Centre for
European
Policy
Studies
CEPS Working Document
No. 217/January 2005
The Widening Gap between Rhetoric
and Reality in EU Policy towards the
Israeli-Palestinian Conflict
Thinking ahead for Europe
Nathalie Tocci
Abstract
Over the decades, the EU’s declaratory diplomacy towards the Israeli-Palestinian conflict crystallised in
its support for a two-state solution and the respect for human rights and international law. Yet a closer
look at the EU’s relations with Israel and the Palestinian Authority highlights an increasing divergence
between rhetorical goals and conduct in practice. This working paper shows how the nature of the EU’s
credibility problem in the Middle East stems neither from inadequate instruments nor from its internal
divisions. Rather, it derives from the manner in which the Union has chosen to deploy the instruments at
its disposal. The paper then turns to possible ways ahead to achieve greater consistency and credibility in
the EU’s role in the region.
Nathalie Tocci is a Research Fellow at the European University Institute in Florence and at the Centre for
European Policy Studies (CEPS) in Brussels. She would like to thank David Ashton, Benoit Challand, Pinhas
Ish-Shalom, Melinda Robson and Alfred Tovias for their useful comments on earlier versions of this paper.
The paper was prepared within the framework of the CEPS’ Stratagen programme (see inside back cover), for
which support by the Open Society Institute and the Compagnia di San Paolo is gratefully acknowledged.
CEPS Working Documents are published to give an indication of the work within various research programmes at
CEPS and to stimulate reactions from other experts in the field. Unless otherwise indicated, the views expressed are
attributable only to the author in a personal capacity and not to any institution with which she is associated.
ISBN 92-9079-545-X
Available for free downloading from the CEPS website (http://www.ceps.be)
© Copyright 2005, Nathalie Tocci
Contents
The Rhetoric: EU Goals in the Israeli-Palestinian Conflict .............................................................. 1
The Two-State Solution ..................................................................................................................... 1
Human Rights, Democracy and International Law ............................................................................ 2
The Instruments: Pursuing EU Aims and Interests ........................................................................... 4
Diplomatic Instruments ...................................................................................................................... 4
Contractual Relations ......................................................................................................................... 4
Bilateral Relations with Israel....................................................................................................... 5
Bilateral Relations with the Palestinians....................................................................................... 7
The Evolution of the Conflict Since 2000 ............................................................................................ 7
The Violation of Human Rights and Humanitarian Law ................................................................... 8
Pre-empting a Viable-Two State Solution ......................................................................................... 9
The Deployment of EU Instruments in Practice............................................................................... 13
EU Diplomacy: The Quartet, the Barcelona Process and the Special Envoy .................................. 13
Palestinian State-Building and Reform: Aid, Trade and the Limits of Conditionality .................... 14
EU-Israel Relations: Firm in Rhetoric, Compromising in Practice.................................................. 18
Policy Avenues in the Period Ahead .................................................................................................. 24
Revising EU Goals? ......................................................................................................................... 24
Seeking Greater Consistency in the Deployment of EU Instruments .............................................. 25
EU-Palestinian Relations ............................................................................................................ 25
EU-Israel Relations ..................................................................................................................... 27
References ............................................................................................................................................ 30
Annex 1: Israel’s Barrier/Wall........................................................................................................... 31
Annex 2: Israel’s Disengagement Plan .............................................................................................. 32
THE WIDENING GAP BETWEEN RHETORIC AND
REALITY IN EU POLICY TOWARDS
THE ISRAELI-PALESTINIAN CONFLICT
CEPS WORKING DOCUMENT NO. 217/JANUARY 2005
NATHALIE TOCCI
T
he EU’s declaratory diplomacy towards the Israeli-Palestinian conflict has evolved consistently
since the early days of European Political Cooperation (EPC). Over time, it has crystallised into
a well-defined position. On the one hand, the Union has supported the rights of both Israelis
and Palestinians to security and self-determination. On the other hand, it has clearly and repeatedly
condemned all violations of human rights and international law, viewed as an impediment to a just
peace in the region.
To pursue these goals, the Union has deployed an important array of policy instruments, ranging from
diplomatic resources, to aid, trade and cooperation measures, articulated through the EU’s contractual
ties with the parties. Most recently, the EU has held out the promise of enhanced relations through the
European Neighbourhood Policy (ENP).
However, a closer look at the EU’s relations with Israel and Palestine highlights an increasing
divergence between rhetorical goals and actual conduct. The spiralling situation on the ground,
particularly since the eruption of the second intifada, could have been neither halted nor substantially
ameliorated by the EU alone. But the focus of this article is not on the EU’s overall influence on the
conflict, reiterating the oft-heard arguments about the weakness of EU foreign policy instruments. The
argument below shows how the nature of the EU’s credibility problem in the Middle East stems
neither from inadequate instruments nor from its internal divisions, but rather derives from the manner
in which EU actors collectively have chosen to deploy the instruments at their disposal. The objective
of this paper is that of exploring how these instruments have been used and pointing to possible ways
ahead.
The Rhetoric: EU Goals in the Israeli-Palestinian Conflict
The Middle East has always been a principal area of European concern. It was one of the two subjects
dealt with at the first EPC meeting in November 1970. Since the October 1973 war, member state
positions have increasingly converged. Common positions have been based on two interconnected
pillars, which crystallised over the decades into a relatively well-defined view of the conflict and its
resolution.
The Two-State Solution
The first pillar of the EU’s goals has been the need to respect the collective rights of the Israeli and
Palestinian peoples. The EC/EU has historically recognised Israel’s right to statehood, living in peace
with its neighbours within secure and internationally recognised borders. The European position
towards the Palestinians instead has been defined progressively over the decades. In 1973, without
adding any specification, the nine member states affirmed their support for the ‘legitimate rights of the
Palestinians’.1 By 1977, the definition of these legitimate rights acquired an explicit collective and
territorial character, as the member states acknowledged the ‘national identity’ of the Palestinians,
1
Statement of the Nine Foreign Ministers on the Situation in the Middle East, Brussels, 6 November 1973.
|1
2 | NATHALIE TOCCI
deserving ‘a homeland’.2 Greater clarity came in 1980, when the Venice Declaration declared its
support for the Palestinian right to self-determination.3 In the years that followed, European positions
crystallised on the Venice Declaration.
