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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Israel’s constitutional crisis has been postponed, not resolved

After years of leftists crying wolf about democracy being endangered, Israel finally experienced a real constitutional crisis last week. That crisis was temporarily frozen by the decision to form a unity government, but it will come roaring back once the coronavirus crisis has passed.

It began with Knesset Speaker Yuli Edelstein’s refusal to let the newly elected Knesset vote to replace him as speaker and culminated in two interventions by the High Court of Justice. I’m one of very few people on my side of the political spectrum who considers the court’s initial intervention justifiable. But its second was an unprecedented usurpation of the prerogatives of another branch of government, in flagrant violation of legislation that the court itself deems constitutional.

Edelstein’s refusal, despite its terrible optics, stemmed from a genuine constitutional concern, and was consequently backed even by Knesset legal adviser Eyal Yinon, who had opposed Edelstein many times before and would do so again later in this saga. The problem was that neither political bloc could form a government on its own, yet the proposed new speaker came from the faction of Benny Gantz’s Blue and White Party that adamantly opposed a unity government. Thus whether a unity government was formed or Prime Minister Benjamin Netanyahu’s caretaker government continued, the new speaker would be in the opposition.

But as Yinon told the court, speakers have always come from the governing coalition because an opposition speaker can effectively stymie all government work. And once elected, he would be virtually impossible to oust, since 90 of the Knesset’s 120 members must vote to do so. An opposition speaker would thus “hurt democracy,” warned Yinon. “We’re planting a bug in the system, and this, too, undermines our constitutional fabric.” That’s why Edelstein wanted to wait, as Knesset bylaws permit, until a government was formed and could choose its own speaker.

Yet despite this genuine and serious concern, the fact remains that a newly elected majority was being barred from exercising its power. Moreover, it had no parliamentary way of solving the problem because only the speaker can convene parliament and schedule a vote. Thus if you believe majorities should be allowed to govern, the court was right to intervene by ordering Edelstein to hold the vote.

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