Deconstructing the EU Mission Report on East Jerusalem
EU Policy on East Jerusalem
Settlements
Israel’s Wall
Demolition of Palestinian Homes
ID Cards and Residency Status
Municipality Policies
Humanitarian and Political Consequences
Recommendations
A damning report which exposes the extent of Israel’s illegal and discriminatory policies and practices in occupied East Jerusalem was shelved by European Union foreign ministers at a meeting in Brussels on 12 December 2005.
British Foreign Secretary Jack Straw said the document, which was very critical of Israel “would not be endorsed or published”, as had originally been planned.
He said the reason for this was because the political landscape had changed in Israel with new elections forthcoming.
In late November 2005, advance copies of the report were leaked to the Guardian and the New York Times.
Although the report which is entitled “Jerusalem and Ramallah Heads of Mission Report on East Jerusalem” was commissioned by the EU, it was written by a political officer in the British consulate in East Jerusalem.
At the time of the reports publication, the United Kingdom headed the European Council and was responsible for formulating EU policy (it rotates among member states every six months).
The version of the suppressed document that was leaked to the press has been described as unusually frank and insightful. The paper itself is concise and informative. It is split into several sections on the question of settlements, the wall, demolitions of Palestinian homes, ID cards and residency status, municipality policies and the humanitarian and political consequences of Israel’s actions in East Jerusalem.
It concludes with a list of recommendations for the EU to consider at the political and operational level.
EU Policy on East Jerusalem
European policy on Jerusalem is based on resolutions 242 and 338 adopted by a unanimous Security Council in 1967 and 1973. These binding resolutions call for a “withdraw of Israel armed forces from territories occupied in the recent conflict”.
In June 1967, Israel invaded its Arab neighbours and captured East Jerusalem. Israel’s status there is that of an occupying power. Israel annexed the city de jure in 1980, an act condemned by the UN Security Council “as null and void”. The laws of belligerent occupation prohibit Israel from making permanent changes to the city.
This has not, however, stopped Israel from building vast Jewish-only settlements on occupied Palestinian land - particularly in Arab East Jerusalem - in an attempt to tilt the Jewish-Arab demographics in that city and the surrounding area in its favour.
The EU along with the rest of the international community has never recognized Israel’s annexation of East Jerusalem.
This is because it is contrary to the prohibition on the acquisition of territory by forcible means contained in Article 2 (4) of the UN Charter.
According to Definition of Aggression adopted on 14 December 1974 by the UN General Assembly in resolution 3314 (XXIX), any annexation by the use of force qualifies as an act of aggression. The prohibition of aggression is regarded as a peremptory norm of international law (jus cogens) for the purposes of state responsibility.
At conferences held in 1999 and 2001, the High Contracting Parties to the Fourth Geneva Convention reaffirmed its applicability to the occupied Palestinian territories, including East Jerusalem.
Article 1 of the Convention provides:
“The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances” [emphasis added]. Each party has standing to protest against violations of the Convention and to demand their immediate cessation, even if they are not directly concerned.
In a resolution adopted in 1990 the Security Council called on states parties to Geneva Convention IV to ensure respect by Israel for its obligations in line with Article 1.
The EU voted in favour of the General Assembly resolution endorsing the 9 July 2004 advisory opinion by the International Court of Justice. The UN’s principal judicial organ unanimously held that Israel’s wall violates international humanitarian and human rights law and interferes with the Palestinian people’s right of self-determination since roughly 80% of the structure passes through the West Bank, in and around East Jerusalem.
According to the Organization for the Coordination of Humanitarian Affairs (OCHA) the wall will extend to a length of approximately 670km, more than twice the length of the 1949 West Bank armistice line (315km).
In the section set aside for the planned expansion of the Ma’ale Adumim settlement bloc adjacent to East Jerusalem, the wall’s route will extend into the West Bank by 14km or 45% of its width.
Settlements
The report notes that Israel is “increasing settlement activity in three east-facing horseshoe shaped bands in and around East Jerusalem, linked by new roads” [emphasis added]. It adds that settlement activity and construction is “contrary to Israel’s obligations under international law and the Roadmap”.
