1949, The Hague Convention 1907, and the First Protocol to the Geneva Convention on armed conflict 1977. Many other specific conventions and treaties address special obligations entitled to occupying powers as well.

Israel denies its title as an occupying power, arguing that the Palestinian Territories occupied in 1967 had no actual sovereign ruled before the war and thus is considered “disputed territories” not occupied. In other words, Israel declines the applicability of International Law, especially the Fourth Geneva Convention, arguing that the convention does not apply de jure, rather it applies de facto only in humanitarian issues that Israel never specified.

The fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 in its article (2) declares its applicability to the following situations “In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.”[9] Israel has ratified the Fourth Geneva Convention in 1951, while Palestine has ratified the convention in 2014.

While article (2) declares the convention’s applicability to occupation situations, article 47 allows no exception to this applicability under any situation “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”[10]

In the situation of Israeli settlements, article 49 of the convention prohibits any transfer or deportation of protected persons from the occupied territory to any other place out of the occupied territory, as well as evacuations and displacement of protected persons and sets specific conditions to acts of hostile that may lead to such evacuations and transfers for the mere purpose of protecting civilians and the inevitability of transferring them back as soon as it becomes safe for them. However, the most relevant part of the article to the Israeli settlements’ illegality is the last part which prohibits the occupying power from transferring part of its population to the occupied territory stating “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” [11]

A similar rule is provided in the First Protocol to the Fourth Geneva Convention concerning International Armed Conflicts 1977, which was ratified by Palestine in 2014 but never ratified by Israel. Article 85 (4) (a) states “In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions of the Protocol; The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention;…”

Article 53, on the other hand, makes it illegal to destruct property of occupied persons whether private or public, unless required by a military necessity. This article shows that Israeli demolitions’ of Palestinian property to build settlements is illegal. The article states “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

Article 27 of the convention makes it illegal to threat civilians or expose them to acts of violence which is constantly practiced on them by Israeli settlers. The article states “Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”[12]

Any violation to such regulations is considered by the convention to be a grave breach. Article 147 states “ Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: …unlawful deportation or transfer or unlawful confinement of a protected person… and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Same regulation is stated in first protocol to the Geneva Convention 1977 in its article 85.[13]

Similarly, The Rome Statute of the International Criminal Court (ICC) ratified by Palestine but never by Israel, has listed these violations as a war crime falls within its jurisdiction. Article 8 (2)  (a) (iv)     provides as war crimes “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (vii)     Unlawful deportation or transfer or unlawful confinement;  while the same article paragraph (b) (viii)   adds “  The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”

The Hague Regulations concerning the laws and customs of war on land 1907 is considered, unlike the Four Geneva Convention, to be a customary international law, in other words, obligatory to apply in situation of land war under all circumstances and whether states are parties to it or not. Article 42 of the regulations provides a definition for occupied territories that are protected under its provisions. The article states “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

Israeli act of settlements’ activity breaches many obligations in the Hague Regulations. To be more precise, regulations’ article 46 prohibits land confiscations and any violation of civilians’ rights in the occupied territories or territories experience military operations. The article states “Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.” this article becomes more relevant when Israeli authorities confiscate Palestinian private lands to build their settlements. And even for public lands that belong to the government of the occupied territory, article 55 of the regulations limits the occupying power’s rule to administration, the article states “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

Moreover, acquisition of territory by force is also one of the violations to international law committed by Israel while constructing its settlements on the occupied territories. Such violation is prohibited in the United Nations Charter 1945. Article 2 paragraph 4 of the charter states “The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles… All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[14] Similarly does the first principle of the Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations (1970) which states “…States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”[15]

Israel is trying, through expanding its settlements in the occupied territories to de fact annex more lands which is illegal; thus, denied by the international community. Paragraph 3 of the 2334 resolution stressed that the UN will not recognize any changes to the 4 June 1967 lines, unless agreed on by the Palestinian and Israeli parties through negotiations.

