President Obama is ending his presidency the way he began it – throwing Israel to the wolves. On September 23, 2009, he told the United Nations General Assembly, “America does not accept the legitimacy of continued settlements.” On December 23, 2016, Obama broke with the longstanding practice of both Democratic and Republican administrations to protect Israel from one-sided UN resolutions. He let the UN Security Council pass a resolution declaring that the establishment of settlements by Israel has “no legal validity and constitutes a flagrant violation under international law.” The resolution demands that “Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” The Obama administration abstained, rather than veto this resolution as it had done with regard to a similar resolution back in 2011. All other members of the Security Council, including the United Kingdom and France, voted for the latest outrage against Israel coming out of a UN chamber.
U.S. Ambassador Samantha Power shamelessly defended the U.S. abstention as an act to save the so-called “two-state” solution, which Israel’s continued settlements activities were, she said, supposedly jeopardizing. She pathetically reached back to a 1982 statement by then-President Ronald Reagan calling for an end to “the use of any additional land for the purpose of settlements.” In the statement quoted by Ambassador Power, President Reagan said that “the immediate adoption of a settlement freeze by Israel, more than any other action, could create the confidence needed for wider participation in these talks.“
Ms. Power quoted Ronald Reagan out of context. In his address, Mr. Reagan was referring to a freeze on settlements during a “period of transition,” which would “begin after free elections for a self-governing Palestinian authority” and could prove that “Palestinian autonomy poses no threat to Israel’s security.” He said that “the United States will not support the establishment of an independent state in the West Bank and Gaza,” but suggested instead “self-government by the Palestinians in the West Bank and Gaza in association with Jordan.”
Ambassador Power left out of her out-of-context reference to the Reagan quote the repeated failures of the Palestinians to negotiate in good faith for more than three decades since that time. She failed to note Israel’s voluntary freezing of new settlements and restrictions on existing ones for four years, between 1992 and 1996. The number of Israelis killed as a result of Palestinian terrorist attacks during that time increased from 34 in 1992 to 56 in 1996, the fifth largest annual total between 1967 and 1996. There were 65 Israeli fatalities from Palestinian terrorism in 1994, smack in the middle of Israel’s settlement freeze.
Ambassador Power also failed to note Israel’s unilateral withdrawal from Gaza and dismantling of all settlements there in Gaza in 2005, for which Israel was rewarded with Palestinian terrorists’ firing of thousands of rockets from Gaza into Israel. Finally, she conveniently skipped over Israel’s moratorium on settlement building in the West Bank during Obama’s first term in office. During this moratorium, Palestinian terrorists continued to kill Israelis, including a married couple and two other Israelis who were murdered in their vehicle in a Hamas terrorist drive-by shooting attack in the outskirts of Hebron.
In short, all of Israel’s concrete actions to facilitate a peaceful resolution of the conflict and enable a viable two-state solution have foundered because of Palestinian intransigence and terrorism. Yet the Obama administration decided to do the Palestinians’ bidding and let a resolution heaping blame and condemnation on Israel pass the Security Council.
Still pretending to be a friend of Israel, Samantha Power added in her explanatory remarks that abstention rather than veto of the ant-Israel settlements resolution was a difficult vote for the United States “because of where it’s taking place: at the United Nations.” She complained “that for as long as Israel has been a member of this institution, Israel has been treated differently from other nations at the United Nations.” She said “such unequal treatment not only hurts Israel; it undermines the legitimacy of the United Nations itself.” She was correct in those observations. Nevertheless, the Obama administration compounded the “unequal treatment” of Israel by allowing the anti-Israel settlements resolution to pass.
The resolution focuses almost exclusively on Israeli settlements as “a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.” It pays only lip service to Israel’s demonstrable security concerns, and contains only a glancing critical reference to acts of terror and incitement to violence by both sides. It specifically calls out Israel for what the resolution claims was its violation of international law. However, the resolution fails to call out Hamas, which governs territory claimed as part of the “State of Palestine,” for incitement to genocide and using civilian facilities such as schools and hospitals to carry out attacks in violation of international humanitarian law. It also fails to cite Palestinian Authority leaders for their incitement to genocide through such channels as official Palestinian Authority websites, Palestinian Authority-sponsored media outlets and in their educational materials. Incitement to genocide, committed by both Hamas and Palestinian Authority officials, violates the Convention on the Prevention and Punishment of the Crime of Genocide.
All that matters to the United Nations and the Obama administration are Israeli settlements. Even there, the resolution mixes apples and oranges. The resolution does not even distinguish between the construction or expansion of arguably illegal outposts east of the Security Barrier, and building within East Jerusalem, which supporters of the resolution presume will automatically be the capital of a new Palestinian state. “By treating all construction as equally problematic, the UN will paradoxically make it harder for future Palestinian, Israeli and American leaders to negotiate,” David Bernstein, President and CEO of The Jewish Council for Public Affairs, said. “It limits their room to maneuver.”
The Security Council anti-Israel settlements resolution, passed with the Obama administration’s consent, is not technically legally binding, because it was not passed under the provisions of Chapter VII of the UN Charter. The resolution is also not formally characterized as a “decision” of the Security Council adopted for the explicitly stated purpose of “the maintenance of international peace and security.”
However, the resolution sets down a clear marker that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law.” With such an unambiguous declaration, now supported or at least unopposed by all five permanent members of the Security Council and most member nations of the UN, the resolution may be deemed as evidence of “customary international law” on the subject of Israeli settlements activities. Palestinians and their supporters would then be better positioned to cause mischief for Israel at the International Criminal Court (ICC), which the so-called government of Palestine has joined. A “preliminary examination into the situation in Palestine” is currently underway at the ICC. The Palestinians and their supporters may also seek to exploit the Security Council resolution’s finding that Israel’s settlements are in “flagrant violation under international law” to pressure the UN and member states into boycotting the purchases of any products or services remotely connected to firms doing any business in the West Bank or East Jerusalem. Even before the Security Council resolution was passed, the UN’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein from Jordan, sought to have the UN’s procurement division consider launching what would amount to a blacklisting and boycott of Israeli businesses and international companies with ties to the West Bank, East Jerusalem and Golan Heights.
Israeli Prime Minister Benjamin Netanyahu has already stated that “Israel rejects this shameful anti-Israel resolution at the U.N., and will not abide by its terms.” Fortunately, starting on January 20, 2017, Israel will finally have a friend in the White House who recognizes the difference between a democratic ally and a gang of thugs pretending to be a nation state.
“As to the U.N., things will be different after Jan. 20th,” tweeted President-elect Donald Trump. One of the first things that he should do upon taking office is to declare that the United States repudiates anything in the Security Council anti-Israel settlements resolution that denies or calls into question the legal validity of Israel’s existing or future settlements activities. He should make clear that any effort by the UN or member states to institute a boycott will result in serious adverse financial consequences to them. And he should announce that the United States will move its embassy in Israel from Tel Aviv to the undivided capital of the Jewish state, Jerusalem.