The 15 member Security Council adopted resolution 2334 by 14 votes (China, France, Russian Federation, UK, Angola, Egypt, Japan, Malaysia, New Zealand, Senegal, Spain, Ukraine, Uruguay and Venezuela), with the US abstaining. This is the 47th resolution relating to the Israeli/Palestinian conflict adopted by the Security Council since June 1967 and the most comprehensive since the 1980s.

 

The legal basis underpinning resolution 2334 is the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) (the Convention). The Convention has been universally ratified and adopted by Israel in 1951. The Convention prohibits, inter alia, the transfer of civilians into occupied territory (Article 49) thereby making settlement construction illegal, as confirmed in multiple Security Council resolutions since 1967 and by the International Court of Justice (ICJ) in 2004.

 

While Israeli civilian and military officials initially acknowledged the application of the Convention to the territories occupied in 1967 based on internal legal advice and reflected in Military Order No. 3 (June 1967) this position was subsequently reversed in or about September 1967 with settlement construction commencing in East Jerusalem and the West Bank immediately thereafter. By 2016 the population in the settlements has now reached approximately 600,000.

 

While Israel does not now accept the de jure application of the Convention to East Jerusalem and the West Bank in relation to the settlements (based on the universally rejected "missing sovereign" argument (see pages 8-9)), it does appear to rely on the Convention (Article 66) to justify the prosecution of Palestinian civilians, including children, in military courts. This mutually exclusive position is legally untenable and potentially increases the risk of legal exposure.

 

In addition to violating the Fourth Geneva Convention, the settlements also constitute a war crime under Article 8.2(b)(viii) of the Rome Statute of the International Criminal Court ratified by Palestine in January 2015. Recent comments by the Prime Minister of Israel stating that resolution 2334 would be "rejected at the outset" by his government potentially increases the legal risk to Israel of action at the ICC and could be interpreted as a clear challenge to the international legal order established following 1945 with adverse implications extending well beyond the region.

 

The full text of resolution 2334 (2016) reads as follows:

 

 

 

“The Security Council,

 

“Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),

 

“Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,

 

“Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,

 

“Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,

 

“Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,

 

“Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,

 

“Recalling also the obligation under the Quartet roadmap for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons,

 

“Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction,

 

“Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,

 

“Stressing that the status quo is not sustainable and that significant steps, consistent with the transition contemplated by prior agreements, are urgently needed in order to (i) stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality, and (ii) to create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground,

 

“1.   Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, 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;

 

“2.   Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;

 

“3.   Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;

 

“4.   Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;

 

“5.   Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;

 

“6.   Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and calls for compliance with obligations under international law for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism;

 

“7.   Calls upon both parties to act on the basis of international law, including international humanitarian law, and their previous agreements and obligations, to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace;

 

“8.   Calls upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process and within the time frame specified by the Quartet in its statement of 21 September 2010;

 

“9.   Urges in this regard the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation;

 

“10.  Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement;

 

“11.  Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;

 

“12.  Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution;

 

“13.  Decides to remain seized of the matter.”