The Security Council has no jurisdiction over settlement construction

Ted Belman

Saudi Arabia is making moves to put a resolution before the Security Council dealing with Israeli settlement construction. So far the exact resolution hasn’t been formulated let alone tabled but is expected to demand a cessation of building additional housing units.

The only question raised to date is whether the US will veto it. American U.N. ambassador, Alejandro Wolff, said.

America will evaluate any council proposal “on several criteria,” “Will it contribute to resolving the underlying problem or, conversely, is this designed simply to embarrass, to isolate, to impede, and to obstruct progress?”

But the more important question is, does it have the right? At the San Remo Conference in 1922, the Allied Supreme Command, consisting of Britain, France, Italy and Japan, conducted hearings to determine the allocation of the Ottoman Empire lands into Mandates for future states. As the victors over the Ottoman Empire, they had the legal authority to dispose of the land and set boundaries.

They conducted a hearing on the question of Palestine at which evidence was presented by the Arabs and the Jews. Judgement was rendered in favour of the Jews. Thus the matter of who is entitled to build on the land is res judicata

The Mandate for Palestine, passed in 1922 confirmed this Judgement and provided for close settlement of the land by Jews. All other inhabitants, Arabs included, were denied political rights.

When the United Nations replaced League of Nations in 1945, all previous Mandates and other agreements were assumed by it without change.

In 1947 the General Assembly recommended Partition of the land into an Arab State and a Jewish one. Although this recommendation was illegal according to the San Remo Resolution and the Mandate, the Jews promptly declared their state on the lands allocated to them. This declaration of independence, recognized by a majority of states in the UN, in no way amounted to a cancellation of the right of settlement given to the Jews on the rest of the land.

Neither did Resolution 242 or the Oslo Accords.

The Mitchel Report issued in April 2001 made many recommendations including

The GOI should freeze all settlement activity, including the “natural growth” of existing settlements.

In 2003 the Quartet consisting of the US, EU, Russia and the UN presented a plan called the Roadmap for Peace to the PA and Israel for acceptance. It was stipulated to be “performance based”. Phase I provided:

GOI immediately dismantles settlement outposts erected since March 2001.

Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements).

Although this is quite categorical, it didn’t apply to Jerusalem and it contemplated a final agreement within two years. It also was conditional on performance by the PA.

In May 2003, Israel agreed as follows

“Based on the 23 May 2003 statement of the United States Government, in which the United States committed to fully and seriously address Israel’s comments to the Roadmap during the implementation phase, the Prime Minister announced on 23 May 2003 that Israel has agreed to accept the steps set out in the Roadmap.“

These comments, otherwise known as fourteen reservations stressed the need for Arab performance

1. Both at the commencement of and during the process, and as a condition to its continuance. calm will be maintained. The Palestinians will dismantle the existing security organizations and implement security reforms during the course of which new organizations will be formed and act to combat terror, violence and incitement (incitement must cease immediately and the Palestinian Authority must educate for peace). These organizations will engage in genuine prevention of terror and violence through arrests, interrogations, prevention and the enforcement of the legal groundwork for investigations, prosecution and punishment.

No one can argue this has taken place.

The fourth comment provided,

4. The Monitoring mechanism will be under American management. The chief verification activity will concentrate upon the creation of another Palestinian entity and progress in the civil reform process within the Palestinian Authority. Verification will be performed exclusively on a professional basis and per issue (economic, legal, financial) without the existence of a combined or unified mechanism. Substantive decisions will remain in the hands of both parties.

I submit that this means that Israel has ruled out any role for the UN. The Quartet is not a party to the Roadmap. The Roadmap is not even an agreement between the PA and Israel. It is simply a plan that each has communicated their acceptance of, to the US. The American role is simply to monitor. If either party is in breach, the US has no legal authority to force compliance but it has committed itself to “fully and seriously address Israel’s comments”.

Neither the US nor the UN have any right to demand anything of Israel. Israel is entirely within its rights to build as it sees fit so long as the Arabs are not in compliance and furthermore is within its rights to build internally even if the PA were to be in compliance.

Other comments included,

6. In connection to both the introductory statements and the final settlement, declared references must be made to Israel’s right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel.

7. End of the process will lead to the end of all claims and not only the end of the conflict.

8. The future settlement will be reached through agreement and direct negotiations between the two parties, in accordance with the vision outlined by President Bush in his 24 June address.

