Analysis: The diplomatic dance

Will Palestinians get a Security Council motion passed – and will it matter?

In the waning days of the Obama administration, three countries are eager to propose anti-settlement resolutions at the UN. Our diplomatic correspondent looks at the timing, the math, and the potential significance

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

New Zealand's Murray McCully chairing a UN Security Council meeting on September 14, 2015. (UN/JC McIlwaine)
New Zealand's Murray McCully chairing a UN Security Council meeting on September 14, 2015. (UN/JC McIlwaine)

Outgoing United Nations Secretary-General Ban Ki-moon on Friday acknowledged a well-established “bias against Israel” within his organization. “Decades of political maneuverings have created a disproportionate volume of resolutions, reports and conferences criticizing Israel,” he told the Security Council, admitting that this situation has often done nothing to help the Palestinians.

And yet, in the waning days of 2016 and the Obama administration, the specter of yet another anti-Israel resolution at the UN’s most important body is again dominating local headlines. Several countries are said to be planning to circulate various drafts with different intentions, though it is unclear if and when who will propose what text, and what would happen next.

Amid the confusion, the only thing that is really certain that Jerusalem continues to object to any resolution in the Security Council, arguing that it is the wrong venue to solve the Israeli-Palestinian conflict, which can only resolved through direct bilateral negotiations.

Here are answers to the five most important questions about what Israel can expect from Turtle Bay in the coming days.

Which countries are planning to propose resolutions, and how serious are they about their intentions?

The Palestinians have long threatened to make another attempt at passing an anti-settlement resolution. Palestine Liberation Organization PLO Secretary General Saeb Erekat said Monday that Palestinian and other Arab diplomats were meeting that day in Cairo to finalize the text of resolution to be submitted to the Security Council “by the end of the year.”

Late Wednesday, Egypt, which currently holds a non-permanent seat and represents the Arab Group in the council, circulated a draft that will be voted on at 3 p.m. (10 p.m. Israel time) on Thursday.

In this May 11, 2016 file photo, Egypt's Foreign Minister Sameh Shoukry listens during a press conference after heading a Security Council meeting on terrorism at UN headquarters. (AP Photo/Bebeto Matthews, File)
Egypt’s Foreign Minister Sameh Shoukry listens during a press conference after heading a Security Council meeting on terrorism at UN headquarters, May 11, 2016 (AP Photo/Bebeto Matthews, File)

Additionally, New Zealand — which is leaving the council at the end of the year — announced last week its intention to propose a resolution aimed at safeguarding the two-state solution. Wellington has been toying with the idea of sponsoring such a resolution for nearly two years and has now apparently decided to take the plunge.

It has been eight years since the Security Council passed its last resolution on the Israeli-Palestinian conflict, New Zealand’s Foreign Minister Murray McCully told the council last Friday, admitting that there are “a good number of reasons” why further pronouncements in this forum “might be counterproductive or premature.”

However, he added that his country has been working with fellow members of the council on the “type of text that would reassert the two state solution, and call clearly for a halt to the violence and the settlements that threaten to undermine this process.”

It is time, he said, for the members of the Security Council “to stop being bystanders, and to act as the custodians of the two state solution that we should be.”

Sweden, which is starting its two-year term on January 1 — and will immediately assume the body’s rotating presidency — is expected to want to weigh in with its own resolution.

However, Israeli sources said Stockholm is likely to wait and see what happens with the other resolutions and only propose one if none of them is passed. A document detailing Sweden’s program for its term on the council, published earlier this month, merely states that the country has “a longstanding engagement, based on international law, in support of a two-state solution within the framework of the Middle East peace process.”

What exactly would these resolutions say?

Unsurprisingly, the Palestinian draft, as it currently stands, is a long list of grievances and accusations against Israel. It declares all Israeli settlements beyond the 1967 lines, including in East Jerusalem, “illegal under international law… and a major obstacle to the achievement of peace on the basis of the two-state solution.” Indeed, Israeli settlements are “dangerously imperiling” a peaceful solution of the conflict, the draft notes with “grave concern.”

The draft further calls for “affirmative steps” to reverse “negative trends on the ground,” which some observers read to mean a boycott of settlement products.

