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Photo by thierry ehrmann | CC BY 2.0

On December 23, the United States Ambassador to the UN abstained on UN Security Council resolution 2334, which condemned Israel’s settlement activity in the occupied territory of the West Bank and East Jerusalem. The language is tentative. It does not call the settlements illegal, but only having no “legal validity”. In the world of international law, the difference might not be significant.

Israel pressured Egypt to withdraw the resolution, which it did, and it pressured the U.S. to veto it, which it did not. Malaysia, New Zealand, Venezuela and Senegal sponsored the resolution, which passed with 14 votes in favour and one abstention (the U.S.). Ambassadors around the table hoped that the vote would push towards the two-state solution, the “common aspiration of the international community”, said Chinese Ambassador Wu Haitao.

The resolution and the occupation

Five years previously, during the high point of the Arab Spring, the U.S. had vetoed a similar resolution. Then U.S. Ambassador to the UN Susan Rice said that her country rejects “in the strongest terms the legitimacy of continued Israeli settlement activity”. So then why veto the resolution, which the U.S. would abstain on five years later? In 2011, Ms. Rice said that the resolution would not further the negotiations between Israel and the Palestinians. Israel, the subtext read, would lash out against the Palestinians. This is precisely what the Israelis now promise to do: build more settlements, fully annex the West Bank and East Jerusalem and thereby annul any prospect of a two-state solution.

The UN resolution — important as it is in itself — is not what Israel fears. What troubles Tel Aviv are the steps that would come after this resolution, particularly from the International Criminal Court (ICC). In January 2015, the ICC’s Prosecutor Fatou Bensouda opened a preliminary investigation into Israel’s actions during the 2014 bombing of Gaza and into the illegal settlements. Ms. Bensouda has since made it clear that she would not move forward to a full criminal investigation without substantial political clarity from the UN Security Council.

Resolution 2334 produces the political will for such a move by the ICC. With Palestine as a recognised state in the UN as of 2012, and as a member of the ICC since 2014, and with this resolution now in force, the ICC could move in the next few months to a rigorous investigation of Israeli criminality. This would threaten the settlers in the West Bank and East Jerusalem, but it would also pressure Israeli soldiers to refuse to serve in any future criminal bombardment of Gaza. Whether the Palestinian leadership has the courage to insist on this remains to be seen.

In 1967, Israel seized the West Bank, East Jerusalem and the Gaza Strip — parts of Palestine that had been outside its control. The UN Security Council passed a series of resolutions (242, 252, 298) within the next decade, asking Israel to withdraw from this land and — in resolution 446 (1979) — to desist from building settlements on the occupied territory. The U.S., which had already become the shield for Israel, abstained from the major resolutions.

It was on this occupied territory that it was then assumed — against Israeli opinion — that a Palestinian state would be built. The two-state solution, the international consensus for the Israel-Palestine conflict, is premised on Israeli withdrawal from this land occupied in 1967. No wonder that the UN has periodically returned to censure Israel for its ongoing occupation and — in violation of the Fourth Geneva Convention — the construction of settlements on occupied land.

The first major UN resolution to define the terms of the Israeli occupation was 242, sponsored by the United Kingdom and passed in November 1967 with unanimous approval. There was no abstention and no veto used by the permanent members. U.S. Secretary of State Dean Rusk said at that time that despite the U.S. and Israel being “sharply divided” on the issue of territory, the U.S. made no commitment “to assist Israel in retaining territories seized in the 1967 war”. Even when the administrations in Washington defended Israel’s annexationist policies — such as during the term of Ronald Reagan — the U.S. did not veto to defend the settlements.

The element of criminality

The Oslo Accords (1994) put in place the possibility of a Palestinian state, although it did not have an explicit statement to end settlement activity. Israel continues to eat into the potential Palestinian state. Neither does Israel want a two-state solution nor a one-state solution. This negative approach to the ‘peace process’ means that Israel is committed to a permanent occupation of the Palestinians. It continues to harbour dreams of a Greater Israel (Eretz Israel).

Four years after Oslo, the international community passed the Rome Statute for the establishment of the ICC. It was this new development — the ICC — rather than the Oslo Accords that increased the vetoes exercised by the U.S. in the UN Security Council to protect Israel. The Israeli establishment worried that the ICC would legitimately turn its gaze on issues such as population transfer and war crimes. The ICC — under pressure to investigate crimes outside the African continent — could find that Israeli actions provide a legitimate site of inquiry. The vetoes from Washington prevented any legal foundation for ICC action against Israel.

Prosecutor Bensouda’s investigators visited the West Bank and East Jerusalem in October this year. The ICC said that this was not part of its preliminary investigation, but it is hard to imagine that this is true. The new UN Security Council resolution harkens back to more radical postures from it in 1979 and 1980 as well as to the International Court of Justice’s 2014 finding that the ‘apartheid’ wall that entraps the West Bank is illegal. Pressure will mount on her to take her investigation forward.

Tel Aviv’s triumphalism

The tone of Israel’s rejection came when Ambassador Danny Danon said that Tel Aviv has the right to build “homes in the Jewish people’s historic homeland”. The settlements, for the Israeli government, are essential for their own project. They see nothing short of — as Ambassador Danon put it — “a Jewish State proudly reclaiming the land of our forefathers”. Ambassador Danon is fully in agreement with Washington’s incoming Ambassador to Israel, David Friedman, who believes in a Greater Israel and denies the existence of Palestine. U.S. President-elect Donald Trump has vowed to undo the resolution and threatened to end U.S. funding to the UN.

António Guterres, the UN’s new Secretary-General has indicated that he will send a UN Support Mission to push for a two-state solution. Mr. Guterres and Ms. Bensouda will have to thread the needle between the consensus of the international community (a two-state solution) and Israel’s own illegal territorial ambitions. Optimism for progress would be unwarranted.

This article originally appeared in The Hindu.