In ‘breathtaking’ UN vote, Obama changed his policy on Israeli settlements, making them a war crime Finkelstein


Over New Year’s, I had two phone conversations with Norman Finkelstein about the historic UN Security Council Resolution 2334 of December 23, which labeled Israeli settlements a flagrant violation of international law. The transcript is slightly shortened.  

Q. Tell me your thoughts on the resolution.

First of all, speaking strictly on the text of the resolution and not yet on its political resonance or import, it’s a pretty good resolution and we should be clear about that. And textually I would count it as a victory. For the following reasons.

Number 1, the text begins by reaffirming explicitly the principle of “the inadmissibility of the acquisition of territory by force.” That’s an important fact for the following reason. When that statement was put into the preambular paragraph of UN resolution 242 [in November 1967], Israel fought bitterly against including that principle, because it recognized that it preempts territorial revision, meaning Israel had to return every inch of territory acquired by force. Israel got a kind of compensation with the removal of the definite article the from territories later in the resolution [in the phrase, “Withdrawal of Israel armed forces from the territories occupied in the recent conflict”]. Israel managed to shift the whole debate for several decades, focusing exclusively on the deletion of the definite article. And it was the Arab states that always insisted that we have to also look at the preambular paragraph: the inadmissibility of territory.

The argument Israel made was that the preambular paragraph which referred to inadmissibility of territory acquired by force was not as significant as the operative paragraph [“withdrawal of Israel armed forces from territories…”]. Well in this resolution, it says in accordance with international law, “the inadmissibility of the acquisition of territory by force,” so it’s a strong reaffirmation of that principle. It comes right at the head of the resolution. Interestingly, it’s not even balanced as the original 242 is. 242 has two preambular statements. One of inadmissibility, the other was the right of states to live at peace with their neighbors. That was thrown in for Israel. They didn’t mention it this time. They just mentioned the inadmissibility clause.

That’s significant for another reason. [Israeli ambassador] Ron Dermer has gone around saying, we know who wrote this resolution, this resolution was definitely written by a western state—justifying the remark by [Israeli PM Benjamin] Netanyahu, that this was all conjured up by the United States. It clearly was not. The US does not start from the inadmissibility clause. As is clear from John Kerry’s speech, he’s already assuming that all the territory on the eastern side of the wall is Israel’s, which clearly contradicts the inadmissibility clause. So this was not a western resolution. What is western in the resolution is the part about terrorism, the bone thrown to the United States to get it to abstain.

The fourth paragraph is also very strong because it not only condemns “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem,” it also explicitly mentions the settlements [“including… 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”]. That was important because that was the bone of contention in the Oslo accord. The Oslo accord said you can’t alter the demographic character but it didn’t explicitly mention building new settlements.

So in terms of the law, this is definitely an improvement over the Oslo accord. You might recall that at the time, people like Haider Abdel-Shafi refused to support Oslo because it said nothing about the settlements. Here you have not just “altering the demographic composition, character and status,” but including the construction and expansion of settlements. So that is I think a significant victory.

The third reason it’s a victory is that it says, “Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders.” That’s also extremely important because in his speech, Kerry spoke about a Jewish state and an Arab state. Which is technically correct because that’s what UN 181 said, the original partition resolution in 1947. This was different. This referred to two democratic states, Israel and Palestine. So it was very careful not in any way to give the stamp of approval to a Jewish state, though John Kerry did. That was also a big victory.

These are all things that by the way Kerry and Samantha Power were very careful to ignore. He claimed that there was no policy here that contradicts US policy. Well, it sure does contradict US policy. The current US policy, and Kerry lied about it, Kerry said it’s been longstanding US policy to support Israel as a Jewish state. That’s completely false. It never even came up. The outstanding statement on the Israeli side during the Annapolis negotiations was the Olmert plan, which he presented in private to Abbas. If you look at the text, there is no mention of recognizing a Jewish state. That’s all new, it came with Netanyahu. So when Kerry in his speech tries to justify calling Israel a Jewish state on the basis of longstanding US policy, that’s just not true.

It’s also completely untrue when Samantha Power said that stating that the settlements are illegal is longstanding US policy. It was longstanding policy until Obama came along; they then changed it to “unhelpful.” Claiming that they were illegal is exactly what US policy has been denying for the last 8 years. They have been asked point blank in the news conferences whether they are illegal. They say, We call them unhelpful. So this is something new.

Now, interestingly, I was surprised when it says, “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.”

By using that language they’re calling it a war crime. If they had just said violation under international law, that doesn’t necessarily constitute a war crime. To constitute a war crime, it has to be characterized as either a serious or a flagrant violation of international law.

