Europe and the Occupation of Palestinian Territories Since 1967

Federica Bicchi

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367542269
• eBook ISBN: 9781000283853
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Essays in Politics & International Relations
• Index: Politics & International Relations

Focusing on key countries and topics, this book looks at Europe's involvement in the occupation of Palestinian territories.

What has been Europe's role in the occupation of Palestinian territories since 1967? How have European actors responded, countered and/or supported the occupation? The international context of this exceptionally long occupation shows a complex web of denunciations, but also and especially complicit engagements and indifference. The book looks at the perspective of international law, before analysing the European Union and key European countries (France, Germany, Norway, Sweden, United Kingdom). It also embraces different perspectives, from the debate on campus to the role of European multinational companies to the conceptual approach of the World Bank. While much of the literature focuses on Israel, Palestine and the United States, this volume by leading experts adds a very important piece to the puzzle: the European dimension.

The chapters in this book were originally published as a special issue of the journal, Global Affairs.

Introduction

Federica Bicchi

The issue at stake

50+ years of Israeli occupation of Palestinian territories have not existed in a vacuum. While much of the scholarly attention has scrutinized dynamics on the ground, the international context within which the occupation has persisted deserves equal scrutiny beyond the traditional reference to US foreign policy, because the sustainability of regional phenomena depends also on the international context within which they are embedded. This forum focuses on European actors and how they have interacted with the occupation, through an analysis of legal, political and socio-economic practices. It shows that the Israeli-Palestinian conflict has been played out not only in the foreign policies of European countries and organizations, but also and increasingly in their domestic politics, policies and debates. The aim of this brief introduction is to highlight the main points and anticipate some of the key themes that weave the collection together, in terms of substance and scope.

First,an analysis of the occupation’s international context requires an engagement with international law, which might sound painful to the ears of political scientists or policy-markers, but at times of global contestation of the liberal order it is essential to remind ourselves how internationally agreed principles apply to this specific instance. This collection is based on the premise that all European countries have agreed that Israel is an occupying power, a position that the state of Israel formally rejects but all articles included here explore. In fact, as argued by the contribution of the UN Special Rapporteur, Michael Lynk, international law presents us with a paradox. While much of it has developed in response to the Israeli occupation of Palestinian territories, it has had seemingly little direct impact on the conflict itself. This points to a potential avenue for the Europeans’ action, if they are to be true to their hard-won liberal sensibilities and contribute to a compassionate resolution of the Arab-Israeli conflict, namely to re-assess the legality of Israel’s occupant status and give meaning to law through their actions. Moreover, international law has evolved and has codified the need for third parties to avoid de facto recognizing illegal situations. Azarova shows how this is particularly important for the European Union(EU), as it needs to ensure consistency between international law, EU law and domestic implementation within member states of EU related rules. The revisions to EU-Israeli relations that the EU has promoted in recent years should be read(also) in this light. Recognition is a theme that marks the most visible European action in current times, namely Sweden’s recognition of Palestine in 2014. As Eriksson recounts, the decision was a divisive one, but also marked the continuity of Sweden’s position on the conflict and it showed the current relevance of politics in law-related decisions.

A second crucial theme of the collection highlights the extent to which member states have outsourced to international organizations (and to the EU in particular) the responsibility to act on their stance about the occupation, while maintaining a softer line vis à vis Israel at the governmental level in bilateral relations, and how this puts governments often at odds with parts of their own citizens. As shown by Voltolini, France is a case in point, given that it has used considerable political capital on the international scene to champion the Palestinians’ right to self-determination and condemn Israel’s occupation of the occupied Palestinian territory (OPT), by for instance promoting the EU policy of differentiation between Israel inside the Green Line and Israeli settlements. However, France’s bilateral relations and the government’s line on the domestic scene in the last decade have tended to skirt the issue’s implications, in order not to upset an increasingly warm bilateral relationship. In the analysis of Pace, Norway too aims to maintain excellent relations with both the Palestinians and with Israel, even when the majority of its population, which largely supports the EU differentiation policy, would suggest a tougher stance. The tension between governments and public opinion in Europe is further brought to the fore in the analysis of Germany and of the UK. There is a clear discrepancy between, on the one hand, the German government’s commitment and special responsibility towards Israel and, on the other, the Germans’ critical attitude towards Israel, as analysed by Busse. Criticism in Germany does not take the form of support of the Boycott, Divest and Sanction (BDS) movement, though, which is instead a major issue in the UK domestic debates. As Bicchi shows through the analysis of debates on UK campuses, the conflict is played inside the UK predominantly as a domestic issue, despite its international ramifications, and in London much of “who can say what” about the conflict is once again debated and ultimately decided.

