Obama and Israel
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|Orde F. Kittrie||January 3rd 2017|
Notwithstanding the distractions of the holiday season, a considerable debate has erupted over the significance of U.N. Security Council resolution 2334, which the Security Council adopted last Friday with the United States abstaining. In the resolution, the Security Council “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.” The council also “reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.”
Samantha Power, the U.S. ambassador to the United Nations, asserted that the U.S. abstention was consistent with longstanding U.S. policy and will help preserve the possibility of a two-state solution. Analysts critical of the resolution have asserted that this U.S. decision was inconsistent with prior U.S. policy and near-unanimous majorities in both houses of Congress.
Though resolution 2334 contained language largely reminiscent of prior resolutions from 1979 and 1980, it could have significant international political and legal effects. Its passage coincides with a preliminary examination of alleged Israeli war crimes and could be understood as encouraging the International Criminal Court (ICC) to continue its investigation and of other countries considering punitive sanctions. It will likely not be possible to change or override the resolution, but the incoming Trump administration will have tools at its disposal to check the ICC and lessen some of the resolution’s effects.
In a December 24 post on Lawfare, Elena Chachko provided a useful overview of the background and contents of resolution 2334. Chachko noted that while “the Security Council had previously used similar language regarding settlements” — including in resolution 446 of 1979 and resolution 465 of 1980 — this was the first Security Council resolution since 1980 that has focused on settlements. However, Chachko concluded that the resolution’s “direct legal and practical implications are limited — albeit not insignificant.”
Similarly, an article by Jerusalem Post legal correspondent Yonah Jeremy Bob concluded that resolution 2334 “at most will give” International Criminal Court prosecutor Fatou Bensouda “a political headwind if she was already going to go after the Israeli settlements, but changed very little in a strict legal sense.”
Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity. Nevertheless, the resolution is likely to have several law-related consequences.
Resolution 2334 Encourages International Criminal Court Action Against Israel
Resolution 2334 implicitly encourages the International Criminal Court (ICC) to advance towards prosecution on the ICC’s current preliminary examination of whether Israeli officials have engaged in the “war crime” of settlement building.
The ICC is currently undertaking a formal “preliminary examination” of various alleged Israeli and Palestinian war crimes committed in connection with “the situation in Palestine.” As I discuss in my book Lawfare: Law as a Weapon of War (Oxford University Press, 2016), a preliminary examination is only the first of several stages prior to an ICC trial. During a preliminary examination, the prosecutor determines “whether there is a reasonable basis to proceed with an investigation.” The preliminary examination includes an analysis by the ICC prosecutor of whether the U.N. member state involved is already investigating or prosecuting the alleged crime and whether the case is “of sufficient gravity to justify further action” by the ICC. The prosecutor can move from a preliminary investigation to a formal investigation on one of several bases, including if the prosecutor acts on his or her own authority (and is authorized by the ICC’s Pre-Trial Chamber) or if the Security Council, acting under Chapter VII of the U.N. Charter, formally refers the case to the ICC.
It is important to note that the treaty which established the ICC, commonly referred to as “the Rome Statute,” provides the ICC with jurisdiction over a relatively limited set of crimes. Israel’s accusers have described Israeli settlements as violating the Rome Statute war crime of “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.”
In its 2016 “Report on Preliminary Examination Activities,” published in November, the ICC’s Office of the Prosecutor specified that the “alleged crimes” it is investigating with regard to “the situation in Palestine” include “settlement activities.” According to the 2016 ICC report, “the Israeli government has allegedly led and directly participated in the planning, construction, development, consolidation and/or encouragement of settlements on West Bank territory.”
Resolution 2334 implicitly endorses the settlement-related allegations against Israel. In characterizing Israeli settlement activity, the resolution uses the same language as the Rome Statute. For example, resolution 2334 uses the specific term “transfer” in condemning “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.”
