Statement of the Special Rapporteur on the Human Rights Situation in the Palestinian Territory Occupied since 1967 on the role of the EU with regards to the looming Israeli annexation of parts of the Palestinian West Bank

​I urge the European Union and its member states to recognize, and act upon, the rising exigency to address the deteriorating human rights, humanitarian and political situation in the Occupied Palestinian Territory. The Israeli occupation continues to deepen. The number of announced new Israeli settlement units has risen dramatically. Gaza remains besieged and beleaguered. The new Israeli government plans to move ahead with the annexation proposals in the American plan of January 2020. And the possibilities of a genuine Palestinian state emerging from this trajectory are fading to black. In the face of all of this, the international community is badly in need of decisive leadership to pull this situation back from the abyss and to re-set its course.

Among the major international players, it is the European Union which has the greatest potential to right the ship. The EU possesses the economic weight, the diplomatic expertise, the political authority, the respect of the parties, and the aid, trade and investment leverage to make a substantial and positive difference to the future of the Israeli-Palestinian conflict.

But, to do so, the EU must recognize that resolutions without resolve and criticism without consequences can no longer have a place in reaching the just and durable peace and human security that Palestinians and Israelis deserve. Only with a firm commitment by the EU to defend the rules-based international order, the protection of peremptory norms and the international consensus, and its determination to ensure that all the parties, and particularly Israel, are truly accountable under international law for their actions and inactions, will there be any possibility of success. As Amos Schocken, the publisher of Ha'aretz, the liberal Israeli daily, wrote in 2016: "[The Israeli leadership] will object and protest, but it may be that international pressure is precisely the force that will drive them to do the right thing."^[1]

In particular, there are four issues of particular concern regarding the 53-year-old Israeli occupation of Palestine that I urge the European Union to take decisive action on:

1.      Annexation. The new Israeli collation agreement between Benjamin Netanyahu and Benny Gantz (April 20^th) provides for annexation of Palestinian territory in the West Bank, which would proceed after the beginning of July 2020. This is in accordance with the Trump plan, but opposed by the rest of the world.

What would be left of the West Bank after the annexation would be a Levantine Bantustan, an archipelago of territorial islands, completely surrounded and divided up by Israel and unconnected to the outside world. The plan would crystalize apartheid for the 21^st century, it is divorced from international law and it would leave in its wake the demise of the Palestinians' right to self-determination.

Annexation of territory by an occupying power is profoundly illegal under international law. The United Nations Security Council, starting with Resolution 242 (1967) and most recently in Resolution 2334 (2016), has expressly affirmed on eight occasions the principle of the "… inadmissibility of the acquisition of territory" by war or force with respect to Israel's occupation.

The European Union must clearly signal not just its declarative opposition to Israel's annexation of parts of the West Bank, but its resolve to take the critical steps commensurate to the flaunting of international law and global opinion. If Israel proceeds with any form of annexation, the EU should review and be willing to suspend or downgrade its array of trade and cooperation agreements, including the EU-Israel Association Agreement and Horizon 2020/Horizon Europe. As you know, the EU is permitted to suspend these agreements should there be a serious breach of "common values", which includes human rights and international law. Annexation is surely such a serious breach.

2.      The Israeli Settlements. There are approximately 240 Israeli settlements, and more than 650,000 Israeli settlers, in occupied East Jerusalem and the West Bank. In late February 2020, Israel announced that it has green-lite the proposal to build more than 8,000 new settlement housing units. In his regular quarterly reports to the UN Security Council over the past three years, Nickolay Mladenov, the UN Special Coordinator for the Middle East Peace Process, has repeatedly stated that Israel remains entirely non-compliant with the direction of Resolution 2334 to cease all settlement activities. An occupying power which continues to expand its civilian settlements in defiance of international opprobrium cannot be serious about peace. 

The Israeli settlements are deemed by the UN Security Council in Resolution 2334 to be a "flagrant violation of international law." They violate the Fourth Geneva Convention, and they are a presumptive war crime under the 1998 Rome Statute. The settlements are also a significant source of human rights violations and a serious obstacle to the Palestinians' right to self-determination.

International trade and investment involving the Israeli settlements provides them with the necessary economic oxygen to thrive and grow. Accordingly, the European Union should not permit Israeli settlement goods to enter into the EU market without a certificate of origin from the Palestinian Authority, replicating EU practice with respect to Crimea and northern Cyprus. Nor should it allow any EU registered companies or organizations to trade or invest in, donate to or financially assist, the settlements in any way.

As well, the EU should deepen its policy of differentiating between Israel and the settlements across the entire scope of EU-Israel relations – something that the EU institutions are bound to advance on the basis of the EU's own legal obligations and past FAC conclusions.  

