Harvard Law Review Harvard Law Review Harvard Law Review

International Law (Public)

U.N. Security Council Resolution 2334

United Nations Security Council Asserts Illegality.

“[I]n suits and ties we will take the Israelis to The Hague, we will handcuff them. . . . This is a war without bullets.”1×1. Abbas Confidant: We’ll Take “Hundreds” of IDF Soldiers to ICC This Year, Times Isr. (Dec. 26, 2016, 1:08 AM), http://www.timesofisrael.com/abbas-confidant-we-will-take-hundreds-of-idf-soldiers-to-icc-this-year/ [https://perma.cc/GV9E-A5F3] (quoting journalist Nasser Laham). This assertion — from a confidant of Palestinian Authority (PA) President Mahmoud Abbas, in the wake of United Nations Security Council Resolution 23342×2. S.C. Res. 2334 (Dec. 23, 2016). — reflects the modern rise of Palestinian lawfare: its strategy of using law “to achieve . . . warfighting objective[s]” against Israel.3×3. See Charles J. Dunlap, Jr., Lawfare Today . . . and Tomorrow, 87 Int’l L. Stud. 315, 315 (2011) (defining lawfare generally). Having failed over the last half century to shift the balance of power through negotiations and armed resistance, the PA has turned to new battlefronts — including the Security Council and the International Criminal Court (ICC) — where it deploys international law to advance its territorial claims and further Israel’s political isolation.4×4. See generally Orde F. Kittrie, Lawfare: Law as a Weapon of War 197–237 (2016); Mahmud Abbas’s Call for a Halt to the Militarization of the Intifada, J. Palestine Stud., Winter 2003, at 74, 74–77 (excerpts from Abbas’s speech describing armed resistance as futile) [hereinafter Abbas’s Call]. But see David Pollack, Wash. Inst. for Near E. Policy, Mixed Messages: Abbas and Palestinians on Israel 2014–16 (2016), http://www.washingtoninstitute.org/uploads/Documents/pubs/PolicyFocus144_Pollock-12.pdf [https://perma.cc/DT56-LD6Z]; Yossi Kuperwasser, Incentivizing Terrorism: Palestinian Authority Allocations to Terrorists and Their Families, Jerusalem Ctr. for Pub. Aff. (Nov. 1, 2016), http://jcpa.org/paying-salaries-terrorists-contradicts-palestinian-vows-peaceful-intentions/ [https://perma.cc/3KWS-PACN] (documenting the Abbas regime’s systemic incitement project). Resolution 2334, which condemned Israel’s settlements as illegal, is but the most recent iteration of this strategy: its legal language vindicates the Palestinian political narrative and could provide the centrifuge in the PA’s “nuclear” program of ICC prosecutions.5×5. See Kittrie, supra note 4, at 201; Orde F. Kittrie, What UNSCR 2334 Could Mean Beyond the United Nations, and How the Trump Administration Can Respond, Lawfare (Dec. 27, 2016, 10:00 PM), https://www.lawfareblog.com/what-unscr-2334-could-mean-beyond-united-nations-and-how-trump-administration-can-respond [https://perma.cc/J9N2-XBG9]. Prior to 2334, the United States had consistently opposed PA lawfare as an “obstacle[] in the path to [a negotiated] peace.”6×6. Susan E. Rice, U.S. Permanent Representative to the United Nations, U.S. Mission to the United Nations, Explanation of Vote by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, on the Resolution on the Situation in the Middle East, Including the Question of Palestine, in the Security Council Chamber (Feb. 18, 2011), https://2009-2017-usun.state.gov/remarks/4978 [https://perma.cc/3FZ3-B5JG]. Its abstention on 2334 constitutes an unwelcome reversal, likely to entrench PA maximalism and thwart America’s stated aim of “mov[ing] the parties closer to an agreement.”7×7. Id.

