Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.

Contrary to several other occupying powers, Israel has made no attempts to set up a nominally independent state with the aim of preserving maximum flexibility. In this way it doesn’t have to renounce sovereignty over any specific part of its occupied territories. Furthermore, the status quo ensures the exploitation of the Palestinian territories – as well as control of an area considered of strategic importance for defense purpose – without requiring additional “inconvenient responsibilities” for its local majority. By annexing East Jerusalem and the Golan, but not the whole West Bank, the Israeli authorities fulfilled several policy goals as well as ideological purposes. The West Bank is mainly perceived in demographic terms: how much land can be taken by new and old settlers without giving the impression that Israel has to take on responsibility for too many Palestinians?

The “disputed territories” logic

According to a research paper recently published by the Kohelet Policy Forum, the EU Guidelines “explicitly and erroneously refer to the pre-1967 armistice lines as borders, and implicitly and incorrectly insist not only that the EU does not recognize potential Israeli claims to sovereignty in the disputed territories but that Israel is not entitled to assert those claims. ”

The lack of clear-cut borders, however, cannot be considered a valid objection. Neither Israel nor Palestine have agreed boundaries in the context of a peace agreement. Based on the same reasoning as presented by some Israeli leaders, Palestine, recognized as a non-member State by the UNGA on 29 November 2012, could theoretically start building settlements on Israeli soil.

It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

The “disputed territories” logic is based on a selective use of international consensus. A good example is provided by the Palestinian village of Umm Rashrash, present-day Eilat. It was taken by the Negev and Golani Brigades on March 10, 1949, eight months after the United Nations Security Council’s resolution No. 54 called for a ceasefire, forbidding any acquisition of territory from that date on.

It is only thanks to an established international consensus – expressed by 160 countries – that Eilat is today legitimately part of the State of Israel. The same international consensus established the illegality of settlements as well as of the occupation of the Palestinian territories. UNSC’s resolution n. 476 (1980) pointed out for example that the “acquisition of territory by force is inadmissible” and reaffirmed “the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem”. This was a simple call for withdrawal, without reference to any condition. It is not possible to invoke international consensus over Eilat (and other areas), while disregarding it for the West Bank and East Jerusalem. The tendency to overlook the selective use of international consensus, while reducing every discussion to security, doesn’t fully take into account the complexity of the issue.

This is even more the case when considering that Israel’s admission to the United Nations was not unconditional, but bound to its compliance with its assurances regarding the implementation of the UN’s Charter and other resolutions (Israel’s original application for admission was, not by chance, rejected by the UNSC).

Furthermore, before the establishment of the UN, the right granted to the Jewish people to settle in the mandated territories was neither exclusive nor unlimited, but explicitly subordinated to the protection of the “rights and position of other sections of the population”. Those very same rights are currently being violated by the continuous funding allotted to new settlements and through the exploitation of local natural resources, a policy specifically prohibited by the Fourth Hague Convention of 1907. About 94 percent of the materials produced nowadays in the Israeli quarries in the West Bank is transported to Israel.

(Mis)using Oslo

The Oslo Accords explicitly preserve the positions of the parties without resolving the question of territorial sovereignty. That’s the reason why the already mentioned research paper released by Kohelet pointed out that “none of the agreements empower a third party like the EU to override the negotiations and impose its own views of sovereignty over the disputed territory”. However, to invoke the Oslo Agreements in order to undermine the EU approach on the issue is problematic.

The Oslo Agreements – considered by several international lawyers as a legal anomaly in as much as they were not treaties concluded between states – provided that the interim period was not supposed to exceed five years (Article 1). It is still a matter of debate if the application of the Oslo Accords beyond its five-year interim period – a period characterized by the construction of a huge number of new settlements, by Palestinian terrorism and Israeli military operations – is compatible with the Palestinian people’s right of self-determination.

Furthermore, as recently noted by Vera Gowlland-Debbas, not only is the legal status of the Oslo Agreements far from clear in that, not having been registered with the UN, they cannot be invoked before any organ of the United Nations, but also Article 103 of the UN Charter ensures that in case of conflict, the obligations of Israel under the Charter would prevail over any other agreement.

Israel’s behavior as an occupying power is subject to several international customary laws (the “persistent objector” claim often mentioned to undermine these issues is “rather scant”: no case was decided on the basis of it). The Oslo Agreements did not supercede these laws: “Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions (Article 31(6), Interim Agreement).”

Finally, Article 31 of the Oslo Agreements clarified that “neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip”. This statement is subject to different possible interpretations. However, in each round of negotiations the Israeli authorities require to the interested parties to take into account the new local demography. This can hardly be considered as an unintentional result of their policies in the area.

Conclusions

A few weeks ago President Barack Obama praised Nelson Mandela saying that he “freed not just the prisoner, but the jailer as well”. We cannot rely on any Palestinian or Israeli Mandela. The only chance to overcome the current stalemate is through the direct intervention of the international community. The EU Guidelines barring loans to Israeli entities established or operating in the Palestinian Territories, although very limited in scope, represent one relevant step in that direction. The recent EU-Morocco Agreement, beside being wrong from a political and moral point of view, risks to undermine these efforts.

There are only two bad alternatives to the multilateral approach underpinning the guidelines approach. The first one is the sadly well-known “aggressive unilateralism” that Israelis and Palestinians showed in so many occasions. The second is what the Austrian-born Jewish philosopher Martin Buber termed “monologue disguised as dialogue”, i.e. the dialogue “in which two or more men, meeting in space, speak each with himself in strangely tortuous and circuitous ways and yet imagine they have escaped the torment of being thrown back on their own resources”. Buber wrote these words in 1947. At the beginning of 2014 they look truer than ever.