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

by Lorenzo Kamel

[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.

http://opiniojuris.org/2014/01/09/eu-adopting-double-standards-approach-toward-israel-palestinian-territories-part-2/

4 Responses

  1. It seems to me that Eugene Kontorovich makes the tu quoque logical fallacy. If the EU breaks the law in the case of Western Sahara, it does not follow that it should break it in the case of Palestine as well. It follows that it should respect it also in the case of Western Sahara.
    It is absurd to make the rights of the Palestinians depend on the hypocrisy of third parties.
    As Gentian Zyberi convincingly argued, it follows from the ICJ-opinion that states have a duty to prevent their companies investing in the occupied territories:
     
    “Thus, according to the Court, self-determination as a right erga omnes, entailed the duty of every state to promote that right through joint and separate action. Furthermore, the Court opined that all states, while respecting the UN Charter and international law, should see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination was brought to an end. … Arguably, that would include at least a duty to ensure that no aid funds are used to impede or obstruct the right of the Palestinian people to self-determination, and that no companies vested in these states render a contribution in building a construction deemed illegal under international law.”, Zyberi, G. (2009). “Self-Determination Through the Lens of the International Court of Justice.” 56(03) Netherlands International Law Review 429-453.

     

  2. For the record, the reason “[w]e cannot rely on any Palestinian or Israeli Mandela,” is because the premise that the anti-apartheid liberation struggle in South Africa relied on Mandela is the stuff of myth-making and hagiography, yet another time-worn and implausible invocation of the “Great Man” theory of historical explanation. To say this, of course, takes nothing away from the greatness of the man, from his exemplary leadership before, during and after imprisonment. Not long ago we read about the “missing Mahatma” in this conflict, again, utter nonsense then as well, at least insofar as nonviolent strategies and tactics have been part of the Palestinian struggle, even if not the preferred means of collective self-determination throughout its history (of course the African National Congress and the South African Communist Party turned to armed struggle in the early 1960s following spontaneous violent actions among groups and individuals and the virtual inability to engage in mass legal protests). By the way, any comparison of these two emancipatory struggles should deal with the compelling arguments found in Mona Younis’ book, Liberation and Democratization: The South African and Palestinian National Movements (2000) (among other things, we learn the factors necessary for pursuing if not achieving an ‘inclusionary democracy’).
    In any case, I hope direct intervention of the international community refers not just to the various bodies within the community of nation-states but also to international civil society as well, in which case we see the relevance of the BDS movement. And such intervention will have to accord some measure of leverage to Palestinian negotiators (given the disparities in bargaining power) that they have historically lacked, at least in comparison to their South African counterparts (for the reasons detailed by Younis).

  3. Ori’s answers are here.
    ‘I am not sure which particularly UN organ the Author is referring to…’
    ‘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. 
     
    ‘….and assuming arguendo Judea and Samaria/West Bank is occupied, Israel’s presence in the Territories derives from a lawful act of self-defence.’
    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. 

  4. Re...“explicitly and erroneously refer to the pre-1967 armistice lines as borders”
     
    There’s nothing in international law that says agreed-upon armistice lines imposed by the Security Council as an Article 40 provisional measure are not a type of border, boundary, or frontier – pending a more permanent solution. See for example Tripartite Declaration Regarding the Armistice Borders : Statement by the Governments of the United States, The United Kingdom, and France, May 25, 1950
     
    The UN has never questioned the right of Israel to exercise civil jurisdiction over the territory outside the UN partition frontiers, so long as it was inside the agreed upon boundaries laid down by the armistice agreements. The only tangible manifestation of sovereignty is the exercise of jurisdiction, and Israel signed an agreement which placed East Jerusalem and the West Bank under Jordanian jurisdiction. The Security Council subsequently adopted Resolution 228 (1966) in which the Council observed that, “the grave Israeli Military action which took place in the southern Hebron area [of the West Bank] on 13 November 1966… constituted a large scale and carefully planned military action ‘‘on the territory of Jordan” by the armed forces of Israel” 
     
    The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations explains that:

    Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. . . .
    . . . The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

     
    During the Security Council’s 433rd meeting, Abba Eban stated that the armistice lines clearly defined the State’s jurisdiction and had the normal legal characteristics of frontiers:

    The armistice lines do not merely separate armed forces. They mark the clearly defined areas of full civil jurisdiction. The Government, the courts, the legislatures, the security authorities of each respective State operate smoothly and unchallenged up to the appropriate armistice line. These lines thus have the normal characteristics of provisional frontiers until such time as a new process of negotiation and agreement determines the final territorial settlement.

    The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.

    link to un.org
     
    Pending Palestine’s full membership, the General Assembly Credentials Committee voted to allow representatives of the permanent observer mission of “Palestine” to participate in the business of the UN without presenting credentials. The UN reports and resolutions about that also mention “their State, Palestine”. They describe the Palestinian territory occupied by Israel since 1967 as “their territory” and say that “the credentials of the delegation of Israel do not cover that territory”, which has recently been formally admitted to UNESCO as a full member state. See A/58/L.48, 15 December 2003; General Assembly resolution, A/RES/58/292, 17 May 2004 and the discussion of those resolutions on page 192 of John Quigley, “The Statehood of Palestine”. The verbatim record of the General Assembly discussion of the resolution indictes the words “pre-1967 borders” had been chosen deliberately to replace the words “Armistice Line of 1949”. See A/58/PV.87 and A/RES/67/19 4 December 2012.

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