On the last day of Sec. of State Kerry’s big push for talks between the Palestinians and Israelis, the European Union chimed in with its own contribution,
which has deeply shaken Israel and may mark a new page in relations
between it and Europe. The European Commission published administrative
guidelines that severely restrict its dealings with any Israeli company,
municipality or NGO based in, or even involved in activities, east of
the 1949 Armistice line, including most of Jerusalem.
These
guidelines have led to numerous misconceptions from all sides.
Concerned Israelis worry that it represents the beginning of an economic
boycott. European officials claim international law and a concern for
Palestinian self-determination, demand such action. None of this is
right.
First, the guidelines do not establish an
economic boycott. The rules do not restrict trade between Europe and
Israel, or even Israeli companies in the West Bank. Rather, they specify
how the EU as an organization chooses to spend its largesse – prizes,
grants, and so forth. There is a big difference: restricting one’s gifts
saves the EU money; implementing trade restriction would directly hurt
its economy as well. In economic terms, a boycott is not the logical
extension of a no-gift policy, but rather its direct opposite.
Nor is this about the Palestinians – the rules
also bar funding of any organization connected to the Golan Heights. It
is not clear which Syria the Europeans think Israel should surrender
the entire Golan to, Assad or his Islamist foes, but this broad and
unreasonable restriction has nothing to do with “the occupation.” It
also has nothing to do with “settlements” in the West Bank; any Israeli
institution with a presence in Eastern Jerusalem is blacklisted.
But most importantly, the EU policy is not
about international law, which the guidelines repeatedly claim requires
such action. Even if one thinks Israelis residing in the West Bank
raises international law concerns, this has nothing to do with the new
European rules.
The Europeans regard Israel as an occupier in
the West Bank, despite the illegitimacy of the previous Jordanian
presence there. They also see Jewish communities there as violating the
Geneva Conventions prohibition on the “occupying power… transferring its
civilian population” into the occupied territory, despite the fact that
Jews living in the West Bank there were not “transferred” by Israel in
any meaning of the word; they just moved themselves.
Set such quibbles aside. Let’s assume the
European position on settlements is correct. Even so, international law
does not forbid or restrict the operations of private groups based in or
operating in the West Bank. International law prohibits governments
from “transferring” settlers to occupied territory; it does not make the
settlers themselves illegal, international lepers, or legitimate
objects of discrimination. It does not prohibit business from operating
in occupied territory, or require the denial of services to
“transferees” and their descendants. Such a broad reading of
international rules finds absolutely no support in the treatment of any
other occupation. Indeed, in an important recent decision concerning a
company involved in building the Jerusalem light rail, a high-level
French court held that international law does not restrict companies
from doing business across the Green Line, or even working on Israeli
government-funded projects.
Indeed, the Europeans’ own conduct proves that
this is not about implementing international law. Many countries in the
region occupy foreign territory and even establish settlements there.
The most obvious example is Turkey’s occupation of Cyprus; others
include Morocco’s subjugation of Western Sahara, the EU’s fellow “Middle
East Quartet” member Russia’s recent conquest of parts of Georgia, and
Armenia’s in Azerbaijan. In none of these cases has the EU promulgated
such guidelines – even when it concerns the ongoing Turkish settlement
enterprise in the territory of Europe itself. So whatever “law” the EU
thinks mandates the Israel rules, it is clearly a law for one nation
only.
Moreover, the guidelines contain a massive
exception that undermines the notion that this is about international
law rather than EU foreign policy. Article 15 exempts groups that
“promot[e] the Middle East peace process in line with EU policy.” Either
the Geneva Conventions and related rules prevent Israelis from having
anything to do with the West Bank or they do not – but they certainly do
not contain a “things the EU likes” exception. The exemption reveals
the true purpose of the rules: to promote European foreign policy, not
to vindicate international law. Indeed, the essence of the rule of law
is about applying general rules to similar cases, regardless of one’s
sympathies. The application of unique rules to Jewish State is the
opposite of lawful.
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