10. The removal of references other than 242 and 338 (1397, the Saudi Initiative and the Arab Initiative adopted in Beirut). A settlement based upon the Roadmap will be an autonomous settlement that derives its validity therefrom. The only possible reference should be to Resolutions 242 and 338, and then only as an outline for the conduct of future negotiations on a permanent settlement.

14. Arab states will assist the process through the condemnation of terrorist activity.

The importance of these are self explanatory.

In the intervening years Israel had many discussions with the US on the question of infilling within existing settlements. This was not considered “natural growth” which Israel considered applied only to settlement boundaries. Nor did Israel accept that it applied to construction within Jerusalem.

In April ‘04 Bush gave a letter of assurances to PM Sharon in the lead up to “Disengagement” which provided inter alia.

First, the United States remains committed to my vision and to its implementation as described in the road map. The United States will do its utmost to prevent any attempt by anyone to impose any other plan [..]

The United States reiterates its steadfast commitment to Israel’s security, including secure, defensible borders, and to preserve and strengthen Israel’s capability to deter and defend itself, by itself, against any threat or possible combination of threats.

The United States is strongly committed to Israel’s security and well-being as a Jewish state. It seems clear that an agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue as part of any final status agreement will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel.

As part of a final peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338. In light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion.

Bush in effect removed the reference to the Saudi Plan from the Roadmap, supported defensible borders, opposed the right of return and supported the retention of Israeli major population centers by Israel. He made no comment on settlement expansion. Excluding the Saudi Plan was of huge significance. Thus Israel need only withdraw from some but not all the territories to defensible borders. By saying Israel must be able to “defend itself, by itself”, he is saying that what is defensible does not depend on international guarantees.

This being the case, I wonder why Israel is not demanding defensible borders which would put the border sufficiently east of the Ben Gurion airport to enable a defense of the airport and north east of Route 443 to keep this vital link within Israel. While they are at it, Qalkilya should be included in Israel as it sticks into Israel like a sore thumb.

I also wonder why Israel is offering land in exchange for the land that is retained due to settlements. Neither Bush of Res 242 demanded it. Bush also negated the Saudi Plan which was the only document requiring an exchange.

Recently the JCPA updated their report on Defensible Borders and concluded

“There is an American acknowledgment that in any final status agreement, there will be no Israeli withdrawal to the ‘67 lines. This acknowledgment appears in two ways: understanding the facts determined by the large Israeli settlement blocs as making it impossible to return to the ‘67 lines and the implementation of the concept of “defensible borders”.

One year after this letter, Sharon stressed in an interview that the sparsely populated Jordan Valley up to the Allon Road on the eastern slopes of the West Bank hill ridge was still of supreme military importance to the security of Israel. Israel should be demanding that too.

It was a huge mistake for Israel to agree to the settlement freeze however defined. It is one thing to contemplate a freeze for the two years during which it was expected to reach a final settlement but it is another thing to do so when there may never be an agreement. Given the fact that the PA isn’t near in compliance with its obligations, Israel should refuse to comply with its, too.. So long as there is terror and incitement there should be settlement construction.

At Annapolis the PA and Israel agreed to discuss final status issues before Phase one is satisfied and agreed that

“The United States will monitor and judge the fulfillment of the commitment of both sides of the road map. Unless otherwise agreed by the parties, implementation of the future peace treaty will be subject to the implementation of the road map, as judged by the United States.”

Thus the role of the US was changed from a monitor to an adjudicator. At worst, the US can declare that Israel is in default of its commitment to freeze settlement expansion or that the PA has preformed its obligations. The US has no legal power to do anything about it nor does the UN. But it can apply all kinds of pressure. It could do so even if it wasn’t an adjudicator but the new role gives her more authority..

Of course Israel could always complain that such a determination was not impartial and was agenda driven. It is for Israel to decide whether or how to resist US pressure.

But the UN is a different matter. Acceptance of the Roadmap by Israel, with or without comments, gives the UN no additional legal rights over Israel. Israel’s sole obligation is to abide by the UN Charter which requires that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

Thus the Security Council is not empowered to order anything with regard to settlement construction. Furthermore, any limitation it would place on settlement activity would be in violation of the San Remo decision and the Palestinian Mandate.