As part of its active opposition to the Israeli settlements, I also urge the EU to fully support a robust follow-up on the UN database on business activities in the Israeli settlements, which was released by the Human Rights Council in February 2020. The database maintains a spotlight on those Israeli and foreign enterprises which maintain business investments in the settlements, providing a measure of accountability. As part of its evolving commitment towards corporate accountability domestically and abroad, the EU should support the assignment of sufficient resources to maintaining and updating the database as a living tool, as well as ensure that it accurately captures all meaningful business and economic activity that sustains the settlements.

3.      The Gaza Blockade. By international consensus, Israel remains the occupying power in Gaza. Although it demolished its settlements and removed its settlements in 2005,
Israel has maintained a comprehensive land, air and sea blockade on Gaza for the past 13 years, and it controls virtually everything and everybody that enters or leaves the Strip. The blockade has contributed mightily to the civilian suffering in Gaza, which has a collapsed health care system, an aquifer with almost completely undrinkable water, enormous rates of unemployment and poverty, intermittent electrical power and densely packed housing.

The Israeli blockade on Gaza amounts to collective punishment, which is forbidden under Article 33 of the Fourth Geneva Convention. Numerous international voices have called for an end to the blockade, commensurate with Israel's security needs. In 2016, Ban Ki-moon, the then United Nations Secretary General, stated that: "The closure of Gaza suffocates its people, stifles its economy and impedes reconstruction efforts. It is a collective punishment for which there must be accountability."^[2]

Accordingly, I urge the EU to insist that Israel honour its obligations under international law and end the Gaza blockade, while taking the necessary steps to enhance Gaza's economy. This must include the opening of the Gaza crossings for goods and people, an alignment of the restricted dual-use items with the Wassenaar list, a guarantee that Gaza's fishing zone should reach its agreed maximum limit, an increase in the number of permits for Gazans to work in Israel and opening the door for the Palestinian Authority to explore the natural gas field off Gaza's coast. 

4.      Destruction of Property, including EU-funded Humanitarian Aid. Israel has pursued a long-standing policy of destroying Palestinian property, including property and items provided as humanitarian assistance to Palestinian communities in East Jerusalem and Area C of the West Bank. This has been well documented by the UN Office for the Coordination of Humanitarian Affairs, several international NGOs and the European Union itself through its Six-Month Report on Demolitions and Confiscations of EU funded structures in Area C.

 Israel's wrongful seizure and destruction of property is aimed at depriving communities adjacent to settlements and destined for annexation of essential relief. It also is designed to discourage the EU and its member states from protecting them from forcible transfer, as well as hinder humanitarian organizations in the delivery of aid in an effective and timely manner.
 
These practices and policies persist, despite being in direct violation of international law. The Fourth Geneva Convention obliges the occupying power to provide for the wellbeing of the protected population as a primary duty, and if need be, agree to relief schemes on behalf of the occupied population, and facilitate them by all means at its disposal.

 I urge the EU to condition its present and any future agreements with Israel on the complete halt to the destruction of such property. The European Union should also seek reparations if the humanitarian assistance it has provided has been adversely affected. Additionally, the EU should resort to instruments of retorsion to enforce the right of Palestinians to receive aid, and its right to provide such imperative relief.   

Conclusion

In the absence of any other influential international leadership on this issue, it is incumbent upon the European Union to not only insist upon Israel's strict adherence to international law, but to detail the political, diplomatic and economic consequences that it will implement should Israel proceed to defy world opinion. This is a moment of truth for the EU and the integrity of its foreign policy.

Taking firm action on these issues would be entirely consistent with the obligations of the EU under Article 21.1 of the Treaty of the European Union, which directs that the Union's actions are to be guided by:

"…democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law."  

In addition to the recommendations above, I also urge the EU to undertake the following:

• Take the lead in creating a working group among UN member states to develop a menu of counter-measures that would be employed should Israel's annexation plans materialize; and
• Remind all UN member states that they all bear legal duties through the fundamental principle of Third State Responsibility, as per the 2001 Articles on State Responsibility, Common Article 1 of the Geneva Conventions and Article 25 of the Charter of the United Nations.  

It has sometimes been said by critics of the EU's foreign policy towards Israel and Palestine that it suffers from paralysis and inaction.

Nothing could better demonstrate that this argument is misplaced than for the EU to back up its criticisms of Israel's occupation and looming annexation with a decisive menu of counter-measures. As it did with the occupation of Crimea and northern Cyprus, the European Union can prove that defying international law can only come at a significant cost to the perpetrator. This is the best hope, and perhaps the last hope for the foreseeable future, that justice can be salvaged, and peace may remain on the agenda.

END.