The chickens come home to roost

Israel should not be at all surprised by the EU guidelines on settlements.

By DAVID KRETZMER
EU 311 (photo credit: REUTERS)
EU 311
(photo credit: REUTERS)
The European Union’s recently published guidelines, stating that Israeli entities beyond the 1967 borders are not entitled to EU grants, prizes and financial instruments, have caused somewhat of an uproar in government and right-wing circles in Israel.
These guidelines follow a decision of the Council of the EU that “all agreements between the State of Israel and the European Union must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967, namely the Golan Heights, the West Bank including East Jerusalem, and the Gaza Strip.” The EU has also announced its intention of issuing guidelines requiring labeling of all products from settlements.
Before irate Israeli critics of the new guidelines get carried away with their own rhetoric a few inconvenient facts should be recalled. For one, in 1967 the Israeli establishment itself had doubts over the legality of settlements in the occupied territories. Hence, in September of that year, Theodor Meron, then legal adviser to the Foreign Ministry, was asked by prime minister Levi Eshkol for his opinion whether the establishment of settlements in the territories taken in the Six Day War would be permissible under international law.
In a secret memorandum Meron replied that the establishment of civilian settlements by the government would violate article 49(6) of the Fourth Geneva Convention.
He also wrote that while Israel had raised arguments that the Fourth Geneva Convention did not apply in the West Bank, this position was not supported by other states and was incompatible with the express reference to the convention in the military orders promulgated when Israel entered the West Bank and other territories taken in June 1967.
Meron’s was not a minority view. On the contrary, it is the position that has been taken consistently by the entire international community, including states most friendly to Israel. A number of UN Security Council resolutions, passed by large majorities and not vetoed by the US, state expressly that Israel’s policy and practices in establishing settlements in territories occupied since 1967 have no legal validity. In its 2004 advisory opinion on the separation barrier between Israel and the West Bank the International Court of Justice took the same position. A memorandum written in 1978 by Herbert Hansel, then legal adviser to the US State Department, also held that the establishment of Israeli settlements over the 1967 “Green Line” was illegal under international law. Over the years some political leaders in the US have made other noises. However, the said legal memorandum has never been retracted and remains the sole US view on the legality of settlements.
The EU has adopted the same position. Thus, for example, a declaration by the Presidency on behalf of the EU in 2008 “reiterates that establishment of settlements in the Occupied Palestinian Territory is illegal under international law.” The new guidelines themselves clarify that they merely give expression to the EU position not to recognize Israeli sovereignty over the territories taken in 1967 (including East Jerusalem).
Some Israeli and American lawyers have raised arguments over the years challenging both the application of the Fourth Geneva Convention to the Israeli occupation of the West Bank and the illegality of Israeli settlements. This is not the place to explain the inadequacy of these arguments. Suffice it to say that they often seem to ignore the establishment in 1948 of the State of Israel as the recognized home of the Jewish people, rest on pre-State instruments such as the League of Nations Mandate rather than on contemporary standards of international Israel should not be at all surprised by the EU guidelines on settlements The chickens come home to roost The duty of a legal adviser is to state the law, and not what he or she would like it to be law for the conduct of states, and disregard the internationally recognized right of the Palestinian people to self-determination.
Their arguments have failed to persuade many (if not most) of Israel’s international lawyers, a few of whom have gained worldwide recognition as leading experts in the law of armed conflict, in general, and the law of belligerent occupation, in particular.
This in itself may not concern decisionmakers.
What should have concerned them, however, is that these arguments have found absolutely no support among states, which remain the prime actors in international relations and law.
By presenting an esoteric and decidedly minority interpretation of international law, without warning the government of its incompatibility with the unanimous position of the international community, the recent Edmond Levi Commission may have fostered illusions among members of both the government and the settler community that were bound to be shattered. In so doing it failed in the duty of any legal adviser, which is first and foremost to inform his or her clients of what the law is, and not what he or she would like it to be. Does anyone truly believe that in choosing between the unanimous view of the Security Council, the International Court of Justice and the legal advisers of leading Western states and that of a government-appointed committee only one of whose members is an international lawyer, the EU or any state or group of states would prefer the latter? Indeed, the government of Israel needs to recognize its limitations in the sphere of international law. The Knesset may have the legislative power to forbid Israeli residents from calling for a ban on products from the settlements. The government must be aware, though, that neither it, nor the Knesset, has the power to change international law or to force other states to accept its interpretation, even if it has the support of a government-appointed committee.
In response to the EU guidelines, the prime minister declared that others will not determine Israel’s borders. This misrepresents the issue. In the course of negotiations there is nothing to prevent Israel from raising demands for changes in the 1949 armistice lines that over the years gained international recognition as the recognized borders of the State of Israel. But it may not change those borders by unilateral acts incompatible with international law.
And, if it attempts to do so, it cannot expect other countries simply to go along with it.
The importance of the EU guidelines lies not so much in their economic implications for Israel, which at this stage are unclear, but in the danger that they could accelerate a process in which growing public antagonism in the European countries towards the settlements is being transformed into antagonism towards Israel itself.
One often has the impression that the country’s future is being mortgaged to a vision of Greater Israel that is not shared by a large proportion of the Israeli public, and has been totally rejected by those states which are Israel’s staunchest friends and supporters. By sticking to this line decision-makers are presenting Israel as an expansionist state, indifferent to international law and to the rights of others.
If these perceptions widen, the movement calling for boycott, disinvestment and sanctions (BDS) will grow. This could endanger Israel’s very survival.
In 1968, then minister of defense Moshe Dayan submitted a secret memo on establishment of settlements in the West Bank and Sinai. In that memo Dayan conceded that “Settling Israelis in administered territory, as is known, contravenes international conventions, but there is nothing essentially new about that.”
There is indeed nothing new about that.
However, when you knowingly break the law, you do so at your peril. And you should not be that surprised when the chickens come home to roost.
David Kretzmer, a Jerusalem-based professor of international law, is the author of The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories