The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Security Council is expected to vote today on a resolution, introduced by Egypt, condemning the presence of settlements—Jewish communities in the West Bank and eastern Jerusalem. For years, there has been mounting speculation, fueled by the administration itself, that President Obama would use his lame-duck period in office for a major anti-Israel action, probably by not providing the customary U.S. veto to such resolutions.
I expect the United States will veto today's resolution, but that may be only a prequel to allowing the passage of one of the numerous similar resolutions that have been floated. The other resolutions are substantively similar, but unlike the Egyptian proposal, they may make cosmetic, inconsequential half-criticisms of Palestinian Authority "incitement" (while ignoring the PA's ongoing solicitation and sponsorship of actual killings of Jews). Then the administration would then say it vetoed "anti-Israel resolutions," but simply could not hold back the tide against a "balanced" resolution.
Obama's goal with such a resolution would be to punish Israeli Prime Minister Benjamin Netanyahu, whom he personally dislikes, and to create diplomatic facts on the ground to box in President-elect Donald Trump's foreign policy. The folly of a such resolution has been underscored by both Hillary Clinton and Trump, as well as near-unanimous majorities in both houses of Congress and an array of Democratic foreign policy experts, including former Senate majority leader and Obama administration peace negotiator George Mitchell.
Such a resolution would not cement any positive legacy for Obama. To the contrary, it would vastly magnify the actual obstacles to resolving the Palestinian issue. Moreover, by setting the U.N. against Israel, Obama may provoke a sharp conflict between Washington and the U.N.—one that would harm the latter much more than the former.
The proposed resolution denounces any Jewish presence in eastern Jerusalem and the West Bank as illegal and demands that Israel immediately choke off such communities. These areas had been entirely cleansed of their ancient Jewish populations during the Jordanian invasion and occupation in 1949. The standard diplomatic position of the U.N. is that Israel, upon retaking these areas in 1967, was obligated to indefinitely forbid Jews from living in these areas (but the U.N. has amazingly avoided applying these supposed rules anywhere else).
The legal effects of such a resolution would be murky—the Security Council is neither a court nor a legislature and cannot create rules of international law. Nor do the resolutions invoke the council's power under Chapter 7 of the U.N. Charter to call for mandatory measures, such as sanctions. What is clear is that a Security Council resolution will reinforce all the dynamics that have made a solution more remote despite eight years of pressure on Israel by Obama.
1. Showing the Palestinians the outside option is better. The resolution would teach the Palestinians that appealing to the international community will always give them a better offer than negotiations—since unlike Israel, the international community asks nothing of the Palestinians in return. Such a process can never lead to peace, as it takes none of Israel's interests into consideration. A Security Council resolution would only entrench Palestinian maximalism and refusal to negotiate. Indeed, this is exactly what the U.S. ambassador to the U.N., Susan Rice, said when vetoing a similar resolution in 2011.
2. No penalty for refusal. The Palestinians have been offered an independent state in the peace negotiations in 2000 and 2001, and apparently Netanyahu was prepared to make far-reaching concessions in 2014. Each time, the Palestinians said no. Never has there been a national independence movement that has refused an independence offer on the grounds that it does not include all the territory the movement seeks. Imagine if the United States refused to accept peace with Britain because it did not give the newly independent colonies the northern border they sought. Yet the Palestinian rejection of successive proposals carries no negative consequences for them—it just raises the expectations from Israel in the next round. Similarly, the Palestinians will not fully accept whatever the Security Council gives them, but only use it as a basis for further demands.
3. Undermining U.S. credibility as a player in the Middle East peace process. U.S. credibility will be damaged by effectively overturning prior American commitments to Israel, such as not requiring a full withdrawal from the West Bank, accepting the settlement blocs and insisting that any core issues be resolved only through "direct negotiations between the parties," rather than U.N. "shortcuts," as the Obama administration said in 2011. For these understandings, Israel made concrete and dramatic concessions, from the Oslo process that created the Palestinian Authority and gave it broad territory, to the Gaza withdrawal, which created a Hamas terror state. Discarding these understandings will give Israel no reason to think that future concessions will not lead to empty promises as well.
Moreover, such a resolution effort in the last weeks of the Obama administration would almost certainly prompt Trump to compensate strongly, re-creating the diplomatic space Obama took away.
With Republican control of Congress and the White House, the avenues for pushback would be many. Trump could make an anti-settlements resolution a dead letter by moving the U.S. Embassy not just to Jerusalem, but to eastern Jerusalem. This would be consistent with his platform of an "indivisible" Jerusalem and with federal law that treats the entire "united" city as a proper site for the embassy. Trump's State Department could issue an opinion that settlements are indeed legal; he could provide incentives for U.S. companies doing business with Israeli settlements. To paraphrase David Ben Gurion, it is not what the U.N. says but what the U.S. does that will ultimately shape reality.
But Trump's reaction will likely be broader than simply doubling down on any pro-Israel moves he may be contemplating. The cynical use of the U.N. to bypass U.S. electoral outcomes and constrain the next president's policy could lead to a severe deterioration of relations between Washington and Turtle Bay.
Trump has consistently opposed Obama's turning to the U.N. to create facts on the ground for U.S. policymakers or to avoid Congress—from climate change to the Iran deal to control of the Internet. If the Security Council becomes a forum for exonerating Iran and slamming Israel, President Trump could even embrace the idea, already popular among congressional Republicans, of cutting U.N. funding. Or a Trump administration could weaken the U.N. from the inside by actions such as vetoing a wide variety of marginal resolutions that the United States would otherwise tolerate in the spirit of multilateralism. He could veto the reauthorization of U.N. peacekeeping missions, which bring with them plague and rape but are still in many ways the pride of the U.N.