Eugene Kontorovich
Eugene Kontorovich
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What the EU rules are about – and what they are not

The new restrictions on funding over the Green Line are about foreign policy, not law

On the last day of Sec. of State Kerry’s big push for talks between the Palestinians and Israelis, the European Union chimed in with its own contribution, which has deeply shaken Israel and may mark a new page in relations between it and Europe. The European Commission published administrative guidelines that severely restrict its dealings with any Israeli company, municipality or NGO based in, or even involved in activities, east of the 1949 Armistice line, including most of Jerusalem.

These guidelines have led to numerous misconceptions from all sides. Concerned Israelis worry that it represents the beginning of an economic boycott. European officials claim international law and a concern for Palestinian self-determination, demand such action. None of this is right.

First, the guidelines do not establish an economic boycott. The rules do not restrict trade between Europe and Israel, or even Israeli companies in the West Bank. Rather, they specify how the EU as an organization chooses to spend its largesse – prizes, grants, and so forth. There is a big difference: restricting one’s gifts saves the EU money; implementing trade restriction would directly hurt its economy as well. In economic terms, a boycott is not the logical extension of a no-gift policy, but rather its direct opposite.

Nor is this about the Palestinians – the rules also bar funding of any organization connected to the Golan Heights. It is not clear which Syria the Europeans think Israel should surrender the entire Golan to, Assad or his Islamist foes, but this broad and unreasonable restriction has nothing to do with “the occupation.” It also has nothing to do with “settlements” in the West Bank; any Israeli institution with a presence in Eastern Jerusalem is blacklisted.

But most importantly, the EU policy is not about international law, which the guidelines repeatedly claim requires such action. Even if one thinks Israelis residing in the West Bank raises international law concerns, this has nothing to do with the new European rules.

The Europeans regard Israel as an occupier in the West Bank, despite the illegitimacy of the previous Jordanian presence there. They also see Jewish communities there as violating the Geneva Conventions prohibition on the “occupying power… transferring its civilian population” into the occupied territory, despite the fact that Jews living in the West Bank there were not “transferred” by Israel in any meaning of the word; they just moved themselves.

Set such quibbles aside. Let’s assume the European position on settlements is correct. Even so, international law does not forbid or restrict the operations of private groups based in or operating in the West Bank. International law prohibits governments from “transferring” settlers to occupied territory; it does not make the settlers themselves illegal, international lepers, or legitimate objects of discrimination. It does not prohibit business from operating in occupied territory, or require the denial of services to “transferees” and their descendants. Such a broad reading of international rules finds absolutely no support in the treatment of any other occupation. Indeed, in an important recent decision concerning a company involved in building the Jerusalem light rail, a high-level French court held that international law does not restrict companies from doing business across the Green Line, or even working on Israeli government-funded projects.

Indeed, the Europeans’ own conduct proves that this is not about implementing international law. Many countries in the region occupy foreign territory and even establish settlements there. The most obvious example is Turkey’s occupation of Cyprus; others include Morocco’s subjugation of Western Sahara, the EU’s fellow “Middle East Quartet” member Russia’s recent conquest of parts of Georgia, and Armenia’s in Azerbaijan. In none of these cases has the EU promulgated such guidelines – even when it concerns the ongoing Turkish settlement enterprise in the territory of Europe itself. So whatever “law” the EU thinks mandates the Israel rules, it is clearly a law for one nation only.

Moreover, the guidelines contain a massive exception that undermines the notion that this is about international law rather than EU foreign policy. Article 15 exempts groups that “promot[e] the Middle East peace process in line with EU policy.” Either the Geneva Conventions and related rules prevent Israelis from having anything to do with the West Bank or they do not – but they certainly do not contain a “things the EU likes” exception. The exemption reveals the true purpose of the rules: to promote European foreign policy, not to vindicate international law. Indeed, the essence of the rule of law is about applying general rules to similar cases, regardless of one’s sympathies. The application of unique rules to Jewish State is the opposite of lawful.

About the Author
Eugene Kontorovich is a professor at Northwestern University's Pritzker School of Law.