A last theme running across this collection pertains to the socio-economic dimension of the Europeans’ attitude towards the occupation. Often mentioned as a possible way forward, the “economic peace” option has clear limits. In particular, Martin shows how European governments and the EU have been slow to tackle corporate responsibility of European private actors on the ground, while European companies have often been swift to exploit economic opportunities. A governance gap remains, despite the UN Guiding Principles on Business and Human Rights agreed in 2011 – another avenue that European governments could explore, following in the path of civil society. In his exploration of public aid to the OPT, Wildeman argues that the Europeans’ traditional role as “payers” has largely adhered to the model provided by the World Bank. But the World Bank has increasingly avoided any reference to the occupation, thus countering the principles that the Europeans have codified in relation to the conflict.

Therefore, this forum presents a conversation between scholars belonging to different disciplines with a view to assess European practices in this case of prolonged occupation. The analysis is thus not addressing Israeli occupation per se or the Israeli-palestinian conflict or the impact of European practices thereupon. Rather, it focuses on the international context in which such an occupation is situated and specifically on the ways in which European actors relate to the occupation, recognize it or resist it. Ultimately, the picture that emerges is of a group of countries quick to condemn internationally, but in practice helping at a bilateral level to normalize the occupation against the will of parts of their population.

Would the picture have changed had a broader set of European countries been included? It would have been interesting to examine countries from Central and Eastern Europe, or from Southern Europe, in order to assess the range of variation. “New” EU member states, in particular, project an image that is intentionally different from the position of “older” member states, and it would have been interesting to check the substance below the surface. However, not only pragmatic considerations had to be taken into account, but also part of the rationale for this collection was exactly to probe how countries tradionally condemning the occupation at the international level behave in practice, and to highlight the tensions in these actors’ practices. Future research will then be able to compare practices across different groups of European countries, as well as across different occupations – and continue the scholarly conversation and the political debate.

As the anniversaries of the 1967 war and of the Balfour Declaration are beyond us, it seems that the contradictions implicit in the conflict will continue to mark the Europeans’ action for the time to come. Hopefully, this set of contributions will help in clarifying the terms of the debate.

Disclosure statement

No potential conflict of interest was reported by the author.

Can an Occupation Become Unlawful? Third party responsibilities and Israeli practices in the Palestinian territories

Michael Lynk

ABSTRACT
No modern conflict has contributed so much to the development of international law as the Israeli–Palestinian conflict yet, paradoxically, no conflict has so undercut the efficacy of law by its political marginalization of a rights-based framework throughout the Oslo peace process. International law has a potentially redemptive role to play in securing a just and lasting peace in Israel/Palestine, but its absence in the formative agreements of the Oslo process – supported by the international mediating powers and the occupying power – has contributed mightily to the failures of the past quarter-century. Europe has played a muffled role during this process, advocating for the principles of international law – such as the illegality of the Israeli settlements and the annexation of East Jerusalem – yet unwilling to enforce these principles through the adoption of political measures against Israeli policy in the occupied Palestinian territory. As Israel’s prolonged role as belligerent occupier crosses a bright red line into illegality, the importance of Europe taking an effective stand to end the occupation assumes an increasingly greater significance.

Introduction

The role of international law in the Israeli-Palestinian conflict embodies a fateful and troubling paradox. On the one hand, this conflict, more than any other since the end of the Second World War, has contributed immensely to the progressive development of international rule-making. Many of the core principles on public international law – the laws of war, the interrelationship between international humanitarian and human rights law, the rights of refugees, the centrality of self-determination, the meaning of terrorism, the scourge of demographic engineering, and the inadmissibility of the acquisition of territory by war, among others – have been significantly shaped, enriched and deepened by the norms established through the copious UN resolutions, diplomatic statements, legal commentaries and judicial pronouncements on the many features of the conflict (Akram, 2011). The leading tomes on the law of occupation are drenched with examples from Israel’s 50-year-old rule over the Palestinian territory (Benvenesti, 2004; Gross, 2017).