That too was new—or what’s new is that the US agreed to it, which they’re now consistently denying and pretending that it’s longstanding US policy. It absolutely is not. They wouldn’t even call settlements illegal under Obama.

And it is true, surprisingly, that they used the standard international language and kept including Jerusalem as occupied territory. It is true that that’s longstanding policy but it was certainly not part of US policy in the last 8 years.

The heart of the resolution is the settlements. We shouldn’t belabor in my opinion that it includes acts of terror and incitement in paragraphs six and seven. They just gave that to the US as a face-saving way of abstaining, for Kerry to try to justify the abstention. The 2011 resolution [which the U.S. vetoed] didn’t have these paragraphs. It was obviously something face saving given to the US.

So on the whole, textually– I’m not talking about the political ramifications– textually, it was a good resolution, and it was very distinct from what Kerry was saying in his speech: Kerry who said Jewish and Arab states, Kerry who talked about the land swaps, and kept making the distinction between the land on the east and west side of what they call the separation barrier.

You should be very grateful that the Obama administration is not going to support a new UN resolution to put the Kerry parameters in a resolution. We don’t want that. It’s much better to have just this resolution.

Moving on to the Samantha Power speech, she says: “Today, the Security Council reaffirmed its established consensus that settlements have no legal validity.”

Well, that’s exactly what they were not saying the past eight years. They were saying they’re not helpful. They refused to use the language of legal validity. That’s why I don’t believe it was a western resolution. The language used in this resolution has been the consistent language in the UN since at least 1967 and they were not about to reverse it. There is no possibility in the context of the UN to start using language like “unhelpful.” This actually is a very important point. This is the language of a schoolmarm. “Johnny, when you throw paper at Sally during lunch hour it is not helpful. It’s time for a time out!” What kind of language is that? It’s so infantile.

The language that the Obama administration developed is antithetical to the whole nature of the UN and international law. It’s extremely important to understand what the US has been doing. The US knows what the law is and it dreads the law, so it has been inventing and conjuring language that evades what the law says. So they say unhelpful.

Then if you read closely Kerry’s speech, he keeps saying a resolution has to be based on the respective “needs” of both sides. If you enter in a search function “needs” in Kerry’s speech, it comes up again and again and again. It’s absolutely critical what’s happening. The resolution should be based on the law. But they know full well that if you base it on the law, Israel loses on everything and the Palestinians win on everything. Jerusalem, as this resolution makes clear–East Jerusalem belongs to the Palestinians. Settlements are a war crime under international law. Borders– all of the West Bank and Gaza is Palestinian territory. Refugees– the law is the right of return or compensation based on Resolution 194. They know that based on law, Israel loses on every point.

They tried to shift or recast the language, and they turned it now into a need. How can a resolution be based on needs? If Israel says, We need East Jerusalem, and the Palestinians say, we need East Jerusalem, how do you arbitrate on the basis of need? You can only arbitrate on the basis of law. They may think they need it, but the law says you don’t get it.

So this whole recasting of the conflict in terms of need and helpful and unhelpful is a deliberate attempt to evade the law. You laugh, but there is a method to the infantility of the language. It’s to evade what the law says.

Q. So is Netanyahu right about the US turning against him?

I think Netanyahu is correct in saying, that the resolution is not consistent at any rate with recent US policy. I think that’s correct. It was not consistent with recent US policy, which certainly downplays if not ignores the fact that East Jerusalem is occupied Palestinian territory, full stop. That’s what every resolution says and that’s the law.

Number two, the Obama administration has certainly obfuscated the fact that the settlements are illegal let alone a war crime by using language like the settlements are unhelpful. So Netanyahu has a point. That this has not been consistent with US policy. At least for the last eight years.

It’s also correct that Kerry is lying when he says things like, US policy supporting a Jewish state has been longstanding US policy. That’s a big lie. It’s never come up, it was never an issue, till Netanyahu made it one for transparent reasons, because he knew he could never get a recognition of that from Palestinians.