2334 came after months of lobbying by the Palestinian delegation and passed unanimously by virtue of a U.S. abstention.8×8. See Jay Solomon et al., A Frantic Path to U.N. Vote on Israeli Settlements, Wall Street J. (Dec. 23, 2016, 9:25 PM), http://www.wsj.com/articles/a-frantic-path-to-u-n-vote-on-israeli-settlements-1482546353 [https://perma.cc/S8BT-FQDL]. Its preamble begins by “expressing grave concern” that settlements are “imperiling the viability of the two-State solution,”9×9. S.C. Res. 2334, supra note 2, pmbl. and, in response, it calls for an immediate reversal of “negative trends on the ground.”10×10. Id. ¶ 4. 2334 also “[c]alls upon all States . . . to distinguish, in their relevant dealings” between Israel and “occupied” territories, id. ¶ 5, and “for immediate steps to prevent all acts of violence against civilians,” id. ¶ 6. It rejects “any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations.” Id. ¶ 3. Its central operative provision adjudges all settlement activities “in the Palestinian territory occupied since 1967, including East Jerusalem . . . a flagrant violation under international law,”11×11. Id. ¶ 1. and it concludes by requesting quarterly reports from the Secretary-General on Israel’s compliance.12×12. Id. ¶ 12. The resolution is technically nonbinding, as it never invokes the Council’s enforcement power under Chapter VII of the U.N. Charter. See Elena Chachko, UNSCR 2334 on Israeli Settlements, Lawfare (Dec. 24, 2016, 11:26 AM), https://www.lawfareblog.com/unscr-2334-israeli-settlements [https://perma.cc/P9XA-6Z45].

To situate the resolution in its historical context is to wade dangerously into a sea of “contested histories.”13×13. See generally Neil Caplan, The Israel-Palestine Conflict: Contested Histories (2009). Where the Palestinians describe Zionist dispossession of an indigenous Arab majority,14×14. See Mahmoud Abbas, The Long Overdue Palestinian State, N.Y. Times (May 16, 2011), http://www.nytimes.com/2011/05/17/opinion/17abbas.html [https://perma.cc/P6PM-M8WE]. Israel sees historic resettlement amidst Arab aggression in the course of defensive conflicts.15×15. See Anita Shapira, Israel: A History 310 (2012). The War of 1967 provides a natural entry point, when Israel first captured East Jerusalem and the West Bank from Jordan.16×16. See Allan Gerson, Trustee-Occupant: The Legal Status of Israel’s Presence in the West Bank, 14 Harv. Int’l L.J. 1, 11 (1973). In the war’s immediate aftermath, Israel annexed the former, but formed — and still partially maintains — an independent military administration over the latter.17×17. Id. Settlements since established range from army bases, to government-sanctioned cities, to smaller outposts sometimes constructed in violation of Israeli domestic law.18×18. See Isabel Kershner, Is 2-State Solution Dead? In Israel, a Debate over What’s Next, N.Y. Times (Feb. 16, 2017), https://www.nytimes.com/2017/02/16/world/middleeast/israel-palestinians-two-state-solution.html [https://perma.cc/XX3B-JCS7].

Over the course of this history, the Security Council has addressed settlements twice, each time during the Carter Administration.19×19. Following the War of 1967, the Security Council passed Resolution 242, calling for “withdrawal of Israel’s armed forces from territories occupied in the recent conflict,” S.C. Res. 242, ¶ 1(i) (Nov. 22, 1967), and affirming Israel’s “right to live in peace within secure and recognized boundaries,” id. ¶ 1(ii). See Arthur J. Goldberg, Resolution 242 After 20 Years, in Nat’l Comm. on Am. Foreign Policy, U.N. Resolution 242: Origin, Meaning, and Significance 3, 8–9 (2002) (arguing that omission of the definite article “the” before “territory” was intentional, requiring that Israel withdraw from some, but not all, of the territory captured in 1967). In 1979, it passed Resolution 446 declaring that settlements lack “legal validity,”20×20. S.C. Res. 446, ¶ 1 (Mar. 22, 1979). and, the next year, reaffirmed its judgment in Resolution 465.21×21. S.C. Res. 465 (Mar. 1, 1980). Subsequent U.S. presidents have all opposed such measures, and as recently as 2011, the Obama Administration vetoed a similar resolution on the grounds that it would “encourage the parties to stay out of negotiations.”22×22. Rice, supra note 6. But with 2334, Ambassador Samantha Power claimed things had changed: Israel’s settlement expansions now imperiled the two-state solution, and the traditional U.S. veto was no longer appropriate.23×23. Full Text of U.S. Envoy Samantha Power’s Speech After Abstention on Anti-Settlement Vote, Times Isr. (Dec. 24, 2016, 12:00 AM), http://www.timesofisrael.com/full-text-of-us-envoy-samantha-powers-speech-after-abstention-on-anti-settlement-vote/ [https://perma.cc/8UR4-C64Z]. Power referred explicitly to Israel’s “Regularization Bill,” which retroactively legalizes settlement construction on private Arab-owned land, assuming settler good faith and compensation above market rate. Id. Israel’s Attorney General has said he won’t defend the law, and as of publication, its constitutional fate remains uncertain. See Elena Chachko, The Israeli Knesset Passes the Settlement Regularization Law, Lawfare (Feb. 7, 2017, 9:46 AM), https://www.lawfareblog.com/israeli-knesset-passes-settlement-regularization-law [https://perma.cc/Z8WH-6AX3].

