Israel’s prolonged occupation of Palestinian territory is unlawful
The EU should use the 50th anniversary of the occupation to spur a comprehensive assessment of its dealings with Israel and Israeli entities.
Approaching the 50th anniversary of its occupation of Palestinian territory, Israel has ramped up its settlement-building activity to some of the highest levels ever seen. The international community, meanwhile, remains largely mute as Israeli actions erode the territorial basis for a two-state solution.
While this is largely a political problem, there are also legal factors at play, according to a new report from the European Council on Foreign Relations. For too long governments have focussed their attentions on occupation law, which allows an occupying power to use force and limit the rights of the local population when it is militarily justified to do so. This framework is unable to hold Israel to account because it is premised on the assumption that the occupation is temporary and that Israel intends to eventually transfer control of the territories back to the rightful Palestinian sovereign.
But Israel has no such intentions. ECFR’s report, Israel's Unlawfully Prolonged Occupation: Consequences under an Integrated Legal Framework argues that Israel’s presence in Palestinian territories does not denote a situation of occupation justified by military necessity, but one of annexation of the territory. This is clear from its decisions to transfer its own civilian population into the territories (often alongside the forcible removal of local Palestinians) and to extend its domestic legal jurisdiction to the Palestinian territory. Given these objectives, Israel’s continued presence in the Palestinian territory is unlawful.
Addressing this requires the diligent enforcement of an integrated international legal framework that includes the international laws on the use of force and self-determination of peoples. Under such a framework, the following Israeli practices are incontrovertibly unlawful:
- The use of force to acquire the Palestinian territory (used to maintain its control over the territory)
- The establishment of a system of racial discrimination in the occupied territory through the unlawful transfer of its civilian population thereto (by applying Israeli domestic laws to Israeli settlers and military laws to Palestinians)
- The flagrant denial of the internationally recognised right to self-determination of the Palestinian people to independence in the territory, through attempts to transform the status of the territory and its demographic character (for example by reducing the Palestinian population of the West Bank and Gaza by at least 600,000 people)
This has important implications for third party states and international actors, who are obligated to end such unlawful acts. At the very minimum they are obligated under international law to refuse to recognise such acts (as well as the rights and benefits they generate) as lawful in the context of their dealings with Israel.
This obligation is particularly acute for the EU and its member states, who have extensive interstate relations and private dealings with Israel, and whose own legal order depends on respect for international law.
While Europe adopted firm positions under UN Charter law on the legal character and consequences of Russia’s 2014 annexation of Crimea, it has not yet fully lived up to its non-recognition obligations in relation to Israel’s unlawful acts. In failing to do so, the EU and its member states are effectively allowing their relations and dealings with Israel to undermine the integrity of their internal legal orders.
The EU has taken a number of steps to differentiate between the state of Israel and its unlawful settlements. In 2012, the EU's Foreign Affairs Council affirmed that all agreements with Israel must unequivocally and explicitly indicate their inapplicability to the territories occupied since 1967. And in 2013 the European Commission issued a set of guidelines which set out the parameters of Israel’s participation in EU programmes such as Horizon2020, and prohibited the funding of Israeli entities operating in the settlements. These are but some of the EU’s corrective measures driven by legal necessity and intended to ensure non-recognition; many others remain underway.
But the EU needs to act much more diligently to implement these positions. The EU and its member states have not yet devised a coherent policy and process for proactively detecting and correcting dealings with Israeli entities that give effect to its unlawful acts. And while some 18 member states have issued advisories alerting EU-based companies of the risks of activities in relation to the settlements, they have yet to be coupled with appropriate domestic compliance measures to inform domestic regulatory authorities and domestic subjects, including public authorities and nationals.
Instead, the revision of EU-Israeli relations to ensure non-recognition has been piecemeal, and includes numerous cases where implementation of EU law remains deficient. To guarantee the coherence and transparency of these processes, the EU should use the 50th anniversary of the occupation to spur a comprehensive assessment of its dealings with Israel and Israeli entities, in line with the imperative of non-recognition, based on the need to ensure the full and effective implementation of EU law and the EU’s deep-seated commitment to respect international law.
Notes to editors