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Distorting the facts of Occupation: Regavim’s attacks on the EU

An Israeli settler NGO has accused the EU of illegal building in the West Bank. But the facts — and its understanding of international law — just don’t add up.

By Michel Waelbroeck and Willem Aldershoff

Illustrative photo of Palestinian children in a school consisting of a number of shipping containers, the Jordan Valley. (Photo by Anne Paq/Activestills.org)

Illustrative photo of Palestinian children in a school consisting of a number of shipping containers, the Jordan Valley. (Photo by Anne Paq/Activestills.org)

Reports started circulating before Israel’s elections that Prime Minister Netanyahu had ordered the destruction of mobile structures distributed by the EU in Area C of the West Bank. This harks back to a report in November 2014 by the Israeli NGO Regavim, which draws a shocking parallel between the EU’s humanitarian assistance to Palestinians in Area C and Israel’s building of settlements there.  Assuming that Israel’s settlements are legal under international law, Regavim accuses the EU of assisting the Palestinians in an illegal plan to take control of large parts of the West Bank.

This simply puts matters on their head. There is no doubt that Israel’s settlement policy violates international law whereas assistance to Palestinians building in their own country is in full conformity with the EU’s responsibilities under humanitarian law.

Regavim claims that Israel does not “occupy” the West Bank, since that area was not under the sovereignty of any state when it was taken over by Israel. That argument is specious: it was firmly rejected by the International Court of Justice in 2004 in the case concerning the construction of the Wall, and it is not accepted by any other member of the international community. Contrary to Regavim’s argument, Israel does not enjoy sovereign rights over any part of the West Bank, whether in East Jerusalem or in Area C ; Israel must respect the Fourth Geneva Convention, to which it is a party, and which prohibits an occupying power from transferring its  population into occupied territory.

In 1947, the UN General Assembly recommended splitting mandatory Palestine into two independent states – an Arab State (Palestine) and a Jewish State (Israel). Whereas Israel unilaterally proclaimed independence at the time, Palestine could not do so, being occupied by Jordan and, since 1967, by Israel. This does not mean that the West Bank and East Jerusalem are subject to Israeli sovereignty. Palestinians in the West Bank live in their own country.

The Regavim report acknowledges that the EU saves Israel a great deal of resources through its humanitarian activities, which, “in effect, carry out Israel’s obligations towards the Palestinians.” However, it complains that, when financing Palestinian construction in Area C of the West Bank, the EU violates the Oslo II agreement, which, “clearly specified that Area C would be under the full responsibility of the State of Israel.” The EU thereby “cynically exploits … Israel’s unwillingness to clash diplomatically with the European States” by “trampling on the law.”

The origin of this ire is to be found in the particular situation at which the Regavim report is directed. It is well known that Israel intends to isolate East Jerusalem from the remainder of the West Bank by building settlements in an area north-east of Jerusalem referred to as E-1. Doing so would make a contiguous and viable Palestinian State impossible.

A sheep shelter constructed out of old furniture in a Bedouin camp in the E1 area, situated between Jerusalem and the Israeli West Bank settlement of Maale Adumim (background). (Photo: Oren Ziv/Activestills.org)

A sheep shelter constructed out of old furniture in a Bedouin camp in the E1 area, situated between Jerusalem and the Israeli West Bank settlement of Maale Adumim (background). (Photo: Oren Ziv/Activestills.org)

Regavim claims that the EU-financed structures were built without the required permits. The zoning rules imposed by the Israeli authorities, however, allow construction by Palestinians in less than 1 percent of Area C; the remainder is reserved for Israeli settlements, closed military zones and nature reserves. Therefore, it is practically impossible for Palestinians to obtain building permits, as the World Bank attests in its 2013 report on the Palestinian economy. This constitutes a violation of Israel’s obligation, as an occupying power, to exercise its powers for the benefit of the Palestinian population. Moreover introducing these restrictions violates Israel’s obligation to preserve, unless absolutely prevented, the laws in force before the occupation.