2334 also marked a departure from the Administration’s broader policy of opposing the PA’s efforts to leverage international fora against Israel. In November 2012, America was among the minority of countries to oppose the PA’s successful bid for “non-member observer state” status at the U.N. General Assembly.24×24. See Press Release, General Assembly, General Assembly Votes Overwhelmingly to Accord Palestine “Non-Member Observer State” Status in United Nations, U.N Press Release GA/11317 (Nov. 29, 2012), https://www.un.org/press/en/2012/ga11317.doc.htm [https://perma.cc/X6KA-MA9Z]. The following summer, Secretary of State John Kerry persuaded Abbas to defer joining international organizations for nine months in exchange for Israel’s release of 104 Palestinian prisoners, among them convicted murderers and terrorists.25×25. See Kittrie, supra note 4, at 206. Once the interim measure lapsed in 2014, the PA acceded to the Rome Statute and joined the ICC, a move Ambassador Power condemned as “devastating to the peace process.”26×26. Id. at 230 (quoting State, Foreign Operations, and Related Programs Appropriations for 2015: Hearings Before the Subcomm. on State, Foreign Operations, and Related Programs of the H. Comm. on Appropriations, 113th Cong. 637 (2014) (statement of Samantha Power, U.S. Ambassador to the United Nations)); see also id. at 208. When the court’s prosecutor, Fatou Bensouda, initiated a “preliminary examination” of the Israel-Palestine conflict shortly thereafter,27×27. Office of the Prosecutor, Int’l Criminal Court, Report on Preliminary Examination Activities 2016, at 25 (2016), https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf [https://perma.cc/4X7X-6W2K]. the U.S. Senate responded by threatening to suspend all foreign aid to the PA.28×28. Jessica Schulberg, 75 Senators Want to Punish Palestine Before It Can Accuse Israel of War Crimes, New Republic (Feb. 3, 2015) https://newrepublic.com/article/120953/senators-threaten-cut-palestinian-funding-over-icc-membership [https://perma.cc/TM8Z-8CL5].

2334 thus constitutes the latest stage in PA lawfare. As a political matter, the resolution’s legal language vindicates the Palestinian story of dispossession and could facilitate prosecutions of Israeli officials at the ICC.29×29. 2334 may promote lawfare of various stripes. See generally Kittrie, supra note 5 (arguing the call “to distinguish” between Israel and occupied territories could facilitate boycotts). On America’s role, the question isn’t whether the PA used or abused law, but whether U.S. involvement squares with its bedrock commitment to promoting reconciliation between the parties.30×30. See Rice, supra note 6; see also Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11, at 226 (2012) (arguing “fruitful” critiques of lawfare interrogate its pragmatic effects, not its purported “abuses”). And on this score, 2334 fails to pass muster. At least since 2000, the PA has exercised strategic patience, rejecting peace deals and consistently demanding far more than Israel has shown a willingness to concede.31×31. See infra notes 57–65 and accompanying text. In 2334, President Obama blessed the strategy’s most recent tactical iteration, and rendered the prospects of bilateral reconciliation increasingly remote.