Israel’s E-1 plan and the enormous Ma’aleh Adumim settlement bloc “would complete the encircling of East Jerusalem and cut the West Bank into two parts, and further restrict access [for Palestinians] into and out of Jerusalem”. The report observes that this is likely to have detrimental economic consequences since:
“…, the viability of a Palestinian state depends to a great extent on the preservation of organic links between East-Jerusalem, Ramallah and Bethlehem” [sic].
It has been estimated that the overall plan for Ma’aleh Adumim, including E-1, covers an area of at least 53 square kilometres (larger than Tel Aviv) stretching from Jerusalem to Jericho (i.e. entirely situated in the West Bank). Within East Jerusalem itself settlement building “continues at a rapid pace”. Interestingly, the report points out that:
“The EU, along with most of the rest of the international community, does not recognise Israel’s unilateral annexation of East Jerusalem and regards the East Jerusalem ‘neighbourhoods’ as illegal settlements like any others – but this does not deter Israel from expanding them. Some of these settlements are now expanding beyond even the Israeli-defined municipal boundary of Jerusalem, further into the West Bank. The Jerusalem municipality has also been active around Rachel’s Tomb, [i.e. near Bethlehem] outside the municipal boundaries” [emphasis added].
The EU is made up of its constituent states which are all signatories to Geneva Convention IV. They are therefore obliged to ensure respect for the Convention in all circumstances.
The EU has a mandate by virtue of Article 2 of its association agreement with Israel to suspend its terms of preferential trade with that country for human rights violations.
The preamble to that agreement draws attention to the importance which the parties attach to the principles of the UN Charter.
The findings of the EU Mission report on the illegality of Israeli policies in East Jerusalem corroborate those of a number of UN bodies and non-governmental organizations leaving little room to doubt that Israel is in material breach of this agreement.
It is noteworthy that Israel is not only breaching international and European law; it is also breaching its own domestic laws by building settlements beyond its municipal boundaries on private Palestinian land.
In March 2005, Talia Sasson, a former Israeli Chief State Prosecutor found the Israeli government guilty of systematic fraud, “institutional lawbreaking” and the theft of private Palestinian land to covertly establish illegal Jewish settlements in the West Bank. Sasson recommended that those responsible be prosecuted.
The prosecution of those who aid and abet Israeli settlement activity in occupied territory is an entirely responsible proposition.
Article 146 of Geneva Convention IV provides that each High Contracting Party is under an obligation to search for persons alleged to have committed, or to have ordered to be committed grave breaches of the Conventions.
Each state signatory is obliged to bring such persons, regardless of their nationality, before its law courts to be prosecuted for violations of the laws of war.
Additional Protocol 1 to the Geneva Conventions extended the definition of grave breaches to include: “The transfer by the occupying power of parts of its own civilian population into the territory it occupies”.
Although Israel is not a signatory to the additional protocol, it would seem that the prohibition on population transfers has reached a level of customary international law.
The Statute of the International Criminal Courts defines such acts as crimes against humanity and the ICJ considers that rules of international humanitarian law (which include the prohibition on population transfers) as incorporating obligations which “are essentially of an erga omnes character”.
Israel’s Wall
After noting that Israel has largely ignored the ICJ’s advisory opinion (including those provisions of international law which are legally binding) the report notes that the “revised” route of the wall “seals off most of East Jerusalem with its 230,000 Palestinian residents, from the West Bank”.
In other words it divides Palestinians from Palestinians, rather than Palestinians from Israelis.
Most interestingly, the report says that:
“The Barrier is not only motivated by security concerns. On 21 June 2005, the Israeli High Court ruled that it was legal to take into account political considerations, in addition to security considerations, for the routing of the barrier in East Jerusalem because East Jerusalem had been Israeli territory since its annexation in 1967” [emphasis added].
The Supreme Court thus clarified its earlier ruling in the Beit Sourik Village Council case where it found that the military commander could not construct the wall in the West Bank if his reasons are political.
