Op-Ed: The Dirty Legal Hands of the European Union
Dr. Manfred GerstenfeldThe writer has been a long-term adviser on strategy issues to the boards of several major multinational corporations in Europe and North America.He is board member and former chairman of the Jerusalem Center for Public Affairs and recipient of the LIfetime Achievement Award (2012) of the Journal for the Study of Anti-Semitism.
“The European Union issued a directive this year which calls upon its member states to cease all dealings with Israeli research institutions, companies and other bodies situated in what the E.U. considers to be the "occupied territories" and specifically in Israeli settlements, which the E.U. considers to be illegal.
"This directive illustrates an inherent bias by the E.U. against Israel and as such prejudices any aspiration by the E.U. that it can continue, with clean hands, to be involved in the Israeli-Palestinian peace negotiations.
"Thus, I thought it urgent to issue a widely supported legal opinion explaining why the directive should be revoked, as it is incorrect, wrongly based and in violation of the E.U.’s status in the peace process.
“My aim was to get a large group of attorneys and prominent public figures to sign a serious, well-crafted and reasoned legal letter to the E.U. without diplomatic ‘niceties.’ This might have a more substantive and persuasive effect than the routine political approach by governmental sources.”
Ambassador Alan Baker, a leading international law expert served as Legal Counsel and Deputy Director General of Israel’s Ministry for Foreign Affairs. He was ambassador to Canada and is presently the Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and heads the international action division of the Legal Forum for Israel.
“I initiated the idea of this letter within the context of the Legal Forum for Israel. This is a group of lawyers from Israel and abroad who defend rights within Israel. It also upholds the rights of Israel and the Jewish people vis-à-vis the international community.
“We circulated the draft letter to approximately 500 attorneys in Israel and abroad who are members of the Legal Forum. However, a wide range of principally legal, Jewish organizations throughout the world requested that their members also be given the option to sign. Within two weeks, we had over 1,000 signatures until we closed the list.
"The letter was sent to Ms. Catherine Ashton, the E.U. High Representative for Foreign Affairs. Copies went to all E.U. countries’ foreign ministers and senior officials of the E.U.
“The letter stresses several basic points. The premise of the E.U. directive was that the 1967 Armistice Lines are Israel’s borders, is totally wrong in fact and law. We wrote: ‘The inference regarding Israel’s borders as recognized by the E.U. …is misguided and historically and legally wrong. The pre-1967 Armistice lines (so-called “green” line) were never considered to be borders. UN Security Council Resolution 242 (1967), endorsed by the European members of the Council, called for ‘secure and recognized boundaries’ to replace the pre-1967 Armistice lines. The European leaders further endorsed this principle in their 1980 Venice Declaration.
"By its persistence in referring to the pre-1967 lines, the E.U. is undermining future negotiation on this issue by predetermining its outcome.’
“Another major point was that the territory of Judea and Samaria has never been determined in any agreement or formal document, to be Palestinian territory. The E.U. itself is signatory as witness to the Israeli-Palestinian Interim Agreement (1995). In that text, the parties agreed to negotiate the fate of the territories. Hence the E.U. assumption undermines this negotiating process.
“As the letter stated: ‘The repeated use by the E.U. of the term ‘occupied Arab’ or ‘Palestinian territories’ to refer to the area of Judea and Samaria, has no basis in law or fact. This area has never been determined as such and thus the continued E.U. usage of the term runs counter to the very concept of negotiations to resolve the dispute regarding these areas supported by the E.U., to determine their permanent status.’
“We also stated that the outright rejection of Israeli’s claim to sovereignty in the territories denies the legal and historic rights of Israel and the Jewish people that the European countries have acknowledged over the years, and which remain valid. As such, the E.U. is undermining its own status and commitments by taking sides against Israel.
“Concerning the illegality of Israel’s settlements, the E.U. has misread international law for many years now, including Article 49 of the Fourth Geneva Convention. The provenance of this Article was, ‘the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War. This has no relevance to Israel’s settlements in Judea and Samaria.’
“We also wrote that, ‘The legality of Israel’s presence in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community.
"These rights cannot be denied or placed in question. This includes the 1920 San Remo Declaration unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea and Samaria and Jerusalem) as well as close Jewish settlement throughout.’
"The 1922 League of Nations Mandate Instrument conferring the mandate on Britain confirmed this. It was further affirmed by Article 80 of the U.N. Charter.
“Our letter garnered much publicity and wide support from many Jewish organizations. From the E.U. however, apart from one acknowledgement of receipt from a low-level official, we have heard nothing.”