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Amb. Alan Baker, July 18, 2013 Vol. 13, No. 21 18 July 2013
The publication of guidelines by the European Commission on the eligibility of Israeli entities for EU cooperation is the culmination of a concerted policy initiative led by the EU High Representative for Foreign Affairs, Catherine Ashton, directed against Israel’s settlements in Judea and Samaria [the West Bank] to press the Israeli government into making territorial and political concessions. This unprecedented and hostile EU fixation with Israel and its settlements is based on a series of long-standing and deliberately misleading and flawed legal and political assumptions regarding the illegality of Israel’s settlements and the status of the pre -1967 armistice lines as Israel’s border. Similarly, they negate the very positions supported by the European states that endorsed UN Security Council Resolution 242 from 1967 calling for “secure and recognized boundaries,” and negate the EU’s own commitments as signatory and witness to the Oslo Accords not to predetermine and undermine specific negotiating issues including the final status of the territories, borders, settlements, Jerusalem, and other issues. Article 49 of the Fourth Geneva Convention (1949), often cited as the basis for the claim that Israel’s settlements are illegal, relates to deportations of over 40 million people subjected to forc ed migration, evacuation, displacement, and expulsion in World War II. The vast numbers of people affected and the aims and purposes behind such a population movement speak for themselves. There is nothing to link such circumstances to Israel’s settlement policy. The rigid fixation of the EU to assert that its agreements with Israel must reflect the nonrecognition of Israel’s sovereignty over any territory beyond the 1967 lines stands out in contrast to European policy toward other conflicts. The EU has many free trade agreements and understandings with countries whose territorial boundaries are in dispute. The EU has been negotiating a free trade agreement with India, yet its applicability to Kashmir is not under discussion. An EU fisheries agreement from 2005 allows European fisherman to operate in Western Sahara, even though the EU does not recognize Moroccan sovereignty in this territory.
The EU Targets the Settlements
The current dispute between the European Union and Israel emanates from the publication on June 30, 2013, of guidelines by the European Commission on the eligibility of Israeli entities, in territories administered by Israel since June 1967 as a result of the Six-Day War, for grants, prizes and financial instruments funded by the EU from 2014 onwards. The current commission notice reflects a number of decisions taken recently by EU bodies on how past EU-Israel agreements are to be applied.1 On December 10, 2012, the EU Foreign Affairs Council determined that “all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967.”
The EU statement added that the determination also conforms to the EU’s long -standing position that “Israeli settlements are illegal under international law and with the non-recognition by the EU of Israel’s sovereignty over the occupied territories, irrespective of their legal status under domestic Israeli law.” 2 Pursuant to the European Commission’s June 30 notice, the EU published a directive to its 28 member states, effective July 19, 2013, forbidding funding, cooperation, scholarships, research funds, or prizes to anyone residing in the Jewish settlements in the West Bank and East Jerusalem. The regulation requires that any agreement or contract signed by an EU country with Israel include a clause stating that the settlements are not part of the State of Israel and therefore are not part of the agreement. 3 The directive includes a territorial clause stating that all agreements will be valid only within Israeli borders recognized by the European Union, meaning the borders prior to the 1967 Six-Day War. It forbids cooperation by European Union members with private or governmental bodies located beyond the “Gre en Line.” The European Commission notice states that its aim is “to ensure the respect of EU positions and commitments in conformity with international law on the non-recognition by the EU of Israel’s sovereignty over the territories occupied by Israel since June 1967.” This directive complements intensive activity by the EU High Representative for Foreign Affairs, Catherine Ashton, devoted almost exclusively to the issue of Israel’s settlements, and repeated calls to EU foreign ministers to fully enforce EU legislation regarding the labelling of products from Israeli settlements, with a view to preventing such products from benefiting from lower tariffs, and to rendering them easily visible to European consumers and importers. As stated by Ashton: “Our cons umers have the right to an informed choice; this initiative will help support our retailers to provide this. The correct labeling of products is necessary to ensure our consumers are not being misled by false information.” 4 As such, the publication of the commission notice is the culmination of a concerted policy initiative led by Ashton, with active and substantive encouragement by the EU member governments and the official EU representation to Israel, directed against Israel’s settlements in Judea and Samaria [the West Bank], the aim of which is to press the Israeli government into making territorial and political concessions, by harming the products coming from the settlements.