In the 1990s, in view of the Oslo Process, member states refrained from specifying further what a
solution should entail. They rather limited themselves to supporting the peace process and the
emerging Palestinian Authority. It was only with the deterioration of the process in 1997-98 that the
Union resumed its statements on the desirable end point. Initially, the European Council did not
venture beyond suggesting that a solution should not exclude the option of a Palestinian state.4 The
1999 European Council in Berlin went a qualitative step further, stating that ‘the EU is convinced that
the creation of a democratic, viable and peaceful sovereign Palestinian state…would be the best
guarantee of Israel’s security’.5
With the dramatic collapse of the Oslo Process, the resumption of violence and the end of
negotiations, the Union felt emboldened to articulate further its vision for a peaceful Middle East. This
entailed the creation of two states, Israel and Palestine, living in peace and security within
internationally recognised borders.6 The state of Palestine would be viable, independent, sovereign,
peaceful and democratic, and it would entail the end of Israel’s occupation.7 It would be established
along the 1967 borders, with minor adjustments agreed by the parties.8 The means to achieve a twostate solution would be through negotiations.9 In line with these views, EU statements have supported
various Israeli-Palestinian track-two initiatives, and most notably the 2003 Geneva Accords.10
Human Rights, Democracy and International Law
The second pillar of EU goals has been the importance of respecting human rights and international
humanitarian law (IHL). The majority of European declarations on the Middle East conflict since the
1970s have condemned Palestinian violence and terrorism pointing to the violations of rights and law
that such acts entailed. Since 1973, member states have repeatedly condemned the acquisition of
territory by force and have called on Israel to end the occupation of the territories it conquered in
1967.11 In 1979, the member states made their first joint pronouncements condemning Israeli
settlements in the occupied territories (OTs).12 The 1980 Venice Declaration went further, specifying
that settlements are not only a “serious obstacle to peace”, but that any modification in population and
property in the OTs is illegal under international law.13 The 1989 European Council elaborated on this,
expressly stating that the 4th Geneva Convention is applicable to the OTs.14 The 1990 European
2
Statement by the European Council on the Middle East, London, 29 June 1977.
Declaration by the European Council on the Situation in the Middle East, Venice, 12-13 June 1980, point 7.
4
European Council in Amsterdam on 16 June 1997, Annex: EU Call for Peace in the Middle East; European
Union Council in Cardiff on 15-16 June 1998, Presidency Conclusions (SN 150/1/98), point 84.
5
Conclusions of the European Council in Berlin, 24-25 March 1999.
6
European Council in Laeken on the 14-15 December 2001, Declaration on the Situation in the Middle East.
7
The European Council, Presidency Conclusions, Seville, 25 June 2002.
8
Council of the EU (2003), Declaration of the EU for the Fourth Meeting of the EU-Israel Association Council,
Brussels, 17-18 November 2003, point 4.
9
The European Council in Seville 25 June 2002, Presidency Conclusions; European Council in Brussels on the
25-26 March 2004, Presidency Conclusions, 9048/04, point 54.
10
Statement of the Presidency on behalf of the EU (2003), Initiatives by the Israeli and Palestinian Civil
Societies, Brussels, 2 December 2003, 15584/03, Presse 358.
11
Statement of the Nine Foreign Ministers on the Situation in the Middle East, Brussels, 6 November 1973.
12
Statement by the Nine Foreign Ministers on the Egyptian-Israeli Peace Treaty, Paris, 26 March 1979.
13
Declaration by the European Council on the Situation in the Middle East, Venice, 12-3 June 1980, point 9.
14
Declaration of the European Council on the Middle East, Madrid, 26-27 June 1989.
3
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 3
Council in Dublin reiterated its call on Israel to adhere to the Geneva Conventions and acknowledged
the member states’ own legal obligations under those Conventions by calling for their ‘further action’
to ensure the protection of the human rights of the population under occupation.15
Also in this case, the Oslo years were marked by relative silence in EU criticisms and condemnations.
Despite ongoing human rights and humanitarian law violations and the additional Palestinian
shortcomings in the fields of democracy and good governance, the peace process and the imperative
not to upset it were viewed as sufficient reason to refrain from any accusation towards the parties.
Unsurprisingly, condemnations resurfaced following the collapse of the process. The Union intensified
its calls to halt and reverse settlement construction, and condemned the whole array of human rights
and humanitarian law violations, ranging from Palestinian suicide bombings, to Israeli incursions,
extra-judicial killings and forms of collective punishment.16 It repeatedly affirmed that Israeli security
and Palestinian self-determination should be pursued only within the confines of international law.17
Since 2002, EU actors also began speaking out against Israel’s barrier within the OTs. The Union,
repeatedly declared that, like settlements, the barrier both hinders peace and is illegal under
international law. Its illegality stems from its confiscation of land and property, its hindrance to free
movement and its deprivation of essential services to the civilian Palestinian population.18
Finally since the late 1990s, an area that has received increasing European attention has been that of
democracy and good governance within the Palestinian Authority (PA). Beyond their support for a
Palestinian state, European policy-makers became increasingly concerned with the nature of that
future state. Since the 1999 Berlin European Council, all EU official statements advocating the
establishment of a Palestinian state added that such a state should be democratic as well as
independent, sovereign, peaceful and viable.19 With the eruption of the intifada and the PA’s inability
or unwillingness to curb violence, the European Council stated that the reform of the PA is “essential”
and would be supported by the Union. In other words, the Union implied that reform was necessary
both to enhance Palestinian democracy and good governance and to secure an end of Palestinian
violence and human rights abuses against Israel.
Hence since 1973, European declaratory diplomacy on the conflict developed consistently and
progressively. By the turn of the century, and in particular since the collapse of the Oslo Process,
common positions stipulated clearly both what the ultimate objective was and what the necessary
means to achieve this were. The aim was that of a two-state solution on the basis of the 1967 borders.
The means were negotiations on the one hand, and the respect for human rights, democracy and
international law on the other. These positions have not only been formulated as an EU vision for the
Middle East. Their attainment has been expressly recognised as forming an integral element of the
15
Declaration of the European Council on the Middle East, Dublin, 25-26 June 1990.
Declaration of the Presidency on behalf of the EU (2001), Israeli settlement activities, 4 April 2001, 7590/01,
Presse 134; General Affairs Council (2001), Draft Declaration of the EU for the Second Meeting of the EUIsrael Association Council, Brussels, 14 November 2001; European Council in Copenhagen on the 12-13
December 2002, Presidency Conclusions; Council of Ministers (2003), Conclusions on the Middle East, 29
September 2003.
17
Council of the EU (2002), Declaration of the EU for the Third Meeting of the EU-Israel Association Council,
Brussels, 15 October 2002, points 4 and 7.
18
European Council in Seville on the 25 June 2002, Presidency Conclusions; European Council in Copenhagen
on the 12-13 December, Declaration on the Middle East; Council of Ministers (2003), Conclusions on the
Middle East, 21 July 2003; Council of Ministers (2003), Conclusions on the Middle East, 29 September 2003;
European Council in Brussels on the 16-17 October 2003, Presidency Conclusions, (15188/03) and Minister
Bernard Bot, speaking on behalf of the Council (2004), The ICJ Advisory Opinion, July 2004.
19
European Council in Berlin on 24-25 March 1999, Presidency Conclusions; see also European Council in
Laeken, 14-15 December 2001, Declaration on the Situation in the Middle East; European Council in Seville on
25 June 2002, Presidency Conclusions.
16
4 | NATHALIE TOCCI
EU’s own security interests. This was made clear in the 2003 EU Security Strategy, in which the
Union articulated for the first time its perceived security aims and interests.20
The Instruments: Pursuing EU Aims and Interests
The Union has deployed key instruments in the Middle East, under two main headings. The first has
been diplomatic, directly linked to the peace process and primarily conducted in the context of the
EU’s second pillar (CFSP). The second has been based on the EU’s bilateral contractual ties to the
parties, and thus indirectly linked to the conflict and articulated in the context of the first Community
pillar.
