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Not legally binding, but bad news for Israel

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December 29, 2016 11:09

To a large extent, United Nations Security Council resolution 2334 reiterates language previously adopted by the UN body. Nevertheless, it is undoubtedly bad news for Israel. 
It is nearly 40 years since the council adopted a similar resolution on settlements. In the intervening years, most of its decisions connected to Israel have dealt with encouraging the negotiation process, while the crux of the present document reverts to condemning Israeli policy. It refers to the settlements as having “no legal validity” and being “a flagrant violation” of international law. 
The resolution lumps East Jerusalem with “occupied Palestinian territory” and calls on states to “distinguish in their relevant dealings between the territory of the State of Israel and the territories occupied since 1967”. 
The document will be seen as a baseline by the Palestinians in any future negotiations. In the 1993 Oslo Agreement, the parties undertook to negotiate “settlements” as part of the final status. The Palestinians may well argue now that there is no room to negotiate this issue once the Security Council has decided that settlements are illegal and that East Jerusalem is part of occupied Palestinian territory. 
The resolution does not call for boycotting Israel but there will undoubtedly be anti-Israel groups and organisations that view it as political support for such a stance.
Nevertheless, the UNSC vote was hardly a fulfilment of a Palestinian wish list. The resolution was not adopted under Chapter VII of the UN Charter, which would have allowed the council to take punitive action. It is a non-binding resolution imposing no obligations on states and creating no binding rules or requiring compulsory action. It does not refer to Israeli action as a grave war crime or even a war crime; language which would have been seen as requesting the attention of the International Criminal Court (ICC) at The Hague. 
In fact, there is no reference to the ICC or any recommendation for legal action. The resolution may encourage Palestinians to try to bring claims against Israelis to the ICC, although it is unlikely that the court will want to engage itself in an issue that it is clearly political. In the past, the court has dealt with mass murders, rapes and wanton destruction. The issue of settlements has no inherent criminality; it is a question of dispute of sovereignty over specific areas. Defining a border between Israel and a future Palestinian state is hardly the task of a criminal tribunal.
Buried at the end of Resolution 2334 is a phrase that welcomes “the initiative of France for the convening of an international peace conference”. 
Here, perhaps, lies the rub. It has been the consensual position of all Israeli governments that the country’s disputes with its neighbours, including with the Palestinians, can only be settled by negotiation with Israel. International conferences will inevitably be a forum for speech-making, Israel-bashing and staking out extremist positions. The making of painful concessions and difficult decisions can only be done on a bilateral basis. Israeli Prime Minister Benjamin Netanyahu’s angry criticism of the states that supported the resolution was perhaps a pre-emptive move against such a “peace conference”.

Robbie Sabel is the former legal adviser to the Israeli Ministry of Foreign Affairs

December 29, 2016 11:09

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