The legal question on which 2334 opines is the subject of immense scholarship and intense dispute, with colorable arguments on both sides.32×32. See David Morris Philip, The Unexplored Option: Jewish Settlements in a Palestinian State, 25 Penn St. Int’l L. Rev. 75, 113, 186–87 (2006) (noting superabundance of scholarship and warning against “overstat[ing] the position of either [side],” id. at 187). Of central dispute is whether Israel is a “military occupier” bound by, and in violation of, Geneva Convention Article 49(6)’s prohibition against “transfer” of peoples to occupied territories. Compare Abraham Bell & Eugene Kontorovich, Palestine, Uti Possidetis Juris, and the Borders of Israel, 58 Ariz. L. Rev. 633, 692 (2016) (arguing Israel is not an occupying power), and Eugene Kontorovich, Unsettled: A Global Study of Settlements in Occupied Territories 66 (Nw. U. Sch. of Law Pub. Law and Legal Theory Series, Paper No. 16-20, 2016), with Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 Am. J. Int’l L. 44 (1990) (arguing it is). Until 2334, President Carter was the only U.S. president to deem settlements unlawful; President Reagan held the contrary view.33×33. See Nicholas Laham, Crossing the Rubicon: Ronald Reagan and U.S. Policy in the Middle East 60–61 (2004). Subsequent administrations have avoided statements of law, precisely because they have deep political reverberations.34×34. See Douglas J. Feith, The War on Israel Never Ends, Wall Street J. (Dec. 28, 2016, 6:18 PM), https://www.wsj.com/articles/the-war-on-israel-never-ends-1482967111 [https://perma.cc/E8MP-K6YG]. Just as claims of legality legitimize the settlement project and demote Palestinian self-determination, counterclaims of illegality reinforce the Palestinian story of dispossession and dismiss Jewish historical connections to the land.35×35. See Michael Curtis, International Law and the Territories, 32 Harv. Int’l L.J. 457, 493 (1991) (“[B]lanket condemnation of settlements . . . disregards historical and legal rights of Jews in the Etzion bloc and in Hebron, and in . . . the Jerusalem area[s] of Neve Ya’acov and Atarot . . . .”). In vindicating the now-“dominant” Palestinian narrative,36×36. See Philip, supra note 32, at 113. 2334’s legal rhetoric entrenches the PA’s maximalism and widens the gap between the parties’ expectations.37×37. Cf. Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1500 (1998) (arguing that “victors perceive . . . a special right to the legally endorsed status quo,” and that legal declarations make “[b]argains . . . unlikely in the extreme”).

The resolution’s language also stabilizes the ground on which Bensouda might stand, were she to press for a “formal investigation” of Israel’s settlement activities. To move beyond the “preliminary examination” stage, the situation in the West Bank must satisfy the Rome Statute’s dual jurisdictional requirements of complementarity and gravity.38×38. See Rome Statute of the International Criminal Court arts. 17(1)(d), 53(1), July 17, 1998, 2187 U.N.T.S. 90. The former restricts the ICC to cases where the state is “unwilling or unable” to investigate and punish violators,39×39. Id. art. 17(1)(a). and here, Israel’s settlement activities appear distinctly vulnerable.40×40. See David Bosco, Palestine in The Hague: Justice, Geopolitics, and the International Criminal Court, 22 Global Governance 155, 161–62 (2016). Not only do most settlements reflect official state policy, but Israel’s High Court of Justice has also deemed their status largely nonjusticiable.41×41. See Yaël Ronen, Israel, Palestine and the ICC — Territory Uncharted but Not Unknown, 12 J. Int’l Crim. Just. 7, 24–25 (2014). Importantly, land expropriation is “frequently adjudicated in Israeli courts.” Eugene Kontorovich, When Gravity Fails: Israeli Settlements and Admissibility at the ICC, 47 Isr. L. Rev. 379, 391 (2014). In contrast, the gravity requirement more heavily favors nonjurisdiction, and it’s where 2334 could prove most impactful. To maximize the court’s legitimacy and limited resources, ICC prosecutors have so far focused primarily on physical brutalities like murder and sexual violence.42×42. See Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400, 1452 (2009). And though gravity’s floor “has never been set,” transfer — designated a “nongrave” breach under the Geneva Conventions43×43. Kontorovich, supra note 41, at 392. — sits at the “bottom of the [c]ourt’s implicit hierarchy.”44×44. Id. at 382.