UN Secretary-General Ban Ki-moon briefs the Security Council during a meeting on the situation in the 'Middle East and Palestine,' January 26, 2016, at the UN in New York. (AFP/United Nations/UN Photo/Loey Felipe)
UN Secretary-General Ban Ki-moon briefs the Security Council during a meeting on the situation in the ‘Middle East and Palestine,’ January 26, 2016. (AFP/United Nations/UN Photo/Loey Felipe)

New Zealand’s draft is more balanced, calling for an end to settlement activity and the “occupation that began in 1967” and for a “firm timetable” leading to an “early return to negotiations” without preconditions. It also requires Israel to cease “confiscations of land and demolition of Palestinian structures.”

On the other hand, the text calls for an “active and sustained Palestinian leadership to deter incitement to violence against Israeli civilians” and an end “to all acts of terrorism” and of “hostile actions and rocket fire from Gaza.”

Seeking to remain evenhanded, Wellington’s draft calls on both parties to refrain from “actions or statements which might obstruct implementation of this resolution” or from “questioning the integrity or commitment of the other party or its leaders.”

The Swedes have not yet circulated a draft.

How likely are these resolutions to pass?

Whether a resolution passes will depend on many factors: on the content, focus and phraseology, of course, but also the date on which it is put to the vote. The composition of the 15-member council changes in less than two weeks, and in a month — on January 20, 2017 — a new government takes power in Washington that would be sure to veto any text that Jerusalem dislikes, which effectively means any resolution dealing with the Israeli-Palestinian conflict.

Both draft resolutions currently circulating would certainly get the nine yes-votes needed to pass in the current constellation of the Security Council, and almost certainly in the post-January 1 Security Council.

Permanent members Russia, China and France are sure to support any draft. If the vote is held before January 1, Angola, Egypt, Malaysia, New Zealand, Senegal, Spain and Venezuela are also near-certain yes votes. Great Britain, Japan, Ukraine and Uruguay can be expected to abstain.

Swedish Foreign Minister Margot Wallstrom (L) shakes hands with her Palestinian counterpart Riad al-Maliki during a meeting in the West Bank city of Ramallah on December 16, 2016. (AFP/Abbas Momani)
Swedish Foreign Minister Margot Wallstrom (L) shakes hands with her Palestinian counterpart Riad al-Maliki during a meeting in the West Bank city of Ramallah on December 16, 2016. (AFP/Abbas Momani)

If the resolution goes to a vote after the New Year’s Day, the situation would change somewhat, but not drastically. China, Russia, Egypt, France, Senegal and new members Bolivia and Sweden would be sure to support any draft. If you count Ukraine in, only one more yes vote would be required.

Incoming council member Kazakhstan generally follows Moscow’s lead and is usually automatically counted in the yes camp. However, Prime Minister Benjamin Netanyahu’s historic visit to Astana this month might conceivably cause the Central Asian country to abstain.

If Britain, Japan, Uruguay and new member Italy were to abstain as well, as is expected, Ethiopia’s support would be needed to reach the nine yes votes. Addis Ababa usually backs the Arab bloc, but it is just possible that Netanyahu convinced the government to change its voting patterns during his visit there earlier this year.

All of this, of course, is informed guesswork. Many governments make their decision literally moments before the vote, often as the result of last-minute changes in the text or secret backroom deals.

How will the Americans vote? Is there a chance that President Barack Obama would not veto an anti-Israel resolution?

If nine members of the Security Council vote in favor of the resolution, one of its five permanent members can veto it. Whether Obama’s lame-duck administration would veto a resolution will to a great extent depend on its content.

The US State Department said Tuesday that its “deep concern” over settlement activity remains intact, but senior officials have in recent days reiterated that the administration would not deviate from its longstanding policy of opposing one-sided resolutions against Israel. Backing — or, more precisely, not vetoing — a resolution condemning the settlements and/or calling for a two-state solution is still being considered in the White House. But most pundits argue that Obama is unlikely to use his last days in office, during a time of immense bloodshed elsewhere in the Middle East, to break with tradition and allow an anti-Israel resolution to pass.

US Ambassador to the United Nations Samantha Power attends a UN Security Council emergency meeting on the situation in Syria, at UN Headquarters in New York, September 25, 2016. (AFP Photo/Bryan R. Smith)
US Ambassador to the United Nations Samantha Power attends a UN Security Council emergency meeting on the situation in Syria, at UN Headquarters in New York, September 25, 2016. (AFP Photo/Bryan R. Smith)

On the other hand, whether a text is considered “anti-Israel” or “pro-peace” lies in the eye of the beholder. If it is a balanced text lamenting the elusiveness of a two-state solution and calling on both Israelis and Palestinians to take steps to advance peace, Obama might even support it. One possible blueprint for such a text could be the Middle East Quartet’s June 30 report, which lambasted Israeli settlement expansions and Palestinian incitement.