Regavim also claims that the Oslo II Agreement gave Israel “full control” over Area C and accuses the EU and the Palestinian Authority of preventing Israel from “exercising its sovereignty” in the area. This is a shocking distortion of the facts: Oslo provided that powers and responsibilities relating to planning and zoning would, subject to certain issues, be resolved in permanent status negotiations, and come under Palestinian jurisdiction within 18 months from the inauguration of the Palestinian Council (7 March 1996). Israel’s role was clearly designed to be temporary.

The Oslo Agreement was never fully implemented. The result, however, was not to place Palestine in a situation of everlasting dependency on Israel’s goodwill in planning matters. The Fourth Geneva Convention provides that the occupied population may not be deprived of the benefits provided for it under its provisions, even as the result of an agreement concluded between the authorities of the occupied territory (Palestine) and the occupying power (Israel). Therefore, Israel may not take advantage of the breakdown of the Oslo negotiations to deprive Palestinians of rights they had under pre-existing legislation.

The Regavim report completely distorts two basic concepts by accusing the EU of acting illegally through its provision of humanitarian assistance to residents of Area C. It is Israel that acts in breach of international law, both by building settlements for its own citizens, and by acting as if it were entitled to exercise sovereignty in the West Bank. The EU is fully justified in helping Palestinians avoid the consequences of these violations.

Michel Waelbroeck is an Emeritus Professor of European Law at the Université libre de Bruxelles, and an Emeritus Member of the Institute of International Law. Willem Aldershoff, former Head of Unit in the European Commission, is currently Adviser EU-policy Israel/Palestine, Brussels.

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    1. Pedro X

      What the writers ignore is that Judea, Samaria, and the West Bank are not Palestinian state territories. They are disputed or unresolved territories over which Israel has claims of sovereign rights. The 1949 Armistice Agreements specifically provided that the Armistice lines were not borders and that neither Israel nor Jordan were deemed to be forfeiting any sovereign claims over territory covered by the Armistice Agreement. No state of Palestinian Arabs was recognized at the time. No state of Palestine arose following the 1948 war. Jordan annexed the West Bank, granted the Arabs who lived there Jordanian citizenship and ethnically cleansed it of all Jews. Israel and Jews never surrendered their claims which the Armistice Agreements recognized as existing.

      Jordan attacked Israel in 1967 and lost a war and its occupation of territory which Israel claimed as its sovereign territory. Jordan subsequently gave up all its claims leaving Israel as the only sovereign country with possession and claims against the territories. The fact is that Israel since 1967 had deferred its rights to exercise full sovereign rights over the territory in a hope to reach an agreement with Arab countries providing for peace, recognition and secure and defensive borders for Israel. This does not make Israel an occupier of its own land nor does it mean its has surrendered any of its claims.

      The fact is that Jews who were ethnically cleansed in their entirety from the West Bank have voluntarily chosen to return (and have not been transferred) and exercise their right of building Jewish communities in Judea and Samaria in accordance with international law of the Mandate for Palestine as approved by the unanimous consent of the League of Nations in 1922. Under the international law of 1922, confirmed by the Charter of the United Nations in 1945, Jews have a right to settle and develop in any part of what was Mandate Palestine in order to re-establish the historic Jewish homeland. 19 years of Jordanian occupation did not terminate the rights of the Jews. Nor does 47 years of Israel’s presence in the territories affect those rights but instead show that Israel still claims rights over the territories.

      The writers also ignore that Europeans have no sovereign rights in Israel or the unresolved territories. They have no right to substitute their opinion for the law of the land and illegally build. If any individual Arab or Jew has a concern with Israel’s land laws, he or she has access to Israel’s courts to decide the matter. The Israeli court has defended the Palestinian rights not to be deprived of private Palestinian land. The EU has no right to ignore the lawful power of the Israeli court.

