The EU: When the legal becomes illegal

“Alice: Would you tell me, please, which way I ought to go from here?
The Cheshire Cat: That depends a good deal on where you want to get to.
Alice: I don’t much care where.
The Cheshire Cat: Then it doesn’t much matter which way you go.
Alice: …So long as I get somewhere.
The Cheshire Cat: Oh, you’re sure to do that, if only you walk long enough.”
Lewis Carroll, Alice in Wonderland

The following article was sent to the spokesman for Baroness Catherine Ashton. It was not acknowledged.

Sometimes one wonders exactly what the European Union [EU] wants from and expects of Israel. In its chosen road of making the legal illegal and the illegal legal, it is becoming clear that the EU is on the road to irrelevance in assisting the parties to the dispute in the Middle East to find an acceptable compromise.


Let`s revisit history. Following World War I, the victorious powers, including the USA, the UK and France, allocated territory which previously formed part of the Ottoman Empire at a conference held in 1920 referred to as San Remo. Title to all that area (specifically including Jerusalem) west of the Jordan river, which formerly formed part of the Ottoman Empire, was assigned, by way of a mandate to Britain which terminated on May 14, 1948 as the national home of the Jewish people under the San Remo Convention, granted first under Article 22 of the League of Nations in 1922 and subsequently confirmed under Article 80 of the United Nations Charter. It is noteworthy that at San Remo the Arabs also made substantial claims to Ottoman territory, but not to Jerusalem or indeed to Palestine to which it appears the Arabs at that time had no interest. The Arab claims at San Remo resulted in the establishment of Iraq and Syria. The subsequent illegal occupation of Samaria, renamed by the occupiers as the West Bank, and Jerusalem by Trans-Jordanian forces in 1948 was never recognized internationally nor did such illegal occupation result in a change of title to the West Bank or Jerusalem which remained with Israel.

What is interesting is that between 1948 and 1967 NO ARAB/PALESTINIAN STATE WAS ESTABLISHED IN THE TERRITORIES NOW KNOWN AS THE WEST BANK AND GAZA. On the contrary, in paragraph 24 of the 1964 PLO charter, the Palestinians explicitly waived all rights to the West Bank and Gaza:

Article 24: This Organization does not exercise any territorial sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or in the Himmah Area. Its activities will be on the national popular level in the liberational, organizational, political and financial fields.

In this 1964 charter, the PLO does not mention or claim any rights to Jerusalem.

I trust the irony is not lost on you. The Palestinians only initiated a claim for the West Bank, Gaza and Jerusalem after Israel reclaimed the West Bank, Gaza and Jerusalem in 1967. Before then, it was not regarded as Palestinian territory by any country which today is part of the EU and the Palestinians themselves had no interest or claim!!! So on what basis does the EU declare Israel`s legal presence in the West Bank and parts of Jerusalem to be illegal? On what legal basis does the EU support the Palestinians claim to the West Bank, which only arose at some unknown date after June 1967, after Israel had reclaimed the West Bank and Jerusalem, and is not based on title or any other legal right before 1967 or since or even on the PLO`s then prevailing charter? As shown above, the PLO itself denied it had any claim to the West Bank. It strikes me that, other than declarations, the EU has never issued legal opinions to substantiate the EU`s position that Israel`s claims are illegal or that Palestinian claims are legal.

It is thus clear that title to the West Bank and all of Jerusalem vests in Israel and its presence in the West Bank and Jerusalem is legal. In 1995, Israel and the Palestinian Authority signed the Oslo Accords, witnessed by the EU, under which Israel`s presence in Area C is recognized by the Palestinians, USA and Russia and that the dispute is to be resolved in accordance with the principles provided in UN Resolution 242 and the Oslo Accords. For the European Union to refer to Israel`s LEGAL presence as illegal or to call for Israel`s unilateral withdrawal in the light of Israel`s clear legal title under San Remo and its right to be present in Area C under the Oslo Accords is not only counter-productive but a deliberate disregard of the provisions of  international law (San Remo), Resolution 242 and the Oslo Accords.

It is noticeable that, with regard to the Israel-Palestinian dispute, the EU only demands an Israeli withdrawal but with respect to the Palestinians, is silent on the other requirements of Resolution 242 (which governs Oslo 2 as specified in the Preamble), namely Israel`s right to recognition, acknowledgement of Israel`s sovereignty and secure borders (NOT the 1967 armistice lines) free from claims and threats of force with a demilitarized Palestinian territory.  The EU`s attitude is a real road to nowhere.