I personally feel the formulation Kerry used in his speech was not a disaster. He used the formulation, “two states for two peoples, one Jewish and one Arab, with mutual recognition and full equal rights for all their respective citizens.” You might say the two are inconsistent: How can it be both a Jewish state and all Arab citizens enjoy full rights? That’s the formula of [former ambassador] Dan Kurtzer, and it’s clear Kerry appropriated it. In my view, it’s a formulation that is replete with tensions, contradictions and frictions, but so long as you include that second balancing clause it’s not a disaster. It goes back obviously to UN 181 [partition resolution, 1947], which called for a Jewish state and an Arab state, then had all these provisions, there has to be absolute equality of rights in both states. Kerry was very careful to have the balancing clause. All Arabs in Israel have to enjoy full equal rights as citizens. But you have to recognize that Kerry’s formulation is a distinction from the UN resolution, which speaks only of two democratic states, Israel and a Palestinian state. [“Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders”] I prefer the UN resolution, I think it’s the law. But on the other hand I think the Kerry formulation appropriated from Kurtzer is not a disaster. I think he said it twice, there has to be full equal rights for all Arab citizens of Israel. Which coming from the US is a big concession. Obama would have said a Jewish state and an Arab state, he never addressed the democratic nature of the states.

Kerry has one what you might call rational, national motive in promoting the two state settlement, in terms of national interest, and interestingly it comes at the very end of his speech. When Kerry says,

With Israeli-Palestinian peace, Israel, the United States, Jordan, Egypt – together with the GCC countries – would be ready and willing to define a new security partnership for the region that would be absolutely groundbreaking.

Then he says a little further on,

Meanwhile, security challenges could be addressed by an entirely new security arrangement, in which Israel cooperates openly with key Arab states.

So Kerry recognizes that even though the Saudis already cooperate with Israel covertly, in order to make it an open and more efficacious arrangement, they have to resolve this Israel Palestine conflict; it’s an obstacle to open collaboration between Israel and the Saudis. So when he makes this speech, he’s also making it to the Saudis, and he has to include something about the equal rights of Arabs in Israel, because they are not going to accept and can’t really accept a Jewish state in just that formula.

It was interesting, because if you look at the big headline in Haaretz today, that the Arab states endorsed the Kerry speech, Barak Ravid hones in on, They endorsed the Jewish state clause. My guess is that that’s what Kerry wanted; and in order to get it he had to put in that balancing clause about full and equal rights.

But otherwise there’s no US national interest in trying to resolve the conflict. If you look at Kerry’s speech, he kept referring to the US having an interest in this. But the case he makes is quite weak. He says why am I involved– why have I worked on this so intensively?

For one simple reason: because the two-state solution is the only way to achieve a just and lasting peace between Israelis and Palestinians.

Fine, but that has nothing to do with the US.

It is the only way to ensure Israel’s future as a Jewish and democratic state, living in peace and security with its neighbors.

That has nothing to do with the US.

It is the only way to ensure a future of freedom and dignity for the Palestinian people.

When did the US ever care about that?

And it is an important way of advancing United States interests in the region.

The only discernible interest is the one that in the face of Iran we need to have an open, overt collaboration between Israel and the Saudis. That’s what I take away from that. I still think that’s a relatively weak national interest, but it’s still a national interest. The speech was in part designed to get the Arabs on board for his peace plan.

Q. Mine is the conventional view, expressed by [Defense Secretary-nominee Marine General James] Mad Dog Mattis, we pay a price across the Middle East for supporting Israel. One English word every Arab knows is justice, as I discovered when I got in a cab in Damascus 10 years ago, and they don’t regard our policy as a just one. Osama bin Laden referred to the Palestinians prominently. Why isn’t all that implicit in Kerry’s talk about Middle East peace as an American interest?

It would require quite a long discussion to go into that. You can have what you might call a theoretical, abstract, general national interest. Then you have a national interest which is pressing on an administration, which in the case of the United States is bombarded with crises every day. That’s the nature of being a superpower. The question is, What do you put on your agenda? The case of Jimmy Carter when he negotiated the Camp David accord in 1978– there was a very pressing interest there. The interest was Israel was occupying a territory, Sadat was determined that he was going to get his land back. There was a huge amount of dissatisfaction in the Arab Muslim world at the time because the U.S. was supporting Israel as it was occupying Arab land, and the Soviet Union was capitalizing on the discontent. And there were regimes in the region that were sympathetic to the Soviet Union. There were a whole number of factors that were pressing so hard on the US that Carter decided to make it his main agenda item when he came into office, to resolve the Israel Palestine conflict. And I have to say I recently read the two FRUS volumes devoted to Camp David. It comes to about 3000 pages. Carter was incredible. He was just extraordinarily smart, sharp, and engaged. My hat’s off to him. Carter made clear this has nothing to do with human rights, this is about US national interest. And he invested a huge amount of time in it. Because there was a pressing interest, the oil, and the region was in turmoil because of this occupation.