It is hard to see the use of the word “transfer” in this context as an accident. Resolution 2334 also declares the settlements a “flagrant violation under international law,” an indication that the alleged crime is of sufficient gravity to justify further action by the ICC. How will the ICC prosecutor understand resolution 2334’s call for “affirmative steps to be taken immediately to reverse the negative trends on the ground”? Perhaps the ICC prosecutor will see this as a call for it to take the affirmative step of moving the prosecution forward.
Such statements by the Security Council carry particular weight because of the Security Council’s special role with regard to the ICC. Although resolution 2334 was adopted pursuant to Chapter VI and not Chapter VII of the U.N. Charter, and does not explicitly refer Israeli settlement activity to the ICC, it is hard to see the resolution as other than the Security Council putting its thumb on the scale of the ICC judicial process.
While settlement activities are only one of several alleged war crimes by Israel on which the ICC is focusing its preliminary investigation, they are perhaps the most dangerous to Israel’s leadership. The difference that sets settlement activity apart is driven by the principle of complementarity, which is at the heart of ICC jurisprudence. Pursuant to the principle of complementarity, the “primary responsibility for trying” perpetrators is said to remain with member states. The ICC asserts that it “can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so.”
The ICC can only convict individual persons, not states, and they can only be convicted for acts that fall within the limited set of crimes listed in, and defined by, the Rome Statute. With regard to battle-related Israeli war crimes currently subject to ICC preliminary investigation, such as “alleged attacks against residential buildings and civilians,” Israel has a strong argument to make that Israeli law prohibits such war crimes, that any such war crimes were committed contrary to instructions from Israel’s leadership, and that the Israeli government is itself investigating and prosecuting any potential violations.
With regard to settlements, however, Israel will likely find itself in a different situation. According to Tel Aviv University law professor Aeyal Gross, “a finding that [the ICC] does not have jurisdiction if the relevant state has investigated a matter itself” would not be relevant in the case of settlements because the settlements are a “government policy...the establishment of the settlements was based on cabinet decisions and with Israeli government funding.”
Thus, while it is hard to imagine Israel’s leadership being prosecuted for, say, an aggressive mid-level IDF officer’s unauthorized actions in Gaza, ICC prosecutions of Israelis responsible for settlement policy will almost certainly go right to the Israeli prime minister. Resolution 2334 makes such prosecutions somewhat more likely.
As Yonah Jeremy Bob pointed out in the Jerusalem Post, such a prosecution could cause serious diplomatic and public relations damage to Israel. Aside from tarnishing the reputation of Israel and key Israeli leaders, those leaders could find themselves suddenly unable to travel to some or all of the 124 ICC member states, including all of the leading Western European countries.
Resolution 2334 Facilitates Lawfare Against Israel in Foreign Courts
Foreign prosecutors and courts (especially in Europe) have been increasingly willing to entertain legal actions against companies alleged to have done settlement-related business on the basis of international organizations’ advisory and non-binding conclusions that Israeli settlements violate international law.
For example, as I describe in my book Lawfare: Law as a Weapon of War, a Palestinian NGO generated a Dutch criminal investigation of the Dutch company Riwal for “war crimes and crimes against humanity” allegedly committed by Riwal renting equipment to Israel for 16 days, during which time it was used in constructing the separation fence and settlements in the West Bank. The complaint, filed in 2010, referenced an advisory opinion issued by the International Court of Justice (ICJ) in 2004, which opined that the fence and settlements violated the Fourth Geneva Convention. The complaint asserted that Dutch law required prosecution of such involvement in violation of international law by a Dutch person or entity.
The investigation lasted three years (from 2010 to 2013), included Dutch police raids of Riwal headquarters and officials’ homes, and concluded without prosecution only after Riwal halted all activities anywhere in Israel. Riwal incurred significant costs in attorneys’ fees, reputation, and distress to its employees. By referencing the ICJ advisory opinion, the boycott, divestment, and sanctions (BDS) movement succeeded in using law as a weapon to both deprive Israel of equipment it was using to build a fence to protect itself against suicide bombers and drive a major equipment rental company out of doing any business anywhere in Israel. Similar cases alleging involvement in settlement-related war crimes, documented in my book, have been brought against an Israeli cosmetics company in Britain, Sodastream in France, three French companies which participated in building a light rail system in Jerusalem, a British provider of security technology to Israel, and others.