      Reply to Comment
      • susy

        The lack of clear-cut borders cannot be considered a valid objection. Neither Israel nor Palestine have agreed boundaries in the context of a peace agreement. Based on the same reasoning as presented by some Israeli leaders, Palestine, recognized as a non-member State by the UNGA on 29 November 2012, could theoretically start building settlements on Israeli soil.
        It is sometimes claimed that Jordan, because of its “unlawful acquisition” of the West Bank, was entitled at most to claim the status of belligerent occupant. In its 2004’s Wall advisory opinion, the ICJ ruled that the regulations on the matter of occupation applied to any armed conflict between High Contracting Parties and that it was irrelevant whether territory occupied during that conflict was under their sovereignty. The Israeli High Court of Justice itself established that the application of the regulations depends on the effective military control exercised from outside the nation’s borders, and not from previous sovereignty over the territory of a specific state (HCJ 785/87). Therefore, the fact that the West Bank was occupied by Jordan until 1967 – an occupation which was opposed by the local population at the time, most of all by Fatah militants, to the point that King Hussein felt obliged to impose martial law – does not justify the use of the expression “disputed territories” in place of “occupied territories.” Even more so considering that Israel, in Allan Gerson’s words, “never challenged the lawfulness of Jordan’s control of the West Bank” and tried to reach a peace treaty after the Six-Day War which would have returned, with modified borders, the West Bank to Jordan.

        “Jordan attacked Israel in 1967”: this is, like the rest of your comment, plain propaganda. John Quigley wrote a great book with Cambridge UP about the self-defence myth: ‘the june 1967 war, rather than serving as precedent for preventing war, should be the poster child for pretexual invocation of force used in advance’.

        Reply to Comment
    2. Ari

      Deportation and Forced Transfer – Opposition to Jewish settlements is based on the last paragraph of Article 49. The “Occupying Power” may not “Deport or transfer parts of its own civilian population into the territory it occupies.”
      One can hardly believe this baseless ICJ assertion that Israel, the only free and democratic country in the Middle East used “deportation” and “forced transfer” of its own population into “occupied territories.”

      Reply to Comment
        • Whiplash

          The fact remains that Israel has never deported or transferred, directly or indirectly, any part of its population into the disputed territories. In fact much of the settlement of Judea and Samaria by the GUSH EMUNIM movement was done in opposition to the Israeli government of the day. Israelis have by their own free choice decided to exercise their rights of settlement and development of the land in Judea and Samaria as given to them under international law prior to the 1948 war.

          International law in 1922, as confirmed by the Charter of the UN in 1945, gave Jews rights to settle and develop Mandate Palestine for the purpose of re-establishing the Jewish homeland in its historic country. By an international law called the Mandate for Palestine, the country of Great Britain was appointed trustee of the rights of the Jews and the Jews the beneficiaries of these rights. Under trust law beneficiaries cannot be deprived of their rights because the trustee quits or someone else believes that the trust should not have been created. Thus Jews have a right to live, build and develop their communities in Judea and Samaria.

          They have not lost these rights because Jordan annexed Judea and Samaria and renamed it the West Bank. Jews were forcibly transferred out of Judea and Samaria by the Jordanians, that is those that it did not slaughter as in Kfar Etzion in 1948. At the end of the day not a single Jew was permitted to remain in Judea and Samaria or the Old City.

          So today Jews have a valid right to live where they want in Judea and Samaria as long as it is not on Palestinian private land.

          Reply to Comment
        • Stephen franklin

          There is nothing in the preceding paragraphs either that would suggest that Israelis building homes and/or living in such homes in the West Bank is contrary to the Geneva Convention.

          Reply to Comment
    3. Brian

      The endless mendacity and the shamelessness seen in this Regavim Report and in the hard right comments here on this page show why it’s a good thing Bibi won. There’s no fig leaf in the new government coming. It’s a good thing. It will save a lot of wasted time and BS. What was it that the American official said?…: “It’s impossible to embarrass an Israeli”? And now we read that the Israeli public and its chattering classes think Obama, in reassessing Bibi, is being “patronizing” and “disrespectful” to them! and their choice! Say what? And that Bibi means it now when he partially walked back his no-Palestinian-state comments and with his begrudging semi-apology to the Arabs and he didn’t really mean what he said before the election and its “just politics” anyway. They can’t have any idea how they come across. No insight. It’s unbelievable.

