By Philip C. Wilcox, Jr.
The Obama administration will face a moment of truth in deciding how to vote on a U.N. Security Council resolution condemning Israeli settlements under international law now being drafted on behalf of the Palestinians for presentation early this year. But the administration's thwarted efforts to freeze settlements, the huge obstacle settlements pose to a two-state peace, Israel's aggressive expansion of settlements, and the need to restore U.S. credibility as a peace maker are all powerful reasons for supporting this initiative.Nevertheless, the State Department has said it prefers that settlements be resolved through negotiations as "the only viable path" for ending the conflict. This position is also being pressed by Israel and domestic groups that support Israeli policies unconditionally, and by the House of Representatives which has already called for an American veto of U.N. resolutions not approved by Israel. The Obama administration has not yet said how it would vote on such a resolution. It still has time to decide that the U.S. should vote yes, for compelling reasons.
Israel's expansionist settlement policy defeats any prospect of winning the U.S. goal of a two-state peace. Direct negotiations over the years, absent effective external intervention, have made no progress whatsoever in changing this policy. Prime Minister Netanyahu's decision to expand settlements, including those deep in the West Bank and in East Jerusalem, strongly suggests that he seeks Israel's domination and control there indefinitely. A U.S. veto or abstention, or a successful effort to bury this initiative, would signal to Netanyahu that he can continue to build settlements with impunity. This would further undermine U.S. credibility, and deal another blow to Palestinian President Abbas. Instead, the Obama administration should be looking for authoritative ways to persuade Israel that the U.S. is serious about halting settlements and promoting a two-state peace. A Security Council resolution condemning settlements as a grave obstacle to peace and reaffirming their illegality under international law offers such an opportunity.
Israel's argument that a Palestinian resort to the U.N. is "unilateral" action that violates Palestinian commitments rings hollow, given Israel's unilateral policy of massive settlement expansion in violation of the 1995 Oslo Interim Agreement which stated that "Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations."
No one expects that the U.N. action and international law alone will resolve the settlements issue. Ultimately, negotiations must do this. But U.N. action will support (not preempt) effective U.S. diplomacy. There is no reason whatsoever for the U.S., which has championed the U.N. and international law in other conflicts, to continue its longstanding policy of excluding these institutions from their legitimate role in the Israeli-Palestinian conflict.
President Obama's challenge in Cairo in June 2009 that the "United States does not accept the legitimacy of continued Israeli settlements" laid down a strong marker. But it has seemed designed to continue the flimsy distinction between the "illegitimacy" of settlements and their "illegality" under the Fourth Geneva Convention and the practice of all U.S. presidents for the past 30 years of avoiding condemnation of Israeli settlements as "illegal" in the U.N. and elsewhere under international law.
It was not always this way. After the 1967 war and until 1981, all U.S. administrations condemned settlements as a violation of the Fourth Geneva Convention. In 1978, an opinion by the State Department's Legal Advisor formalized this, echoing an opinion in 1967 by Theodor Meron, legal counsel to the Ministry of Foreign Affairs, which all Israeli governments have rejected, that "settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention" -- which Israel had signed.
But in 1981 President Reagan disagreed with his predecessors, saying in a press conference that settlements were "not illegal," and the former U.S. policy lapsed. Reagan was influenced by advisors who supported Israel's right to the Occupied Territories and others who thought IDF-defended settlements would protect Israel's security. Nevertheless, neither the Reagan administration nor any successor adopted a new legal analysis supporting the legality of settlements, and the 1978 State opinion remains on the books.
The U.S. policy since 1981 of finessing the legal issue, blocking U.N. action, and, with rare exceptions, soft-pedaling U.S. opposition to settlements until President Obama's strenuous effort to win a freeze, has been very costly. At the time of Reagan's about-face, there were only 16,000 settlers in the West Bank, compared to over 300,000 today, and 59,000 in East Jerusalem compared to over 200,000 today. This huge growth makes an Israeli-Palestinian peace vastly more difficult, even as Egypt and Jordan have made peace, the Palestinian leadership has opted for a two state formula, and the Arab League has offered normal relations to Israel in return for a negotiated peace.
The traditional U.S. policy of blocking the U.N. and application of international law, thus protecting Israel from its own dangerous policies of occupation, is a dysfunctional anachronism. It does no favor to Israel, whose future as a Jewish, democratic state is at risk. It contradicts the Obama administration's own opposition to settlements, and it forfeits a useful lever in persuading Israel to change its policy. Rather than bowing to domestic political pressures, and clinging to the view that the U.N. and international law have no role to play, the U.S. should rejoin the virtual international consensus on these issues, stand up for its own declared interests, and vote for the proposed Security Council resolution.
Philip C. Wilcox, Jr. is the President of the Foundation for Middle East Peace.
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