Altering the demographic composition and character and status of the Palestinian Territory occupied since 1967, including East Jerusalem is yet another legal breach resulting from the Israeli settlement activity. This violation which was stressed on by UN different organs resolutions and decisions comes as a result of transferring civilians of the occupying power to the occupied territories, which makes “natural growth” as Israel argues a key factor to this violation. The UN Security Council has repeatedly raised this point in its resolutions on the settlement legal status. Resolution 446 passed in 1979 regarding Israeli settlement projects condemned this breach in paragraph 3 that states “[UNSC]Calls once more upon Israel, as the occupying Power, to abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories.”[16] Same issue raised again in UNSC resolution 452 of 1979,[17] UNSC resolution 476 of 1980 regarding changing the status and character of Jerusalem,[18][19] and resolution 465 of 1980 regarding Israeli settlements on the occupied territories.[20][21]

The United Nations General Assembly has also focused on this issue in its different resolutions. For example in the UN General Assembly, resolution 36/147 C[22] regarding Israel’s violations of human rights in the occupied territories states in its section B “…general Assembly res 36/147 states demands once more that the Government of Israel, the occupying Power, desist forthwith from taking any action which would result in changing the legal status, geographical nature or demographic composition of the Palestinian and other Arab territories occupied since 1967, including Jerusalem.”[23] Similarly, UN General Assembly resolution 37/88 C[24], 38/79 D[25], 39/95 D[26], 40/161 D[27], and resolution 54/78 adopted in 1999 again regarding the Israeli settlements on the occupied territories.[28][29] UN Commission on Human Rights, Res. 2001/7 regarding human rights violations committed by Israel in the Palestinian occupied territories had the same principles especially in its paragraph 6 which states “ [the council] Expresses its grave concern at the Israeli settlement activities in the occupied territories, including Jerusalem, such as the construction of new settlements and the expansion of existing ones, the expropriation of land, the biased administration of water resources, the construction of roads and house demolitions, all of which violate human rights and international humanitarian law.”                However, the UN Sub-Commission on Human Rights, Final report of the Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements 1997 has the most comprehensive legal framing of Israeli settlement violations of the International Humanitarian law. The report focused on the population transfer by Israel as a key breach of the Fourth Geneva Convention.[30]

The Advisory Opinion rendered on 9 July 2004 by the International Court of Justice is yet another legal tool passed by the UN Judicial organ on the occupied Palestinian territories. Although the opinion mainly addressed the Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, the matter of settlements was raised as well. The opinion states “   the Court first observes that the route of the wall as fixed by the Israeli Government includes within the closed Area” (between the wall and the Green Line) some 80 percent of the settlers living in the Occupied Palestinian Territory.  Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a flagrant violation of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law…  The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel, and deplored by the Security Council, with regard to Jerusalem and the settlements, and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory.  It finds that the construction [of the wall], along with measures taken previously. . . severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right.”[31]

Under International Human Rights Law

Previously stated violations fall within the scope of International Humanitarian Law, which applies in the times of war. However, Israeli settlements also violate human rights law which applies more generally in times of peace and war. The UN International Fact-Finding Mission on Israeli Settlements which was created in March 2012 by the Human Rights Council has investigated the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem . The Mission presented its final report at a Human Rights Council session on 18 March 2013 in Geneva. The report[32] addressed different violations to International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

Stating that Israeli settlements violate the basic right of Palestinians to self-determination, Palestinians right to equality and non-discrimination,[33] their right to security and safety away from violence and intimidation of armed and violent settlers, their right to practice freedom of religion, their right to housing and saving property from damage, their freedom of movement, their right to water, their right to freedom of expression and peaceful assembly, in addition to violations of Palestinians economic rights and negative impact on their business. The report finally made its recommendations which stated, in addition to condemning Israel and calling on it to stop all its violations resulting from constructing settlements on the occupied territories, “The Mission calls upon all Member States to comply with their obligations under international law and to assume their responsibilities in their relationship to a State breaching peremptory norms of international law – specifically not to recognize an unlawful situation resulting from Israel’s violations. Private companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they are not adversely impacting the human rights of the Palestinian People in conformity with international law as well as the Guiding Principles on Business and Human Rights. The Mission calls upon all Member States to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, that conduct activities in or related to the settlements respect human rights throughout their operations. The Mission recommends that the Human Rights Council Working Group on Business and Human Rights be seized of this matter.”[34] This point will be discussed further in the legal implications’ section.

Security Council Role

According to article 24 of the United Nations Charter 1954, Security Council has primary responsibility for the maintenance of international peace and security[35]. Article 23 of the Charter provides that the council consists of 15 Members, five of them are permanent members who hold the power of veto, and each Member has one vote.[36] Under article 25 of the charter, all Member States are obligated to accept and carry on the Council decisions.

The Security Council functions under two chapters of the charter, chapter six which grants the council the authority to settle disputes by peaceful means and recommends methods of adjustment or terms of settlement,[37] and chapter seven that provides the Security Council with the power to impose sanctions or even authorize the use of force to maintain or restore international peace and security.