Compare that with the Obama years, and there’s a vague lingering problem caused by the Israel Palestine conflict. The fact of the matter is, it is as I think you would agree, since September 11, certainly the last 8 years, because of what happened with the Arab spring, the disintegration of Iraq, Bahrain, Afghanistan, it’s not been a pressing issue. So I think Netanyahu was entirely correct when he said this whole Palestinian issue is dead. Certainly it’s been significantly demoted by the events in Syria. Leaving aside Libya and Yemen and elsewhere; he says, Why the hell are you doing this now, what’s the point?

Q. How do you answer that?

My answer is simple. Obama is doing it because he’s a thin-skinned narcissist who wants to even the score for what Netanyahu did during not only during the Iran diplomacy—when the racism was straight out, the racist way in which he was conducting himself with Obama– Obama couldn’t abide that and he certainly has the patience of Job, and he was waiting for his opportunity and it came at the tail end of his presidency. I think that is one factor. That’s the thinskinned factor.

The narcissist factor is that Obama’s record on Israel Palestine is awful. The worst massacres in the history of the conflict since 1982 and the invasion of Lebanon– the worst and most egregious massacres occurred under his watch. Operation Cast Lead begins December 27 [2008]. He doesn’t say one word even though he’s already the president-elect. Operation Cast Lead ends on January 18, because Obama signals to Israel, I don’t want any attention diverted from my Inauguration. So you better end the operation now. It ends on the 18th. He gets inaugurated on the 20th. Operation Protective Edge, 2014, couldn’t have happened if not for Obama. And throughout the operation, Obama keeps saying that Israel has the right to defend itself, Israel has the right to self defense. He only finally condemns it after even Ban Ki-moon condemns Israel shelling, for the seventh time, the UNRWA school converted to a shelter– when he’s abandoned by the whole world including his comatose puppet Ban Ki-moon.

His record on Israel Palestine was an abomination. In fact it was funny to watch how Samantha Power and Kerry boasted about it. They repeated over and over again, that it was for the first time in the entire modern history of the conflict, not one UN Security Council resolution hostile to Israel or opposed by Israel had passed during an American presidency. Not one. And they kept boasting about that to show how much they supported Israel. It was a reflection of how servile and groveling was their support for Israel. I know this sounds petty, but politics is also petty. And Obama wanted something redemptive in his memoirs on the Israel Palestine conflict, so he agreed to abstaining on the resolution.

Q. So what if he does it for the worst reason. Who cares?

I said, I think it was a good resolution. The question is what do you do with it. There have been literally scores of Security Council and General Assembly resolutions and International Court of Justice [ICJ] opinions condemning the settlements as illegal. I agree– if you look strictly at the text it is a good resolution and I’m glad it was passed. In terms of its political potential, which is a separate discussion, it’s not much, and Obama didn’t do it for political reasons, he did it for petty personal narcissistic reasons. We should be clear: even if its genesis is narcissism, it’s still a good resolution. I’m not going to dispute that.

As for why Kerry delivered his speech, that was very clear to me. Because Kerry invested nine months– we’ve already forgotten the Kerry initiative, but he invested nine months in those talks and if you recall in his first news conference after the talks collapsed, he said – and after Israel announced, it was going to build new settlements, remember he said, The talks were finished. So he is angry that he squandered so much time and energy on an initiative to which he had attached his own person and his reputation and nothing came of it because of the Israelis.

Q. Let’s take people at their word for a second. Why isn’t part of their motivation, regardless of personal ego and legacy, they see the two-state solution, which you valorize, as on its deathbed, and they want to send an alarm to the world?

It’s not as if they could not have done that months ago when they could have actually done something politically effective to reverse what was going on. They can’t be serious about wanting to have a political impact the last two and a half weeks in office. Cornel West said the other week, I forget in which context: Obama is very good at symbolic gestures. This is just symbolism. It’s not politics.

Q. But as Cornel West observed last summer, Hillary Clinton didn’t want Obama doing anything on this.

I totally agree with that. If Schumer had been Senate majority leader and Hillary had been elected, they would have killed it. Of course they would have killed it. I have no doubt about it.

The whole thing is so laughable. They claim the resolution had nothing to do with the US. It came from the other side; there was no US initiative. The issue has never been where the initiative came from, the issue was whether the US would sabotage it, whether the US would stop it, and the fact is that the US didn’t sabotage it. Hillary Clinton was very proud that she sabotaged the Goldstone Report. So it’s not whether the US was in the lead. The issue is why this time they didn’t sabotage it. Why this time they didn’t prevent what Samantha Power and Kerry proudly proclaimed that they prevented the last 8 years, a UN Security Council resolution. Can you seriously believe that they couldn’t stop New Zealand, Malaysia, Venezuela and Senegal– couldn’t stop them from putting together a Security Council resolution? Barack Obama couldn’t have called up the New Zealand prime minister and said, Don’t do this! Come on! So they clearly wanted it to happen. The question is why.

