Why is this occupation different from all other occupations?

The EU insists that Turks in Cyprus and Moroccans in Western Sahara ‘cannot be compared’ to Israelis in the West Bank. Two legal scholars are fighting a losing battle to find out why

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Top EU officials dealing with Israelis and Palestinians. From left to right: Hugues Mingarelli, Christian Berger,  Catherine Ashton and Filippo Grandi (photo credit: European Union)
Top EU officials dealing with Israelis and Palestinians. From left to right: Hugues Mingarelli, Christian Berger, Catherine Ashton and Filippo Grandi (photo credit: European Union)

Many Israelis have long felt that the European Union is biased against them. Two legal scholars — a former Israeli ambassador and an American Jewish international law professor — think they’ve found the perfect case to prove the claim: A new fishing deal, signed between the Europeans and Morocco, which applies beyond Morocco’s internationally recognized borders, taking in the territory of Western Sahara, even though Morocco invaded that area in 1975 and has occupied it ever since.

The two scholars are now challenging EU foreign policy chief Catherine Ashton to explain why the agreement, in not excluding Morocco’s occupied territory, doesn’t prove that the EU is holding Israel to a double standard.

The EU insists that any agreement it signs with Israel explicitly exclude the settlements in the “occupied” West Bank, the scholars noted in a letter sent last month to Ashton’s Brussels office. So why don’t the same constraints apply in the case of Morocco? This blatant inconsistency shows “an official double-standard practiced by the EU,” Professor Eugene Kontorovich of Northwestern University and Israeli ex-ambassador to Canada Alan Baker charged.

Last week, the EU responded to the letter, saying, essentially, that Israel’s occupation is different, but without detailing how and why. 

The EU maintains that Israel’s presence in the West Bank and East Jerusalem is unique, legally speaking, but consistently refuses to explain exactly how it differs from, say, Turkey’s occupation of Northern Cyprus or that Moroccan presence in Western Sahara; while Rabat asserts ownership of the territory, not a single other country recognizes the claim.

In their letter to Ashton, sent on behalf of the Legal Forum for Israel, the two scholars posited that the EU-Morocco Fisheries Partnership Agreement, approved earlier this month by the European Parliament, appears “to directly contradict what the EU has called obligations of international law in its dealing with Israel.”

“In fact, the EU has been negotiating this agreement with Morocco even as it imposes on Israel unprecedented funding guidelines and rules of origin requirements that say the exact opposite,” Kontorovich and Baker wrote, referring to much-discussed guidelines that, from January 1, ban any European funding from going to Israeli entities beyond the Green Line or those with any connections beyond the Green Line. Jerusalem’s fierce opposition to those guidelines famously jeopardized Israel’s participation in Horizon 2020, a highly lucrative scientific cooperation program; the Horizon partnership was ultimately saved.

‘Whatever they have identified in their ‘analysis,’ they’re obviously not very proud of it. Had it been substantial, they wouldn’t hesitate to give more detail’

The EU’s response, authored on Ashton’s behalf by the managing director of the union’s external action service’s Middle East and Southern Neighborhood department, Hugues Mingarelli, read: “With regards to the allegation of using double standards for Israel and Morocco, our analysis is that the two cases are different and cannot be compared.” No further explanation was given.

“Whatever they have identified in their ‘analysis,’ they’re obviously not very proud of it. Had it been substantial, they would have surely not hesitated to provide more detail,” Kontorovich told The Times of Israel this week.

EU foreign policy chief Catherine Ashton and PA President Mahmoud Abbas in Ramallah, June 2013 (photo credit: European Union)
EU foreign policy chief Catherine Ashton and PA President Mahmoud Abbas in Ramallah, June 2013 (photo credit: European Union)

“The terseness of Ashton’s statement reflects the general moral superiority of EU officials toward Israel that I’ve encountered in my attempts to discuss these issues with them,” he added. “The attitude is that they are the judges, we are the suspect. How dare we accuse or judge them? As one senior EU official said when I brought these matters up with him, ‘We’re here to talk about you [Israel], not us.’ That is why they do not need to give their reasons: They do not have to explain themselves. We do.”

The EU delegation in Israel declined to formally comment on the matter for this article. Privately, local EU sources told The Times of Israel that, according to the United Nations, Western Sahara is a “disputed non-self-governing territory under de-facto Moroccan administration. This differs from the legal situation applying to the West Bank and Gaza Strip.”

Every situation is different from every other situation, Kontorovich allowed. “The question is whether there are legally relevant differences.”

According to his analysis of international law as it applies to belligerent occupations, Kontorovich said, Israel’s claim to the West Bank is actually stronger than that of many other countries ruling over conquered territory, mostly for historical reasons. Furthermore, he said, the case of Western Sahara is actually quite similar to that of the West Bank, because in both cases no sovereign state existed in the disputed territory before it was occupied.