Any state member to the United Nations, and even non-members under specific conditions, may bring a dispute to the council under the sixth chapter.[38]Article 34 of the charter states “the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” The council’s resolutions in regard to Palestine-Israel conflict, including resolution 2334, have been passed under this chapter.

However, in specific situations, determined by the council itself, the council may take procedures under the seventh chapter of the charter which is more practical and binding than the sixth chapter. In this case the council has a choice, depending on the gravity of the addressed situation, between imposing non-military sanctions provided in article 41 of the charter which states “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication and the severance of diplomatic relations.” and military procedures provided in article 42 of the charter which states “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

The United Nations Security Council has taken number of key decisions regarding the Palestinian Occupied Territories. Resolution 242 of 1967 concerning the Israeli armed forces withdrawal from the occupied territories after the six days war of 1967, resolution 338 of 1973 concerning the implementation of resolution 242, resolution 446 of 1979 regarding Israeli Settlements ‘activities, resolution 452 of 1979 regarding the same issue, resolution 465 of 1980 again regarding the settlements, resolution 476 of 1980 regarding the status of the city of Jerusalem, resolution 478 of 1980 regarding the same issue, resolution 1397 of 2002 concerning the war on Gaza, resolution 1515 of 2003 concerning the same issue, resolution 1850 of  2008 regarding the Israeli Palestinian negotiations, were the resolutions recalled by the council in the preamble of its resolution 2334.

Again resolution 2334 was taken under the sixth chapter, resolving disputes with peaceful means, using a non-binding terminology such as calls upon, reaffirms, stresses, urges; which means no direct sanctions will be imposed on the Israeli government and persons involved in the settlements’ activity, however, this does not mean that the resolution has no legal importance and indirect practical implications which will be discussed next.

Legal implications  

  • Binding or non-binding

Although paragraph 11 of the resolution stated that the council “reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions,” and requested the Secretary General, in paragraph 12, to report to the council on the implementation of the current resolution, the later used a non-binding terminology since it was passed under the sixth chapter of the United Nations Charter 1945.

Therefore, Israel is not entitled to a direct punishment under this resolution; however, this does not mean that Israel will not face legal consequences along with the political and diplomatic implications entrusted by the international community consensus in passing the resolution; especially that states parties to the UN are obligated under article 25 of the UN Charter to accept and carry on the council’s decisions.

  • Occupation and Fourth Geneva Convention’s applicability

The resolution referred to Israel as an “occupying power” and to the Palestinian territories, including East Jerusalem, as “occupied” which, on one hand, puts an end to the Israeli argument that these territories are disputed not occupied, and on the other hand, declares the absolute application of the Fourth Geneva Convention on protecting civilians in the times of war 1949.

  • The Role of International Criminal Court

The resolution considered settlement’s activity a “flagrant violation” of International Law, especially the Fourth Geneva Convention of 1949 and thus has no legal validity. The resolution called upon Israel as an occupying power to comply with its obligations under international law and stop this activity. The term “flagrant violation” qualifies as a “war crime” that falls within the jurisdiction of the International Criminal Court according to article 5 (1) (C) of the Rome Statute. The settlements issue is addressed  more specifically in Article 8 (2) (b) (viii)  of the statute which states “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”

According to article 13 of the Rome Statute, there are three parties who can submit a case in front of the ICC; a state party to the statue, or not party who made a declaration of acceptance according to article 12(3), where a crime falls under the jurisdiction of the court (article 5 of the statute) was committed, the UN Security Council refers a matter passed under chapter seventh of the UN Charter, or the ICC prosecutor himself initiates an investigation on a crime listed under article 5 of the statute.[39]    Article 14, however, gives state parties, where the crime did not occur, the authority to refer a situation of a crime falls under article 5, but only for the purpose of determining whether one of more specific persons should by charged with committing such crime.[40] Under article 15, the office of prosecutor is eligible to receive and review “communications” or information provided by organizations and individuals regarding the commission of crimes fall within the court’s jurisdiction.

