After Bibi’s Reelection: Why a Pivot to the UNSC is Still a Mistake (Part 1: Settlements)

As the White House continues to direct a cascade of criticism at Israeli Prime Minister Benjamin Netanyahu, some commenters are beginning to ask whether the ongoing verbal offensive serves any strategic purpose. More are already theorizing about what precisely the President and his staff mean when they announce they are “reassessing” or “reevaluating” their policies toward Israel and Mideast peace. At the top of the list of guesses is the potential for a change in the United States traditional stance at the United Nations, and particularly in the UN Security Council. Observers have noted two apparent paths for the United States to pivot in its approach to Israel at the UNSC: 1. The US might support a resolution condemning settlement building and/or 2. The US might support a resolution laying out the principles of a two-state solution. Either way, taking the Security Council route would be a mistake. Any attempt by the United States to produce a balanced and nuanced resolution on either issue would likely be unacceptable not only to Israel - but also to the Palestinians and their supporters. So after pursuing such a resolution, the administration will thus be left with the unenviable choice of allowing a less balanced resolution or pulling back with egg on its face. What follows, then, is the first in a pair of posts that will analyze these two potential UNSCR routes. The “condemn the settlements” path appears, at first glance, like the easier one. The US has long opposed Israeli settlement policy, and drafting a resolution condemning Jewish construction in the West Bank would seem a fairly simple proposition. In 2011, for instance, the United States barely vetoed a Security Resolution directed at settlement building that was specifically designed to gain US support. That resolution “reaffirm[ed] that all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of peace on the basis of the two-State solution” and “condemn[ed] the continuation of settlement activities by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem.” At the time, then US Ambassador the UN insisted that despite the veto, the US continued to “reject in the strongest terms the legitimacy of continued Israeli settlement activity.” Nevertheless, America would veto because the resolution because of practical concerns over the resolution’s effects: it “risks hardening the positions of both sides” and “could encourage the parties to stay out of negotiations.” Proponents of US support for a similar resolution now point to this statement of Rice’s for support: US opposition to a resolution on settlements has always been practical rather than principled. But now that the need for American pressure on Israel has increased, those practical considerations have changed. American condemnation of Israeli settlement building will send a clear message that Israeli settlement needs to stop. There are two problems with this argument: first, although the Obama administration would like to increase pressure on Israel---particularly with regard to settlements---the underlying practical reality that Rice pointed to three and a half years ago has not changed. The Palestinians continue to view international mechanisms as an alternative to---and a way of predetermining---direct negotiations with Israel. President Abbas rejected far-reaching offers (both secret and public) not only during the Prime Ministership of Ehud Olmert, but also in 2013, during Netanyahu’s last term. (This is leaving aside the more-than-enough-blame-to-go-around of the most recent round of talks.) So despite the President’s current frustrations with Netanyahu, the fundamental argument that Rice pointed to remains very much present. Palestinians will only make concessions when they internalize that the international card is completely off the table, and there is no alternative to direct negotiations. Today, that message only needs stronger reinforcement. But there is also a second, more substantive, reason why the US shouldn’t seek such a resolution: The US’ policy on settlements is far more nuanced (and rightly so) than the UNSC would be willing to accept---and the US should not compromise on that principled complexity for the sake of slapping Israel on the wrist. For most of the world, Israeli construction anywhere over the “green line” (the armistice line between between Israeli and Jordanian forces at the end of the 1948 war) constitutes a violation of international law, running afoul of the Geneva Convention’s mandate that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Israel, on the other hand, disputes the provision’s applicability, arguing  the territory’s status is “disputed” rather than “occupied”---as it was never part of a sovereign Arab state and subject to competing claims by Israel and world Jewry. The United States position lies somewhere in between. In 1979, a State Department’s legal adviser wrote an opinion outlining the “legal considerations underlying the United States’ view that the establishment of the Israeli civilian settlements in the territories occupied by Israel is inconsistent with international law." “Inconsistent” is, of course, weaker language than the world’s more unambiguous “violation.” Nor does the logic of the opinion apply to a sizeable chunk of some of early settlers--those who, having lived in parts of the territories prior to expulsion by Jordanian forces in 1948, would seemingly be deemed members of the native population. (These would include large numbers of those who returned to East Jerusalem in 1967 and those who founded the Gush Etzion bloc). But even more importantly, the last 35 years has seen a major shift in American policy (despite the absence of a new legal opinion.) Successive presidents have deemed the settlements “not illegal” and have pivoted to labeling ongoing settlement building “illegitimate” or “an obstacle to peace” rather than using the language of international law. And since Israel’s disengagement from Gaza, it has been established United States policy to draw distinctions between the large settlement blocs and other areas in the West Bank, as President Bush wrote to Israel at the time: “In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949… It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.” This distinction drawing is now not only wise policy, but an American commitment. In order to be consistent with American policy and common sense, any Security Council resolution on settlements would have to take into account these complexities: it should avoid overt language that labels the settlements as violations of international law; it should acknowledge the reasonableness of Israel’s historical claims to parts of the territories; it should refrain from condemning construction within the large “population centers” that America has already agreed will be part of Israel; it should make clear that the objections to settlement construction are focused on---and motivated by---that activity which makes the creation of a Palestinian state objectively more difficult; and it must balance condemnation of Israeli construction with condemnation of Palestinian actions (incitement, anti-normalization campaigns, support for terrorism and terrorists etc) that similarly represent obstacles for peace. Failure to stick to these principles would represent a betrayal of our values and would make it more difficult to coax Israelis (who will then see American commitments as worthless) and Palestinians (who will increasingly see bilateral talks as unnecessary) to a reasonable settlement. Of course, given the constellation of interests on the Security Council, and the likely opposition not just of Israelis but also Palestinians, such a resolution would be unlikely to pass. And that is why we are probably better staying out of this business altogether.