To say they wanted to save the two-state settlement– I find that very implausible. They had eight years to do that. The settlers grew by 100,000 under Obama. You’re telling me he just noticed that. It just came on his radar screen? When the Obama presidency began there were 500,000 settlers, and now there are 600,000 so they’ve increased by 20 percent. He didn’t notice that?

I totally agree that he wanted the resolution…. I totally agree with Netanyahu, The US was in its own way behind it. It wasn’t behind it in terms of taking the initiative. But behind it in terms of signaling to the British, if you throw in some boilerplate, we won’t veto it. Then the British negotiated with New Zealand.

Q. But the US endorsed a resolution that you say provides a clear path to action against the settlements. Why didn’t the US water it down?

My answer to that is that the UN for better or for worse operates on the basis of precedent. You can’t radically revise the whole body of resolutions. The Resolution begins by listing 1, 2, 3, 4… 10, prior resolutions. You cant abruptly just take it and hit the delete button. That’s just not the way the UN works. They couldn’t get around it.

All you have to do is juxtapose Kerry’s speech against the resolution to see how different the US policy is, and if he went along with the resolution, it’s because he recognized that you just can’t undo that. That’s why I have consistently argued in public presentation and writing, that this is the law, it’s very hard to change it.

Q. Anything else? 

Not to be exhaustive, but there are many things you can hone in and comment on. Like Samantha Power said for example when she scolded the UN Security Council for not taking any action when the Syrian government was targeting hospitals, civilians. Well, you get the point: The very same US government blocked any action when Israel was targeting hospitals and civilians in Gaza.

Q. So tell me about the political consequences.

Obviously, that’s the most important question and this whole exercise leaves hanging the question of– well, as we know, since already back in 1980 a UN resolution was passed condemning the settlements and actually calling for the existing settlements to be dismantled. And then all the water under the bridge since then. We’ve had the 2004 International Court of Justice opinion which reaffirmed the illegality of all the settlements. Which is to say there’s already a large archive of resolutions and statements in the General Assembly, and also by the most respected juridical body in the world, the IJC, not to mention the International Committee of the Red Cross and all kinds of human rights organizations, all of which have declared the settlements illegal. A skeptic would say, what point is another resolution? We already have so many respected documents including Security Council resolutions condemning the settlements. How does this change anything?

There is justification for that sort of skepticism about this resolution. I would however make the following point. I think there’s a very big misunderstanding of what’s the point of these resolutions. It’s quite clear they’re not going to be enforced, at least in the present alignment or configuration of forces, they’re not going to be enforced in and of themselves, because the United States will block such enforcement. There has been speculation that this UN resolution will then serve as ammunition for the ICC to proceed with the investigation of Israeli crimes. Let’s say that the ICC finds Israel guilty of committing war crimes, which is a very remote possibility in my opinion, but let’s for argument sake assume they do. You’re still left with the same situation, an unenforcable document, an ICC verdict of guilty, and you still need to enforce it.

The key question is the political question. How do you get these documents enforced? Here my opinion is that there’s just not been much thought or analysis attached to, What is the significance of these documents. Here I think the most important lessons to be learned are from the Zionist movement, how they took documents and declarations, whether it was the Balfour Declaration 100 years ago or the Partition Resolution in 1947– how it took documents and turned these documents which in many ways were nondescript–Arthur Balfour was a nondescript foreign minister, the partition resolution wasn’t even a Security Council resolution, it was a General Assembly resolution, at this point one of thousands of resolutions passed by the GA– how did the Zionist movement manage even 100 years later to imprint this Balfour Declaration and the UN Partition Resolution in the mind of the public? Or as Abba Eban put it back then, the General Assembly had given Israel a birth certificate. How did it come to pass that we all know this birth certificate?

Here the answer is, because the Zionist movement understood that documents although not necessarily enforced can become a political force if you know how to mobilize a public on their behalf, and enforce the powers to be either acting on your own, as the Zionist movement did in 1947 with the legitimacy accorded it by the partition resolution or in 1917 with the Balfour Declaration– mobilizing enough public opinion such that Great Britain felt compelled to follow through on the declaration. There were many moments when the British wanted to rescind the Balfour Declaration because it seemed to conflict with their interests. They finally in effect did in 1939. But the Zionist movement knew how to use these documents of legitimacy. Even the PLO kept saying after the 1970s, the term they kept using, especially Arafat and his lieutenants, they said their cause had been accorded international illegitimacy. In fact its legitimacy had been enshrined in various resolutions, in this case General Assembly resolutions, when Arafat was speaking.

