Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides.

More specifically, it has been claimed that Security Council resolution 242 (1967) in contrast thereto, given the English wording of para. 1 lit (i) of Security Council resolution 242 (1967), which referred to the withdrawal of Israeli armed forces “from territories occupied in the recent conflict” (“rather than from the territories occupied in the recent conflict”), did not have in mind a complete withdrawal from all territories then occupied; and that accordingly Security Council resolution 2334 (2016) allegedly  “contains elements that attempt to modify Resolution 242”. While the debate as to the meaning of the relevant part of Security Council 242 (1967) has been ongoing ever since its very adoption, it might be worth recalling (but less frequently noted) that the French text of Security Council 242 (1967) refers to the withdrawal “des territories occupés” rather than from ‘de territories occupés’, i.e. did already then contemplate a complete withdrawal.

What is however more relevant when it comes to Security Council resolution 2334 (2334) is that, rather than merely ‘taking note of’ or ‘recalling’ prior Security Council resolutions, it instead ‘reaffirms’ those, including, in particular, reaffirming Security Council resolution 242 (1967). That in turn presupposes that it was the understanding of the Security Council, when adopting Security Council resolution 2334 (2016), and also that of the States participating in the vote, that both, the content of Security Council resolution 242 (1967) and that of Security Council resolution 2334 (2016) are compatible with each other. Put otherwise, subsequent Security Council practice, as now enshrined in Security Council 2334 (2016), therefore contradicts the claim that Security Council 242 (1967) had only envisaged a partial withdrawal from the territories that came under Israeli effective control on 1967, i.e. the West Bank, the Gaza strip, as well as East Jerusalem.

It is also worth noting in passing that the French version of preambular paragraph 5 of Security Council resolution 2334 (2016), when mentioning the Green Line, refers to “les frontières de [the boundaries of] 1967”, further upscaling the legal relevance of this demarcation line.

2. Security Council resolution 2334 (2016) and the acquisition of territory by force

Security Council resolution 2334 (2016) also reaffirms inter alia Security Council resolutions 476 (1980) and 478 (1980) which, just like Security Council resolution 242 (1967), had already emphasized respectively reaffirmed that “the acquisition of territory by war [Security Council resolution 242]/ the acquisition of territory by force [Security Council resolutions 476 and 478] is inadmissible”. This prior determination is now further reiterated, if ever there was need, in preambular paragraph 2 of Security Council resolution 2334 (2016). Given the context of Security Council resolution 2334 (2016), and further given prior relevant Security Council resolutions, and in line with Principle 1 of General Assembly resolution 2625 (XXV) ‘Friendly Relations’, this statement by the Security Council reconfirms that already in 1967 even an otherwise legal use of military force combined with the exercise of effective control over territory cannot lead to title to territory.

3. International legal status of the territories east of the Green Line

Just like previous Security Council resolutions Security Council resolution 2334 (2016) confirms that the West Bank, as well as East Jerusalem, are occupied territory within the meaning of international humanitarian law and that, besides, the 4^th Geneva Convention applies to these areas.

This is particularly legally relevant as far as the current and ongoing proceedings before the ICC are concerned since the Security Council thereby, once again, refutes the claim made by Israel that the 4^th Geneva Convention does not de jure apply to that very area. While, to state the obvious, the organs of the ICC are not bound by such legal determinations made by the Security Council, it will at the very least carry significant weight on the matter. By the same token, it will also set aside any possible claim by alleged offenders that they had bona fide taken a legally tenable position as to the non-applicability of the 4^th Geneva Convention.

It might be also noted in passing that, in any event, given the very location of Art. 8 para. 2 lit b) lit. viii) Rome Statute  in that part of Art. 8 Rome Statute dealing with other serious violations of international humanitarian law, rather than in the part on serious violations of the Geneva Conventions, Art. 8 para. 2 lit b) lit. viii) Rome Statute might be interpreted as solely presupposing the existence of a situation of belligerent occupation, the existence of which is acknowledged by Israel, but not necessarily also require the de jure applicability of the 4^th Geneva Convention. This would eventually render the question of the de jure applicability of the 4^th Geneva Convention moot anyhow, when it comes to the Rome Statute.

