On December 23, 2016, the United Nations announced the passage of UN Security Council Resolution 2334, which condemns Israeli settlements east of the 1949 armistice line, that is, in the West Bank and East Jerusalem (including the Old City with its ancient Jewish Quarter). Passage of this resolution was only possible because of the deliberate refusal of the U.S. to exercise the veto power it wields as one of the five permanent members of the Security Council.  Secretary of State John Kerry insisted that in refusing to veto the resolution, the Obama administration was simply conforming to long-standing U.S. policy in favor of the “two-state solution” of the Israeli-Palestinian conflict, a policy that has also included U.S. condemnation of Israeli settlement building in the West Bank.[1] In fact, however, UNSC Resolution 2334 is a departure from past precedent, both for the Security Council and for the U.S., and one that creates big problems for Israel. Moreover, the Trump administration will probably not be able to reverse this new state of affairs, since the other permanent members of the Security Council would presumably use their veto power to protect Resolution 2334. It is therefore important to understand the impact of this resolution.

 For the past half-century, a key point of reference in all discussion surrounding Israeli-Palestinian peace talks has been UN Security Council Resolution 242, passed on November 22, 1967 in the wake of the June 1967 Arab-Israeli war. This resolution famously called for the “withdrawal of Israel armed forces from territories occupied in the recent conflict,” but only in the context of a peace agreement that would guarantee the sovereignty and territorial integrity of every state in the area, including Israel. While Resolution 242 emphasizes “the inadmissibility of the acquisition of territory by war,” the key diplomatic players at the time also stressed that Israel had no clearly defined borders that would exclude territories in the West Bank as unambiguously lying outside of its boundaries. On December 9, 1969, U.S. Secretary of State William Rogers made the point as follows:

“The boundaries from which the 1967 war began were established by the 1949 armistice agreements, and have defined the areas of national jurisdiction in the Middle East for twenty years. Those boundaries were armistice lines, not final political borders. The Security Council Resolution [242] neither endorses nor precludes the armistice lines as the definitive political boundaries.”[2]

U.S. Ambassador to the UN Arthur Goldberg made the same point in debate at the UN on November 15, 1967, pointing out that there had never been agreement on permanent borders between Israel and her neighbors after the 1948 war and that the 1949 armistice lines were just that – provisional lines based on purely military considerations. “These lines, he said, stood to be revised as a part of the transition to peace.”[3]

                 Moreover, Resolution 242 deliberately refrained from demanding Israeli withdrawal from “the territories” occupied in the Six-Day War, instead calling for withdrawal from “territories” occupied in that war, without defining the extent of the withdrawal. Abba Eban, the Israeli Foreign Minister at the time, notes that the British government sponsored Resolution 242 and so its interpretation of the text deserves special weight. Key British diplomats went on the record as stating that the withdrawal envisaged by the resolution was not to be from “all the territories,” but only from some.[4] More recently, Northwestern University Law School professor Eugene Kontorovich, one of the leading scholars on this topic, has demonstrated that Resolution 242 “contemplates only a partial Israeli withdrawal.”[5] Kontorovich points out, for example, that over several months of deliberations in the Security Council, British and U.S. diplomats repeatedly rebuffed efforts by Arab-aligned nations to require withdrawal from “all” or “the territories.”[6]

         In short, one cannot reasonably interpret UN Resolution 242 as denying Israel a right to retain and settle any of the territories it occupied in 1967. Yet this is exactly what the Obama administration and Resolution 2334 have now done. Resolution 242, as Abba Eban points out, does not even mention the “armistice lines of 1949” or the “lines of June 4, 1967,” let alone describe them as sacrosanct and inviolable international boundaries.[7] In contrast, Resolution 2334

• Presupposes “a 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…” [emphasis added]
• Demands “that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem…” [emphasis added]
• Presupposes, as the two preceding bullet points show, that all the territory occupied by Israel in 1967 is (or already was) “Palestinian territory.”
• Urges “an end to the Israeli occupation that began in 1967.”

It is highly significant that resolution 2334 begins with an explicit re-affirmation of resolution 242. In doing so, it imposes a (historically false) reinterpretation on the text of resolution 242. According to this anachronistic re-interpretation, resolution 242 is now seen as calling for Israeli withdrawal from all the territories occupied in 1967 and presupposes the sacrosanctity of the 1949 armistice lines as if they were the agree-upon international frontier between Israel and her neighbors.

The upshot is that Israel now finds itself in a dramatically weaker bargaining position in any future peace talks with the Palestinians. Consider just one point of contention, the status of the Western Wall plaza and the Jewish Quarter of the Old City of Jerusalem, of inestimable cultural and religious significance to Jews everywhere and both falling to the east of the 1949 armistice line. The UN Security Council is now on record as stating that Israeli occupation of these sites “has no legal validity and constitutes a flagrant violation under international law.” Palestinian negotiators can now use this small patch of earth to extract much bigger concessions from Israel. Imagine a Palestinian negotiating team saying to their Israeli counterparts, “Oh, so you want us to give you the Western Wall. Well, how much is it worth to you?” Consider also the fact that Palestinians have consistently stressed that any future land swap in a peace deal must be equal in size and quality.[8] If Israel wishes to swap some part of its pre-1967 territory for the Western Wall, which portion exactly would be “equal in quality”?

John Kerry insists that the U.S. abstention was motivated by friendship for Israel, but by weakening Israel as it does, the abstention is more a violation than a fulfillment of the obligations of friendship.