Diplomatic Instruments
Since 1991, the EU’s diplomatic role in the Middle East has included multilateral, bilateral and
transatlantic dimensions. Following the 1991 Madrid conference, EU multilateral diplomatic
involvement took the form of chairing the Regional Economic Development Working Group and cochairing several other working groups. In 1995, the EU launched the Euro-Mediterranean Partnership
(EMP); a multilateral forum based on the logic of European integration, and intended to foster
structural peace through an ongoing and diffuse process of functional cooperation and dialogue across
the Mediterranean area. In 1996, the EU appointed a Special Envoy to the Peace Process, with the task
of establishing contact with all parties, offering European good offices, and promoting compliance
with interim agreements, as well as with basic norms of democracy, human rights and the rule of law.
Finally, the EU’s diplomatic role has had a transatlantic dimension. Given the US’s prime mediation
role, the EU has attempted to influence the peace process through its transatlantic ties. With the end of
the peace process, deteriorating violence and the relative neglect of the Bush administration compared
to that of its predecessor, the EU’s diplomatic role acquired a more structured role. In April 2002, the
EU, together with the US, Russia and the UN, formed the ‘Quartet’. The Commission has been active
in chairing the Quartet’s Task Force on Palestinian Reform. The Quartet also sponsored the Road
Map, initiated by the EU under the Danish Presidency in 2002.
Contractual Relations
But by far the most significant, albeit under-researched, channel of EU influence on the Middle East
conflict has been through its bilateral contractual relations with Israel and the Palestinians. These
relations have been progressively upgraded since the 1960s. They are in the process of being enhanced
further through the ENP. The concept behind this mode of EU foreign policy is that of achieving
varying degrees of economic, social and legal integration into the EU. When it comes to the Middle
East conflict, the political relevance of these agreements may not be immediately obvious. But the
manner in which EU contractual ties with neighbouring countries have been used has constituted the
core of EU foreign policy. Other than degrees of integration per se, this form of foreign policy is
intended to foster long-run structural change in the political, economic, legal and institutional spheres,
both within and between third countries.21 The deeper the level of integration into EU structures the
greater is the Union’s potential influence on a third country. Influence may be exerted either directly
through political conditionality, or indirectly through diffuse forms of persuasion and socialisation into
the EU’s values and modes of operation.22
20
European Council (2003), A Secure Europe in a Better World: European Security Strategy, Brussels, 12
December 2003.
21
Stephan Keukeleire (2000), The EU as a Diplomatic Actor, University of Leicester, Discussion Paper No. 71.
22
Tanja Borzel and Thomas Risse (2000), “When Europe Hits Home: Europeanisation and Domestic Change”,
European Integration Online Papers, Vol. 4, No. 15 (http://eiop.or.at/eiop/texte/2000-015.htm); and Johan P.
Olsen (2001), The Many Faces of Europeanisation, Arena Working Papers, WP01/2.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 5
The EU’s legal basis for exerting political conditionality on the southern Mediterranean countries lies
in the ‘human rights clause’, now included in all EMP association agreements. The clause contains
two components. The ‘essential elements’ article establishes human rights and democratic principles
as essential elements of the agreements (Article 2). The ‘non-execution’ article calls for ‘appropriate
measures’ which ‘least disturb the functioning’ of the agreements, in the event of their material breach
(Article 79). Under the 1969 Vienna Convention on the Law of Treaties (Article 60.3), a material
breach is a violation of a ‘provision essential to the accomplishment of the object and purpose of the
agreement’.
In principle the violation of the ‘human rights clause’ could justify the suspension of the association
agreements; in other words it could allow for the use of ‘negative conditionality’. However, the legal
conditions justifying negative conditionality are hard to meet. The violation of human rights could
justify a partial or total suspension only if it represented a material breach of the agreements. But the
‘object and purpose’ of the association agreements are not the promotion of human rights and
democracy per se (although these are essential elements of the agreements). It is rather that of
promoting free trade, political dialogue and the dialogue between societies. Hence, only if a breach of
human rights hindered these aims could it motivate negative conditionality.23 In addition, negative
conditionality would have to pass the legal tests of ‘effectiveness’ and ‘proportionality’. Only if
suspension constituted an effective and proportional remedy to a material breach could it be justified
legally. Politically, there are also a plethora of reasons preventing the use of negative conditionality.
The suspension of one association agreement could set a precedent justifying the suspension of all
agreements, given that no country in the Barcelona Process has a glittering democracy and human
rights record. This is an outcome that all member states want to avoid. The Union considers that
maintaining and expanding relations with the Mediterranean is important both politically and
economically. In addition, several member states have particular protégés in the south and are insistent
on expanding their commercial and political ties with them.
In practice, the relevance of the ‘human rights clause’ has been more to engage in soft forms of
‘positive conditionality’. This has been more in line with the EU’s overall foreign policy ethos,
preferring ‘constructive partnership’ based on dialogue, support and encouragement.24 The Union has
argued that positive conditionality is a more effective way to exert influence, not least because it
retains open political channels with third countries. More specifically in the context of the
Mediterranean, this has meant using the ‘human rights clause’ to legitimise discussions on sensitive
political issues in the context of political dialogue and to direct and condition some aid to support
human rights, democracy promotion and regional cooperation.
Bilateral Relations with Israel
The first EC trade agreement with Israel dates back to 1964. In a further preferential agreement in
1970, the Community granted Israel industrial free trade access and substantial tariff cuts of
horticultural exports. In 1975 Israel and the EC ratified a new Cooperation Agreement, which
substantially improved Israeli trade access. In 1995 Israel and the Community signed an Association
Agreement, which entered into force in 2000. The main components of the Agreement are political
dialogue, free trade in industrial products, a gradual liberalisation in agricultural products, freedom of
establishment, the option of liberalisation of services, free movement of capital, the harmonisation of
competition rules and economic, social and cultural cooperation. The Community and Israel have also
signed complementary agreements on procurement, the liberalisation of agriculture, Israel’s inclusion
in EU scientific and technical cooperation and Israel’s inclusion in the European Global Navigation
Satellite System (Galileo).
23
Susan Rockwell and Charles Shamas (2004), “A Human Rights Review of the EU and Israel- 2003-2004”,
EMHRN, Brussels, draft.
24
European Commission, The EU’s Role in Promoting Human Rights and Democratisation in Third Countries,
Communication from the Commission to the Council and the European Parliament, COM(2001)252, final, p. 8.
6 | NATHALIE TOCCI
But how could these extensive ties give the EU political influence on Israel? A first channel is through
diffuse mechanisms of socialisation into European beliefs, values and modes of operation. Israel’s
inclusion in a wide array of EU activities and programmes, its developed trade links with Europe, its
visa-free travel to Europe and the high proportion of Israelis holding EU citizenship could have
cumulative effects on Israeli society, filtering to the highest political levels. These could entail
increasing levels of exposure to and absorption of European values and ‘ways of doing things’.
