The ENP with Israel and Palestinians in the Occupied Palestinian Territories (OPT) is a special case that must not be approached like ENPs with other ‘southern neighbours’ of the EU, because it is carried out in a context of unlawful occupation and special legal obligations: respect of International Humanitarian Law (IHL) by all parties, and non-recognition of the unlawful occupation by the EU.
The European Union requires that its positions and commitments must be in conformity with international law, and it has committed to promote respect of IHL by third parties. The EU also recognises that the situation in the OPT is unlawful, and has clarified it does ‘not recognise Israeli sovereignty in the OPT’.
A review of the past, however, shows that the ENP with the Palestinian Authority (PA) in the OPT and with Israel has proceeded for more than a decade as if there were no unlawful occupation, and as if the EU didn’t know of its legal obligations and commitments:
- The ENP was launched in 2005 as a means of practical support to the Quartet’s peace initiative. This peace initiative requires respect of the ‘Oslo agreements’, although these contradict international law, give recognition and empower the unlawful occupation.
- The ENP – PA was shaped into EU aid for state-building in the OPT that is confined by the ‘Oslo agreements’. By holding Palestinians in the OPT hostage to this framework, the ENP has undermined the rights and status of Palestinians under international law and contributed to chronic aid dependency.
- The ENP with Israel was shaped into a privileged partnership that ignores Israel’s role and responsibilities as occupying power in the OPT. The ENP has allowed Israel to enjoy both, the benefits of economic and political partnership with the EU and – in addition – the benefits of its unlawful occupation in the OPT.
Looking to the future
Continuation of the status quo in the OPT will not lead to a one-state solution. The scenario ahead is an entrenched situation of apartheid that will erase the option of a future two-state solution and cause more human suffering and instability.
Nevertheless, there is a way in which Europe’s past investment will not be wasted, if there is the political will to extract the European Union from destructive peace diplomacy.
It is high time to abandon the search for new incentives in form of additional privileges that could be offered Israel in order to coax it into conceding a Palestinian state in the OPT - because nothing can trump what has already been offered Israel under the ENP: the economic and political benefits derived from the privileged partnership with the EU and, in addition, the economic benefits derived from the unlawful occupation in form of Palestinian land and natural resources.
The way forward is a revised neighbourhood policy with the Palestinian people and Israel that is appropriate for the context of unlawful occupation in terms of agenda, working groups and monitoring and reporting mechanisms.
The European Union would give full expression to non-recognition of the unlawful Israeli occupation and promote respect of IHL and human rights in both, aid to Palestinians and political and economic cooperation with Israel. This ENP should also be in conformity with relevant standards of the UN Guiding Principles on Business and Human Rights and EU human rights and IHL guidelines. The practical measures concerning occupied East Jerusalem long proposed by the Heads of Mission in the OPT, and the proposed demand to Israel to refund destroyed EU funded infrastructure in Area C, should be pursued, and measures recommended by civil society should be considered in good faith.
- For Palestinians, the revised neighbourhood policy must entail that they are no longer held hostage to the Oslo agreements by aid for state-building in the OPT. A model of aid that is consistent with the above legal principles and standards, including the right to self-determination, should be developed through dialogue and cooperation under the ENP, with the participation of civil society. The EU bodies would have to take the lead in promoting this model among the international state-building donor consortium.
- For Israel, the revised neighbourhood policy must have at its core the dismantlement of the unlawful occupation, including the settlements, Wall and the associated regime of laws and military orders, and respect by Israel of its obligations as temporary occupying power. All commitments concerning political, security and economic cooperation by the EU must be in conformity with non-recognition of the unlawful occupation. Israel will certainly resist a new Action Plan that gives effect to this approach. However, the European Union holds the strongest possible card, i.e., the vested interest of the state of Israel and Israeli society in economic, political, social and cultural cooperation with the EU and EU integration.
- Only if revised and differentiated in this manner, can an ENP carried out in the context of unlawful occupation contribute to the general objectives and priorities of the new ENP presented in November 2015, such as economic and social stabilisation and development, in particular for youth, or prevention of conflict and radicalisation and counter-terrorism. In the OPT, it will do so by counter-acting the entrenchment of the unlawful occupation, empowering Palestinian institutions and giving hope to the young generation. In the end, such a revised ENP is also the only ‘incentive’ that may eventually compel Israel to consider a two-state solution.
Practical steps for the way forward:
- There is a need for the EU to clarify the meaning of its position of ‘non-recognition of Israeli sovereignty in the OPT.’ Is this position in conformity with the obligation under international customary law to ‘not recognize as lawful a situation created by a serious breach of a peremptory norm, nor render aid or assistance in maintaining that situation’? The latter is broader than aid and assistance in the commission of the serious breach itself. Aid and assistance are prohibited also if they contribute to the ‘maintenance of the situation’ created by the breach. Human rights advocates and scholars have repeatedly critiqued the narrow expression given by the EU to non-recognition which appears to be inconsistent with international law. One example is the manner in which the EU applies its 2013 financing guidelines: EU funding of Israeli entities located or operating in the OPT is permitted as long as the latter provide an address in Israel and the specific EU-supported activity or project does not involve the OPT and has a separate bank account. The same criteria are used for the screening of Israeli applicants to Horizon 2020. Consequently, Israeli entities headquartered in occupied East Jerusalem and/or deeply implicated in the unlawful occupation benefit from expertise and supportive relationships through participation in Horizon 2020, for example the Israeli Ministry of Public Security, police, Israeli arms companies such as the Aerospace Industries (IAI) and Elbit, and Israel's national water company Mekorot. Civil society has also argued that, under non-recognition, Israeli produce from the OPT should be banned from EU markets, instead of just being labelled as such and excluded from privileged customs. Civil society has further recommended that there should be no investment and business with Israeli banks because this results in fungible revenues for these banks and their operations in the illegal settlements in the OPT.
- There is a need to ensure that all relevant EU bodies and Member States understand and support this approach. The large number and diversity of technical and political bodies involved, in the OPT, Israel and Europe, appears to have obstructed a more informed and coherent ENP with Palestinians and Israel in the past.
- EU monitoring mechanisms are required to ensure that guidelines and measures adopted to give effect to non-recognition are implemented by relevant EU bodies. Such monitoring must not be left to civil society alone.