That’s what resolutions, high court opinions, ICJ opinions, even an ICC ruling would do. In that context, I consider the resolution to be a victory. You have a new document. It’s true it’s been said before, but it uses pretty– I would say– harsh and unequivocal language, saying in so many words that Israel is committing war crimes in the occupied territories, its settlements enterprise is a colossal war crime at that point. And then what do you do with it? How do you reenact what the Zionist movement did? Because the Zionist movement understood — and I underline, emphasize and put in boldface– they understood the value of public opinion. They understood that if you want to win this cause you have to have public opinion on your side.

Let’s get down to specifics. If the Palestinians had a real leadership, which they don’t right at this moment, from the day after the resolution was passed, they would be strategizing, mobilizing their constituency in the West Bank to somehow march on the settlements, block roads to the settlements, make life very miserable for those settlements and say, we are simply enforcing international law. The UN Security Council has said these settlements are a war crime, and we are trying nonviolently to undo the war crime or exact penalties from Israel for engaging in this war crime. Once you have the legitimacy of that resolution, and in this case, quite breathtaking in fact, the US abstaining, which means that it doesn’t deny the legitimacy of the Palestinian claim, and doesn’t deny that Israel is committing war crimes, they have a real chance. And I know you know how much US public opinion and US Jewish public opinion is hostile to those settlements.

And now you have a document. You have in this case a certificate of illegitimacy, and you have a certificate of illegality and you have a certificate of criminality, and the Palestinians can point to these documents on their own and also critically, crucially–combined and coordinated with the international solidarity movement– they can attempt to enforce that resolution.

This has been true, we have to bear in mind, for the past 30, 40 years. That’s the tragedy of the conflict. You take the case of the 2004 ICJ opinon on the illegality of the wall. Right at that moment, you have to remember, Israel panicked at that ICJ opinion when it was still in its infant stage before it had passed through the court. They were debating whether or not to absent themselves and ignore it or present a case at the court, they were very scared by that ICJ opinion. And what was tragic about the whole thing, it was actually brilliantly orchestrated by Nassar al-Qudwe, who was at the time the PLO representative at the UN. By all accounts he did a quite brilliant job, he recruited the top international lawyers in the world, articulating, advocating the Palestinian case, and it was a stunning victory.

But what happened? Nothing. Because there’s no Palestinian leadership that understands what you are supposed to do with these victories.

The obverse side is that if you don’t do anything, they’re useless, they just get filed away in a drawer. Who even remembers the ICJ opinion? Israel lost on every count and the Palestinians won in the ICJ opinion. On everything Israel lost. They declared East Jerusalem part of the occupied Palestinian territories, they declared the settlements illegal, the inadmissibility of acquiring territory by war. It was a clean sweep for the Palestinians. And it said, number one the wall was illegal, number two, Israel had to dismantle the wall, number three Israel had to pay compensation for the damage caused by the wall. And critically number four, If Israel did not dismantle the wall, the international community had an obligation to do something. It was just a huge opportunity to organize a march on the wall, a Gandhi-like salt march, holding up the ICJ opinion in the one hand and a pick or a hammer in the other and say, we’re knocking down the wall. Just like the ICJ said. Nothing happened. That’s the problem.

It is correct to say that this resolution is one more enshrinement of international law. That’s true, and there’s a long portfolio of documents preceding it, and that’s grounds for cynicism. But on the other hand it doesn’t hurt to have these principles enshrined in a document. It’s also true to say it was a strong resolution. We have to be clear about that, we can’t be so cynical as not to see it was a strong resolution. Any resolution that begins, We emphasize the application of international law, for example, the inadmissibility of acquiring territory by war– that just kills the whole Israeli occupation. It’s over. So we should not be so cynical as to overlook the text of this resolution and recognize it was a big victory, because the US did abstain.

Now the US abstention was totally disingenuous because it pretended there was no conflict between that resolution and US policy, which was a flat out lie. But the other side of the coin is there is excellent grounds for skepticism, because based on the track record, the Palestinian leadership doesn’t do anything with these resolutions. It just files them away, it pretends that it’s a victory. It is a victory if they do something with it. But they are obviously not self enforcing; and that includes the ICC. I get exasperated when I see these lawyers talk about the importance of the ICC prosecution. But you already have these paper victories. The problem is not, having the documents. It’s doing something with them. There are so many more documents enshrining the Palestinian rights than there ever were with the Zionist movement.

Q. When you talk about the Zionists’ success, it’s hard to talk about the Balfour Declaration or partition without speaking of the Jewish problem in Europe. That became a tragically urgent question. You’ve spoken of UN 181 as having the force of law–

The 181 did not have the force of law. However, the Zionist movement so widely publicized and leaned on it that it turned into a document having the force of law.

