In January 2016, the European Union unanimously adopted a tough resolution criticising Israeli settlement activity in the occupied Palestinian territories. The resolution came out despite fierce efforts by Israel to persuade some EU members to block it.
The EU foreign affairs council agreed on the resolution after Greece, one of five countries Israel had hoped would block the resolution, backed down following a weekend of wrangling and pressure from Palestinian officials and other European diplomats.
Among the countries pushing the hardest for the resolution were France, Ireland and Sweden. Ahead of the meeting of the council on Monday, which is required to have a consensus on the resolutions it adopts, Israel had strongly lobbied Greece, Cyprus, Hungary, Bulgaria and Czech Republic.
Mattia Toaldo, policy fellow and co-author of “EU Differentiation and Israeli settlements”, said:
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“For years now, Europeans have been, de facto, pursuing a process of differentiation but have been reluctant to acknowledge it. It is now time to own and defend this policy. Until Israel either makes the same differentiation or ends its settlement and occupation policy, the EU has a legal requirement to do so itself.
“And there is a strong political imperative, as well as a legal one. Differentiation can help modify the calculations that underpin the status quo on the Israeli side and ultimately create the conditions for a meaningful peace process.”
Israeli Activities Beyond the Green Line and the EU
According to Hague Regulation 46, the occupying state must respect private property and may not confiscate such property, i.e. expropriate it without compensation for an illegal purpose. But the occupying state may take temporary possession of privately owned land, against consideration, in order to establish civilian settlements that serve its security needs.
Unlike East Jerusalem, Israel has not officially annexed the West Bank. Yet successive Israeli governments have made considerable efforts to integrate the settlements as fully as possible into the country’s day-to-day workings.
A network of Israeli-only roads running through the West Bank connects Israeli settlements with Israel and to each other while bypassing Palestinian population centres. Settlements, meanwhile, are fully integrated into Israel’s national power grid and water carrier system, while settlers communicate using the services and infrastructure, including large installations such as antennae, of all four of Israel’s main telecommunications companies.
Settlements also play a role in Israeli society like any other town or city inside the Green Line. The settlement of Ariel, for example, houses one of Israel’s eight universities. And five settlement football teams (Ma’aleh Adumim, Ariel, Kiryat Arba, Bik’at Hayarden, and Givat Ze’ev) currently play in Israel’s national football league, which is a member of the Union of the European Football Associations (UEFA).
At first glance, settlements only contribute about four per cent of Israel’s total GDP and less than one per cent of total Israeli exports to the EU (around €230 million). Yet they are a crucial component of the current system of occupation and control of the West Bank, something that has stymied Palestinian statehood and limited the viability of the Palestinian Authority (PA).
“At the Foreign Affairs Council, EU foreign ministers reaffirmed that they will ‘take further action in order to protect the viability of the two state solution’”.
According to sources familiar with the conversations, Greece – which was unhappy with the EU labelling initiative – was the last holdout before folding under diplomatic pressure on Israel.
The statement agreed by foreign ministers stressed their “strong opposition to Israel’s settlement policy” and included a critical reference to Israel’s proposed law to non-governmental organisations to disclose whether the majority of their funding came from foreign governments or institutions.
Federica Mogherini, the EU foreign policy chief, said the final text was “a good basis for our common position and our engagement with the Middle East peace process”.
The principle of “no recognition, no existence” towards settlements implies a limitation of EU recognition of the territorial extent of Israel’s sovereign jurisdiction to within the Green Line. These have applied, for example, to the “open skies” civil aviation agreement reached between the two parties and, in theory, to the domains of personal data protection. When correctly enforced, this principle also means that there is no legal way for the EU to recognise Israeli certification of settlement products – the consequence being that some animal-based and organic Israeli products from the OPTs are now ineligible for the EU market.
Since the EU does not recognise Israel’s sovereignty over the West Bank, it cannot recognise the on-site inspections carried out by the Israeli certifying agency. The EU has therefore been unable to recognise Israeli certification of the organic status of settlement produce, nor can it recognise the certification of health standards for food products, such as verifying that poultry, eggs, and dairy are not contaminated with salmonella or other bacteria. As a result, the correct application by the EU of its own regulations has meant that these settlement products could no longer be cleared for EU markets.
EU Guidelines of 2013
The EU has a free-trade agreement with Israel but the bloc sees the Jewish settlements in the West Bank, East Jerusalem and the Golan Heights as illegal under international law. The EU insists the labelling guidelines do not amount to sanctions or a boycott of Israeli products.
A draft of the text on Friday revealed that the EU would “continue to unequivocally and explicitly make the distinction between Israel and all territories occupied by Israel in 1967”. This was softened to say all EU agreements with Israel “must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967”.
The new guidelines will not apply to human rights organizations operating in the territories of the Golan Heights or East Jerusalem (such as B’Tselem), or to NGOs that work toward promoting peace and operate in the territories, such as the Geneva Initiative or Peace Now.
Israel has been at odds with the EU over its decision to require labelling of exports from Israeli settlements in the West Bank. In November, Israel suspended contact with EU bodies involved in peace efforts with Palestinians, though Netanyahu said bilateral ties with nearly all EU countries were strong.
Relations with Sweden, however, have deteriorated since it recognised Palestinian statehood last year, and Netanyahu lambasted a call by the Swedish foreign minister to investigate whether Israeli forces were guilty of extrajudicial killings of Palestinian attackers.
There has been an on-going deterioration in the relationship between the EU and Israel, which many believe was largely sparked by 2014 offensive of Gaza, which resulted in more than 2,200 Palestinian casualties.
Substance of the EU’s Policy
The EU’s objective is a two-state solution with an independent, democratic, contiguous and viable Palestinian state living side-by-side with Israel and its other neighbours.
The EU’s long-term policy asserts that negotiations remain the best way forward. The EU considers that the future Palestinian state will require secure and recognised borders. These should be based on a withdrawal from the territory occupied in 1967 with minor modifications mutually agreed, if necessary, in accordance with UNSC Resolutions 242, 338, 1397, 1402 and 1515 and the principles of the Madrid Process.
In the occupied Palestinian territory: The EU has repeatedly confirmed its deep concern about accelerated settlement expansion in the West Bank including East Jerusalem. This expansion prejudges the outcome of final status negotiations and threatens the viability of an agreed two-state solution. The EU considers that settlement building anywhere in the occupied Palestinian Territory, including East Jerusalem, is illegal under international law, constitutes an obstacle to peace and threatens to make a two-state solution impossible.