In its famous Advisory Opinion on Namibia, the International Court of Justice wrote in 1971 that “the qualification of a situation as illegal does not by itself put an end to it. It can only be the first, necessary step in an endeavour to bring the illegal situation to an end.” These words resonate today in light the United Nations Security Council’s resolution concerning the illegality of Israeli settlements in the West Bank. The decision reiterates a position which most of the international community has held for many years – there is nothing novel in the stance that the settlements are illegal under international law. This position is anchored in the Fourth Geneva Convention's prohibition on an occupying power transferring its civilian population to territories it occupies. The same prohibition appears in the Rome Statue of the International Criminal Court.
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The view that Israeli settlements violate this prohibition has been the consistent position of even Israel’s closest allies, including the United States. Israel has taken a contrary stance, arguing that the Geneva Convention does not apply since the territories did not belong to any sovereign state before 1967, and that in any case, the prohibition is not relevant in cases where citizens of the occupying state move into occupied territories of their own free will rather than being forcibly transferred. But the Israeli position was rejected not only by the international community but also by the International Court of Justice, which addressed the question when it issued the Advisory Opinion concerning the construction of the separation barrier in the West Bank.
Given that the legal position expressed in Friday's resolution is not new, the fact that the Security Council chose to make this statement now, with the U.S. refraining from using its veto power, is first and foremost of political and diplomatic significance. However, it may be part of a process with significant legal implications. One should recall that the decision calls upon all states to distinguish in their dealings with Israel between the territory of Israel and the occupied territories. Steps in this direction are already being taken by the European Union. But Security Council decisions are binding for all states, and the decision may urge more to take measures that will exclude the settlements from their various forms of cooperation with Israel – financial, trade, academic, and so on.
While the resolution was not made under Chapter 7 of the UN Charter, which deals with threats to international peace and security and allows for civil and even military sanctions, the International Court of Justice already determined in the Namibia opinion that decisions made outside of Chapter 7’s framework may also bind states to act. This is based on the general determination in the UN Charter that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” In that case, the International Court of Justice held that “It would be an untenable interpretation to maintain that, once such a declaration had been made by the Security Council on behalf of member States, those Members would be free to act in disregard of such illegality or even to recognize violations of law resulting from it.”
States may now see the Security Council resolution as binding them to act in its spirt and not recognize the settlements as part of Israel. Another important element of the decision is the request that the Secretary-General report to the Security Council every three months on the resolution's implementation, a provision that ensures constant engagement with the topic.
Not least, the decision may give International Criminal Court prosecutor Fatou Bensouda political and legal encouragement to shift the preliminary examination she is carrying out on settlement construction as part of her study of the Israeli-Palestinian situation into a full-blown investigation. The consensus that the resolution represents on the illegality of the settlements and the description of their construction as a “flagrant” violation may convince Bensouda that she has strong grounds to pursue the matter before the ICC. The gravity requirement that exists in the ICC's statute could be fulfilled with a such a case against settlement construction.
The decision may be part of a longer process of international delegitimization of the settlements and the occupation more generally. While the Trump administration’s attitude may be different than that of Obama, it will not be able to undo the decision. In the future, perhaps even after Trump’s term, it may set the groundwork for the UN to play a significant role in pressuring Israel to end the occupation. Enforcement steps under Chapter 7 against Israel (be they civil sanctions or military ones) at this stage seem very unlikely and the U.S. will probably veto any such measures in the foreseeable future. But in the long term, the current decision may be one of many to come, some of them potentially harsher. The decision may prove to be, in the words of the Court in the Namibia case, only the first step.