What’s wrong with U.N. S.C Resolution 2334? are settlement in Judea and Samaria legal

What’s wrong with Resolution 2334?

Posted on 29 December 2016by anneinpt

After all the brouhaha at the nasty surprise we received at the hands of the Obama Administration who refused to veto UNSC Resolution 2334, followed by John Kerry’s nasty attack on Israel, putting all the blame for the failure of the “peace process” on Israel and the settlements,  it’s a useful exercise to examine exactly what is so wrong with this resolution.

Just to remind you, Resolution 2334 outlaws ALL Israeli settlement, construction, residence in ANY AND ALL areas captured, or rather liberated, in 1967. This includes “East’ Jerusalem, which itself includes the Jewish Quarter, the Temple Mount – Judaism’s holiest site – and the Western (Wailing) Wall, aka the Kotel, which is the holiest site at which Jews are permitted to pray. For now.

Below is Israeli Ambassador to the US, Ron Dermer, explaining exactly what is wrong with it, and how it goes further than Resolution 242 which was voted on in 1967 after the Six Day War.

One of the most succinct and clear answers that I have read appeared on the Quora website, a site where members can ask questions on any subject, and anyone who feels qualified (or even not!) may answer. Gail Ellis, who lives in Israel, wrote the following answer to the question “Why should the US have vetoed Resolution 2334?“:

Because, in characterizing the West Bank as “Palestinian territory” and the Israeli settlements as ‘illegal’ the resolution both lying and contradicting longstanding US policy (as well as its signed legal obligations).

And in passing it, not only has the UN tried to usurp powers it is NOWHERE granted in its charter and violated its own charter, it has demonstrated that the international community (separately and collectively) will not uphold its signed agreements. None of which is going to bring peace any closer.

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Here are the historical and legal facts in support of the above:

Jewish National Home Determined by San Remo Conference (1920)

• In 1910 the legal sovereign of the area that became the Mandate for Palestine was the Ottoman Empire. (No one disputes this).
• After the allied powers defeated the Ottomans, the Ottomans transferred the sovereignty of the area to the victorious allied powers, in the treaties of Sevres and Lausanne. (No one disputes this).
• In 1920 the Balfour Declaration was incorporated into international law in the San Remo Resolution, adopted by the victorious allied powers, this being a binding international agreement. (No one disputes this).
• In 1922 the San Remo Resolution was implemented as the Mandate for Palestine, and ratified by the League of Nations, this ALSO being a binding international agreement. No one disputes this. Or, rather, I should say (since the effect of this UN Resolution is to ignore or attempt to nullify, the provisions of the Mandate, in violation of its own charter) no one disputes that the League of Nations Mandates were binding legal documents that set valid borders for the states that emerged out of them in the case of any OTHER of the MANY instances of them).
• The MANDATE of the Mandate for Palestine WAS the creation of a Jewish national home (understood by all signatories at the time to be a Jewish commonwealth in the event that Jewish immigration was sufficient to permit this) in the area defined as the Mandate (and that included the West Bank and Jerusalem).
• In 1924 the US and Britain ratified the Anglo American treaty (which contained a carbon copy of the Mandate), this ALSO being a binding international agreement. In becoming party to this agreement the US became party to article 5 and 6, in both it and the Mandate (see below)
• Article 6 of the Mandate IS THE ONLY TIME THE WORD ‘SETTLEMENT’ IS MENTIONED IN A BINDING INTERNATIONAL DOCUMENT REGARDING PALESTINE.It states: “The Administration of Palestine … shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land”Article 5 of the Mandate specifically states “The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power.”THE US IS PARTY TO THESE CLAUSES AS WELL VIA THE ANGLO AMERICAN AGREEMENT.
• Article 80 of the UN charter PRESERVES the rights granted by Mandates.
• The 1948 partition plan was a UNGA resolution (i.e. a non binding suggestion of compromise, as all UNGA resolutions are nonbinding). IF both the Jews and the Arabs had accepted it, AND had signed a treaty by which the Jewish people relinquished part of its rights (promised in the Mandate) to future sovereignty over the area, THEN the borders suggested by UNGA 181 would have become the legal borders. The Arab side rejected the compromise (with an invasion by 5 armies). Therefore the borders proposed by UNGA 181 have the same legal validity as any other rejected offer: NONE. And NOTE – even if you assume (for the sake of argument) that UNGA 181 was legally binding (which it was not), under its terms Jerusalem was supposed to be a corpus separatum, belonging to neither party.So how did Jerusalem suddenly legally become “Palestinian territory” ? (NO ONE has an explanation for this.)
• At the end of the War of Independence, the ‘green line’ was established by the 1949 Armistice agreement, which specifically states (because it was the ONLY THING both the Jews and Arabs agreed on) that it is not a permanent political border.
• Jordan illegally annexed the West Bank. Jordan’s annexation was not recognized by anyone except the Brits AND the PLO which stated in article 24 of its original 1964 charter “This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or the Himmah Area. Its activities will be on the national popular level in the liberational, organizational, political and financial fields.”So how did the West Bank suddenly become ‘Palestinian Territory’? (No one has an explanation for this).
• The Oslo Accords (which transfer a kind of partial sovereignty to the Palestinian Authority in Areas A and B (basically all powers except the preservation of external security in Area A, and a joint responsibility for security in Area B) give Israel FULL administrative control over Area C (including the right to build). The Oslo accords specifically state that settlements are an issue that will be resolved ONLY in the final agreement.

There is not a person on this earth who can give the name, date and signatories of ANY binding legal agreement which transferred the right to full sovereignty over the West Bank and Jerusalem from the last legal beneficiary thereof (the Jewish People, via the Mandate) to the Palestinian people.

As there is NO SUCH DOCUMENT, consequently, the West Bank is NOT Palestinian territory (as the resolution claims).

In addition, NOWHERE in the UN charter is it granted the power to set the borders of one of its member states OR to nullify existing treaties setting them.- which this resolution does.

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…  apparently precedent works differently when it comes to Israel – as there is not ONE instance of the UN invoking the fourth Geneva convention in any other ongoing occupation, such as Turkey’s of North Cypress, China’s of Tibet, Morocco’s of Western Sahara, Russians of the Ukraine etc. Nor is there ONE instance of a border dispute between countries arising out of the mandate system in which the borders set by the mandate were not held to be the legal borders.)

Gail draws the very obvious, harsh conclusions of the effect of this resolution:

• To encourage the Palestinians not to negotiate (which is the only way sovereignty can be legally transferred to them), because they know the UN will LIE, USURP POWERS IT DOES NOT HAVE AND VIOLATE ITS OWN CHARTER on their behalf whatever they do
• To encourage Israel not to negotiate as it clarifies that Israel can not expect the international community to uphold any future signed agreements, as it has (separately and collectively) demonstrated that it will not uphold past signed agreements.

That is why the US should have vetoed it.

That response should be bookmarked and used every time someone questions Israel’s right to build in Judea and Samaria, Jerusalem, the Golan, or even questions Israel’s very right to exist.

It should also be sent to John Kerry next time he feels a speech coming upon him.