Last Friday, the United Nations Security Council unanimously passed Resolution 2334, with a dramatic abstention by the Obama Administration. The resolution called on Palestinian leaders to take “immediate steps to prevent all acts of violence against civilians, including acts of terror,” and refrain from “incitement and inflammatory rhetoric.” Its real target, though, was Israel’s settlement project, which, the resolution sharply claimed, has “no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”
Later in the day on Friday, I spoke to Robert Malley, the special assistant to the President on the National Security Council, the senior adviser for the campaign against ISIS, and the White House coördinator for the Middle East, North Africa, and the Gulf. In February, 2011, the Obama Administration vetoed a similar U.N. condemnation of settlements—opposing fourteen other members of the Security Council and a hundred and twenty co-sponsors from the General Assembly. Why abstain now, I asked Malley, and not then? “A real difference is that efforts to advance negotiations were ongoing in 2011,” Malley told me. “We were concerned not to interfere with a process that had some prospect of progressing. That’s not the case since Secretary Kerry’s efforts in 2014. We are at an impasse. There is no prospect of resumption of serious meaningful talks between the sides, so the argument that a U.N. resolution would interfere with negotiations doesn’t hold much water.”
In speaking of an “impasse,” Malley was exercising tact. The most salient change, he went on, is the attitude of the Israeli government toward the construction of settlements, which “has accelerated since the 2011 veto—tens of thousands of units approved, and in different stages of tendering and construction.” Malley pointed to the so-called normalization bill to legalize outposts and settlement units built on private Palestinian land, which is being considered by the Knesset. Such building is currently illegal under Israeli law, and has put the Israeli government at odds with the Supreme Court. “The legislation would represent a sea change,” Malley told me. “The Prime Minister of Israel just stated that his government was more committed to settlements than any in Israeli history. And one of his ministers”—Naftali Bennett, the Education Minister and the leader of the right-wing Jewish Home Party—“said the era of the two-state solution is over. So the resolution reflects not so much a change in President Obama’s position as in the Israeli government’s.”
Minutes after the resolution passed, U.S. President-elect Donald Trump gave his response. “As to the U.N., things will be different after Jan. 20th,” he tweeted. He plans to nominate David Friedman, a bankruptcy lawyer who has raised millions of dollars for an Israeli settlement, to be the next U.S. Ambassador to Israel. Trump has also promised to move the American Embassy from Tel Aviv to Jerusalem, a symbolic endorsement of the Israeli right’s claim to the entire city—although his designated Secretaries of State and Defense may have something to say about provoking allies like Jordan. The Walla news site, generally supportive of Israeli Prime Minister Benjamin Netanyahu, reported last month that Israeli officials are hopeful that General Michael Flynn—Trump’s designated National Security Adviser, who has close ties to Israel’s defense establishment—will work with Congress to rescind the restrictions Obama put on the ten-year, thirty-eight-billion-dollar Israeli aid package that was approved this fall.
But Trump’s power as President, however consequential, cannot cancel the power that other countries have in the conflict, as Netanyahu seemed to acknowledge in the bitterness of his response. On Saturday, an Israeli official told Barak Ravid, of Haaretz, that the resolution “revealed the true face of the Obama Administration”; the next day, the Prime Minister accused the Administration of carrying out an “underhanded, anti-Israel maneuver.” On Monday, Ron Dermer, the Israeli envoy in Washington, told CNN that Israel has proof that the Obama Administration was “behind” the resolution, and would “present this evidence to the new Administration through the appropriate channels.” Malley seemed fatigued by the prospect of having to fend off such charges. “Contrary to the claim made by some Israeli officials, we did not cook up this resolution, we did not chase after it,” he told me. “Secretary Kerry averaged roughly one phone call a week to the Israeli Prime Minister over the last four years—almost four hundred—to plead, to warn, against the path his government was on. Not only did settlement-construction activities continue apace, they were accelerated.”
Recent polls conducted by the Palestinian public-opinion expert Khalil Shikaki suggest that support for a two-state solution among Palestinians in the territories is significantly depressed, not because of ideology (only about a quarter of respondents support Hamas) but because of skepticism of Israeli and American intentions. “Settlements have always been at the heart of this distrust,” Shikaki told me in Tel Aviv last Thursday. For Malley, the point was self-evident and applied to Israelis as well: “What has dropped precipitously is confidence on either side that the other side is serious about reaching a solution. It is very hard for Palestinians to believe that the Israeli Prime Minister believes in a two-state solution in which the Palestinians would have a viable state at the same time as the territory on which that state is to be built is increasingly encroached upon—not just through settlements but through home demolitions, and the refusal to grant permits for Palestinian building. Similarly, it has been very hard for Israelis to believe that the Palestinians believe in a two-state solution at the same time as they experience terrorism and hear calls for martyrdom.”