Assessing the relative effectiveness of channels of ‘socialisation’ is an empirically complex
undertaking.
A second more tangible channel of EU influence concerns the use of political conditionality. The
potential effectiveness of conditionality on any third country depends on a number of variables.25 One
pivotal variable is the value ascribed to relations with the EU by the third country in question. In this
respect, the first evident observation when it comes to Israel concerns its strong economic and political
ties to Europe.
Israel is a small country where exports and imports exceed 80% of GNP. Its openness to international
trade is thus key to its economic survival. The EU is Israel’s largest trading partner. In 2002, the total
value of Israeli trade with the EU amounted to €22bn, with 40% of Israeli imports and 30% of its
exports coming and going to the EU. The political dependence of Israel on Europe is far more
controversial. In recent years, Israelis have frequently referred to the ‘crisis’ in EU-Israel relations.
Israel’s strategic relationship with the US has also overshadowed the murkier political ties with the
EU. However, Israel lives at the EU’s doorstep, it is surrounded by real and perceived enemies and the
US remains on the other side of the Atlantic. As such, beyond the rhetoric, Israel’s political links to
Europe are valued highly, and the desire to find a place to belong to is deeply embedded in Israeli
society. It is in this light that Israeli opinion polls on the question of EU membership should be read.
Abstract as these results may be, the fact that 85% of Israelis would support an application to EU
membership stands as hard evidence of the political ties Israeli society perceives or aspires to when it
comes to Europe.26 As one Commission official put it: ‘Israel is separated from both Europe and the
US by a lake. The lake separating it from the US is very deep, and covered by a smooth layer of thin
ice. The lake separating Israel from Europe is very shallow, and the hard rock lying on its bed is
covered by a thick layer of mud’.27
The EU is also in a process of extending further its already developed ties with Israel, thus enhancing
its potential influence on the country. Together with Israel, discussions are ongoing concerning
whether, how and when to extend the association agreement to allow for the free movement of
services, the freedom of establishment as well as the pan-Euro-Mediterranean cumulation of the rules
of origin. The replacement of the Protocol on Origin to allow for diagonal cumulation would be
particularly beneficial to Israel, that given it would allow Israel both to implement Israeli-Jordanian
and Egyptian cumulation with the EU, and to extend it to the new eastern EU members, with lower
labour costs than in Israel.
Israel is also included in the ENP, an initiative that has been greeted with enthusiasm by Israeli
officials and analysts. The ENP potentially offers two principal advantages to Israel. First, it offers the
scope for greater socio-economic integration into the EU in areas such as free movement of labour,
goods and services, as well as participation in European networks, programmes and agencies. The
second and arguably more important advantage to Israel is political. For the first time since the 1994
Essen European Council, the ENP intends to promote bilateralism and differentiation beyond multilateralism and regional cooperation. The EU-Israel Action Plan indeed expressly states that one of its
25
See Gergana Noutcheva and Nathalie Tocci (2004), “Europeanization and Secessionist Conflicts: Concepts
and Theories”, in Bruno Coppieters, Michael Emerson et al., Europeanization and Conflict Resolution,
Academia Press, Gent, pp.13-62.
26
Poll conducted by the Dahaf Institute of the EC Delegation in Tel Aviv, February 2004, p.8.
27
Remark made at a workshop held at the European University Institute, Florence, October 2004.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 7
aims is that of fulfilling the promise set out in the Essen Declaration.28 Irrespective of the EU’s stated
objectives concerning the complementarity between the ENP and the Barcelona Process, Israel has
viewed the former as the means to escape (de facto rather than de jure) the latter.
Bilateral Relations with the Palestinians
Due to the absence of a state and the humanitarian and economic conditions in the OTs, bilateral
relations with the Palestinians evolved later and with a greater emphasis of aid over trade. In 1986, the
member states allowed preferential trade access to specific Palestinian products. Since 1971,
Community assistance has been channelled to Palestinian refugees through UNRWA (the UN Relief
Works Agency). In 1987, this was complemented by direct assistance to Palestinian civil society. In
the context of the Oslo process, the member states, through a joint action, stepped up their economic
support to the Palestinians, this time directed primarily to the PA, the embryo of a future Palestinian
state. In 1994, a further joint action was undertaken to monitor the first Palestinian elections. In 1997,
in the context of the Barcelona Process, the Community signed an Interim Association Agreement
with the Palestinians, underlying which was the Community’s anticipation of Palestinian statehood.
The aim was to further trade liberalisation and to establish a framework for political dialogue with the
PA. Like Israel, the PA is also included in the ENP.
Sources of EU influence on the Palestinians exist primarily through EU conditionality. Due to the
thinner relationship they enjoy with Europe and the severe restrictions on movement imposed by their
status, the likelihood of socialisation into EU structures and society is low. The prospect of EU
influence through conditionality is much higher. Not only does the Interim Agreement include a
‘human rights clause’ and provisions for political dialogue, but the disbursement of financial
assistance has been made increasingly conditional on Palestinian reform.
The potential for EU influence through conditionality is high because of Palestinian dependence on
Europe. In economic terms, the EU (including member states) represents by far the largest aid donor to
the Palestinians. Community assistance, linked to different budget lines, has risen progressively since
the 1990s. In 1994-98, the EU committed Ecu 400m in grants. It committed a further €600m in 19982002. In view of the intifada, assistance has increased exponentially. The Palestinian humanitarian
crisis and Israel’s withholding of tax revenues to the PA in 2000-03 led to a rise in EU assistance of
over €300m per year in 2000-03, including monthly budgetary support. Without EU aid since 2000,
the PA may well have collapsed.
EU aid to the Palestinian Authority
Total aid €m
Direct budgetary support €m
2000
215
90
2001
144
101
2002
317
97
2003
256
16
Palestinian political dependence on Europe has also been high. Like Israelis, Palestinians frequently
accuse Europe of playing an inadequate political role in the Middle East. However, they would
warmly welcome a stronger European involvement in the conflict. Given their view of the increasingly
one-sided American policy in favour of Israel and their appreciation of the weakness of the Arab
world, Palestinians look to Europe as the international actor that could best support their cause.
The Evolution of the Conflict Since 2000
Before assessing the effectiveness of the EU’s role, let us take a step back to the region and review the
major trends since the collapse of the Oslo Process. Ariel Sharon’s visit to the Haram el-Sharif/Temple
Mount on 28 September 2000, marked the beginning of the second intifada, and with it, the end of the
28
European Commission (2004), “Proposed EU-Israel Action Plan”, Brussels, 9 December, p. 1
(www.europa.eu.int).
8 | NATHALIE TOCCI
peace process. The ensuing cycle of violence has entailed both mounting violations of human rights,
democracy and international law, and a steady reversal from the accomplishment of a viable two-state
solution. As such, the EU’s rhetorical goals have become ever more distant chimeras. All the
international diplomatic activity that has taken place since 2000, has at best done nothing to halt the
ongoing trends, and at worst distracted attention from the fundamental developments on the ground.