Much as the Riwal investigation relied on a then six-year-old non-binding ICJ advisory opinion, a European national criminal investigation next year of a European company’s involvement in settlement activity could fortify a reliance on the ICJ advisory opinion by referencing the non-binding assertions of the more recent resolution 2334. It is not hard to imagine such a European national criminal investigation referencing the following from resolution 2334:
- “Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem...constitutes a flagrant violation under international law.”
- “Stresses that the cessation of all Israeli settlement activities is essential...and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground.”
- “Calls upon all States...to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”
While language similar to that of resolution 2334 appeared in resolution 446 and resolution 465, resolution 2334 facilitates litigation lawfare in European and other national courts by lending such statements currency and urgency, thereby making it much harder to dismiss them as “old news” passed many years ago.
Resolution 2334 Provides an Opening for U.N. Member Sanctions against Israel
Resolution 2334 does not require (or even explicitly encourage) U.N. member states to impose boycotts, divestment, or other sanctions on Israel or Israeli companies in response to Israeli settlement activity. However, it makes it easier for U.N. member states to impose such sanctions.
The national law of many U.N. member states is such that their governments need or prefer an international law requirement or “hook” before imposing sanctions on a foreign government or entity. A legally binding requirement contained in a treaty or U.N. Security Council resolution can, of course, serve as a basis for sanctions; indeed, it obligates the government to impose the specified sanctions. However, in many countries, a non-binding provision in a U.N. Security Council resolution that “calls” for a response can be a sufficient hook for action if the government chooses to use it. For example, the non-binding “calls-upon” provisions in Security Council resolutions provided hooks for many U.N. member states to impose their own legally binding restrictions on transactions with Iran.
Resolution 2334 includes non-binding provisions that could be used as hooks by member states wishing to impose their own boycott, divestment, or other sanctions measures against Israel or Israeli companies with regard to settlement activity. For example, the resolution “calls upon all States...to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.” This could arguably be used as a hook to engage in boycott, divestment, or other sanctions measures, or otherwise discriminate against those Israeli government entities or officials, or against Israeli companies, involved with the settlements. As Chachko notes, “this new provision might legitimize and intensify existing efforts to promote sanctions against Israeli products originating in the West Bank and East Jerusalem, or boycott companies and institutions operating in those areas.”
The resolution also “stresses that the cessation of all Israeli settlement activities is essential...and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground.” This call is arguably even broader than the other provision, as “affirmative steps” could be understood to include pressuring Israel or Israeli companies irrespective of their direct involvement with the territories.
Resolution 2334 Undermines the Legal Baseline Formula for Peace
The traditional legal baseline for the Israeli-Arab peace process is U.N. Security Council resolution 242 of 1967, which included the principle of “withdrawal of Israel armed forces from territories occupied in the recent conflict.” Resolution 242 notably did not include “all” or “the” before the word “territories,” thereby indicating that Israel might not need to withdraw from all such territories. Arthur Goldberg, the U.S. ambassador to the United Nations at the time, later explained this issue as follows:
Does Resolution 242 as unanimously adopted by the U.N. Security Council require the withdrawal of Israeli armed forces from all of the territories occupied by Israel during the 1967 war? The answer is no. In the resolution, the words the and all are omitted. Resolution 242 calls for the withdrawal of Israeli armed forces from territories occupied in the 1967 conflict, without specifying the extent of the withdrawal. The resolution, therefore, neither commands nor prohibits total withdrawal. If the resolution is ambiguous, and purposely so, on this crucial issue, how is the withdrawal issue to be settled? By direct negotiations between the concerned parties. Resolution 242 calls for agreement between them to achieve a peaceful and accepted settlement. Agreement and acceptance necessarily require negotiations.