Q. Law is a form of opinion, and there have been occasions when you said there is this edifice of opinion that there should be a Jewish state– a consensus that those who are anti-Zionist and don’t want partition have to contend with.

The statement “a Jewish state” is a very ambiguous statement and it can be filled with many different contents. Certainly the 1947 partition resolution is filled with ambiguity and you could say friction if not contradiction, as it calls for two states, one Jewish, one Arab. It is also emphatic that in both states there has to be complete, comprehensive, total, across the board equal rights for both peoples.

Q. You have said this consensus is enshrined. But if you look at a recent LA Times article, Palestinians ask, Well, what about one state with equal rights? Or Buzzfeed raises the one state possibility, too. Is this resolution in any way a blow to the historical consensus that there should be a Jewish state?

I think quite the contrary. Perhaps we’re on different wavelengths. The whole of the resolution is anchored and embedded in the notion of two states. Because that’s what makes settlements illegal. It doesn’t talk about Tel Aviv or Haifa or anywhere within the Green Line as illegal settlements. What makes a settlement illegal is it being in Occupied territory, and the Geneva Convention saying it’s illegal for an occupying power to transfer population. The resolution is clearly anchored as it repeatedly says, ad nauseum, in creating two democratic states, Israel and Palestine, and cites all these documents, including the Roadmap and Oslo. The whole of the text, its framework as well as both the spirit and the letter of the text, are squarely anchored in two states.

Q. Some interpreted Kerry’s speech as a eulogy for the two state solution. Yousef Munayyer pointed out that Kerry once issued a deadline on the two state solution that has now expired. Kerry referred to a one state reality. The speeches at the Security Council reflected a desperation about never creating a Palestinian state, for 70 years of promises. And yes, I live in a silo of anti-Zionists; but that sentiment is causing some in the mainstream media, to say, Maybe it is dead.

I see what you’re trying to say. But it is just way, way too late in the day for me to try and score debating points.  I’m speaking now as a person who’s interested not just in theories, not just in textual exegesis, but primarily I’m interested in politics. And the thrust of our conversation this evening has been, What can you do with the resolution, and it’s my strong opinion, that what you can do if there were a movement, you can use a resolution to target settlements. Can you use the resolution to target the Green Line? No. Can you use the resolution to try and implement a just resolution of the refugee question? Answer, no.

The reason you called me and the reason we initiated this whole conversation began with that resolution, and I do believe that in that resolution just as in the ICJ decision, there are real possibilities of political action. There is nothing in the resolution that strengthens the possibility for a one-state solution. It’s just the opposite. The irony is that the folks who advocate one state are the very same folks who are rendering null and void this last resolution. What do I mean? To open up Ali Abunimah’s book on one state [One Country: A Bold Proposal to End the Israeli-Palestinian Impasse, 2007], he says he does not oppose the settlements. He says, The settlements can remain in one state. And that’s the same thing that Virginia Tilley says in her book [The One State Solution, 2010]. So if you take the framework of the one-state proponents, that framework preempts a focus on the settlements. It says the settlements are just fine, they are no obstacle to resolving the conflict. The irony is the one-state proponents undercut the significance of resolutions like the one that was just passed. Settlements are only a problem, as Kerry said himself in the only part of the speech that had substance– when Kerry said that the settlements are destroying the Palestinian state. If you’re going to argue for one state, then a resolution saying the settlements are illegal is wholly irrelevant. You can’t have it both ways. You can’t declare it a victory that the UN declared the settlements illegal and war crimes, then on the other hand say you support one state. At least Ali Abunimah and Virginia Tilley are consistent.

Q. Trump.

I agree with Professor Chomsky, where he says that one predictable thing about Donald Trump is he’s unpredictable. You can’t really say where it’s going to go with him. My guess is the Israel Palestine conflict, unless there’s a resurgence of popular mass resistance which would not be obviously stimulated or orchestrated by the leadership, but it could be spontaneous– in the absence of that, the conflict will be quiescent, and Trump will be focused on the economy and doing some wild things internationally, but Israel Palestine wont be on his radar.

Q. Will he move the embassy to Jerusalem?

I have no idea. I kind of doubt it, he doesn’t want to be distracted. It doesn’t gain him anything. It’s just going to cause him tsuris.