The Violation of Human Rights and Humanitarian Law
The second intifada has witnessed Israel’s reoccupation (in all but administrative terms) of the
Palestinian territories. Israeli reoccupation has entailed mounting human rights and humanitarian law
violations, resulting in an ever-rising number of Palestinian casualties.29 As a result of a long list of
violations, the Palestinian population has suffered from a deepening humanitarian crisis, leading to
over 40% unemployment and a poverty rate over 60%, as reported by the World Bank. Israel has been
held responsible by the international community for the use of excessive force, targeted assassinations
and for sweeping restrictions on movement through closures, checkpoints, and curfews. Restrictions
on movement have impaired the right to work, the right to education and the right to proper medical
treatment. Restrictions have also applied to goods and humanitarian aid. The nature of these
restrictions has shown that their objective has not been strictly security-related, but has been dictated
by the aim of imposing collective punishment on the Palestinians.
In addition, Israeli settlement construction has accelerated during the second intifada, including an
expanding network of settlement blocs and highways connecting them particularly in the West Bank.
In densely populated areas such as the Gaza Strip, settlement construction and the razing of wide
bands of scarce agricultural land around them have contributed to an ever-deepening humanitarian
crisis. Israel’s confiscation and/or razing of land and property for the purpose of establishing
settlements to be populated by Israeli nationals violate the Fourth Geneva Convention.30
The Gaza Strip has already been completely enclosed and segmented by fences, security zones and
militarily controlled corridors, inviting its definition as the world’s largest prison.31 Following this
model, in June 2002, the Israeli government approved the construction of a barrier in the West Bank.
The barrier takes many shapes and forms. In the northern West Bank, it is an eight-metre-high
concrete wall. In other areas it takes or will take the form of walls, trenches, electrified and razor wire
and military roads. In addition, Israel has built electrified fences around major Palestinian population
centres, subdividing the West Bank into 54 separated enclaves.32
Israeli authorities have dubbed the barrier a ‘separation’ or ‘security’ fence. As the names suggest,
Israel has justified its construction as a necessary means to separate Israelis and Palestinians, thereby
providing security to the former. However, as the details reveal, ‘separation’ and ‘security’ are not the
wall’s sole purposes. This is principally because the barrier is not being built on the 1967 borders, but
cuts deep into the West Bank (see Annex 1). The initial maps provided for the annexation of
approximately 10% of the West Bank, and the separation of East Jerusalem from the rest of the West
Bank. This entailed the violation of the human rights of over 300,000 Palestinians, by either restricting
or denying their access to agricultural land, other economic activity, water resources and basic
services.33 In addition, an Israeli military order established a Closed Zone between the barrier and the
29
See reports by Palestinian NGOs such as LAW (www.lawsociety.org) and the Palestinian Centre for Human
Rights (www.pchrgaza.org), Israeli NGO B’stelem (www.btselem.org) and international NGOs Human Rights
Watch (http://hrw.org/reports/world/is-ot-pa-pubs.php) and Amnesty International (http://web.amnesty.org).
30
Article 49, paragraph 6 of the Fourth Geneva Convention states that “the occupying power shall not deport or
transfer parts of its own civilian population into the territories it occupies”.
31
Quote from the British Ambassador to Israel during a meeting with Israeli officials, The Palestine Chronicle,
14 October 2002.
32
See PLO Negotiations Affairs Department (2003), Bad Fences Make Bad Neighbours, December, Ramallah.
33
Ibid.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 9
green line, enclaving over 12,000 Palestinians who cannot enter or exit without special permits.34 Due
to its route within the OTs as well as its human rights effects, the International Court of Justice has
deemed the barrier illegal in July 2004. In June 2004, the Israeli Supreme Court, concentrating on the
barrier’s effects instead called for its rerouting. In response to the Supreme Court’s judgement, new
routes are currently being proposed, and may reduce the barrier’s human rights effects. However, as
stated in the ICJ ruling, the barrier in itself will continue to represent a violation of the Geneva
Convention so long as it is built within the OTs.
Palestinian groups have also perpetrated grave human rights violations, which according to
international NGOs have amounted to or approached war crimes.35 These have primarily taken the
form of suicide bombings, principally targeting Israeli civilians within the State of Israel. Israelis have
viewed these attacks as confirmation that the Palestinians remain committed to the destruction of their
state.36
The identified responsible groups have been Hamas, Islamic Jihad, the Popular Front for the
Liberation of Palestine and the al-Aqsa Martyrs Brigade. Suicide bombings and other attacks aimed at
civilians are prohibited by the Geneva Conventions.37 However, the criminal provisions of IHL are
based on the doctrine of command responsibility, according to which people in positions of authority
who fail to take adequate preventive measures are also held accountable. An issue therefore is to what
extent the PA, as a state-like actor, has been and should be held responsible for attacks against Israeli
civilians. Human Rights Watch did not find evidence that the PA planned, ordered or carried out
suicide bombings or other attacks on Israeli civilians.38 However the PA leadership was criticised for
failing to take adequate action to prosecute those responsible for the attacks. The PA has argued that
its actions are contingent on Israel’s own behaviour, given that Israel’s violation of IHL reduces the
PA’s ability to repress crimes perpetrated by groups not acting under its instructions. The
proportionality between empowerment and responsibility to repress the criminal acts of private actors
is a key premise of international law. However, it has been difficult to pinpoint the line separating the
PA’s effective capability from its political willingness to repress violence.
This does not impinge upon the fact that under IHL suicide bombings constitute criminal acts and that
states and non-state actors alike should exercise all lawful means at their disposal to repress them.
Hence, both Israel and the PA, within the limits of their ability and control, and within the confines of
international law, should do their utmost to repress the violations and thereby assure security and
public safety.
Pre-empting a Viable-Two State Solution
Two major trends have been set in motion or accelerated over the last four years, reducing the
prospects of a viable two-state solution. On the Israeli side, this has been the ongoing policy of
‘cantonisation’ including settlement expansion, the construction of the barrier/wall, the weakening of
Palestinian institutions and most recently the disengagement plan. On the Palestinian side, this has
been the progressive fragmentation of the PA and the mounting polarisation and tensions between
factions, both within the PLO and between the secular and the Islamic camps.
Settlement construction has been a permanent feature of all Israeli administrations since the 1967 war.
The result so far has been a sub-division of the West Bank in over fifty enclaves. In the Greater
34
UN Office for the Coordination of Humanitarian Affairs (UNOCHA), Update 01/09-15/10/03.
Human Rights Watch (2002), Erased in a Moment: Suicide Bombing Attacks Against Israeli Citizens, October.
36
Daniel Levy (2002), Strategies of Regional Actors in the Middle East Conflict-Israel, Middle East and EuroMed Working Paper Series, CEPS, Brussels.
37
Protocol 1 of the Geneva Conventions governs the laws of national liberation. These expressly prohibit attacks
against civilians, and attacks whose primary purpose is that of spreading terror.
38
Human Rights Watch (2002), op. cit.
