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The EU Directive on the Occupied Territories

by JOHN V. WHITBECK

On July 16, the Israeli newspaper Ha’aretz reported on the publication of a binding European Union directive, to be effective from January 1, 2014, which a senior Israeli official described as an “earthquake”.

This directive forbids any form of EU funding or cooperation with any entity established or operating in “the territories occupied by Israel since 1967”, which “comprise the Golan Heights, the Gaza Strip and the West Bank, including East Jerusalem.” Furthermore, the directive requires that any future agreements between EU states and Israel or any Israeli entity must include a clause specifically asserting that those occupied territories are not part of the State of Israel.

This directive constitutes powerful evidence that European patience with Israeli intransigence and defiance of international law is running out and that the EU may now have embarked on a course of action which will lead to further and stronger initiatives consistent with international law and a more ethical foreign policy.

Two potential initiatives immediately come to mind.

In light of the clear and unambiguous EU position that Israel’s borders are exclusively those existing prior to the 1967 Six-Day War, there is no legal or logical reason for those EU states which are not yet among the 132 UN member states which have already extended diplomatic recognition to the State of Palestine within its full pre-1967 borders to continue to refrain from doing so. Those borders, as recognized in the UN General Assembly’s resolution of November 29, 2012, confirming Palestine’s state status, comprise precisely and exclusively that portion of the former Palestine Mandate which the EU does not recognize as Israel’s sovereign territory.

If all or almost all EU states were to recognize the State of Palestine within its full pre-1967 borders, notwithstanding its 46-year-long occupation by the State of Israel, the writing would be clearly on the wall and the end of the occupation and the transformation of the current two-state legality under international law into a decent two-state reality on the ground would become only a question of when, no longer of whether.

In addition, the EU should require all Israelis wishing to visit any EU country to obtain a visa for which documentary evidence of residence in Israel (or in another country other than occupied Palestine) would be required. Those Israelis resident in occupied Palestine would not be allowed to visit any EU country, and any such people travelling on other passports but known to be resident in occupied Palestine would be turned away at the EU’s borders.

Under both the Geneva Conventions and the Rome Statute establishing the International Criminal Court, settlement activity in occupied territory is a war crime. Surely, the EU should not wish to open its gates to and welcome war criminals and those complicit in war crimes.

it is also clear and important that most Israelis do not seek to integrate into their region but, rather, view their country as an oasis of European civilization in a jungle of primitive Arabs and Muslims. They take great pleasure in their participation as a European state in European football and basketball competitions and even in the annual Eurovision Song Contest. (Suspending Israeli participation in all these competitions would also be a hugely constructive step.) Some even aspire to EU membership for Israel.

Accordingly, such a visa policy would have profoundly constructive consequences on both practical and psychological levels.

Illegal settlers finding the gates of Europe closed to them would have a clear and compelling incentive to move back to the “right side” of the Green Line, and Israelis (and others) not yet on the “wrong side” of the Green Line would have a clear and compelling incentive not to move to an illegal settlement, which could only enhance the chances for peace.

Those Israelis living in Israel would be annoyed and inconvenienced by these new visa requirements, which would exact from them a practical and psychological “cost” for their government’s continuation of the occupation and which should increase the proportion of Israelis on the “right side” of the Green Line who believe that the occupation is having an adverse impact on the quality of their own lives and that the time has come to end it.

It was “pariah” status in the eyes of that portion of humanity with whom white South Africans personally identified which caused them to conclude that their own apartheid system was having an adverse impact on the quality of their lives and that the time had come to end it. Few white South Africans (or others) regret today the transformation of their country into a fully democratic, non-racist state.

Similar sustained and intensified “tough love” towards Israelis on the part of those with whom Israelis personally identify could produce a similar result, and, if it did, few Israelis (or others) would subsequently regret it.

It is often argued that American support is all that really matters to Israel, and it is true that blind American support has until now permitted Israel to continue on a self-destructive and ultimately suicidal path. However, Europe is geographically, economically and emotionally closer to Israel and Israelis than the United States is. Europe has the potential to play an enormously constructive role in ending the occupation and achieving peace with some measure of justice, in the best interests of both Israelis and Palestinians.

The EU’s new directive is a modest first step, but any journey must have a first step. One may hope that the best is yet to come.

John V. Whitbeck is an international lawyer who has advised the Palestinian negotiating team in negotiations with Israel.

 

John V. Whitbeck is an international lawyer who as advised the Palestinian negotiating team in negotiations with Israel.

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