Q. Are we looking at a managed conflict?

Yes. I’m a pessimist now. I don’t broadcast it because I don’t want to pour cold water on people’s endeavors. But speaking strictly personally, I just completed a large book on Gaza, about 450 pages. I say basically I’m writing for history. I’m not writing for politics because I don’t see it: The United States in cahoots with the European powers working along with the Palestinian leadership have figured out a way to stabilize the conflict. And the Palestinian people themselves have been at least for now– I don’t want to predict– but for now they have been defeated. But I don’t believe as I’ve said 1000 times, I don’t believe they have no options. I think it’s very difficult now. Because among other things, the conflict has been overshadowed by other regional disasters. And large parts of the Arab world have come very close to openly aligning with Israel, and that’s unprecedented. You have to remember, in the case of South Africa, it was inconceivable that the resistance struggle to the South African regime would have gotten very far had it not been not for the regional support. The whole of Africa considered apartheid such an affront to all the people of Africa that the whole of Africa was united in the struggle to bring down the apartheid. And for a long period of time, the analogy to the Arab world worked. The Palestinian struggle had such a deep resonance in the Arab/Muslim world. The Arab regimes however corrupt at least had to pay some kind of lip service to the Palestinian cause. But that’s over. They’ve lost that regional foundation for the struggle. It’s a big setback.

On the other hand, the solidarity movement is not dead. And I think there is reason to hope. The solidarity movement has contracted now. But there are certainly possibilities and potentials to awaken the full force of the solidarity movement and with new allies, in the Jewish community, especially, young Jews. There are real possibilities but it’s much more difficult now because of the collapse of regional support.

If you look at it historically, it was very striking during for example, the Carter years, even as Carter executed the Israeli withdrawal from the Egyptian Sinai, he was very concerned that unless he could win something for the Palestinians, because the Palestinian cause had so much resonance in the Arab world, unless he won something for the Palestinians, [Egyptian President Anwar el-] Sadat would be very isolated and the US would consequently be isolated in the region. He had no particular humanitarian concern, but he understood the power and the resonance of the Palestinian cause in the Arab world. Unless he won something for them, the US would be very isolated in the region, as having lured Egypt from the Arab front and giving Palestinians nothing. To literally the last day of his regime, he was fighting tooth and nail with [Israeli PM Menachem] Begin to give something– something– in this Palestinian autonomy regime, to save face for Sadat. In fact, the truth of the matter is, it’s a harsh thing to say, but Carter was singularly responsible for Sadat’s assassination. Because he couldn’t get anything with Sadat, or he was unwilling to exert the political muscle to get something from Israel on the autonomy.

I mention this because of how times have changed. Nobody feels that US prestige or power in the Middle East is dependent on getting something for the Palestinians, because the Palestinian cause has died. The Arab regimes, Saudi Arabia, Egypt– they openly aligned with Israel during Operation Protective Edge. The Arab League only met once during Protective Edge and they supported Israel. It’s a very different ball game. Hopeless? No, not in my opinion. They did get a good document, they did get a good resolution, they do have international legitimacy on their side, there does exist a solidarity movement, there does exist a consciousness among significant segments of Jews that what Israel is doing is wrong. There does exist a real possibility to build a real movement. I’m not hopeless. But the problem is the leadership is bankrupt and the people have given up, that’s the big obstacle.

Q. What about the opposition to Zionism in the Jewish diaspora, energized by Trump. How important is that shift?

It’s indicative of the growing alienation between American Jews, who are overwhelmingly at the liberal end of the spectrum, with Israel, which is overwhelmingly on the right. They’re actually mirror images. Look at the Israeli spectrum. About 20 percent call themselves Labor or are Tel Aviv liberal types, and then there is a fairly large middle and there’s a very strong right wing, about 40 percent. Look at the American Jewish spectrum, it’s still about 20 percent Republicans, about 50 percent moderate and 30 percent liberal. It’s mirror images of one another. And those differences are becoming sharper, because the middle is dropping out in the United States and in Israel. It is contracting. I don’t think many Jews voted for Trump, and Netanyahu considers Trump a godsend. So it’s alienation. Netanyahu is just a revolting character, he’s an obnoxious loudmouth racist Jewish supremacist. It’s just not the way Jews like to see Jews carrying on. He’s such an embarrassment.

And really, unless things radically change, which I don’t see happening, I think we’re past the point of no return. American Jews especially as time elapses are not going to feel that kind of sentiment for Israel much longer; it’s an embarrassment.

Q. Your book?

The book is scheduled to come out in October from the University of California Press. Gaza: An inquest into its martyrdom. The manuscript is complete. It’s a legal and historical political analysis of what happened to Gaza in the last 10 years. I’m happy it will come out, because I feel the truth should be known. I’m pessimistic about the possibilities of turning that truth into a political weapon, but the truth nonetheless should be known.

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