35
10 | NATHALIE TOCCI
Jerusalem area, East Jerusalem is being separated from the rest of the West Bank through the
expansion of settlements reaching the Bethlehem area, and with the construction of a ring road around
the Israeli-determined municipal borders. Settlement expansion within the Jerusalem outer-ring is
separating both East Jerusalem from the West Bank and the northern from the southern sections of the
West Bank. The apparent strategy has been to achieve a de facto a reversal of facts on the ground.
Initially West Bank settlements were isolated enclaves in Palestinian territory. Now Palestinian towns
have become isolated enclaves in Israeli territory.
The construction of the West Bank barrier forms part of the same logic. Israeli officials point to the
success of the fence encircling Gaza, arguing that no suicide attacks have come from the Strip
(although this has not stopped Gazan militants from firing Qassam rockets into Israel). Yet, unlike
Gaza, the West Bank barrier consolidates the annexation of approximately 60% of the settlements and
90% of the settler population.39 Beyond security justifications, the barrier’s revealed intent, as in the
case of settlements, appears to be that of annexation by force.
A third element of the policy of cantonisation has been the weakening of the PA and Israel’s
preconditions of Palestinian reform and democracy prior to negotiations. The weakening of the PA has
occurred through the physical destruction of PA infrastructure and the myriad of restrictions on
movement, which have impeded the central authority’s effective control over its population. The
progressive chaos within the OTs has in turn discredited the aim of an independent and sovereign
Palestinian state and has supported the thesis that there is no Palestinian ‘partner for peace’.
Palestinian violence and the PA’s failure to curb it have also legitimised Israeli claims that Palestinian
reform should precede negotiations. This has constituted a major argument to avoid a resumption of
talks, to secure a viable two-state solution and to proceed with unilateral actions. It remains to be seen
whether and how this policy will alter with the death of Yasser Arafat in November 2004.
The last and most recent element in Israel’s strategy has been the ‘disengagement plan’, first outlined
by Prime Minister Sharon in December 2003. The plan foresees Israeli troop and settlement
withdrawal from the Gaza Strip and four settlements in the northern West Bank (see Annex 2).
Although Israel has been seeking ‘creative’ legal channels to divest itself of its legal responsibilities,
disengagement would not legally entail the end of occupation. This is because it would not alone give
rise to a Palestinian state, and Israel would continue to control borders, airspace and coastal waters and
it would retain the freedom to make incursions into the territories.
At its heart, the plan has a double rationale. First, the Israeli right has become increasingly sensitive to
the ‘demographic threat’ that has historically formed the core rationale underlying the views of the
Zionist left. This entails the growing realisation that according to demographic trends, Israeli Jews will
become a decreasing minority of the population from the Jordan River to the Mediterranean Sea.40
Given the desire to retain democratic elections while securing a Jewish dominated political system, as
well as the awareness of most (albeit not all) decision-makers that in the 21st century that a mass
transfer of the Palestinians is not a viable option, the need to withdraw from some territories is viewed
as an increasingly pressing priority. The disengagement plan represents a formula to maximise Israeli
annexation of territory while minimising the number of Palestinians included in it.
The second rationale is time contingent and related to the need to propose an alternative to a
negotiated and internationally mediated two-state solution. Until late 2003, Sharon rejected
negotiations and called for an interim Palestinian entity with temporary borders on approximately 50%
of the West Bank. This interim status would prevail until Israel deemed that the PA had reached
sufficient standards of democracy, good governance and most important, until it succeeded in quelling
violence.41 However by late 2003, with the effective abandonment of the Roadmap, the government
39
PLO Negotiations Affairs Department (2002), Israel’s Pre-emption of a Viable Two State Solution, Ramallah.
By 2020 there will be 15 million people between the Jordan and the Sea and only 45% will be Jewish. The rest
will be Palestinian citizens of Israel or residents in the Occupied Territories, as well as foreign workers in Israel.
41
Ariel Sharon, “The Way Forward in the Middle East”, The New York Times, 9 June 2002.
40
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 11
felt under increasing international isolation due to its lack of a peace strategy. Moreover, the
government was being challenged internally by civil society initiatives from the Israeli centre-left (i.e.
the ‘People’s Voice’ and the Geneva Accords). In response, Sharon announced the disengagement
plan, as a means to provide an alternative to the Israeli public and the international community. To
many Israelis, Sharon’s plan was far more palatable than a negotiated two-state solution. It would take
care (at least in part) of the ‘demographic threat’. Its paradoxical ‘yes’ to peace and ‘no’ to
Palestinians dovetailed with the widespread view of the absence of a Palestinian ‘partner’.42 It entailed
a far smaller cessation of land and allowed for continuing Israeli control. And, it did not include
compromise on the two most critical issues on the peace agenda, namely Jerusalem and refugees.
Indeed, in this respect the plan has been a success. Many in Israel, Palestine, Europe and the US have
supported the plan. Even those supporting a viable Palestinian state hope to see a peaceful
disengagement from Gaza triggering a domino effect of progressive dismantlement of West Bank
settlements and a reengagement with the PA, particularly following Labour’s inclusion in the Israeli
coalition government.43 The EU in particular has activated itself to transform the disengagement,
together with the ongoing reform of the PA, into the second phase of the Roadmap. The plan was
acclaimed by US President Bush, it has been conditionally supported by the EU, it was backed
overwhelmingly by Israel’s Labour Party in the Knesset vote in October 2004, and it has also been
supported by key members of the PA.
Yet while disengagement could unleash positive spin-off political developments in Israel, the plan so
far remains in line with the Israeli right’s vision. As such, its more likely evolution is a disengagement
from Gaza as a means to consolidate Israel’s grip on large portions of the West Bank. The first critical
signs of this were in April 2004, when for the first time an American President officially accepted that
a solution would neither see the return of Palestinian refugees nor a return to the 1967 borders. The
Prime Minister’s aide, Dov Weisglass, lucidly elaborated the plan’s rationale. His statements are worth
quoting in full:
(T)he significance of the disengagement plan is the freezing of the peace process… and when you
freeze that process, you prevent the establishment of a Palestinian state, and you prevent a
discussion on the refugees, the borders and Jerusalem... Effectively, this whole package called the
Palestinian state, with all that it entails, has been indefinitely removed from our agenda. And all
this with authority and permission. All this with a Presidential blessing and ratification of both
houses of Congress.44
Weisglass’ words may have been pronounced for domestic political consumption (due to the
aversion of Israel’s extreme right to the idea of disengagement). Yet irrespective of their
motivation, the cogency and consistency of these official statements unveil the plan’s intent.
Finally, the fragmentation and polarisation within the Palestinian political scene have also lent support
to Israeli strategies and arguments. Prior to and over the course of the intifada, criticism against the PA
and its leadership had mounted from the inside. Segments of the population resented the leadership for
having failed to deliver peace and better standards of living. They resented the widespread corruption,
inefficiency and authoritarianism of the Authority. Palestinian analysts have argued that divisions
emerged and exacerbated between the ‘old guard’, including the revolutionary PLO leadership from
Tunis, and the ‘young guard’, including secular and Islamic groups, indigenous to the OTs and
42
Ury Avineri, “Sharon’s Speech: Decoded Version”, 21 December 2003, Gush Shalom.