Resolution 2334 could alter this calculus. When measured by objective qualities like “bodily . . . harm,”45×45. See Office of the Prosecutor, Int’l Criminal Court, Policy Paper on Case Selection and Prioritisation 13 (2016) [hereinafter Policy Paper], https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf [https://perma.cc/8X3T-YM3Y]. the gravity determination is indifferent to words — from the Security Council or elsewhere. But some scholars have suggested a more subjective criterion — “social alarm” — displace brutality as gravity’s proper center.46×46. See Kevin Jon Heller, Situational Gravity Under the Rome Statute, in Future Perspectives on International Criminal Justice 227, 233 (Carsten Stahn & Larissa van den Herik eds., 2010). As a proxy for global outrage, 2334’s renewed expression of grave concern about Israel’s flagrant violations could prove decisive.47×47. See Kittrie, supra note 5. The approach certainly risks politicizing the court’s docket and straining its legitimacy,48×48. See Mark Osiel, When Law “Expresses” More than It Cares to Admit: Comments on Heller, in Future Perspectives on International Criminal Justice, supra note 46, at 254, 256. but it would also help defuse oft-cited concerns that the ICC has become an “African Criminal Court.”49×49. Heller, supra note 46, at 227; Osiel, supra note 48, at 255; see also Thierry Cruvellier, Opinion, The ICC, Out of Africa, N.Y. Times (Nov. 6, 2016), https://www.nytimes.com/2016/11/07/opinion/the-icc-out-of-africa.html [https://perma.cc/FT9M-A22D]. Signaling her sensitivity to this problem, the prosecutor recently promised to reshuffle her prosecutorial priorities, with a particular focus on two crimes, both of which the settlements are alleged to violate: “illegal exploitation of natural resources [and] dispossession of land.”50×50. Policy Paper, supra note 45, at 14; Office of the Prosecutor, supra note 27, at 29. Complementarity would likely bar prosecution on these grounds. See Kontorovich, supra note 41, at 391. Any prosecution that 2334 might facilitate would impede a negotiated settlement by emboldening the PA and fortifying its maximalism.51×51. See Kittrie, supra note 4, at 208; see also Jack Goldsmith, The Terror Presidency 63 (2007) (describing ICC as a tool created and deployed by weaker nations to challenge more powerful adversaries like Israel and the United States).

The above considerations show 2334 to be the latest phase in PA’s lawfare strategy, a species of what Abbas first described during the Second Intifada as “international[ized]” resistance.52×52. See Abbas’s Call, supra note 4, at 74–77; Abbas, supra note 14 (calling for an “internationalization of the conflict as a legal matter”). In an effort to prevail over its more powerful rival, the PA has played a game of patience, buying time by demanding more than Israel has ever shown a willingness to concede.53×53. See Uri Resnick, Dynamics of Asymmetric Territorial Conflict 146–59 (2013). The PA’s ultimate political objectives are deeply contested. On the one hand, Abbas has called for “an independent Palestinian state with Jerusalem as its capital, . . . and resol[ution] [of] the refugee problem in accordance with [General Assembly] Resolution 194” — in other words, a right of return to Israel proper. Abbas’s Call, supra note 4, at 74; see also Abbas, supra note 14 (claiming Zionists displaced Israel’s Arab inhabitants in 1948, and these refugees and decedants have a right of return to Israel proper). But others have described less equivocally the goal of liberating “all of historical Palestine, from the river to the sea, even if the conflict continues for a thousand years.” See Danny Rubinstein, Mystery Surrounds Faisal Husseini’s “Last” Interview, Haaretz (July 24, 2001, 1:06 AM), http://www.haaretz.com/mystery-surrounds-faisal-husseini-s-last-interview-1.64965 [https://perma.cc/V2DW-8TUU] (quoting Faisal Husseini); Itamar Rabinovich, Waging Peace 302 (2004) (quoting former Arab-Israeli Knesset member Azmi Bishara for the view that even if Israel were to withdraw to the 1967 lines, “the struggle against Zionism will continue” because “the solution is Israel’s dezionization”); see also infra note 54. The strategy finds its clearest expression in the Palestinian resistance ideology of tsumud (“steadfast resolve”): a willingness to forgo the benefits of political and economic cooperation, and “[p]ostpon[e] expected victory to the ‘long run.’”54×54. Resnick, supra note 53, at 150. At its core, this patience flows from an irredentist rejection of Jewish territorial claims. See Palestinian National Charter, Avalon Project, http://avalon.law.yale.edu/20th_century/plocov.asp [https://perma.cc/AG8M-VRF7] (“[T]he establishment of the state of Israel [is] entirely illegal, regardless of the passage of time . . . .”); Daniel Polisar, Do Palestinians Want a Two-State Solution? Mosaic (Apr. 3, 2017) https://mosaicmagazine.com/essay/2017/04/do-palestinians-want-a-two-state-solution/ [https://perma.cc/U6P5-9VWZ] (citing a 2015 poll in which “81 percent of West Bankers and 88 percent of Gazans [agreed] ‘[t]his is all Palestinian land and Jews have no rights to it’”). The PA enshrines this rejectionism into law in at least three ways: by guaranteeing payment to families of deceased and imprisoned terrorists, prorated to the magnitude of harm inflicted, see Kuperwasser, supra note 4, by mandating an elementary school curriculum that “teaches students to be martyrs [and] demonizes and denies the existence of Israel,” Eldad J. Pardo, IMPACT-se, Palestinian Elementary School Curriculum 2016–17, at 1 (2017), and by treating land sales to Israelis as capital offenses punishable by death, see Eyal Benvenisti & Eyal Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, 89 Am. J. Int’l L. 295, 315 (1995). Lawfare is but the most recent tactical iteration of the strategy, and it promotes PA patience on two accounts. First, while no single lawfare act can furnish total victory, individual successes like 2334 can accumulate to intensify Israel’s long-run political isolation.55×55. See, e.g., Kittrie, supra note 4, at 43 (arguing that “while Westerners have relatively little patience for lengthy wars,” the PA places “greater value on incremental lawfare-related victories”). Second — and in stark contrast to terrorism — lawfare projects an aura of legitimacy that shields the PA against foreign pressure to negotiate in good faith without preconditions.