The Supreme Court therefore draws a distinction between East Jerusalem which it considers part of Israel under its municipal law and the West Bank and Gaza which it does not consider as belonging to it.
However, it should be stressed that this finding of law is at complete odds with international law. Even in a war of self-defence the acquisition and annexation of territory by forcible means is illegitimate.
The report then goes on to question the sincerity of Israel’s claim that the wall is only a “temporary” structure when it is costing Israel 800,000 euros per kilometre to build:
“On 10 July the Israeli Cabinet decided to route the Jerusalem barrier so as to keep around 55,000 East Jerusalemite Palestinians, mainly in the Shu’afat refugee camp, outside the barrier. The fact that the cabinet decision not only included short-term but also long-term measures designed to accommodate the new situation created by the Barrier – e.g. constructing new education institutions and encouraging hospitals to open braches ‘beyond the fence’ - appears to contradict the notion of the Barrier as being a temporary rather than a permanent structure” [emphasis added].
As a result of the re-routing of the barrier around Jerusalem, Israel will get an extra 164 square kilometres of West Bank (i.e. Palestinian land).
The report notes that combined with settlement activity this “de-facto annexation” of Palestinian land will be “irreversible” without very large scale forced evacuation of settlers and a re-routing of the wall.
It will also block the vital Bethlehem-Ramallah route for Palestinians, forcing them to travel via tunnels or through Jericho (which is near the Dead Sea).
On 19 October, Reuters reported Israeli security sources revealing a plan to permanently ban Palestinians from using major roads in the West Bank.
According to the Israeli human rights organization B’Tselem, Israel’s road regime in the West Bank “bears striking similarities to the racist apartheid regime that existed in South Africa until 1994” where the right of every person to travel in the West Bank is based on his or her national origin (See Forbidden Roads: The Discriminatory West Bank Road Regime on their website).
In other words, Israel already operates a covertly racist road system in the West Bank. Now it seems that Israel is contemplating introducing an overtly racist road system.
Demolition of Palestinian Homes
In 2004, Israel demolished at least 152 buildings, mostly in residential areas in East Jerusalem. The report notes that this is a sharp increase over previous years (66 in 2003, 36 in 2002, 32 in 2001 and 9 in 2000).
In May 2005, media scrutiny and international pressure convinced the Israeli authorities to put on hold the demolitions of 88 Palestinian homes in the Silwan area of East Jerusalem (which is located near the ancient city of David, a site revered by Jewish fundamentalist settlers).
The Israeli Committee against House Demolitions (ICAHD) says that Israel has so far demolished 52 buildings (including a seven-storey building and eight petrol stations) in East Jerusalem this year. According to the report these house demolitions are likely to increase:
“The municipality’s budget for house demolitions (approved late, in March) stands at NIS 4m (approximately 800k Euros), a figure slightly higher than last year. Our contacts estimate that this will allow the municipality to demolish 150-170 buildings”.
The EU Missions are thus able to predict future Israeli behaviour. They are perfectly well informed of Israeli policy in East Jerusalem and elsewhere. Once could go so far as to say that they are in fact complicit in what is happening.
More must be done by European countries to ensure compliance by Israel with Geneva Convention IV. Resorting to the “usual methods” does not seem to be working. As the report notes:
“House demolitions are illegal under international law …, serve no obvious security purpose (but rather relate to settlement expansion), have a catastrophic humanitarian effect, and fuel bitterness and extremism”.
ID Cards and Residency Status
Israel operates a permit system in East Jerusalem that distinguishes East Jerusalemites (blue Israeli ID cards) from Palestinians in Israel (who have Israeli citizenship) and those in the West Bank and Gaza (who have orange ID cards). Blue ID cards give Palestinians the “right” to live in East Jerusalem but not to vote in Israeli national elections or take an Israeli passport.
As the report notes: “The renewal of these Blue ID cards is a lengthy, cumbersome and at times humiliating process”.