Flawed Legal and Political Assumptions
This unprecedented and hostile EU fixation with Israel and its settlements, to the almost total exclusion of the other pressing issues in the Middle East, Europe, and throughout the world, is based on a series of longstanding and deliberately misleading and flawed legal and political assumptions regarding the illegality of Israel’s settlements and the status of the pre-1967 armistice lines as Israel’s border. These assumptions are all the more misleading and misguided in that they totally negate or deliberately flout the historic and legal rights granted by the international community, including Europe, to Israel and the Jewish people in a series of international agreements and commitments. The assumptions totally ignore the indigenous rights of the Jewish people in the area, as protected by international declarations. Similarly, they negate the very positions supported by the European states that endorsed UN Security Council Resolution 242 from 1967 calling for “secure and recognized boundaries,” and negate the EU’s own commitments as signatory and witness to the Oslo Accords, to honour the content of those accords, and not to predetermine and undermine specific negotiating issues including the final status of the territories, borders, settlements, Jerusalem, and other issues. As such, the present EU policy, including the commission notice, specifically undermines the negotiating process by taking sides, and by pre-determining the negotiating issues of settlements, Jerusalem and borders. As such, this fixation prejudices and obviates any claim by the EU to impartiality, and precludes the EU from performing any function within the negotiating process.
Israel’s Rights Cannot Be Denied
The legality of Israel’s settlements stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question. They include the declaration unanimously adopted by the League of Nations, including the major European states, in the 1920 San Remo Declaration, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel as well as close Jewish settlement throughout. 5 This included the areas of Judea and Samaria and Jerusalem. This was subsequently affirmed internationally in the League of Nations 1922 Palestine Mandate instrument,6 and accorded continued validity, up to the present day, by Article 80 of the UN Charter which determines the continued validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).7
The “1967 Borders” Do Not Exist
The “1967 borders” do not exist, and have never existed. The 1949 Armistice Agreements entered into by Israel and its Arab neighbors, establishing the armistice demarcation lines, clearly stated that these lines “are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.” Accordingly, they cannot be accepted or declared to be Israel’s border. 8 UN Security Council Resolutions 242 (1967) and 338 (1973) called upon the parties to achieve a just and lasting peace in the Middle East and specifically stressed the need to negotiate in order to achieve “secure and recognized boundaries.”9 The European state members of the Security Council approved that resolution.
The Geneva Convention Does Not Apply to Israel’s Settlements
The EU assumption regarding the illegality of Israel’s settlement policy is legally flawed, and ignores authoritative sources regarding the provenance and interpretation of Article 49 of the Fourth Geneva Convention (1949). This article prohibits the mass transfer of population into occupied territory, as practiced by Germany during the Second World War. It was neither relevant, nor was it ever intended to apply to Israel’s settlements. According to the authoritative and official commentary by the International Committee of the Red Cross, published in 1958,10 as well as opinions by prominent international jurists, Article 49 relates to deportations of over 40 million people subjected to forced migration, evacuation, displacement, and expulsion. The vast numbers of people affected and the aims and purposes behind such a population movement speak for themselves. There is nothing to link such circumstances to Israel’s settlement policy. 11 One may further ask if this is not a misreading, misunderstanding, or even distortion of that article and its context.
