On Illegal Israeli Settlements, Obama Has Queered the Pitch for Trump and Netanyahu

In 2011, the Obama administration vetoed a UN resolution describing Israel’s settlements as illegal. In his final month in office, the president has reversed himself. And thereby hangs a tale.

This week’s vote in the United Nations Security Council describing Israeli settlements built in Palestinian territory as a flagrant violation of international law is a major development that will have far reaching consequences for the Middle East peace process and perhaps the future of the UN.

Resolution 2334 (2016) – passed 14-0 with one abstention (by the United States) on December 23 – made history when it reaffirmed “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 and is a major obstacle to the achievement of the two state solution and a just, lasting and comprehensive peace”.

It reiterates the “demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard” and that it (the Security Council) “will not recognise any changes to the June 4, 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.”

The resolution calls for affirmative steps to reverse all negative steps on the ground. It asks member states to distinguish between the territory of the state of Israel before and after June 4, 1967.

This is a seismic shift and has expectedly provoked an outcry from the Israeli government and some of its supporters in the US, which did not use its veto to kill the resolution.

Factors before the Security Council

The executive director of the Global Council for the Responsibility to Protect, Simon Adams, whose work on mass atrocity prevention I have come to greatly admire, commented that he had made a mistake in turning on CNN in the aftermath of the UNC vote. His lament was that the channel did not seem to be aware of the difference between the UN and the Security Council. Like the Trump transition team which had sought to intervene to pre-empt such an outcome, most news channels fail to distinguish between the UN as a global inter-governmental body and member states expressing their political will in the Security Council.

The resolution adopted by the UNSC dealt a devastating blow to a number of assumptions which had come to be taken for granted in any consideration of the Palestine-Israel- Middle East imbroglio. Some of these need to be emphasised.

The US permanent representative (PR), Samantha Power, noted that the US abstention was “in line with her country’s bipartisan tradition” even while admitting that “the vote had not been straightforward”.

The essential truth is that Israel has for the past decade or more carried out illegal settlement activities in the Palestinian Territories “occupied since 1967 including East Jerusalem ” with a shield provided by the US in the Security Council in the form of a veto . UNSCR 2334, on the other hand, went through because the US decided to make an exception and step aside.

In some respects, Samantha Power’s reference to a ‘bipartisan consensus’ reminds me of the linguistic quibbling around the illegality issue which has marked the US position in the UNSC. I recall that on February 18, 2011, when Lebanon had brought a similar resolution before the UNSC, 14 members, including India, were willing to support the draft –  which termed the ‘settlements’ as ‘illegal’. We had then been told by Susan Rice, who was the US PR at the time, that with language like that, she would be left with no option but to veto the resolution. When some of us tried to understand what precisely the US objection to the language was, we stumbled across an interesting argument.

Rice then claimed that she could perhaps go along with a formulation that described the ‘settlements’ as ‘illegitimate’. Sensing an opportunity, I inquired whether the US could go along with the resolution if it used the word ‘illegitimate’ as opposed to ‘illegal’. Prompt came the reply. She needed to be seen to be opposing the resolution and casting a veto – no matter what word is used on the illegality issue – for domestic political reasons and the nature of the special US-Israel relationship. We stuck to our position and the resolution received 14 yes votes and 1 veto. Interestingly, the resolution on which the US has now abstained uses the phrase “have no legal validity” to characterise the settlements and avoids the word “illegal”.

So, what has changed between 2011 and 2016? President Obama, as early as September 2009, had spoken in terms of welcoming Palestine as the 192nd member state of the UN. By 2010, addressing the UN General Assembly, he talked about the need to find a solution to the Middle East peace process anchored in the security of the state of Israel. On the settlements,  the Obama administration always had a great sense of unease and discomfort but had so far chosen to avoid confrontation with Israel on this issue.

With relations between Prime Minister Netanyahu and President Obama coming under strain with the former addressing the US Congress directly without the invitation being routed through the president’s office or the US Department of State, there was increasing speculation that if push comes to shove in the final months of the Obama administration, the US may no longer be willing to cast a veto in defence of its strongest ally. The abstention, in the final analysis, seems to be intended to queer the pitch for Netanyahu and President-elect Trump.

Samantha Power’s statement, apart from being disingenuous, conceals the fact that the US abstention creates problems on a number of fronts. The definition of President Obama’s legacy in terms of mainstream US opinion may be the least of the concerns. The more serious issue is that it has openly pitted president-elect Donald Trump against the outgoing Obama administration.

Complex consequences

The fact that the Israeli prime minister reached out to the Egyptian president and to President-elect Trump – who tweeted that the resolution should be vetoed – and that the US nevertheless decided to abstain has left a lot of broken china on the floor. There are already indications from the Trump camp, including from John Bolton, that the UN will be given a fixed timeframe to undo the resolution or else there would be consequences – including defunding of the UN .

This brings me back to my friend Simon Adams’s lament. Why should the UN have to pay the price for the conduct of 15 members of the Security Council? Surely, the Trump administration – from January 20, 2017 on – can work to undo resolution 2334. The UN consists of three segments – the secretariat, member states and a vast array of civil society and NGOs. If the decision has to be undone, it is only the member states in the Security Council that can do so. One thing we do know, of course, is that the US position is going to change.

As to the U.N., things will be different after Jan. 20th.

— Donald J. Trump (@realDonaldTrump) December 23, 2016

So why are alarm bells ringing for Israel? Quite simply, apart from the disappointment that Israel did not have a single country supporting its position in the 15-member council, this resolution could have the effect, if not handled correctly by the US and Israel, to open up Israeli actions before the International Criminal Court (ICC). This is something more than the outgoing Obama Administration may have bargained for through its ‘abstention’.

If the intention was merely to deliver a reprimand to Prime Minister Netanyahu, the Obama administration’s action could end up hurting the strongest ally of the US with unimaginable and unintended consequences. At the very least, the US ‘abstention’  feeds into an already complicated Middle East scenario with the Trump camp already talking about renegotiating the Iran nuclear deal, seeking a reset of relations with Saudi Arabia and other Gulf states to ensure ‘good conduct’ from them on ISIS and terrorism, and a possible cozying of relations with Russia.

In its efforts to teach Netanyahu a lesson, partly reflecting the Obama Administration’s own frustration over lack of leverage, Obama may just have succeeded in complicating the President-elect’s tasks in the Middle East. The Israeli ambassador’s statement after the resolution was passed said that those who supported it had voted against negotiations and peace. Russian ambassador Vitaly Churkin’s statement was even more interesting. Like other countries, Russia too agreed that settlement activities undermined the chances for a two-state solution, as did acts of terror and incitement to violence, he said. But, as the official UN summary of his remarks records, “he added that he had been puzzled by the process around the resolution and by the haste with which it had been “pushed” to the vote.”

Hardeep S. Puri is a former Permanent Representative of India to the UN both in Geneva and New York. He chaired the Security Council’s Counter Terrorism Committee in 2011 and 2012 and presided over the council in August 2011 and November 2012. He is the author of  Perilous Interventions: The Security Council and the Politics of Chaos, published by HarperCollins in 2016.