Until its capture by illegally invading Trans-Jordanian forces in 1948, invading in unlawful contravention of UN resolution 181, Jerusalem had never been a divided city. It has a recorded Jewish majority since the early 19th century. Following the San Remo agreements and the League of Nations and United Nations charters, legal title clearly vests in Israel. Prior to 1967, Jerusalem was never the capital of any sovereign state other than Israel nor was Jerusalem ever claimed as a capital by any other entity, sovereign or otherwise nor was it ever a city divided into an artificial West and East Jerusalem. Yet following the expulsion of the illegal Jordanian invading forces by Israel, the EU now sees fit to give legitimacy to the illegal capture of part of Jerusalem and deny Israel its legal rights to Jerusalem.  The EU makes the illegal, legal.

Dr. Jacques Gauthier, a Canadian lawyer who specializes in international law, has stated that if a court that was 100-percent objective were to study the legally relevant facts, ignoring politics, it would find unequivocally that only Israel possesses the exclusive title to Jerusalem. Gauthier concluded his analysis by rejecting the idea that any later events such as the UN Partition Plan, UN Resolution 242, or the Oslo Accords superseded Israel`s title to Jerusalem.

There are many territorial disputes worldwide; even within the EU there are territorial disputes such as Northern Cyprus, which is illegally occupied by Turkey. Yet the EU wishes to discriminate against one state by issuing special EU Guidelines ONLY on the eligibility of Israeli entities in the territories occupied by Israel since June 1967, when, as distinguished from many other territorial disputes, title of the territory belongs to Israel and is not in dispute and much of the territory is actually Jewish owned land.

It would appear, too, that the EU does not recognize property rights, a first in modern jurisprudence. Let`s give examples. Perhaps you can explain why the Israeli villages of Gush Etzion are discriminated against considering that these villages were first founded as long ago as 1927 and subsequently re-established in 1940 on property legally purchased by Jewish entities between 1920 and 1930. From November 29, 1947, Kfar Etziyon was under siege by the illegal invading British-officered Trans-Jordanian forces (the Arab Legion) and cut off from Jerusalem. On May 13, 1948, when the village surrendered, 127 Jewish inhabitants were massacred by the Arab Legion. The other villages surrendered the next day. The inhabitants were taken prisoner and the homes were plundered and burned. Please note that the Gush Etziyon villages were destroyed by the invading Arab Legion (in contravention of UN General Assembly Resolution 181) even before the “official” outbreak of the 1948 Arab-Israeli War on 15 May 1948 (Israel`s declaration of Independence). The Gush Etziyon area, which is an area owned by Jews, was illegally occupied by Trans-Jordan and there is no valid reason for disputing the legitimacy of their re-establishment on Israeli-owned land after 1967. After capturing areas west of the Jordan river, the illegal occupiers changed the name of the territory unlawfully occupied from Samaria to West Bank to distinguish Jordanian territory east of the Jordan River and in April 1949 changed the name of its own country from Trans-Jordan to Jordan

In addition to the Gush Etziyon areas, much of the areas in parts of Jerusalem referred to by the EU as East Jerusalem, hundreds of acres in Shoafat and Qalandiya, is owned by the Jewish National Fund (JNF), a nonprofit entity that purchased property in the early part of the 20th century.  During the Jordanian illegal occupation, the JNF lands were utilized for the illegal construction of dozens of Arab apartment buildings, a refugee camp and a U.N. school. In Abu Dis, the site of the proposed Palestinian parliament, some 600 dunams of land are actually Jewish owned.

In  addition to Jewish owned land in what the EU describes as East Jerusalem, over 16,000,000 dunams of Jewish land in the rural West Bank – including the Gush Etzion settlements, land between Nablus, Jenin and Tulkarm, and in Bethlehem and Hebron – were illegally seized by the Jordanians after 1948. On what legal or moral basis does the EU refer to such areas as “illegally occupied” or deny Israelis the right of entry to their own property?  In the eyes of the EU, the legal has become illegal.

May I be so bold as to enquire when the EU will request the UN to release its illegal settlement on JNF land and return it to its legal owner? At the least, I would expect that EU officials will now avoid entering upon JNF land illegally occupied after May 1948. Perhaps the EU will also ask itself the hard question as to why no Arab state was established in this area between 1948 and 1967. For the EU, the illegal has become legal.