Contradicting the Oslo Accords
In the 1995 Israeli-Palestinian Agreement on the West Bank and the Gaza Strip, Israel and the PLO undertook to negotiate inter alia the issues of borders, Jerusalem and settlements, and undertook not act to change the status of the territories pending outcome of the permanent status negotiations. The EU signed and witnessed this agreement, and as such cannot now undermine it or take a position that is clearly ultra vires the terms of the agreement.12
Israel and the PLO agreed in the 1995 Interim Agreement (together with the EU, Egypt, Jordan, Russia, the U.S. and Norway as witnesses) on a division of their respective jurisdictions in the West Bank into areas A and B (Palestinian jurisdiction) and area C (Israeli jurisdiction).13 They defined the respective powers and responsibilities of each side in the areas they control. Israel’s powers and responsibilities in Area C include all aspects regarding its settlements – all this pending the outcome of the permanent status negotiations. This division was accepted and agreed upon by the Palestinians, and acknowledged by the international community, including the EU and the UN. The Palestinians entered into the various agreements constituting what is known as the “Oslo Accords” in the full knowledge that Israel’s settlements existed in the areas, and that settlements would be one of the issues to be negotiated in the permanent status negotiations. Furthermore, the Oslo Accords impose no limitation on either side regarding planning, zoning, or construction of homes and communities in their respective areas of jurisdiction and control, pending the outcome of the permanent status negotiations. The repeated use by the EU of the term “occupied Arab,” or “Palestinian territories” to refer to the area of Judea and Samaria has no basis in law or fact. Prior to 1967, there was no Palestinian state in the West Bank, which was under the control of the Hashemite Kingdom of Jordan. The area has never been determined to be Palestinian territory. Thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.
The EU Fixation with Israel’s Settlements
The EU fixation with Israel’s settlements, and the action presently being taken against Israel pursuant to its directive, is clearly incompatible with the EU’s standing as a member of the International Quartet, and serves to neutralize any pretentions the EU might have to serve a useful function in the negotiating process between Israel and the Palestinians. The EU cannot presume to come with clean hands and claim to be an impartial element in the negotiating process. The EU has taken sides and as such, in its actions against Israel, it is undermining the negotiating process. Moreover, the rigid fixation of the EU to assert that its agreements with Israel must reflect the nonrecognition of Israel’s sovereignty over any territory beyond the 1967 lines stands out in contrast to European policy toward other conflicts. The EU has many free trade agreements and other commercial understandings with countries whose territorial boundaries are in dispute. The EU has been negotiating a free trade agreement with India, yet its applicability to Kashmir is not under discussion. An EU fisheries agreement from 2005 allows European fisherman to operate in Western Sahara, even though the EU does not recognize Moroccan sovereignty in this territory. In Israel, EU policy is likely to be perceived as a case of double standards, according to which Israel is not granted the same rights as other states, in defiance of the principle of sovereign equality. Finally, the position and actions of the EU against Israel are all the more unfortunate and regrettable in light of the tragic Jewish history in Europe, which cannot be ignored or forgotten. One might have expected that realization of this factor would guide the wisdom and logic of the actions of the EU. * * Notes 1. Commission Notice, http://mystical-politics.blogspot.co.il/2013/07/new-eu-guidelines-limit-funding-topre.html 2. http://www.israelhayom.com/site/newsletter_article.php?id=10745 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/134152.pdf see also *
3. http://www.haaretz.com/news/diplomacy-defense/eu-orders-member-states-exclude-west-banksettlements-from-any-future-deals-with-israel.premium-1.535952 4. http://www.timesofisrael.com/13-eu-ministers-favor-labeling-settlement-made-goods/ see also http://www.al-monitor.com/pulse/originals/2013/04/european-union-start-labeling-productssettlements.html 5. http://www.jewishvirtuallibrary.org/jsource/History/san_remo.html 6. http://avalon.law.yale.edu/20th_century/palmanda.asp 7. http://www.algemeiner.com/2011/09/22/article-80-and-the-un-recognition-of-a%E2%80%9Cpalestinian-state%E2%80%9D/ 8. http://www.mfa.gov.il/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/IsraelJordan%20Armistice%20Agreement.aspx See also a related paper by the author http://jcpa.org/article/thefallacy-of-the-%E2%80%9C1967-borders%E2%80%9D-%E2%80%93-no-such-borders-ever-existed/ 9. http://unispal.un.org/UNISPAL.NSF/0/7D35E1F729DF491C85256EE700686136 10. http://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-IV.pdf 11. http://jcpa.org/article/the-settlements-issue-distorting-the-geneva-convention-and-the-oslo-accords-2/ 12. http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israelipalestinian%20interim%20agreement.aspx 13. See footnote 9 above
About Amb. Alan Baker
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs and as Israel's ambassador to Canada.