That document, seen in Israel as a success because of its unexpected focus on Palestinian wrongdoing, was issued jointly on behalf of United Nations Secretary-General Ban Ki-moon, US Secretary of State John Kerry, European Union foreign policy czar Federica Mogherini and Russian Foreign Minister Sergey Lavrov.

If the Palestinians were to propose a resolution based on this report, which urges Israel to cease expanding settlements and “denying Palestinian development,” the US would be hard-pressed to issue a veto, since its own top diplomat underwrote it.

Alan Baker (courtesy
Alan Baker (courtesy

“The Americans won’t veto a resolution that calls for a return to negotiations, but they will have to veto any text referencing the 1967 lines,” said Alan Baker, a former legal adviser to Israel’s Foreign Ministry. If the Palestinians propose a resolution that reiterates previous Security Council resolutions but does not contradict longstanding US policy — for instance that borders have to be determined in negotiations — the Obama administration might refuse to use its veto “to mollify” the Palestinians, Baker posited. But, he added, it would almost certainly have to block any text seeking to impose deadlines or predetermine borders.

There is precedent for the US supporting Security Council resolutions on the Israeli-Palestinian conflict. In 1979, president Jimmy Carter’s administration abstained on Resolution 446, which determined that Israel’s establishment of settlements in the West Bank had “no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East.” The resolution, which passed with 12 yes votes and three abstentions, also called on Israel “not to transfer parts of its own civilian population into the occupied Arab territories.”

Hamilton Jordan, left, then the White House chief of staff, speaking with president Jimmy Carter at the White House, July 19, 1979. (Keystone/Hulton Archive/Getty Images/via JTA)
President Jimmy Carter, right, with his chief of staff at the White House, July 19, 1979. (Keystone/Hulton Archive/Getty Images/via JTA)

A year later, Carter again voted for a resolution “[d]eploring” Israel’s decision to “officially support Israeli settlement in the Palestinian and other Arab territories occupied since 1967.”

In 2002, Republican president George W. Bush voted in favor of Resolution 1397, which explicitly called for a two-state solution. On the other hand, in 2011, a resolution condemning Israel’s settlements got 14 yes votes but was vetoed by Washington. The US made it clear at the time that it did not disagree with the resolution’s content but took issue with using the Security Council as a tool to advance the stalled peace process.

“Our opposition to the resolution before this council today should therefore not be misunderstood to mean we support settlement activity,” Susan Rice, then the US’s ambassador to the UN and today Obama’s national security adviser, declared at the time. “On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity.”

US ambassador to the UN Susan Rice (photo credit: courtesy UN)
US ambassador to the UN Susan Rice (Courtesy UN)

However, the Israeli-Palestinian conflict cannot be solved by even the best-intentioned outsiders, Rice said. “Therefore every potential action must be measured against one overriding standard: Will it move the parties closer to negotiations and an agreement? Unfortunately, this draft resolution risks hardening the positions of both sides. It could encourage the parties to stay out of negotiations.”

Even if an anti-settlement resolution passed, what difference would it make?

In the internal Israeli debate over what could happen at the Security Council in Obama’s last days, very little attention has been given to the question of how much impact an approved resolution would actually have. The answer is quite simple: Not much.

“It won’t change anything immediately,” said Aeyal Gross, a professor of international law at Tel Aviv University, even though — as opposed to decisions taken by the General Assembly — countries are obligated to act according to Security Council resolutions. It is possible that a first resolution might pave the way for another one, which at some point could lead to additional resolutions under Chapter VII of the UN Charter, which deals with “threat[s] to the peace, breach of the peace, or act[s] of aggression.”

Hypothetically, an anti-settlement resolution passed under this chapter could legitimize sanctions against Israel or even military force, “but this is very unlikely at this point,” Gross said. “Currently, it would amount only to a diplomatic embarrassment.”

According to Baker, any text that could possibly pass would merely serve as “another point that the Palestinians will try to use in their PR fight against Israel.”

Even previous resolutions on the conflict, such as 242 and 338, were “non-mandatory declarations,” he noted. So it is safe to assume that any possible resolution on the Israeli-Palestinian conflict “will just be added to the long list of other UN resolutions that nobody but the Israeli public and the Israeli media takes very seriously.”

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