Resolution 2334 appears to subtly contribute to the erosion of this understanding that the baseline for peace is not a complete withdrawal by Israel from all territories occupied in 1967. For example, it “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.” Alan Baker, a former legal adviser to the Israeli Foreign Ministry, makes a compelling case that resolution 2334 “contains elements that attempt to modify Resolution 242 and to sway the negotiating process in a particular direction.”
Where Does the United States Go from Resolution 2334?
In response to resolution 2334, President-elect Donald Trump tweeted: “As to the U.N., things will be different after Jan. 20.” That may be so in a variety of ways. However, the Trump administration will find it difficult, if not impossible, to reverse resolution 2334. While the U.S. power to veto U.N. Security Council resolutions enables it to block any resolution of which it disapproves, the Chinese and Russian power to veto U.N. Security Council resolutions would enable them to block any resolution reversing resolution 2334.
Resolution 2334’s most significant effect may be its green light to the ICC prosecutor to advance the preliminary examination of Israeli settlement activity. It is worth noting that the ICC is currently also undertaking a more advanced “preliminary examination” of U.S. “war crimes” in Afghanistan. According to the 2016 report by the ICC prosecutor’s office, “the Office has determined that there is a reasonable basis to believe that, at a minimum, the following crimes within the Court’s jurisdiction have occurred...War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”
Both the United States and Israel are being subjected to ICC jurisdiction despite the fact that neither country has chosen to join the ICC. The ICC is asserting jurisdiction over the two allies because Afghanistan and Palestine, the location of the respective alleged war crimes, have joined the ICC. Such assertions of jurisdiction, and their ability to hamper U.S. military operations overseas, have been a concern for the United States since the Rome Statute was negotiated. In testimony before Congress following the Rome Statute’s adoption, the lead U.S. negotiator, Ambassador David Scheffer, described the concerns as follows: “Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations, including humanitarian interventions to save civilian lives.”
Professor Eugene Kontorovich has presented a detailed analysis of how ICC proceedings against Israel could “set dangerous precedents” for U.S. efforts to prevent ICC jurisdiction over troops from the United States. Kontorovich explained that “for the ICC to act against Israeli nationals, it would have to establish a number of novel precedents and rulings, which could then serve as precedents for proceedings against the U.S.”
Since the United States has not joined the International Criminal Court, it has relatively little direct leverage over it. In particular, the United States is not a donor to the ICC and thus has no direct financial leverage over it.
However, more than half of the ICC’s $158 million annual budget comes from its top seven donor countries, all of which happen to be close U.S. allies — Japan, Germany, France, Britain, Italy, Spain, and Canada. All of these allies are either NATO partners or depend heavily on a U.S. defensive umbrella. Britain is already the subject of a preliminary investigation for alleged war crimes — including both unlawful killings and also torture and other ill-treatment of detainees — committed by British troops in Iraq between 2003 and 2009. Since the ICC is reportedly already financially stretched, a quiet threatened withdrawal of funds by some or all of the court’s key donors might have a significant effect.
A further weakening and politicization of the ICC would not come without a price. Given the views on international law of John Bolton and others among President-elect Trump’s foreign policy advisors, it is not hard to imagine the incoming Trump administration being willing to pay that price and push back hard against the ICC preliminary investigations of the United States and Israel.
The Trump administration could also take a series of actions outside of multilateral institutions to limit the effects of resolution 2334. Specifically, it could adopt legislation that would impose sanctions on European government and private entities that engage in BDS activities against Israel and take steps to discourage the Palestinian Authority from continuing to attempt to mobilize the ICC against Israel. The Trump administration could also impose targeted cuts of U.S. funding to the United Nations aimed at hindering the U.N.’s support of actions favorable to Palestinians and their narrative. The incoming administration could also reaffirm the letter from President George W. Bush to Israeli Prime Minister Sharon in which Bush reportedly recognized that major settlement blocs will remain part of Israel under any peace treaty. While it might be impossible to walk back resolution 2334, the Trump administration can take steps to prevent some of the resolution’s implications for the United States and Israel in the international arena.