What is also particularly striking is that Security Council resolution 2334 (2016), when addressing the legal status of the West Bank and East-Jerusalem, does not refer anymore to the occupied “Palestinian territories” in the plural but, like other organs of the United Nations beforehand, instead now also rather refers to the occupied “Palestinian territory” in the singular (“du territoire Palestinien” respectivly ‘le territoire palestinien” in the French text). This in turn presupposes that, while obviously not amounting to a recognition of a state, the Security Council hereby has taken the position that there exists at least a Palestinian entity with a defined ‘territory’ rather than merely some ‘Palestinian territories’.

At the same time, it is also worth noting that preambular paragraph 7 of Security Council resolution 2334 (2016), with its reference to the “Palestinian Authority Security Forces”, seems to assume that the Palestinian Authority continues to exist, the acknowledgment of the existence of the State of Palestine by the General Assembly of the United Nations notwithstanding.

4. Issue of ‘secure and recognized borders’

Security Council 2334 (2016), just like previously Security Council resolution 242 (1967), and rightly so, stresses the right of both parties of the conflict to live “within secure and recognized boundaries/ borders”, the change in terminology from ‘boundaries’ (Security Council resolution 242) to ‘borders’ (Security Council resolution 2334) being of no legal relevance. That notion of ‘secure borders’ had, ever since the adoption of Security Council resolution 242 (1967), been closely intertwined with the issue to what extent any possible Israeli withdrawal ought to take place.

Security Council 2334 (2016) however now assumes that all territories beyond the Green Line (including East Jerusalem) are Palestinian territory and that the Security Council “will not recognize any changes to the 4 June 1967 lines (…) other than those agreed by the parties through negotiations”.

This in turn means that it is the considered view of the Security Council, as well as that of its members that the well-founded requirement of secure borders may also be reached and guaranteed without a permanent Israeli military presence on the ground beyond these very lines, subject obviously to a negotiated final settlement between the two sides, the international military presence on the Sinai agreed in the Israeli-Egyptian peace agreement being a possible model at hand.

5. Notion of ‘transfer’ of population and its impact on ongoing ICC proceedings

In preambular paragraph 4 of Security Council resolution 2334 (2016), the Security Council condemns the “transfer of Israeli settlers” as constituting a “violation of international humanitarian law” This cannot but be understood as a reference to Art. 49 para. 6 4^th Geneva Convention to which Security Council resolution 2334 (2016) had already alluded to in its preambular paragraph 3.

This determination, by the Security Council, is of particular relevance when it comes to the currently ongoing proceedings before the ICC triggered by the Palestinian accession to the Rome Statute and its parallel decleration accepting the ICC’S jurisdiction under Art. 12 para. 3 Rome Statute. As is well-known, there are claims that any ‘voluntary’ movement of Israeli nationals to the occupied Palestinian territory, even when triggered or facilitated by State-sponsored incentives such as e.g. tax subsidies, does not amount to a transfer within the meaning of Art. 49 para. 6 4^th Geneva Convention. Accordingly, the argument goes, the addition of the words “direct or indirect” in Art. 8 para. 2, lit b) viii) Rome Statute was allegedly not in line with customary international law, and hence, the argument continues, such provision might not be opposable to possible Israeli indictees, Israel not being a party of the Rome Statute.

For one, and regardless of Security Council resolution 2334 (2016), one cannot but note first the fact that Israel had at one point signed the Rome Statute and might, by that very fact, have at the very least lost its status as a persistent objector as to the very norm now contested.

More specifically with regard to Security Council resolution 2334 (2016), it is particularly relevant that mere incentives by the State of Israel leading to, or encouraging, the creation of settlements, and the ensuing movement of Israeli nationals to the occupied Palestinian territory are now considered by the Security Council and its members as constituting a ‘transfer’ of population as such as already defined in Art. 49 para. 6 4^th Geneva Convention. Accordingly, from the Security Council’s perspective, as now contained in Security Council resolution 2334 (2016), the addition of the words “directly or indirectly’ in Art. 8 para. 2 lit. b viii) Rome Statute is of a merely declaratory character. Put otherwise, in its perception, the very notion of ‘transfer’, as already contained in Art. 49 para. 6 4^th Geneva Convention encompasses ‘indirect transfers’, a view also already e.g. reflected in the German Code of Crimes against International Law and the official governmental exposé introducing the bill at the time to the German parliament. It accordingly seems that Security Council resolution 2334 (2016) might have rendered the argument as to the incompatibility of Art. 8 para. 2 lit. b viii) Rome Statute with Art. 49 para. 6 4^th Geneva Convention, and customary law and the ensuing issue of its opposability moot.