Article 11 of the Rome Statute, on the other hand, limits the court’s jurisdiction to crimes committed after the entry into force of the statute, and for states who become parties to the statute after its entry into force, the court has jurisdiction on crimes committed after that date unless the state makes a declaration under article 12(3) of the statute which allows a state that is not a party to the statute to accept the court’s jurisdiction in investigating crimes committed on its territories or by one of its nationals.[41]

The International Criminal Court was founded in 2002 by the Rome Statute of 2001. However, Palestine did not become a member of the court until 2015, while Israel neither ratified the statute nor cooperated with the prosecutor’s preliminary examination.   The ICC Prosecutor’s office released a statement regarding its role in Palestine indicating that “on 1 January 2015, the Government of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force on 1 April 2015.”[42]

Although the UN Security Council may not proceed with this resolution and file a lawsuit in front of the ICC because it acted under the non-binding sixth chapter of the charter, individual states parties to Rome Statute may use this resolution as a legal ground to file such lawsuits against Israel and Israelis involved in the settlement’s activity. Also the resolution may play as a key legal ground to encourage the ICC Prosecutor to bring a case in front of the court. NGOs, Human rights organizations, affected individuals, and intergovernmental organizations can submit information, testimonies, and documentations regarding Israeli settlements and its violations on the occupied territories.

  • International Sanctions on Israeli Settlements

The resolution’s language criminalizing the Israeli conduct encourages states parties to the International Community, the United Nations itself, and other national and international organizations to impose different sanctions on Israel and its settlements. Such sanctions may start with diplomatic pressure and does not end with boycott and economic sanctions, a step already adopted by the European Union Council of Foreign Affairs in January 2016. The resolution adopts a new business policy that “distinguishes between the territory of the state of Israel and the territories occupied since 1967”.[43] The Union directly labels products of settlements,[44] while, the Union’s science research centers and development programs already prohibit economic aid to Israeli Settlements operating beyond 1967 lines.[45]

Moreover, this concept comes in support of the BDS movement as an internationally acceptable legal ground which blocks Israel and its allies from challenging the movement’s boycott activities and campaigns.

  • Future safeguards

The resolution denies any change to the 1967 boarders without the agreement of the Palestinian side and through negotiations which blocks the way in front of the next US Administration under Trump to try to annex settlements to the state of Israel.

The resolution explicitly calls East Jerusalem a part of the occupied Palestinian territories in denial of the Israeli myth regarding Jerusalem as its capital.

Conclusion

The Security Council’s Resolution 2334 passed by consensus on the 23rd of December 2016 is considered a legal and political victory for the Palestinian cause. The resolution opens the door for political and diplomatic pressure on Israel’s illegal actions. In addition to economic sanctions and boycott movements, the resolution provides a legal ground for a possible international litigation against Israel’s government and leaders involved in the illegal settlements’ policy.

The resolution has been preceded by number of similar resolutions that declared the illegality of the settlements’ activities on the Palestinian Occupied Territories including East Jerusalem, calling upon Israel, the occupying power, to comply with its obligations and responsibilities under International law especially the Fourth Geneva Convention regarding Protecting Civilians in the Time of War 1949.

However, the timing of the new resolution is very critical especially that the Israeli Knesset is preparing to pass a law in favor of constructing new settlements. Also, the USA abstention for the first time shows the awareness and sensibility of the international community, including Israel’s closest allies, to the danger and gravity of settlements construction and expansion on the occupied territories.

To guarantee that this resolution will not take the steps of previous resolutions and thus end up being folded into oblivion, Palestinian leaders, activists, allies, supporter national, international and intergovernmental organizations, and Palestinian people themselves should take this resolution into the next stage by pressuring towards a full and practical implementation of the resolution’s outcomes which needs a multiplied diplomatic, political and legal effort.

Practical steps towards a full implementation of the resolution may take the form of pushing for an effective economic sanctions and boycott of the Israeli settlements, filing a case in front of the ICC, spreading awareness among states, individuals and organizations of the danger of such international law violation on the international peace and security, and holding onto the declared rights emphasized by the terminology of the resolution regarding the Occupied territories after 1967 including East Jerusalem throughout the negotiations process.

[1] A report by  Hanna Issa, an International Law expert and Secretary General of the Christian-Muslim Organization on ppp.ps

[2] Israel/Palestine Events of 2015, a report by Human Rights Watch

[3] Israeli Settler State in West Bank and East Jerusalem, a report by International Middle East Media Center

[4] Ibid

[5] Paragraphs 6 and 7 of the resolution

[6] Paragraph 5 of the resolution

[7] Paragraph 9 of the resolution

[8] Paragraph 8 of the resolution

[9] Article 2 of the Fourth Geneva Convention 1949

[10] Article 47 of the convention

[11] Article 49 of the Fourth Geneva Convention 1949 states “Article 49 states that “  Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.
The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.
The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

[12] Article 27 of the Fourth Geneva Convention 1949

[13] Article 85 lists all grave breaches to the protocol including grave breaches to the convention. Paragraph 1 of the article states “The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.” While the rest of the paragraphs provide more comprehensive set of breaches