      Reply to Comment
      • Sticky Rice

        I guess not everyone is as smart, enlightened, and self-aware as you
        It sounds like you are telling yourself things just to make you feel better
        So tell us, what exactly Is going to chsnge, and when is it going to happen?

        Reply to Comment
        • Brian

          I’m not telling myself anything I’m just responding to the arguments above that I think are dishonest.

          Look, you can make all sorts of weaselly, lawyerly arguments until the cows come home, they’re endless, and Regavim and Pedro X and such will continue to do that but in the end judges make judgments and none of it convinces as a humane and good faith effort to do justice to two peoples living in this land. All the legal nitpicking just convinces that this is a racist, supremacist, maximalist, fanatic enterprise and not a search for a decent settlement that regards Jews AND Arabs and not just Jews as human beings worthy of full respect and full regard.

          I don’t presume to know exactly when and how change will happen–I wouldn’t dream of making such predictions–but I suspect it will involve outside forces, increasingly, because the internal Israeli “consensus” seems increasingly out of touch with reality. The outside world is not impressed and the arguments from inside the Israeli Right as to why the outside world has begun to stop giving it an automatic pass strike me as narcissistic, self-deluding, and just devious. No one believes you guys anymore. I don’t think this has quite sunk in–your credibility is shot among anyone with any detachment or neutrality in this conflict, and you don’t get it.

          Reply to Comment
          • Sticky Rice

            OK, so some event (or series of events) from the outside, the nature of which you don’t know, that will happen anywhere from one minute to the end of time is going to force some sort of change in Israel. That is some theory!

            Reply to Comment
    4. the outrageous irony of reading this report really hits home with me as i was a volunteer worker when i was 18 years old on kibbutz regavim, as a jew whose own grandfather had to leave russia in 1906 because the czar wanted to march over siberia to fight the japanese, and jews being 3rd class citizens in russia at that time were used as human shields cannon fodder, so my grandfather made the wise decision of coming to america instead as a matter of continuing to exist on this planet and as a result i continue to exist, but on the kibbutz i had friends who were palestinian, and one friend in particular who took the time one day to point out to me that the building that the kibbutz used as its kiosk had in fact been his grandfather’s store!! so i was able to get from a pure street level perspective what was the palestinian side of this conflict, and it didn’t seem unreasonable to me at all, especially when you throw in the settlements that were in the early stages when i was there and were built on arab owned land seized by the israel govt, it seemed to me back then! that how can you seize land anger the people who are living in the same area side by side with you and expect them not to want to shoot rockets at you, so now when the palestinians with outside assistance in essence decide to do the same thing that the israeli govt is doing to them – within the legal system – acquire land build arab settlements and squeeze out the jews!!! its that old adage what goes around comes around, unless we can all put away our hatred which nothingyahoo can’t do and workout a peace that both jew and arab can live with so i can return home to live out my days alongside my palestinian friends as a jew in a jewish land!

