President Obama’s stinging December 23 refusal to veto a U.N. Security Council resolution condemning Israeli settlements as a “flagrant violation of international law” did more than just excite enraged claims that America abandoned Israel or stabbed it in the back. In departing from the custom of every American administration of the last four decades, Obama provoked the larger question: Does his decision promote U.S. national security interests?
For two major reasons, it does not:
1. American national security interests are served by continuity of policy — not expressions of pique — and by promotion of the core values of the U.N. Charter.
Neither President Obama nor anyone on his team has made any pretense that last Friday’s non-veto was based on anything other than the fact that they were fed up with continued Israeli settlement activity despite U.S. protestations.
But such annoyance is not new. It was rampant in the Reagan Administration. Nevertheless, we never let emotions allow us make the United States party to efforts to use “lawfare” — law as an instrument of war — to undercut Israel’s legitimacy as a U.N. member in good standing. For that reason as counsel to the U.S. delegation to the United Nations I wrote repeated explanations of votes explaining why we vetoed numerous efforts to misuse U.N. machinery to continue war by other means through “lawfare.”
We pointed out that enabling the U.N. Security Council to condemn Israeli West Bank settlements as “unlawful” was inextricably linked to a campaign to deem Israeli occupation of lands conquered in 1967 to be considered “unlawful.” Thus those lands would be beyond the pale of negotiation, which is about trading something you legitimately control for something else. In doing so it would legitimate recapture of such lands by “all necessary means” — the U.N. euphemism for terrorism.
Everyone at the United Nations, then as now, understood that condemnation of Israeli settlements as unlawful would neither stop them nor lead to their dismantlement. Everyone understood, then as today, that it was tied to pressuring Israel to give up without negotiation all the post-1967 lands it possessed without regard to Israel’s claims — legal, historical and strategic.
Moreover, at the U.N. everyone understood, then as now, that Israel would never be pressured in this way to go back to 1967. It was a charade without meaning, full of fury and signifying nothing, as there could be no return of such lands by U.N. fiat.
To bring the U.N. system out of this labyrinth of delusion, successive American administrations have stressed that condemnations of “unlawfulness” do not coax negotiations — the ultimate goal prescribed by governing U.N. Security Council resolutions. Rather, the “illegality” channel would only serve to distract attention from negotiations. And without it — as Israel would never return to the pre-1967 war borders, 9 miles in the center of the country and deemed indefensible - there would be no return of land, or cessation of settlements.
All that came to a halt last Friday.
2. Sound U.S. national security policy is based on an awareness and appreciation of reciprocal interests.
To encourage “lawfare” to rear its ugly head at the U.N., where blunt political interests of state systems very different from our own often prevail, is to invite condemnations of U.S. conduct and those of our allies. We might, for example, easily be the subject of draft resolutions condemning as unlawful U.S. drone attacks or interrogations at Guantanamo. Of course, the U.S. has the power to veto such resolutions at the U.N. Security Council, but why back ourselves into such a position?
Issues of legality of state conduct — to the extent they can be addressed at all — are reserved by the U.N. Charter for the International Court of Justice. Conflict resolution, not condemnation on easily manufactured legal grounds, is reserved for the U.N. Security Council in the interests of the maintenance of international peace and security.
Thus with nothing gained, and its reputation for sticking with our allies and principles sullied, U.S. power in international forums is bound to suffer, disabling rather than enabling wide support on resolutions of genuine national security importance. And in the interim it will have spawned new problems for U.S. decision-makers as condemnations of illegality only encourage the ostensible victims to take matters into their own hands by whatever means.
This begins with new fodder for the BDS, boycott, divestment and sanctions movement and extends, however unwittingly, to incentivizing terrorism against Israel’s settlers who are engaged in “flagrant violations of international law.” After all, that’s what the U.N. Security Council concluded.
Allan Gerson is former Counsel to the U.S. Mission to the United Nations and former deputy assistant attorney general for Legal Counsel in the Reagan administration. He is the author of “Israel, the West Bank and International Law” (Cass, 1978) and “The Kirkpatrick Mission: Diplomacy Without Apology” (Free Press, 1991). He now practices law in Washington DC.