Analysis from Israel

Responding to today’s Times of Israel interview with Fatou Bensouda, prosecutor of the International Criminal Court, legal expert Eugene Kontorovich tweeted, “you got to ask #Bensaouda questions & didnt ask about an inquiry into settlements in Cypru[s]?” But Bensouda could actually offer a reasonable response to this challenge about double standards. The people who couldn’t – and who should therefore be hounded about it at every conceivable opportunity – are senior European Union officials who insist that any facilitation of Israeli activity in the “occupied West Bank” is illegal, yet happily facilitate Turkish activity in occupied Northern Cyprus, Moroccan activity in occupied Western Sahara, Chinese activity in occupied Tibet, and much more.

Just today, Reuters revealed that an influential European think tank is urging the EU to go beyond its current drive to label Israeli settlement products and impose numerous additional sanctions, from restricting interaction between European banks and Israeli banks that do business in the settlements (i.e. all of them) to refusing to recognize degrees from Israeli educational institutions in the West Bank. The European Council of Foreign Relations is technically an independent organization, but, as Reuters correctly noted, its “proposals frequently inform EU policy-making.” In 2013, the council proposed five different measures against Israeli activity in the West Bank; two years later, three of the five have been largely adopted, either by the EU itself or by individual member states: excluding settlement produce from EU-Israel trade agreements, severing contact with Ariel University (which is barred from the EU’s Horizon 2020 research program) and advising European companies against doing business in the settlements.

But as Kontorovich has pointed out repeatedly, the EU has no qualms about facilitating activity in other territories that it deems occupied. For instance, the EU has an entire program to direct funding to Turkish-occupied Northern Cyprus; inter alia, the program finances infrastructure projects, scholarships for students and grants to businesses. And lest one think this is equivalent to EU projects to help Palestinians, think again: Turkish settlers, who constitute anywhere from 20 to 50 percent of the population (depending on whose estimates you believe), are eligible; nor is the program barred from funding projects that directly or indirectly benefit these settlers. That’s in sharp contrast to the West Bank, where European countries refuse to fund any project that might benefit Israeli settlers, even if it benefits the Palestinians far more.

Similarly, Kontorovich noted, the EU reached an agreement with Morocco in which it actually pays Morocco for access to fisheries in Moroccan-occupied Western Sahara. In short, the EU is paying the occupier for the right to deplete the occupied territory’s natural resources.

And, of course, numerous European companies and organizations do business in such territories; from French conglomerates like Total and Michelin to British universities.

Nor can the EU argue that Palestinians are unique in objecting to such activity. Indeed, the PLO’s Western Saharan counterpart, the Frente Polisario, is currently suing in the Court of Justice of the European Union over the Morocco fisheries agreement, yet the EU is vigorously defending the deal.

Moreover, Israel has a far stronger legal claim to the West Bank than do any of the “occupiers” the EU has no problem doing business with. The League of Nations awarded this land to a “Jewish national home,” and that international mandate was preserved by the UN Charter’s Article 80; the territory had no other recognized sovereign when Israel captured it from an illegal occupier (Jordan) in a defensive war; and UN Security Council Resolution 242 explicitly reaffirmed Israel’s right to keep at least part of the captured territory. Thus if the EU were going to discriminate among “occupied territories,” it should by rights discriminate in Israel’s favor rather than against it.

Bensouda could reasonably respond that a prosecutor has no business commenting on hypotheticals; she can only address actual cases that arrive on her doorstep. But the EU can’t use the excuse that the issue is hypothetical; it’s already neck-deep in discriminatory treatment.

This issue should, therefore, be raised with every EU official at every possible opportunity – by Israeli officials, journalists, and American Jewish leaders. It might not influence EU policy, but at least it would lay bare to the world what actually lies behind it. There’s a name for treating Jews differently than all other peoples. It’s called anti-Semitism.

Originally published in Commentary on July 22, 2015

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Why the status quo is the least bad option for Palestinians

Even among people who recognize that Israeli-Palestinian peace is currently impossible, a growing number think that Israel must nevertheless quit the West Bank. Israel has a right to defend itself, their argument goes, but not by controlling another people for decades. Instead, it should withdraw to the “internationally recognized border” and protect itself from there, like other countries do.

Forget for a moment that the “internationally recognized border” is an arrant fiction. Forget as well that Israel remains in the West Bank precisely because defending itself from the 1949 armistice lines (the abovementioned fictional border) hasn’t worked very well in either the West Bank—from which Israel partially withdrew in the 1990s before returning the following decade—or the Gaza Strip.

That still leaves another uncomfortable fact: As long as genuine peace remains impossible, Israeli control of the West Bank, despite the undeniable hardships it causes Palestinians, remains the least bad alternative for the Palestinians themselves. As evidence, just compare the Israeli-controlled West Bank to Gaza, which has been free of both settlers and soldiers since August 2005. By almost any parameter, life in the former is far better.

Take, for instance, casualties. According to B’Tselem’s statistics, Israeli security forces killed 5,706 Palestinians in Gaza from September 2005 through August 2019. That’s almost eight times the 756 killed by Israeli security personnel and settlers combined in the West Bank during this period (no Gazans were killed by settlers since there are no settlers there).

Nor is this surprising. Israel’s control of the West Bank means that suspected terrorists can often be arrested rather than killed, though shootouts (with attendant collateral damage) do occur. But in Gaza, where Israel has no troops, it can’t arrest terrorists. Thus the only way to fight terror is through military action, which naturally produces many more casualties among both combatants and civilians.

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