Mingarelli’s response constitutes the first EU admission to the effect that it treats Israel differently, Kontorovich asserted. “However,” he added, “they are entirely silent about the ‘differences’ revealed by their ‘analysis.’ Of course, our position is that the EU does indeed treat Israel like a different case — but not based on any recognized or legitimate criteria. Thus far they have more confirmed this than denied it.”

Alan Baker (photo credit: courtesy ambassadoralanbaker.com)
Alan Baker (photo credit: courtesy ambassadoralanbaker.com)

Kontorovich, currently a visiting professor at the Hebrew University in Jerusalem, said the EU’s legal positions, on which it bases its West Bank funding guidelines and other Middle East policies, are rooted in an interpretation of the Geneva Conventions, which render Israel’s settlement activity “illegal under international law” and a war crime.

Article 49, paragraph 6, of the Fourth Geneva Convention states that an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” Violations of the convention are considered war crimes under international law. Israel is a party to the convention and therefore bound by it.

“The EU’s basic argument is that Israel’s presence in the West Bank is an occupation under the terms of the Fourth Geneva Convention, and it draws many consequences from this interpretation of international law. But under the Geneva Conventions, there are no multiple flavors of occupation,” Kontorovich argued. “So how is the occupation of the West Bank different from any other occupation?”

The legal scholar said his research has revealed that no other country has ever been accused, on an international level, of violating Geneva Convention 49:6. “The UN has condemned Morocco [for occupying Western Sahara], but never said the country commits a war crime” by moving some of its population there. According to Kontorovich and Baker — who in addition to serving as a diplomat used to be a legal adviser to Israel’s Foreign Ministry — Rabat, after the 1975 invasion, pursued “an aggressive settlement policy, as a result of which settlers may now be the majority in the territory.”

The exact legal status of Western Sahara is the subject of much scholarly debate; some consider Morocco merely a “de-facto administrative power,” while others see it as a full-fledged occupier. The EU does not consider Western Sahara to be occupied, and Israel has no formal policy on the matter. 

Law professor Eugene Kontorovich (photo credit: courtesy)
Law professor Eugene Kontorovich (photo credit: courtesy)

Another situation that is often compared to the West Bank is that of Northern Cyprus, which the EU does see as being occupied by Turkey. And yet, Kontorovich said, the body supports Turkish “settlers” of that territory.

“The EU knowingly and purposefully gives direct grants, funding, etc. to Turkish-occupied Northern Cyprus,” according to a paper Kontorovich co-authored in October. “The EU’s official policy is that Turkey must end its occupation, and the Turkish invasion was condemned by every international institution from the Security Council on down. Nonetheless, the EU maintains an entire program to direct funds to Turks in Northern Cyprus.”

It would be one thing for the EU to say that Israelis shouldn’t build settlements in the West Bank, for whatever reason, but the moment the union claims its position is anchored in international law, the body needs to answer questions about how Israel’s occupation differs from that of other countries, Kontorovich said. The EU’s position to bar any tax dollars from benefiting Israeli institutions based beyond the Green Line aims “to ensure the respect of EU positions and commitments in conformity with international law,” according to the settlement funding guidelines.

Claims of a European double standard are common currency in Israel’s political establishment, especially on the right. “The EU should also ask itself whether Israel is receiving equal and fair treatment like all other states,” Deputy Foreign Minister Ze’ev Elkin (Likud) said in November, in the presence of the EU’s ambassador in Tel Aviv, Lars Faaborg-Andersen, at a Knesset session dedicated to European-Israeli relations. There is a “lack of equality given to the conflict here compared with other conflicts in the world,” Elkin lamented. The EU “allows itself to invest in Cyprus, a region of conflict, but asks us not to invest any money in Judea and Samaria.”

But last month, Faaborg-Andersen told The Times of Israel that while criticism of a double standard has never come up in his discussions with Israeli officials, if it did he would reject it by pointing to the uniqueness of the Israeli-Palestinian conflict. Northern Cyprus, for instance, cannot be compared to the West Bank since it is a “totally different situation,” he said.

EU Ambassador to Israel Lars Faaborg-Andersen (photo credit: Yossi Zwecker)
EU Ambassador to Israel Lars Faaborg-Andersen (photo credit: Yossi Zwecker)

“There is no legal parallel to the situation of the occupied territories and any other situation, be it Northern Cyprus or Western Sahara,” he went on. “The only parallel that exists, according to the lawyers in Brussels, is the Nagorno-Karabakh conflict,” he added, referring to a region at the heart of a territorial feud between Armenia and Azerbaijan. The EU recently concluded an agreement with Armenia, which occupies Nagorno-Karabakh, and made sure to specify that the disputed enclave was excluded, he noted.

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