Between 1996-1999 Israel implemented a “centre of life policy” which meant those with blue ID cards found living and working outside East Jerusalem lost their ID. Recently, Israel announced that it plans to introduce biometric, machine-readable ID cards enabling Israel to check if blue ID cardholders really do live and work in the city, and if not, to expel them.
The report highlights that Israel’s main motivation in doing this:
“… is almost certainly demographic – to reduce the Palestinian population of Jerusalem, while exerting efforts to boost the number of Jewish Israelis living in the city – East and West. The Jerusalem master plan has an explicit goal to keep the proportion of Palestinian Jerusalemites at no more than 30% of the total”.
Municipality Policies
After pointing out that the Jerusalem municipality is responsible for the majority of house demolitions carried out in East Jerusalem, the report cites ICAHD’s findings that “while Palestinians contribute 33% of the municipality’s taxes, in return it spends only 8% of its budget in Palestinian areas”. The report then notes that whilst “exact figures are hard to assess … discrimination in expenditure is obvious.
Palestinians areas of the city are characterised by poor roads, little or no street cleaning, and an absence of well-maintained public spaces, in sharp contrast to areas where Israelis live (in both West Jerusalem and East Jerusalem settlements)”.
Humanitarian and Political Consequences
By cutting the link between East Jerusalem and the West Bank Israel is harming the Palestinian economy and weakening the social fabric of Palestinian life.
Christian and Muslim Palestinians living east of the wall already have restricted access to their holy sites, which as the ICJ noted in its advisory opinion on the wall, violate international agreements dating back to the Ottoman Empire.
As described in the report:
“West Bankers are finding it increasingly difficult to get to Haram al Sharif/Temple Mount compound – because of the wider system of permits to enter Jerusalem, and the barrier. No males under 45 are allowed onto the compound. The Director of the Awqaf, which controls the mosques, has complained particularly about increasing Israeli measures to dominate and control the compound. Police have been regularly patrolling the compound for a year. The Israelis say this is to ensure good settler behaviour, but the effect is that it intimidates worshippers. The Israelis have also introduced new measures over the past few weeks – cameras have been placed at every gate, outside the Haram but pointing in” [emphasis added].
The report goes on to state the obvious, that “prospects for a two-state solution with east Jerusalem as the capital of Palestine are receding”.
Recommendations
What is immediately striking about the report’s list of recommendations at the political and operation level is the absence of a direct call for a suspension of the EU-Israel association agreement on the basis of a material breach of the human rights clause in Article 2. The report does, however, recommend that:
“The EU might consider and assess the implications and feasibility of excluding East Jerusalem from certain EU/Israel cooperation agreements”.
This seems to be an admission that the EU does not currently exclude East Jerusalem from EU-Israel cooperation agreements, which is startling.
East Jerusalem is not sovereign Israeli territory. It is subject to a regime of belligerent occupation. The EU does not recognise Israel’s annexation of that city. Nor does it base its embassies there. So why is that city benefiting from EU-Israel (as opposed to EU-PLO) cooperation agreements?
In its advisory opinion, which was adopted by the General Assembly with the support of European states (who are also members of the UN), the ICJ held that all states are:
(i) Not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;
(ii) Not to render aid or assistance in maintaining the situation brought about by such construction;
(iii) To see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end (while respecting the UN Charter and international law); and
(iv) To ensure Israel’s compliance with international humanitarian law as embodied in the Geneva Convention IV.
As the report itself notes, the EU is so far failing to have any meaningful influence with the Israelis (and assisting Israeli soldiers monitor Palestinians at the Rafah crossing between Gaza and Egypt is not much to boast about). Real political change does not come about easily. It entails sacrifice. Appeasing current and future Israeli regimes while they continue to colonize and expropriate Palestinian property will not lead to a meaningful peace process between Israelis and Palestinians now, or in the long run.
For further reading:
See Victor Kattan “The EU’s pivotal role in Middle East Peace” published by the Review of International Social Questions (RISQ).
See the EU Mission Report on East Jerusalem at ICAHD’s website.