In Hindsight: Resolution on Israeli Settlements
The Council on 23 December 2016 issued a rare rebuke of Israel with the adoption of resolution 2334, which condemned Israeli settlements as having no legal validity and constituting a major obstacle to a two-state solution. The Council’s consideration of the text on the issue, the first resolution adopted on Israel-Palestine in nearly eight years, elicited extreme pressure from the government of Israel and the incoming US administration on the Council member which had tabled the draft resolution, demonstrating how such pressure—external to the Council—can attempt to thwart Council initiatives even where consensus has been reached among its members. The story of resolution 2334, however, also demonstrates how elected members can play an instrumental role in galvanising the Council on even the most contentious issues.
Throughout much of 2016, the Palestinians had been working on a resolution that condemned Israeli settlements and conducting bilateral consultations with the members of the Council. It was expected that a text would be circulated following the 8 November 2016 US presidential election, when it was thought that the US might not use its veto. However, by early December, there were no indications that a vote was pending. Having been a strong proponent of Council action on the issue during its term on the Council, which was soon to end, New Zealand circulated its own text and called for two meetings for the Council to discuss its options in addressing the conflict. New Zealand had hoped to allow the Palestinians to proceed with their settlements text before introducing their draft, which urged the resumption of negotiations and addressed incitement to violence, Israeli settlements and the situation in Gaza. However, with the year soon coming to an end and with Egypt (the Arab Group representative on the Council) not having introduced a text, New Zealand decided to convene Council members to discuss their options.
In the two meetings, on 13 and 20 December 2016, Council members discussed the New Zealand draft, along with other options. All members expressed concern about the dwindling prospects for a two-state solution, and the majority felt the Council needed to act imminently. Most members believed that if the Council were to capitalise on a rare window of opportunity—before the inauguration of US President-elect Donald Trump, when the outgoing administration of President Obama might refrain from using its veto—they needed to pursue a strong text, either outlining parameters for a peace agreement or condemning Israeli settlements as an obstacle to peace and a two-state solution. It appears the latter option was preferred by most members.
Following parallel consultations by the Arab League on the Palestinian text, Egypt, later joined by Malaysia, New Zealand, Senegal and Venezuela as cosponsors, unexpectedly put the Palestinian settlements text in blue on the evening of 21 December and called for a vote the following day. Israeli Prime Minister Benjamin Netanyahu took to Twitter to call on the Obama Administration to “veto the anti-Israel resolution” and Trump also via Twitter urged Obama to veto the text, which he said “puts Israel in a very poor negotiating position”. Following a phone call between Trump and Egyptian President Abdel Fattah al-Sisi, Egypt requested the President of the Council and the Secretariat to cancel the vote the following morning, ostensibly to allow more time for consultations. It was unclear to Council members whether Egypt intended to reschedule the vote or if it would retract the text under rule 35 of the Council’s provisional rules of procedure, which states that “a motion or draft resolution can at any time be withdrawn so long as no vote has been taken with respect to it”.
That afternoon, following informal discussions among the other co-sponsors, Malaysia informed Egypt that it would host the Palestinian delegation as well as New Zealand, Senegal and Venezuela to discuss how to proceed. At that meeting, it was agreed that it was crucial to proceed in a timely manner to maintain momentum and circumvent the application of pressure on Council members to obstruct the adoption. Palestine presented a new text, with the addition of some uncontroversial language that could be put in blue for a vote, though there were concerns about introducing new language after extensive bilateral consultations had taken place.
Following the meeting, Malaysia communicated to Egypt via email that if Egypt did not call for vote on the draft in blue by the following day, the co-sponsors intended to prepare a separate draft that would be submitted for the Council’s immediate action. They requested a response by midnight that night (22 December) on whether Egypt would proceed to call for a vote on the draft in blue. In the event that Egypt decided that it could not proceed to call for vote on 23 December 2016, the delegations reserved the right to table a draft and to put it to vote as soon as possible. These members were aware that rule 35 also stipulates that if a “draft resolution has been seconded, the representative on the Security Council who has seconded it may require that it be put to the vote as his motion or draft resolution with the same right of precedence as if the original mover had not withdrawn it”—meaning that whether or not Egypt withdrew the text, the co-sponsors could initiate a vote on the exact same text.
The following morning, 23 December, Egypt proceeded to withdraw the text without consulting with the Arab Group. The co-sponsors met once again and, with the support of the other members of the Arab Group, agreed to table the exact text that had been withdrawn, with Egypt removed from the list of co-sponsors. (This was a marked departure from recent practice, whereby any Palestinian-drafted text has been tabled by the Arab representative on the Council.) The text was put to a vote that afternoon, and was adopted with 14 votes in favour and a US abstention. US Ambassador Samantha Power, in her explanation of vote, stated it had been a long-standing position of successive US administrations that settlements undermined Israel’s security and eroded prospects for peace. She emphasised, however, that due to anti-Israel bias at the UN, and because the US did not agree with every word in the resolution, the US chose to abstain instead of vote for the resolution. She added that her delegation would not have let the resolution pass had it not addressed terrorism and incitement to violence.
The resolution, which was adopted under Chapter VI of the UN Charter and lacks an enforcement mechanism, is the first Council resolution focused on Israeli settlements since resolution 465 of 1980. One key aspect of the text is that, while it does not contain an explicit referral of the situation to the International Criminal Court (ICC), it is seen as implicitly encouraging the ICC to proceed with a case, as it is currently undertaking a preliminary investigation into alleged war crimes committed during the 2014 Gaza conflict and Israel’s settlement activities. The Rome Statute defines as a war crime “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies,” and resolution 2334 adopts the same language of transfer, condemning the “transfer of Israeli settlers…in violation of international humanitarian law”. The resolution is also seen as encouraging member states to refrain from conducting business with Israeli enterprises operating in the occupied territories, as it “calls upon all States…to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.
The resolution calls on the Secretary-General to report to the Council every three months on the implementation of the resolution.