Yet, at the same time, the efficacy of law has suffered mightily because the most powerful actors involved in the management of the Israeli-Palestinian conflict have consistently marginalized international law as a political and diplomatic touchstone when constituting the negotiation principles for the quarter-century-long peace process. Since the establishment of the Oslo process in 1993, the major agreements and declarations on the conflict have been conspicuously silent on the many cornerstone legal obligations pertaining to the conflict. To be sure, there are regular references in these documents to United Nations Security Council (UNSC) resolutions 242 (1967) and 338 (1973) and, after 2002, to the two-state vision first endorsed by UNSC resolution 1397 (2002), all of which are based on the amorphous concept of land-for-peace. However, we would look in vain through the leading peace process proclamations – the 1993 Oslo Accord (Peters & Newman, 2013a, pp. 412–420), the 1995 Oslo II Accord (Peters & Newman, 2013b, pp. 421–439), the 2000 Clinton Parameters (Peters & Newman, 2013c, pp. 440–444), the 2003 Roadmap (Peters & Newman, 2013d, pp. 445–450), the 2006 Quartet Principles (Peters & Newman, 2013e, pp. 451–452), the 2007 Annapolis Joint Understanding (Government of the State of Israel and the Palestine Liberation Organization (PLO), 2007), and the three Security Council resolutions on the vision for two states (UNSC Res. 1397 (2002); UNSC Res. 1515 (2003b); UNSC Res. 1850 (2008)) – for any mention of the more exacting legal principles established by multiple United Nations resolutions. These legal principles include the existence of the occupation and the unequal dynamics between occupier and occupied, the unlawful annexation of East Jerusalem, the illegality of the Israeli settlements, the rights of the Palestinian refugees, the application of human rights law and the unlawful location of the Israeli-built wall.¹ In the hands of Israel and the countries and international bodies leading the peace process – the United States, the European Union, the United Nations and Russia – these pre-established legal rights have been recast as issues for further negotiations between the two unequal parties rather than irreducible principles by which to frame the process.

This is no oversight. As Professor Kattan (2009) has succinctly stated: “the problem is not international law per se, but its lack of enforcement; that in the Middle East, international law is closer to power than to justice.” In this conflict, the occupying power has insisted that international law should have no role, the international mediating powers have shown no great interest in infusing the substantive obligations under international law into the foundational peace process documents, and the occupied people have no real power to demand the application of a rights-based approach. Thus, the tragedy has become that, for all of the substantive body of international law generated by the conflict over the past seven decades, the actual victims in Palestine and Israel have seen precious few of the benefits and protections promised by the international community.

Continuing to marginalize the substantive principles of international law will not bring peace to the Israeli-Palestinian conflict any closer. As a political undertaking, international law provides a baseline for negotiations by acting as the indispensable foundation for state leaders and diplomatic representatives to actually honour and enforce what they have endorsed and rhetorically support. As a moral vision, it has the potential to mobilizes the vital energy of NGOs and civil society to articulate the principles of humanitarian protection and human rights as a persuasive campaign tool. And as legal principles, the equitable obligations...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Citation Information
• Notes on Contributors
• 1 Introduction
• 2 Can an Occupation Become Unlawful? Third party responsibilities and Israeli practices in the Palestinian territories
• 3 Non-Recognition à la European Union: Reflections on the Revisions to EU-Israeli Relations and the Obligation of Non-Recognition in International Law
• 4 France and the Israeli occupation: Talking the talk, but not walking the walk?
• 5 Germany and the Israeli Occupation: Torn Between Special Relationship and Two-State-Commitment
• 6 The debate about the occupation of Palestinian territories on UK campuses: from politicisation to re-writing the rules
• 7 Swedish recognition of Palestine: politics, law, and prospects for peace
• 8 The angel in disguise? Norway's complicity in Israel's continued colonisation of Palestinian territories
• 9 Missing the train. International governance gaps and the Jerusalem Light Railway
• 10 OECD principals or World Bank guidance? EU development aid in the occupied Palestinian territories
• Index