      Reply to Comment
    5. Bryan

      Another of a long series of fairy tales in which Pedro rewrites the history of Palestine. e.g. :-
      (1) “Jordan attacked Israel in 1967”. It would be more accurate to say that Jordan was obliged under a mutual aid treaty to respond to an Israeli attack on Egypt.
      (2) Jordan lost “its occupation of territory which Israel claimed as sovereign territory”. The underlying principle of the UN and post-WWII international law was the inadmissibility of the acquisition of territory by conquest. Israel did not claim sovereignty over the conquered territories, except Jerusalem and later the Golan, and indeed insisted until this very month that it sought a two-state solution entailing a Palestinian state in the West Bank and Gaza.
      (3) “This does not make Israel an occupier of its own land”. A small number of Israelis make this claim but it is contradicted by the the UN, the EU, the USA, the International Court of Justice, the International Committee of the Red Cross, virtually every non-Israeli international lawyer and even many Israeli international lawyers.
      (4) “Jews who were ethnically cleansed in their entirety from the West Bank” A few hundred Jews lived in the West Bank, compared with the hundreds of thousands of Palestinians who were ethnically cleansed from Israel. There is an obvious reason for this in that the UN partition proposal, gerrymandered under enormous Zionist pressure, went to enormous lengths to include as many Jews as possible, and as few Palestinians as possible in the proposed Israeli state. The Israeli Haganah refused to allow residents of the small number of very recently founded Jewish settlements in the West Bank to withdraw to safety, because they wished to use them as military combatants in the battle to retain Jerusalem, which the UN had decided should be under international control.
      (5) “Under the international law of 1922, confirmed by the Charter of the United Nations in 1945, Jews have a right to settle and develop in any part of what was Mandate Palestine in order to re-establish the historic Jewish homeland.” The Mandate system was specifically based on the fact that “the communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” There was no promise that Jews could settle anywhere in their “homeland”. There was reference to a vague “Jewish HOME” (not “homeland”) hedged with conditions such as “it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine” and “Jewish immigration under suitable conditions” and “the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine”. Repeat – no more than a right for Jews to settle in Palestine under suitable (undefined) conditions, and certainly not a right for a Jewish state to “gain sovereignty” over the entire land whilst consistently and grievously prejudicing the rights of the local population.
      (6) The EU is certainly not asserting “sovereign rights in Israel or the unresolved territories” but is responding to a clear humanitarian responsibility to assist refugees and victims of possible war-crimes, and can quite legitimately demand respect from a small rogue state since it is Israel’s major trading partner, and Israel seeks European funding to engage in scientific and technological activity, and since Israel, having alienated its middle eastern neighbours seeks to participate in European activities like the UEFA Cup, the European Song Contest and other sporting and cultural activities, and seeks European support in the UN and other international forums.

      Reply to Comment
      • Kareem Jeans

        Bryan, how does your correction in point #1 chsnge anything materially? The fact remains that Jordan attacked Israel. They don’t get a free pass based on the nonsense you provided. Of course they did not attack in 1973.

        Your bullshit is tiresome.

        Reply to Comment
        • Bryan

          I made six points, numbered sequentially, in response to Pedro, but you didn’t read beyond point one before magisterially pronouncing that I was talking tiresome bullshit. Anything that contradicts the propaganda with which you have been “informed” is tiresome. And the US has a heavy responsibility for starting World War II because it landed its troops on the Normandy beaches, coming to the defence of its allies?

          Reply to Comment
          • Kareem Jeans

            Bryan, thank you for numbering your responses sequentially. As if anyone would number it randomly.

            You are trying to pass off these two statements as analogous
            1) Jordan attacked Israel in 1967
            2) The US has a heavy responsibility for starting World War II because it landed its troops on the Normandy beaches, coming to the defence of its allies

            The first is true and the second one is not.

            Yes, your bullshit is tiresome.

            Reply to Comment
          • Bryan

            My point is simply that context is all important, as you would appreciate if you had any understanding of history. Pedro’s point was that the Israeli conquest (and subsequent retention) of the West Bank id entirely justified by the “fact” that Jordan attacked Israel. The context of that attack is entirely relevant. On the 5th June 1967 Israel attacked Egypt – do you deny that? On the 30th May 1967 Jordan had signed a mutual defence treaty with Egypt – do you deny that? King Hussein was led to make that treaty by major threats that Israel posed to Jordan, for instance the diversion of waters of the River Jordan to irrigate the Negeb and the major attack initiated by Israel on the West Bank village of Samu and the Jordanian army in November 1966 – do you deny that? All the evidence is that Jordan was reluctant to participate in the fighting – do you deny that? To portray Jordan as the aggressor in the 1967 War (as Pedro did) is almost as absurd as portraying the USA as an aggressor in the Second World War – do you deny that?

            Reply to Comment
    6. RickyS

      As the authors themselves point out, it was the Arabs that prevented the establishment of a Palestinian State in 1948. The only thing even similar to a “Palestinian Entity” at the time was the “Arab Higher Committee”, which was lead by the Nazi war criminal, Haj Amin al-Husseini. And nobody was going to give him anything.

      Reply to Comment