For an exposition of the need to make a success of disengagement by transforming its original rationale see
Daniel Levy, “Wanted: Minister for Re-engagement”, Haaretz, 10 December 2004.
44
Ari Shavit, “Top PM Aide: Gaza Plan Aims to Freeze the Peace Process”, Haaretz, 6 October 2004.
43
12 | NATHALIE TOCCI
connected to the grass-roots.45 Other scholars have painted a more complex picture, identifying
different and often opposing actors within the Palestinian political scene.46
The death of Yasser Arafat has opened the space for a reshaping of Palestinian politics, not least
through elections and through an enhanced dialogue with the Islamic parties. The fact that Hamas has
not instructed its voters to boycott the presidential elections and will participate in the municipal and
probably in the legislative elections also indicates the possible progressive inclusion of the Islamic
parties in PA structures and their ensuing commitment to a two-state solution. However, in the
medium-term it remains unclear whether the post-Arafat era will see greater coherence and unity
amongst Palestinian actors or increased chaos and fragmentation in the OTs.
In conclusion, the pre-emption of a viable two-state solution is relentlessly progressing. Beneath the
day-to-day voices, events, hopes and despairs, the fundamental trends persist unabated. Without their
radial overhaul, a worst case scenario in the medium-term could see Israel withdrawing its settlers and
soldiers from selected territories and relocating them in large annexed areas of the West Bank. By
withdrawing from some territories and divesting itself of all legal responsibilities vis-à-vis the
Palestinians, Israel would account for its perceived demographic threat and it would avoid
compromising over Jerusalem and refugees.47 Beyond the barrier, Palestinians would be relegated in
enclaves connected by tunnels and roads. A submissive Authority would be charged with providing
services to its population. If the Palestinians and the international community so wished, these
enclaves could also be called a ‘state’. Yet Israel would continue to retain effective sovereignty,
including border control and the freedom of intervention. This situation may well induce some
Palestinians to emigrate. Some of those who remain would persist in attacks against Israel. The
ensuing violence could demonstrate internationally the Palestinians’ inability to peaceful selfdetermination. Yet Israeli military and economic superiority would enable Israel to impose sufficient
order. This sufficient level of stability would entail a decreasing attention of the international
community, including that of Europe.
Naturally this tragic scenario has many pitfalls. It would require Israel’s ability to evacuate peacefully
some of its settlers, without an internationally sponsored peace process. Most fundamentally, it would
entail that the Palestinians would stay put with approximately 10% of mandatory Palestine. The
unlikelihood of these conditions prevailing suggests that violence and instability would persist, and
continue to spill over into Europe in increasingly complex and dangerous ways. The EU’s interests in
promoting a ‘ring of well-governed countries’ along its southern borders would thus become an
increasingly distant goal.
45
Khalil Shikaki, “Palestinians Divided”, Foreign Affairs, Vol. 81.1, p. 92, January/February.
These have included members of the Fatah Central Committee, the Fatah Higher Committee including
younger generations forming the backbone of the Fatah-Tanzim apparatus, members of the Palestinian
Legislative Council, the PLO Revolutionary Council, the senior echelons of the security forces, the Islamic camp
(including parties, armed groups and civil society actors), other militias and militant parties (PFLP and the AlAqsa Martyrs Brigades) and independent intellectuals and NGOs. See Salim Tamari (2002), “Who Rules
Palestine?”, Journal of Palestine Studies, Vol. 31, No. 4, pp. 102-113. On questions of control and capability
within the Palestinians political scene see also Jean-François Legrain (2003), “Les Phalanges des Martyrs d’AlAqsa en Mal de Leadership National”, Maghreb-Machrek, Vol. 176, pp. 11-34.
47
An interesting point in this respect was raised by Meron Benvenisti. Referring to the Palestinian elections in
East Jerusalem, Benvenisti argues that a precedent is being set (and accepted by the Palestinians and the
international community), whereby tens of thousands of Palestinians are being granted the right to vote by Israel
though not within Israel’s borders. Benvenisti argues that this precedent could be extended to other areas of the
West Bank that would be annexed in future to Israel under Sharon’s cantonisation Plan. In effect, this would
allow Israel to annex West Bank land, without the Palestinians living on it. See Meron Benvenisti, “Democracy
but not Here”, Ha’aretz, 2 December 2004.
46
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 13
The Deployment of EU Instruments in Practice
The dramatic developments in the region in the last four years have contrasted sharply with the EU’s
declared aims and interests. Ongoing developments are primarily determined by the parties themselves
as well as by the major international power in the region, namely the US. However, irrespective of its
power, status and resources, Europe is also a major external actor in the Middle East. This section
assesses and explains how the EU has put to use its instruments in the Israeli-Palestinian conflict.
EU Diplomacy: The Quartet, the Barcelona Process and the Special Envoy
During the Oslo years, the Israeli Labour government under late Yitzhak Rabin had accepted a
European involvement in the economic aspects of the peace process. When the Union (for example at
the 1996 Dublin European Council) had called for a more direct political role, its ambitions were met
by outright Israeli hostility and American bemusement. With the end of the peace process, it seemed
that the era of exclusive US ownership had given way to a greater internationalisation of mediation
activity through the Quartet. However, so far the Quartet has failed to substantively alter the dynamics
of international involvement. Rather, it has predominantly provided a multilateral cover for persisting
unilateral US action (or inaction).
Even more meagre results can be reported when it comes to the Euro-Mediterranean Partnership and
the peace process. EU officials champion the fact that with the collapse of the peace process, the EMP
has remained the only multilateral diplomatic forum in which Israel and the Arab countries regularly
meet. Yet far from fostering structural peace in the region, the Barcelona Process has been yet another
victim of conflict. When it comes to Israel and Palestine its major practical results have been the
development or upgrading of bilateral ties through the association agreements, which were the main
reason (and the quid pro quo) inducing the sceptical Israel to enter the process in the first place.
Some results have been achieved by the EU Special Envoy and other member state and EU Council
activities. Former Envoy Migel Moratinos and his successor Marc Otte, have conducted useful day-today crisis management activities, helping diffuse the myriad of micro-security crises on the ground.
The work of the Special Envoy has been complemented by other initiatives. The British for example
have been playing an important role in promoting security reform in Gaza as well as in supporting
intra-factional ceasefire talks. In his efforts to revamp the Roadmap alongside Israel’s disengagement,
Solana has also revealed plans to train Palestinian security forces in Gaza in cooperation with Egypt.48
Yet none of these activities has allowed the EU to play a key mediating role in the conflict.