The peace process has subtly shifted from bilateral negotiations, in which envoys hammer out principles for agreement and bring these to the international community, to one in which the principles and possible impediments are understood and Western states other than the U.S. may choose to put pressure on the parties. Earlier in his career, Malley was special assistant on Arab-Israeli affairs to President Bill Clinton. He participated in the Camp David Summit of 2000, between Israeli Prime Minister Ehud Barak and Yasir Arafat, the head of the Palestinian Authority, and helped to prepare the “Clinton parameters” for an Israeli-Palestinian peace agreement, which were presented to envoys of Barak and Arafat on December 23rd, sixteen years before, to the day. “The resolution is not that. We are not saying, ‘Here’s a plan, take it, do this,’ ” Malley said. “Think of this resolution as a wake-up call to both sides: here are the things you have to stop doing if you want to preserve the chance of a two-state solution. We have to ring the alarm bells.”
Resolution 2334 was passed under chapter six of the U.N. charter, dealing with “Pacific Settlement of Disputes,” which involves recommendations and diplomatic action, not chapter seven, dealing with “Threats to the Peace, Breaches of the Peace, and Acts of Aggression,” which can involve sanctions and even military peacekeeping. But softer power matters here. Israel and Europe trade about forty-five billion dollars’ worth of products and services annually, and exchange crucial intellectual capital, as well. This will continue after January 20th. As I’ve argued before, sanctions of a sort may be imposed on Israel by any member of a European corporation’s product-development team—someone who, with this resolution at her back, simply refuses to travel to Tel Aviv. Rightists have claimed that Israel could eventually escape European penalties by reducing the proportion of trade there. But Russia and China, where trade, especially in military technology, has been growing, also voted for the resolution—and, on the Palestinian question, they are unlikely to break ranks.
More important in the short term, the resolution draws a clear distinction between residents of the settlements, along with the products produced there, and Israeli residents and products, and urges member states to distinguish between these “in their relevant dealings.” The E.U. has already decided that Israel must identify products from the settlements with a label and has proposed to exclude the settlements from free-trade privileges. The new resolution invites all member states to impose similar restrictions. It also suggests that states may impose entry restrictions on residents of the settlements who are travelling with an Israeli passport, or impose restrictions on European companies or banks doing business with Israeli companies with settlement-based enterprises in their supply chains. It requires the Security Council to consider a quarterly report on settlement growth.
Ronen Bergman, a senior military columnist for Yediot Aharonot, Israel’s largest daily newspaper, told Israel’s Channel Ten on Friday night that the resolution may even boost Palestinian threats to bring the settlement project to the International Criminal Court. “Because it connects the settlements to the Geneva Conventions, it exposes settler leaders to international prosecutions, including at the Hague,” Bergman explained. As Malley noted, the Obama Administration opposes action against Israelis in the I.C.C., and has even argued that the Palestinians should not be eligible to accede to the Rome Statute. Malley did not deny the dangers of being in violation of international law—he didn’t need to. “The fact is, there is nothing in the resolution that the I.C.C. didn’t know before, or believe before, or for which it could not have turned to any number of similar resolutions passed by the Security Council,” he said. Malley was alluding to, among other things, U.N.S.C. Resolution 465, which passed in 1980, in the waning days of the Carter Administration, and also called civilian settlements “a flagrant violation of the Fourth Geneva Convention.” As a legal matter, the U.S.’s position since 1978 has been that settlements are “inconsistent with international law,” Malley said. He added, “That has never been repudiated or changed internally.”
Netanyahu has often insisted that, because of the settlements’ continued entrenchment and expansion, U.S. policy has changed over time. His officials have often referred to President George W. Bush’s letter to Prime Minister Ariel Sharon, in April, 2004, which stated that, “in light of new realities on the ground, including already existing major Israeli populations centers,” it was “unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.” Trump may rush to support Netanyahu on this point. But the plain meaning of the letter, which Ehud Olmert carried into his negotiations with Mahmoud Abbas in 2008, is that border changes must be “agreed” to by both sides. The settlements and changes to the border, in other words, could never be treated separately from a larger agreement. Bush grasped this, and Trump’s national-security team almost certainly will, too. Three years ago, I heard James Mattis, Trump’s choice for Secretary of Defense, say, to an audience at Dartmouth College, that the United States has paid a serious price across the Middle East for being identified with Israel’s occupation.
On Wednesday, in Washington D.C., Secretary of State John Kerry will be delivering a speech reflecting on what he’s achieved, and failed to achieve, in trying to forge a peace deal for the region. In a follow-up interview with Malley, on Tuesday, I learned that, in his speech, Kerry will put forward principles for a comprehensive agreement. Since last winter, French President François Hollande has been pressing for just such a statement, and has warned that if his initiative to convene an international peace conference fails, then France would simply recognize the State of Palestine.
Malley left the impression that Kerry’s sketch would not go far beyond the established principles of action. These, I concluded, were two states—one Palestinian, one “Jewish”—the 1967 border with swaps, and a shared Jerusalem. Would this be enough, given how symbiotic the Israeli and Palestinian economies and infrastructure have become, and how vulnerable both sides are to rejectionists and polarizing terror? On this question, Malley offered some more personal reflections. “We all need to ask ourselves, honestly, if there is something to add beyond the oft-repeated mantra that we all know what the solution is, and consider other ideas, such as the role Jordan might have to play, the precise future relationship between Israel and Palestine, whether of a confederal or other nature, or the final dispensation for Jerusalem,” he said. “Those are important and often neglected questions in officials talks. But one thing we know: we are not going to get to a creative solution, or a solution at all, for that matter, if either side continues to take unilateral steps that are viewed as anathema by the other.”