Time for EU courage on Israeli settlements

With Israel’s prolonged occupation and (de-facto) annexation of Palestinian territory entering its fiftieth year, European leaders have failed to offer any course correction or prescription beyond the tried and failed choreography that has characterised the last 20 years of peace talks.

Instead, the belief persists that the Middle East Peace Process in its current Oslo configuration can offer the path toward a viable settlement or, failing that, an effective tool for managing the conflict if only the sides can be coaxed back into talks.

While the EU and its member states frequently reaffirm their commitment to a two state vision they shy away from deploying the tools necessary to help make this a reality, or at least maintain it as a viable option.

Instead, they continue to dedicate their energy to devising new formats and incentives to push Israelis and Palestinians back into the negotiating room, coupling this with frequent efforts to shield Israel from the full weight of international law and accountability.

Far from furthering the prospects of peace, this has only bred a sense of Israeli exceptionalism and impunity while undermining European credibility. The dominant view within successive Israeli government has consequently been that the conflict can be managed and the settlement enterprise expanded without incurring any tangible costs in its international relations.

This perception will not change unless Israel’s aspirations, expectations and theory of reality are adjusted.

Negative trends

But Europe does have the means at its disposal to tackle the negative trends that reinforce the diplomatic impasse and undermine the viability and credibility of peace-talks.

While incentives have a poor track record, measures to differentiate between Israel and settlement-linked entities by activating the EU’s legal machinery has led to a debate within Israel in which the contradictions between maintaining the settlements and thickening (or simply continuing) relations with Europe emerge.

EU differentiation first and foremost offers a way of insulating deepening bilateral relations from the internationally unlawful acts of annexation, the structural violations that ensue from Israel’s prolonged occupation, and liabilities that such acts attract under international and domestic laws.

This includes strengthening efforts to raise awareness amongst EU citizens and businesses on the risks related to economic and financial activities in the settlements, including financial transactions, investments, purchases, procurements and services

If the EU is serious about preserving the territorial basis for a two-state solution (i.e. respect for the pre-1967 Green Line) then differentiation is the minimum it should do.

Given the unprecedented amounts of European political and financial capital invested in the furtherance of a two state solution, the EU has a duty to ensure that its relations with Israel do not undermine its foreign policy objectives.

Through its use of differentiation measures Europe also has at its disposal an effective means of chipping away at the incentive structure that underpins Israeli public support for continued occupation.

Although this approach is much less confrontational than other means at Europe’s disposal, it may prove more effective at challenging and perhaps also altering the policies and institutional practices that underpin Israel’s prolonged occupation.

By allowing the EU’s laws to function as intended to protect its legal order from the harmful effects of Israel’s actions, legal necessity can translate into normative power since increased integration and access to Europe requires Israeli compliance with European regulations, policies and values.

The degree and intensity of bilateral relations combined with Israel’s de-facto annexation of occupied Palestinian territory means EU-Israel relations are particularly exposed to European regulations. As such, it takes very little before differentiation starts biting into those aspects of the EU-Israel relations that Israelis value.

Ultimately, Europe must do a better job of framing the negative aspects that Israelis could face in their international relations as a result of Israel’s prolonged occupation and unlawful exercise of sovereign authority in Palestinian territory.

The full and effective implementation of EU law through differentiation can do this, by helping to move Israeli society in the direction of those choices that will ultimately be required to end their prolonged occupation and bring Israeli conduct into conformity with international law.

Hard choice

Israelis must be faced with the choice between ideological commitment to the settlement enterprise, or relations with the outside world, and in particular their European backyard.

Israeli leaders may counter that new emerging partners in Africa and Asia are less demanding and offer new opportunities, but none of these can fully replace the economic and cultural ties with the West that form part of the identity of many Israelis.

First of all though, European leaders must understand how politically counterproductive and legally harmful constraining the functioning of differentiation measures in its relations with Israel can be.

They must also appreciate the political work that these legal tools can perform in support of EU policy positions.

While there is not always EU member state unity on the Israeli-Palestinian file, the issue of the illegality of Israeli settlements and the European legal obligations to draw a distinction between Israel and the OPTs is something on which Europe should remain united.

Hugh Lovatt is an expert at the European Council on Foreign Relations, a think tank based in London