I bring to the attention of the EU that even the Palestinian Authority [PA] recognizes Jewish property rights in the area described as the West Bank.  The PA wrote a paper describing, in detail, the legal rights of Jews to lands that they owned prior to 1948. It is entitled “NSU Draft Memo Re: Rights of Jews Within the OPT Acquired pre-1967” and is summarized so: “Draft memorandum from NSU to Palestinian Negotiating Team that discusses options for dealing with property claims of Jews within the Occupied Palestinian Territory (OPT) acquired before the beginning of the occupation, covering Ottoman and British periods, Jordanian Rule of the West Bank and Egyptian rule of Gaza.”

It appears that it is only the EU that does not recognize Jewish property rights and further only the EU recognizes as legal the illegal expropriation of Jewish owned property that even the PA knows was illegal. The memorandum, which may be found at makes it clear that between 1948 and 1967, as even the Palestinian Authority admits, Jordan, who illegally occupied the territory that was supposed to become the “Arab State” in 1948, and Egypt, illegally occupying Gaza, confiscated Jewish-owned land, against international humanitarian law. All that has occurred is that land has been returned to its legal owners. This, it appears, has created a problem for the EU.

It is also highly relevant to draw attention to the fact that the Oslo accords do not prohibit or restrict the establishment or expansion of Jewish communities in Judea, Samaria and Gaza. Rather the issue of Jewish settlements, as well as Jerusalem and secure borders, is to be addressed in the final status negotiations between the parties themselves (Article XXX1(5). It is reasonable to ask on what grounds the EU has arrogated to itself the right to determine Israel’s borders, even prior to the establishment of demilitarized zones as contemplated by Resolution 242, in contradiction of the agreement between Israel and the Palestinian Authority.

The recent European Union directive concerning EU funding for entities established beyond the 1967 “border” lines including the West Bank, East Jerusalem, and the Golan Heights requires that any contracts between EU member countries and Israel henceforth include a clause stating that East Jerusalem and the West Bank are not part of the state of Israel. The EU is illegally converting armistice lines into borders while simultaneously (and perhaps shamelessly) attempting to coerce Israel to renounce its legal rights to territories regained in 1967. The only interpretation of this power play by the EU is that the EU is, from a legal point of view, aware of the weakness of its position, which it has never attempted to substantiate, relating to “conformity with international law”. Through these guidelines, the EU is clearly acting to force Israel to make the legal, illegal.

Meanwhile, the EU overlooks and ignores completely statements by PA officials denying the right of Israel to exist. Just one example: Mahmoud Abbas himself in 2009: “The Palestinian people will never accept the right of the Jewish people to their own state.  Not for 1000 years”. This is in addition to his well-publicized statement that not one Israeli will be allowed to live in Palestine. In direct contravention of Resolution 242, the PA’s statements to its people in Arabic continue to delegitimize Israel’s existence, deny Israel’s right to exist, define the conflict with Israel as a religious war for Allah, promote hatred through demonization and promote and incite terror and violence. On official PA TV, Israel is referred to as Palestine; maps of the area between the Mediterranean and the Jordan in PA offices, schoolbooks and TV display the whole area as Palestinian; and its educational policies resulted in  then-Senator Hillary Clinton commenting on PA schoolbooks: “These textbooks do not give Palestinian children an education; they give them an indoctrination.”

By its silence on the many other principles of Resolution 242 in addition to that of territory (not “the” territory), the EU has allied itself with the illegal (under Resolution 242 and the Oslo Accords) acts of the PA.  By its one-sidedness on the question of secure borders and its incorrect and biased emphasis on “pre-1967 borders” (a concept which does not appear in either governing Resolution 242 or the Oslo Accords), the EU is acting as the advocate for one of the parties to the dispute. By its double standards on the issue of guidelines relating to a territorial dispute between the PA and Israel where both parties are external to the EU but ignoring territorial disputes within the borders of the EU, the EU is clearly evidencing prejudice against Israel. The EU can evidently no longer be considered an impartial arbiter to the Israel-Palestinian dispute as its role as a member of the Quartet demands.

Insofar as the Israel-Palestinian dispute is concerned, the EU`s path is not even a road to somewhere.

About the Author
Charles Abelsohn, a co-founder of Truth be Told, retired several years ago as the legal manager of one of the most well–known entities in Israel. He is a graduate of three universities (Cape Town, Stellenbosch and U. of South Africa) in South Africa in Law, Transportation Economics and Finance. His interests, even as a young student, were Judaism, Israel, Economics and Finance.