North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

In the Face of UN Condemnations, Israel Passes a Bill Legalizing Settlements

By: Rebecca Mitchell

On February 6, Israel passed a bill legalizing approximately 4,000 Jewish settlements in the West Bank.[1]  The bill would allow the Israeli state to seize privately-owned Palestinian land, granting the property to Israeli citizens for their exclusive use.[2]  Under the bill, Israeli citizens who built their homes on private Palestinian property, “in good faith or at the state’s instruction,” would be protected from court-ordered evacuation and demolition.[3]  While the bill has only passed its first of four readings to become law, the move by the Israeli government has enormous implications in the international community because it runs counter to resolutions the U.N. adopted opposing these settlements.[4]

Background

In 1967, Israel captured the West Bank in the Six-Day War.[5]  In response to this conflict, the UN Security Council passed Resolution 242, calling on the Israeli armed forces to withdraw from the occupied lands in the West Bank, Gaza Strip, East Jerusalem, and Golan Heights.[6]  The resolution recognized two principles: “[w]ithdrawal of Israel armed forces from territories occurred in the conflict” and “[t]ermination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”[7]  Further, the resolution called for “achieving a just settlement of the refugee problem.”[8]  However, despite the language of the resolution calling for lasting peace, the resolution has served as more of a recommendation than a self-executing document with legal implications.[9]  Instead of using mandatory language such as “decide” and “demand,” the resolution includes language like “expresses” and “emphasizes.”[10]  Article 39 of the Charter indicates that, before measures are taken in accordance with Articles 41 and 42, the Security Council must first make a formal determination regarding which party constitutes the hostile party.[11]  Here, the resolution failed to make such determination, suggesting that the resolution lacks any legal enforcement.

The perceived unenforceability of the resolution has been reflected in continued settlement practices in the region.  Before 1967, when Israel captured the West Bank in the Six-Day War, no Israeli citizens lived in the territory.  Beginning in 1968, the first Israeli citizens began settling in the territory.  Since then, about 400,000 Jews have settled in the West Bank, with an additional 200,000 in East Jerusalem.[12]

Resolution 2334

On December 23, 2016, the UN Security Council reaffirmed that Israeli settlements in Palestinian territory, dating back to 1967, had no legal validity, constituted a flagrant violation under international law, and posed a major obstacle to the vision of two States living peacefully within internationally recognized borders.[13]  The Resolution demanded that Israel immediately cease all settlement activities in the Palestinian territory.[14]  Further, the UN Security Council stated that it would not recognize border changes from those set on June 4, 1967, unless they were agreed on by both sides through negotiations.[15]  The resolution, adopted by 14 votes, was impactful for two reasons.

First, the United States’ abstention is considered the “biggest rebuke in recent history” to its long-standing Israeli ally.[16] Most of the world has, for years, opposed Jewish settlements and deemed them to be illegal.[17]  The United States, on the other hand, despite viewing the settlements as illegitimate, has exercised its veto power as a permanent member of the UN Security Council to block resolutions like Resolution 2334.[18]  By abstaining from the vote, the United States made a significant deviation from its prior stance on Jewish settlements.

The second, and more important implication of the most recent resolution, is what it means for the UN’s ability to enforce its resolution.  Unlike Resolution 242, Resolution 2334 makes clear which party constitutes the hostile party.[19]  The most recent resolution explicitly points to the actions by the Israeli state that impedes the peace in the region and violate international law.  Further, the language of the statute goes beyond merely a recommendation and instead imposes on Israel particular legal obligations.

Conclusion

Resolution 242, while seemingly impactful when first issued, set forth no legal obligations and indicated no hostile party in the conflict.  Because of the UN Security Council’s failure to use more exacting language, the resolution became more of a recommendation than a legal document.  In addition to constituting a huge deviation from traditional U.S.-Israel relations, Resolution 2334 establishes concrete legal obligations and parameters, as opposed to merely recommendations.  Given the perception that Resolution 2334 creates the opportunity for the UN to institute enforcement mechanisms, the question remains as to what role this resolution will play in considering Israel’s new bill.  Were the bill to become law, the bill would stand in direct contradiction to Resolution 2334.


[1] William Booth, Israel passes bill to seize private Palestinian lands for Jewish settlements, The Washington Post (Feb. 6, 2017), https://www.washingtonpost.com/world/israel-passes-bill-to-seize-private-palestinian-land-for-jewish-settlements/2017/02/06/b6d14220-ec90-11e6-a100-fdaaf400369a_story.html?utm_term=.f1dd47ffd6e1 [https://perma.cc/V3SQ-DXTP].

[2] Id.

[3] Id.

[4] Peter Beaumont, Israel votes to authorize illegal settler homes in Palestine, The Guardian (Dec. 5, 2016), https://www.theguardian.com/world/2016/dec/05/israel-votes-to-authorise-illegal-settler-homes-in-palestine [https://perma.cc/RW6K-E7BG].

[5] Chuck Holmes, Background: Israel’s Pre-1967 Boundaries, NPR (May 20, 2011), http://www.npr.org/2011/05/24/136495202/background-israels-pre-1967-boundaries [https://perma.cc/54KM-5PC3].

[6] Jonathan Ferziger and Michael Arnold, What UN Vote on Israeli Settlement Means – and What’s Next, Bloomberg (Dec. 26, 2016), https://www.bloomberg.com/news/articles/2016-12-26/what-does-un-vote-on-israeli-settlements-mean-and-what-s-next [https://perma.cc/C9MS-7BH5].

[7] Chapter 3: The 1967 and 1973 Wars, United Nations, http://www.un.org/Depts/dpi/palestine/ch3.pdf [https://perma.cc/Z7AG-NCH4].

[8] Id.

[9] Michael A. Schaeftler, The legal meaning and implications of security council resolution 242, 7 The Comparative and International Law Journal of Southern Africa 1, 58-83, 61-62 (1974).

[10] Id. at 62

[11] Id.

[12] William Booth, Israel passes bill to seize private Palestinian land for Jewish settlements, The Washington Post (February 6, 2017) https://www.washingtonpost.com/world/israel-passes-bill-to-seize-private-palestinian-land-for-jewish-settlements/2017/02/06/b6d14220-ec90-11e6-a100-fdaaf400369a_story.html?utm_term=.2ec9fabd7dd0.

[13] https://www.un.org/press/en/2016/sc12657.doc.htm

[14] Id.

[15] Id.

[16] UN Security Council urges end to Israeli settlements, Aljazeera (Dec. 23, 2016), http://www.aljazeera.com/news/2016/12/passes-resolution-israeli-settlements-161223192709807.html [https://perma.cc/7ZGF-633G].

[17] Edith M. Lederer, Bradley Klapper & Josef Federman, UN Calls Israeli Settlements A ‘Flagrant Violation’ Of International Law, The Huffington Post (Dec. 23, 2016), http://www.huffingtonpost.ca/2016/12/23/un-israeli-settlements_n_13822548.html [https://perma.cc/2FCK-P5FH].

[18] Id.

[19] Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice, Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions, Expressing grave concern that continuing Israeli settlement activities are dangerously imperiling the viability of the two-State solution based on the 1967 lines. . .

Reaffirms 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 a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace; Reiterates its 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; Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations. . . .” S.C. Res. 2334 (Dec. 23, 2016).

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