Analysis from Israel
New EU directives are something no Israeli government could accept, because they violate Israeli law.
That the new European Union directives published last week will further undermine prospects for peace talks has been amply discussed: The Palestinians obviously have no incentive to compromise with Israel if they think the EU will pressure it to make concessions for free. But in their zeal to determine Israel’s borders for it, EU bureaucrats also overlooked another tiny detail – a minor impediment called the law. This has nothing to do with Prime Minister Binyamin Netanyahu’s “intransigence” or his “right-wing” government; the problem would apply equally to a left-wing government: In a democratic country governed by the rule of law, the government cannot simply pretend the law doesn’t exist, even if it wants to.

The directives bar the EU from funding or cooperating with Israeli entities that conduct activity in the West Bank, Golan Heights or east Jerusalem. They also state that any new agreement signed with Israel should “endeavor” to include a clause stipulating that these areas aren’t part of the State of Israel and therefore aren’t covered by the agreement.

With regard to the West Bank, that’s actually true. The West Bank is the Jewish people’s historic heartland, and all Israeli governments want to retain parts of it under any future peace agreement, but Israel has never officially annexed it.

Under Israeli law, however, the Golan Heights and east Jerusalem are legally part of Israel. There’s even a law on the books barring the government from ceding these areas or ending the application of Israeli law there without approval from two-thirds of the Knesset or a popular referendum. Consequently, no government could sign a document asserting that these areas aren’t part of the state; doing so would violate Israeli law. Even if the move somehow survived a court challenge (which it might; Israel’s Supreme Court is adept at finding ways to make the law say whatever our left-leaning justices want it to say), it would cause the government immense political damage, because most Israelis would still know the truth: That the government was violating the country’s own laws by treating the Golan and east Jerusalem as if they weren’t part of Israel.

Given that the EU boasts of being a community “based on the rule of law,” the hypocrisy of demanding that another democratic country blatantly violate its own laws just because the EU dislikes them is breathtaking. It’s certainly a novel definition of the rule of law: The whims of EU bureaucrats ought to trump legislation enacted with due process by (non-EU) democracies and upheld by independent courts.

Even more remarkable, however, is how self-defeating this provision is, given the EU’s own stated goal of deterring Israeli settlement-building that it sees as an obstacle to peace. If this were true, then what ought to concern the bureaucrats most is settlement-building in the heart of the West Bank, in territory that everyone agrees would be part of a Palestinian state under any deal. Since any such deal would require evacuating those settlers, it’s reasonable to fear that more of them would make a deal harder.

The Golan, in contrast, is irrelevant to an Israeli-Palestinian deal: It’s claimed by Syria, not the Palestinians, and with Syria engulfed in civil war, not even the most delusional EU bureaucrat imagines an Israel-Syrian deal is currently possible. Nor do the Golan’s approximately 20,000 Jewish residents constitute any real obstacle to a future deal, if you consider that several Israeli governments have made proposals to the Palestinians that entail evacuating four times that number from the West Bank.

Nor is east Jerusalem’s Jewish population any obstacle to a deal; since even the Palestinians have agreed that the city’s huge Jewish neighborhoods will remain Israeli, any increase in their population is irrelevant. And while the EU routinely has conniptions over Jews moving into Arab neighborhoods, the number remains negligible; evacuating them under any deal would be easy.

Hence the main issue for anyone concerned with settlement-building should be the West Bank. And as noted, the West Bank isn’t legally part of Israel, so clever lawyers could undoubtedly devise some formula excluding it from EU-Israeli agreements that both sides could live with.

But if the EU insists on Israel asserting that the Golan and east Jerusalem aren’t part of the state, new agreements with Europe will become impossible; that’s something to which no Israeli government could legally agree.

This would clearly be bad for Israel, which may be what EU bureaucrats wanted all along: not a targeted hit on the settlements, as EU officials claim, but a blunt instrument to punish all of Israel for what the EU perceives as its sins.

Yet it’s arguably much worse for the people the EU claims to want to help: the Palestinians. Indeed, though the Palestinian Authority lauded the decision publicly, a senior PA official told Israel Hayom that it actually lobbied against the move privately, because it would be “disastrous economically and socially for the Palestinian community.” Or as one of the approximately 16,000 Palestinians employed in the settlements told the paper, “If they take away our livelihoods and food, exactly what kind of peace will be here?”

The West Bank’s unemployment rate is already over 20%, and Israel and the settlements together employ about a fifth of the West Bank’s working population. Thus anything that hurts the Israeli economy will devastate the Palestinian one.

A blanket freeze in EU-Israel relations would probably even hurt the EU itself. As Britain’s shadow chancellor of the exchequer Edd Balls noted just last week, there’s a reason why the EU and its member states have signed so many commercial and scientific agreements with Israel, and why many European companies are eager to do business with it: despite being an economic midget compared to the EU, Israel’s cutting-edge innovations offer real added value. 

In short, this decision makes a mockery of the EU’s self-proclaimed respect for the rule of law, hurts the very Palestinians it was supposed to help, and even harms the EU itself. But evidently, all that is a small price to pay for allowing EU bureaucrats to bask in a sense of their own moral superiority.

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Israel’s unity government may prove a constitutional time bomb

That Israel will soon have a government is good news; almost any government would be better than the political dysfunction that has produced three elections in the past year. But aside from its existence, there’s little to like about this “unity” government.

The biggest problem isn’t that many important issues will perforce go unaddressed, though that’s inevitable given the compromises required when neither bloc can govern on its own. Nor is it the risk that the government will be dysfunctional even on “consensual” issues like rescuing the economy from the coronavirus crisis, though this risk is real, since both sides’ leaders will have veto power over every government decision.

Rather, it’s the cavalier way that Israel’s Basic Laws are being amended to serve the particular needs of Prime Minister Benjamin Netanyahu and his new partner, Blue and White chairman Benny Gantz.

Though Israel’s Supreme Court wrongly claims the Basic Laws are a constitution, they were never intended as such by the parliaments that passed them. Indeed, some were approved by a mere quarter of the Knesset or less.

But they were intended as the building blocks of a future constitution should Israel ever adopt one. That’s why this handful of laws, alone of all the laws on Israel’s books, are deemed “Basic Laws,” and why each addresses a fundamental constitutional issue (the executive branch, the legislature, the judiciary, human rights, Israel’s Jewish character, etc.).

In other words, though they aren’t a constitution, they do serve as the foundation of Israel’s system of government. And tinkering with the architecture of any democratic system of government can have unintended consequences, as Israel has discovered before to its detriment.

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