Abbas’s accession to the Rome Statute captures these underlying commitments. With only two months until Israel’s next elections, the timing of the move drew criticism from the New York Times for “setting back the cause of statehood even farther” and giving “Israeli hard-liners new ammunition” to reject peace talks.56×56. Editorial, The Palestinians’ Desperation Move, N.Y. Times (Dec. 31, 2014), https://www.nytimes.com/2015/01/01/opinion/the-palestinians-desperation-move.html [https://perma.cc/V5K2-D89J]. But as one commentator astutely noted, this was precisely the goal. To a PA committed to pre-1967 borders, sovereignty over all of East Jerusalem, and a Palestinian right of return to Israel proper,57×57. See Abbas’s Call, supra note 4, at 74–77. Prime Minister Benjamin Netanyahu’s leftist political opponents are but “wolves in sheep’s clothing,” unlikely to offer terms more favorable than those of their predecessors.58×58. See Yishai Schwartz, Palestinians’ Attempt to Join the ICC Will Empower the Israeli Right — Which Is Exactly What Abbas Wants, New Republic (Jan. 2, 2015), https://newrepublic.com/article/120684/palestinian-moves-un-icc-will-help-netanyahu-israeli-elections [https://perma.cc/FM5Y-MUZM]. In 2000, when Palestinian Liberation Organization Chairman Yasser Arafat first rejected Prime Minister Ehud Barak’s peace offer at Camp David, President Clinton reported that it was Arafat’s “demand for a ‘right of return’ of refugees to Israel” that ultimately undermined negotiations.59×59. See Michael Hirsch, Clinton to Arafat: It’s All Your Fault, Newsweek (June 26, 2001, 8:00 PM), http://www.newsweek.com/clinton-arafat-its-all-your-fault-153779 [https://perma.cc/5GTF-KUAX]; cf. Rabinovich, supra note 53, at 164 (noting that a right of return for millions of Arab refugees to Israel-proper is incompatible with two-state solution). Eight years later, Abbas rejected Prime Minister Ehud Olmert’s offer “out of hand,” but never countered.60×60. Elliot Abrams, It’s a Hard Fact. Abbas Turned Down Olmert’s Peace Deal, Newsweek (Nov. 20, 2015, 1:47 PM), http://www.newsweek.com/its-hard-fact-abbas-turned-down-olmerts-peace-deal-396732 [https://perma.cc/3RPP-67UC] (quoting Abbas). At the time, and now still, it was “almost impossible to imagine . . . any Israeli government[] going further”;61×61. Jackson Diehl, Abbas’s Waiting Game on Peace with Israel, Wash. Post (May 29, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/05/28/AR2009052803614.html [https://perma.cc/7U88-HK4P]. and yet Abbas insisted “[t]he gaps were wide.”62×62. Id. (quoting Abbas). After retreating from Arafat’s refugee maximalism, Abbas entrenched on territorial questions, demanding nothing less than “a Palestinian state . . . without settlements, and on the June 4, 1967 boundaries.” Reuters & Aluf Benn, PA Rejects Olmert’s Offer to Withdraw from 93% of West Bank, Haaretz (Aug. 12, 2008, 12:00 AM), http://www.haaretz.com/news/pa-rejects-olmert-s-offer-to-withdraw-from-93-of-west-bank-1.251578 [https://perma.cc/6SJB-FMYL]. In 2014, Abbas reaffirmed his territorial maximalism in rejecting Kerry’s proposed framework for negotiations. See Jodi Rudoren & Michael R. Gordon, As Kerry Visits Jordan, Abbas Holds His Ground, N.Y. Times (Mar. 7, 2014), https://www.nytimes.com/2014/03/08/world/middleeast/secretary-of-state-john-kerry.html [https://perma.cc/5FUA-VW55]. In the shadow of these prior offers, Abbas sought in Netanyahu a wolf that would come as a wolf63×63. Cf. Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting) (deploying the wolf metaphor). : an opponent more amenable to settlements, and more vulnerable to delegitimation.