6. Non-recognition of attempted unilateral changes of the legal status of the occupied Palestinian territory

On various occasions Security Council resolution 2334 (2016) makes it clear that the “establishment by Israel of settlements in the Palestinian territory (…) has no legal validity (‘aucun fondement en droit’), that the Security Council “will not recognize any changes to the 4 June 1967 lines (…) other than those agreed by the parties”, and finally calls upon states “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.

The Security Council hereby acts in line with, and reconfirms, the customary norm having been codified in Art. 41 para. 2 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, the content of which the ICJ had also referred to in its 2004 advisory opinion as to the ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’. Even if the mere request (“Calls upon …”) by the Security Council does not oblige United Nations members States to act accordingly, it at the very least provides another layer of legal justification for states following the approach proposed in operative paragraph 5 of Security Council resolution 2334 (2016). Put otherwise, regardless of an otherwise existing justification under general international law to e.g. not treat goods from the occupied Palestinian territory as ‘Israeli goods’, third states may now also rely on this call by the Security Council to act in such a manner.

7. Security Council resolution 2334 (2016) and the quest for a negotiated final status arrangement

It has been claimed (see here) that Security Council resolution 2334 “undermines the basic obligation of the Oslo Accords, signed by the PLO and witnessed by the United States (as well as the EU, Russia, Egypt and others), that the permanent status of the territories, the issues of Jerusalem, and borders are to be negotiated”. Yet, it suffices to note that Security Council resolution 2334 (2016) on various places reiterates the need for a negotiated solution. As a matter of fact, in line with the general obligation for states arising under Art. 2 (3) and 33 UN Charter, as well as under general international law to settle their disputes by peaceful means, Security Council resolution 2334 (2016) formally contemplates in its operative paragraph 3 changes to the 4 June 1967 lines (“frontières du 4 juin 1967”) as “agreed by the parties through negotiations”.

Besides, operative paragraph 8 of Security Council resolution 2334 (2016) calls upon all parties “to launch credible negotiations on all final status issues in the Middle East”, which issues under the Oslo agreements ought to cover inter alia “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.” Hence, apart from the fact that the Security Council as such, nor any indeed any of the  then members of the Security Council, are technically bound by the Oslo agreements, Security Council resolution 2334 (2016) is also substance-wise fully in line with the bilateral agreements previously concluded by the two sides.

8. Terrorism and the issue of violence

Certainly not the least important parts of Security Council resolution 2334 (2016) are both, preambular paragraph 7, which recalls the “obligation under the Quartet Roadmap for the Palestinian Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities”, as well as operative paragraph 6 which generally calls for “steps to be taken to prevent acts of violence against civilians, including acts of terror”.

Given that Palestine has so far not yet acceded to any of the major conventions dealing with the matter, the call for “compliance with obligations under international law for the strengthening  of ongoing efforts to combat terrorism” seems to, maybe even primarily refer to obligations under relevant Security Council resolutions such as, in particular Security Council resolution 1373 (2001). In that respect it is worth noting that the addressee of e.g. Securty Council resolution 11373 (2001) are “all States”.

9. Concluding remarks

While Security Council resolution 2334 (2016) might have not changed the situation on the ground for a iota, it has laid the legal foundation for possible further steps to be taken by the international community in order to induce the parties to the Palestinian-Israeli conflict to move forward with a possible solution for their enduring conflict.

It is also worth noting that the Joint Declaration adopted by the recent Conference for Peace in the Middle East of 15 January 2017 convened by France, and its approximately 70 participating States, had specifically “welcomed international efforts to advance Middle East peace, including the adoption of United Nations Security Council resolution 2334 on 23 December 2016”. It remains to be seen whether other actors, such as the ICC, but also e.g. FIFA, will take the content of Security Council resolution 2334 (2016) similarly into account in their own practice.