The UN Resolution on Israel Opens the Door for Legal Warfare

December 29, 2016 | Orde F. Kittrie
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UN Security Council resolution 2334, declaring Israeli settlements in the West Bank, Golan, and much of Jerusalem illegal, was adopted under Chapter VI rather than Chapter VII of the UN Charter, and hence is not legally binding. Nonetheless, argues Orde F. Kittrie, it invites “lawfare” against the Jewish state in both the International Criminal Court (ICC) and European courts:

The ICC can only convict individual persons, not states. . . . Thus, while it is hard to imagine Israel’s leadership being prosecuted for, say, an aggressive mid-level IDF officer’s unauthorized actions in Gaza, ICC prosecutions of Israelis responsible for settlement policy will almost certainly go right to the Israeli prime minister. Resolution 2334 makes such prosecutions somewhat more likely. . . .

[In addition], foreign prosecutors and courts (especially in Europe) have been increasingly willing to entertain legal actions against companies alleged to have done settlement-related business on the basis of international organizations’ advisory and non-binding conclusions that Israeli settlements violate international law. . . . While language similar to that of resolution 2334 appeared in resolution 446 and resolution 465 [passed in 1979 and 1980, respectively], resolution 2334 facilitates lawfare in European and other national courts by lending such statements currency and urgency, thereby making it much harder to dismiss them as “old news” passed many years ago.

The national law of many UN member states is such that their governments need or prefer an international-law requirement or “hook” before imposing sanctions on a foreign government or entity. . . . [I]n many countries, a non-binding provision in a UN Security Council resolution that “calls” for a response can be a sufficient hook for action if the government chooses to use it.

Furthermore, writes Kittrie, such moves at the ICC could be used as precedent for equally spurious prosecutions aimed at the U.S. military. He therefore urges the Trump administration to take action:

[M]ore than half of the ICC’s $158-million annual budget comes from its top seven donor countries, all of which happen to be close U.S. allies—Japan, Germany, France, Britain, Italy, Spain, and Canada. All of these allies are either NATO partners or depend heavily on a U.S. defensive umbrella. . . . Since the ICC is reportedly already financially stretched, a quiet threatened withdrawal of funds by some or all of the court’s key donors might have a significant effect.

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