In Resolution 2334, an outgoing U.S. administration — pressed for time and diplomatic opportunity — handed Abbas a lawfare victory that will fuel this project of patience. When the Trump Administration presses for good-faith negotiations, the PA can now cite to the Secretary-General’s quarterly reports concerning Israel’s noncompliance, each time riding the tide of “social alarm” until the winds of global politics shift back in its favor.64×64. Cf. Mark Landler, Israel May Offer Only a General Commitment to Slow Settlement Building, N.Y. Times (Mar. 24, 2017), https://www.nytimes.com/2017/03/24/us/politics/israel-settlements-trump-netanyahu.html [https://perma.cc/R2GZ-A2DP] (citing the Secretary-General’s first implementation report describing Israel’s activity as “deeply concerning” and “undermin[ing] the very essence of a two-state solution”). In 2011, back when time was still on its side, the Obama Administration understood this well, vetoing a similar resolution on the grounds that it would “encourage the parties to stay out of negotiations.”65×65. Rice, supra note 6. Six years later, when the prospects of an Obama-brokered deal had vanished, the Administration reversed course, entrenching the PA’s preconditions and rewarding its preference for international fora over bilateral talks.

But what of the Obama Administration’s stated concern that settlement expansions imperil a two-state solution?66×66. See Editorial, Inching Toward a One-State Solution?, N.Y. Times (Feb. 15, 2017), https://www.nytimes.com/2017/02/15/opinion/inching-toward-a-one-state-solution.html [https://perma.cc/T2TS-BBX2]. Critically, the argument assumes that recent settlement activities risk foreclosing a contiguous Palestinian state.67×67. Landler, supra note 64 (“[T]he ‘territorial contiguity of a future Palestinian state’ is threatened.”). Yet Israel’s political geography proves to the contrary.68×68. Elliott Abrams & Uri Sadot, President Trump and the Art of the “Ultimate” Israel-Palestine Peace Deal, Foreign Pol’y (Dec. 4, 2016), http://foreignpolicy.com/2016/12/04/president-trump-and-the-art-of-the-ultimate-israel-palestine-peace-deal/ [https://perma.cc/B32E-3WCV] (showing through demographic data that “neither the population balance . . . nor the options for partition in the West Bank have materially changed” since Obama took office). Around eighty percent of Israel’s settlers live within miles of the Green Line and could be kept within its borders by “swapping territory equal to about four percent of the West Bank.”69×69. Kershner, supra note 18 (citing the position of Shaul Arieli, an “expert on political geography who prepared maps for past negotiations with the Palestinians”). In the event of agreement, the remaining settlements, which cover less than one percent of the West Bank’s territory,70×70. Philip, supra note 32, at 191. would either be dismantled or allowed to remain within a Palestinian state. Removal would certainly meet resistance from the Israeli right; but even Netanyahu has acknowledged “some Jewish settlements . . . would not be part of [Israel].”71×71. Rudoren & Gordon, supra note 62. Here, Prime Minister Ariel Sharon’s unilateral withdrawal from the Gaza Strip in 2005 could prove instructive. Philip, supra note 32, at 98–99. Alternatively, the 100,000 or so Jews living outside the blocs could simply remain in the Palestinian state, just as almost two million Arabs live as a minority within Israel.72×72. Philip, supra note 32, at 80, 108. Though the approach