[14] Article 2 paragraph 4 of the UN Charter 1945

[15] Principle 1 of the Declaration On Principles Of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations (1970)

[16] https://unispal.un.org/DPA/DPR/unispal.nsf/0/BA123CDED3EA84A5852560E50077C2DC UNSC resolution 446 of 1979 paragraph 3

[17] UNSC resolution 452 of 1979 http://unscr.com/en/resolutions/452

[18] This resolution had in its paragraphs 3 and 4 “3. Reconfirms that all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;
4. Reiterates that all such measures which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void and must be rescinded in compliance with the relevant resolutions of the Security Council;”

[19] UNSC Resolution 476 of 1980 https://unispal.un.org/DPA/DPR/unispal.nsf/0/6DE6DA8A650B4C3B852560DF00663826

[20] Paragraph 5 of resolution 465 of 1980 states “Determines that all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof, have no legal validity and that Israel’s policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;”

[21] UNSC resolution 465 of 1980 https://unispal.un.org/DPA/DPR/unispal.nsf/0/5AA254A1C8F8B1CB852560E50075D7D5

[22] In its section C paragraph 7 the resolution lists all the violations committed by Israel in establishing settlements on the occupied territories and states “[the UNGA] Strongly condemns the following Israeli policies and practices:  (a)    Annexation of parts of the occupied territories,          including Jerusalem; (b)    Establishment of new Israeli settlements and expansion          of the existing settlements on private and public Arab lands, and          transfer of an alien population thereto; (c)    Evacuation, deportation, expulsion, displacement and          transfer of Arab inhabitants of the occupied territories and denial          of their right to return;(d)    Confiscation and expropriation of private and public          Arab property in the occupied territories and all other transactions          for the acquisition of land involving the Israeli authorities,          institutions or nationals on the one hand and the inhabitants or          institutions of the occupied territories on the other;  (e)    Excavations and transformations of the landscape and the          historical, cultural and religious sites, especially in Jerusalem;

[23] http://www.un.org/documents/ga/res/36/a36r147.htm

[24] http://www.un.org/documents/ga/res/37/a37r088.htm

[25] http://www.un.org/documents/ga/res/38/a38r079.htm

[26] http://www.un.org/documents/ga/res/39/a39r095.htm

[27] http://www.un.org/documents/ga/res/40/a40r161.htm

[28] This resolution again stressed the same language regarding settlements illegality “1. Reaffirms that Israeli settlements in the Palestinian territory, including Jerusalem, and in the occupied Syrian Golan are illegal and an obstacle to peace and economic and social development;
2. Calls upon Israel to accept the de jure applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,1 to the Occupied Palestinian Territory, including Jerusalem, and to the occupied Syrian Golan and to abide scrupulously by the provisions of the Convention, in particular article 49;
3. Demands complete cessation of the construction of the new settlement at Jebel Abu-Ghneim and of all Israeli settlement activities in the Occupied Palestinian Territory, including Jerusalem, and in the occupied Syrian Golan;”

[29] https://unispal.un.org/DPA/DPR/unispal.nsf/0/CFFFA9A56DB20D2085256897005D7F61

[30] https://unispal.un.org/DPA/DPR/unispal.nsf/0/480844B6EC1F52A905256500004CCF31

[31] http://www.icj-cij.org/docket/index.php?pr=71&code=mwp&p1=3&p2=4&p3=6

[32]https://unispal.un.org/DPA/DPR/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/0aed277dcbb2bcf585257b0400568621?OpenDocument

[33]In addition to the United Nations and the High Contracting Parties to the Fourth Geneva Convention, the Committee on the Elimination of Racial Discrimination also provided that settlements on the occupied territories breach article 3 of the Convention on Elimination of Racial Discrimination “CERD” which states “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.”

[34] Paragraphs 116, 117 of the report

[35] Article 24 of the charter states “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”

[36] Article 27 of the charter

[37] Article 36 of the charter

[38] Article 35 of the charter

[39] Article 13 of the Rome statute http://www.un.org/law/icc/index.html

[40] Article 14 of the statute http://www.un.org/law/icc/index.html

[41] Articles 11 and 12 of the Rome statute http://www.un.org/law/icc/index.html

[42] https://www.icc-cpi.int/palestine

[43] https://www.theguardian.com/world/2016/jan/18/eu-adopts-resolution-criticising-israeli-settlement-activity-occupied-palestinian-territories

[44] http://www.ecfr.eu/publications/summary/eu_differentiation_and_israeli_settlements3076

[45] WashingtonInstitute.org

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