isn’t free of difficulty,73×73. See id. at 192 (raising problems of loyalty, citizenship, and legal autonomy). it reveals that the truly intractable obstacle to peaceful coexistence isn’t settlements, but Abbas’s insistence on an Israeli-free Palestine.74×74. Rudoren & Gordon, supra note 62 (quoting Abbas stating “no single Israeli [can remain]”). Settlement activity needn’t foreclose a contiguous Palestine.75×75. In fact, when Obama pressured Netanyahu into a ten-month moratorium on settlements in 2010, it was Abbas who declined to “come to the table until the [freeze] was close to expiring.” Landler, supra note 64. On the basis of history and bargain theory, one might view settlement intensification as among the few means of driving the PA away from its maximalism and toward the negotiating table. See Resnick, supra note 53, at 193 (arguing “demographic investments in disputed lands by a strong rival can actually expedite conflict de-escalation”); cf. Rabinovich, supra note 53, at 248–49 (describing fear of settlement expansion as animating Arafat’s apparent willingness to negotiate).

Even crediting the contiguity objection, condemnation by yet another U.N. organ was unlikely to slow the settler movement;76×76. See Eugene Kontorovich & Penny Grunseid, At the U.N., Only Israel Is an “Occupying Power,” Wall Street J. (Sept. 13, 2016, 7:15 PM), http://www.wsj.com/articles/at-the-u-n-only-israel-is-an-occupying-power-1473808544 [https://perma.cc/D8VN-JFEA] (documenting the U.N.’s pervasive anti-Israel bias). instead, it would foreseeably harden Israel’s resolve and expedite its settlement project.77×77. See Chachko, supra note 23. In celebrating 2334, Islamic Jihad, an Iran-funded terror group in the Gaza Strip, discerned what many within the Obama Administration professed not to see: that while the resolution alone wouldn’t deter settlement construction, it would advance the Palestinian lawfare objective of “isolati[ng]” Israel through “prosecutions” and “boycotts.”78×78. Hamas Welcomes U.N. Vote on Israel Settlements, Times Isr. (Dec. 24, 2016), http://www.timesofisrael.com/hamas-welcomes-un-vote-on-israel-settlements/ [https://perma.cc/X5HJ-NWSH].

The political gridlock between Israel and the PA has translated into immense human suffering for Jews and Arabs alike. And yet Abbas insists he will “wait for Hamas to accept international commitments” and “wait for Israel to freeze settlements.”79×79. Diehl, supra note 61 (quoting Abbas) (emphasis added). So long as the international community embraces the Palestinian narrative without reservation and enshrines it into law, the PA will continue to wait for these unrealities; and in the interim, people will suffer. By abstaining on 2334, the United States countenanced this patience and the irredentism that lies beneath it. The result was to render peace an ever-distant dream.80×80. This isn’t to suggest PA acquiescence by itself will suffice for reconciliation. The Palestinian people will also have to choose peaceful coexistence over violence. Polisar, supra note 54; Daniel Polisar, What Do Palestinians Want?, Mosaic (Nov. 2, 2016), https://mosaicmagazine.com/essay/2015/11/what-do-palestinians-want/ [https://perma.cc/F9B8-MCSU]. But see Ghaith al-Omari, Palestinians Aren’t Ready to Make Peace with Israel. That Doesn’t Rule Out a Peace Deal, Mosaic (Apr. 19, 2017), https://mosaicmagazine.com/response/2017/04/palestinians-arent-ready-to-make-peace-with-israel-that-doesnt-rule-out-a-peace-deal/ [https://perma.cc/CP5N-4DH5].