Overall the EU has thus not acquired a significant, let alone dominant role in the peace process
through its diplomatic instruments. An oft-cited reason for this is Israel’s non-acceptance of European
mediation in view of its perceptions of Europe’s pro-Palestinian bias. According to 60% of Israelis,
Europe rarely or never condemns Palestinian violence.49 Israel also has repeatedly accused the EU of
funding Palestinian terrorism. In reality, this has not been the case. The vast majority of EU statements
have balanced condemnations of Israeli policies and of Palestinian violence. The Commission has also
investigated the use of EU funds (by initiating an independent OLAF enquiry) and has concluded that
funds have been subject to careful monitoring.50 Yet irrespective of what the EU says and does, Israeli
scepticism prevails. An explanation of this scepticism relates to the EU’s ‘relative’ bias against Israel
compared to that of the US. It is widely recognised that since 1967, the US has been far more
supportive of Israel than has Europe. The US has had also stronger hard security instruments to deploy
in the region. As such, many Israelis understandably prefer a continuation of exclusive American
48
Javier Solana, EU High Representative for the CFSP, “Outline of Presentation on Proposals to Revitalise the
Roadmap”, Meeting of EU Foreign Ministers, Brussels, 2 November 2004.
49
Gisella Dachs and Joel Peters (2004), “Israel and Europe, the Troubled Relationship: Between Perceptions and
Reality”, paper presented at the IEPN meeting, 14 October, Berlin.
50
Chris Patten, Letter to the Jerusalem Post, 18 July 2002; European Commission, Statement to the EP’s Foreign
Affairs Committee on EU Budgetary assistance to the PA, 19/06/2002, Doc. SPEECH/02/293.
14 | NATHALIE TOCCI
mediation, and feel no need for a more active European role. At most, Israel is happy to see Europe’s
continued humanitarian support for the Palestinians (support that Israel, as occupying power, should
provide itself) and possibly its more active engagement in the governance and security of the
territories it will disengage from.
Yet Israel’s views of Europe cannot, alone, provide an explanation. Europe does not necessarily need
an Israeli invitation to play a role in the Middle East. The Arab world certainly does not view the US
as an impartial mediator in the Middle East. But it has little choice as to whether and what role the
Americans should and do play. Another major reason explaining Europe’s diplomatic ineffectiveness
is US power and Europe’s limited influence on it. Overwhelming US power in the Middle East is an
undisputed reality. However, at least in part, the Union has reinforced this reality by presuming that
the only feasible peace strategy in the region requires US leadership.
Since 2001, most EU activities have been tailored to encouraging the Bush administration’s
engagement in the peace process. EU policy-makers proactively pushed the dossier of Palestinian
reform (and agreed to insert references to reform in the Quartet’s roadmap process), hoping that this
would remove any reason (or excuse) for persisting US passivity. Likewise, the EU initiated the
Roadmap itself, as a means to give former Secretary of State Powell (viewed as closer to European
positions) a tool to reengage the President in the region. Currently, EU High Representative Javier
Solana is working both on transforming the Israeli disengagement plan into a revamped Roadmap
process, and on re-engaging the second Bush administration in it. Alongside him, British Prime
Minister Tony Blair attempted to persuade the re-elected US President into holding a major peace
conference, which then, in the light of Israeli resistance, was scaled down into a conference on
Palestinian governance post-disengagement.
US involvement may well be necessary. However, US foreign policy towards the conflict, being so
deeply entangled in the domestic politics of the country, is not easily amenable to European cajoling
(beyond the rhetoric). Indeed, despite the efforts of the Quartet in 2002-03, the Roadmap was shelved
and in April 2004, President Bush accepted Sharon’s positions on refugees and on borders. An
American reengagement in the peace process may be possible during George W. Bush’s second term
in office. Yet there are no indications that this would move beyond an active support for Sharon’s
disengagement plan. There are certainly very few signs that irrespective of its re-engagement, a future
US role will be more receptive to European (including UK) influence. In other words, when it comes
to the EU’s diplomatic role, ineffectiveness may be explained partly by Israel’s reluctance to see a
more active European role. Yet another, arguably more important reason is the EU’s own perceptions
of the need for US leadership in the conflict and its limited ability to affect US policy in substance.
Palestinian State-Building and Reform: Aid, Trade and the Limits of
Conditionality
Supporting Palestinian state-building and economic development has been a key pillar of EU policy in
the region since the late 1980s. In the field of trade and development, despite having established direct
trade links with Palestinians, EU efforts have systematically faced Israeli obstructionism. Israel has
justified its stance on the grounds that it considers the OTs as part of its own customs territory. Its
ability to obstruct derives from the fact that all Palestinian trade must pass through Israeli ports and
customs. In the 1990s, Israel did not recognise the EC-PLO Interim Association Agreement. This has
entailed a grossly ineffective implementation of the Agreement. At times, Israeli customs have
removed EC origin certificates from European exports to the OTs, and more often they have removed
Palestinian origin certificates replacing them with Israeli certificates. This problem has received little
EU attention and the Union has made no systematic attempt to persuade Israel to alter its stance.
Under this status quo, it seems unlikely that the ENP Action Plan with the PA will succeed in
providing enhanced trade ties with the Palestinians. At best, the Union, through its Action Plans with
both Israel and the PA, can push for a more effective implementation of the trade aspects in the
existing Interim Palestinian Agreement.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 15
During the Oslo process and more so after its demise, the EU supported state-building and
development in the OTs through the disbursement of aid. The EU has financed key infrastructure
projects including the Gaza airport and seaport. It has also provided increasing humanitarian assistance
since 2000. However, many EU-financed projects have been destroyed by Israeli raids during the
second intifada. In addition, the costs of disbursing humanitarian aid have increased by 20% due to the
mobility and bureaucratic restrictions imposed by Israel.51 EU institutions argue that they reserve a
right to claim reparations and compensation from Israel.52 However, no attempt has been made to do
so. In other words, the Union (and other donors) have not required Israel to fulfil the legal and
financial responsibilities assigned to it under international law. By failing to hold Israel accountable,
donors have paradoxically distorted incentives in the persisting conflict.
The most critical EU success has been in its financial and technical support to the PA. The original
objective of such support was that of fostering state-building and development in Palestine. In view of
the intifada, this maximalist objective has given way to the minimal task of preventing the outright
collapse of the Palestinian institutions and economy.
Since the late 1990s, EU assistance has not simply aimed at the sheer survival of Palestinian
institutions. Through positive aid conditionality, the Union has attempted to shape the development of
those institutions. In doing so, the EU’s objectives have been threefold. The first and primary objective
has been that of supporting democracy and good governance within the embryonic state. Since 2000,
two corollary aims have been to quell Palestinian violence and to remove any US and Israeli reason or
excuse to reject negotiations with the Palestinians. The questions of reform and violence are clearly
distinct. Palestinian violence erupted primarily in response to the failing peace process, although many
of the actors perpetrating violent acts also criticised the PA for its domestic shortcomings. The PA
leadership in turn may have initially ridden on the wave of violence as a means to regain its lost
legitimacy; but it is unlikely that better governance and democracy alone could have prevented the
intifada. In other words, the link between violence and reform is tenuous at best, making the primary
realistic objective of EU reform conditionality that of seeking directly better Palestinian governance
and democracy.
The Commission in particular began focusing on Palestinian reform well before the widespread Israeli
and American interest in the question. The first EU-sponsored attempt to highlight the deficiencies of
the PA requiring urgent reform came in 1999, with the publication of the Rocard-Siegman Report.53
More stringent conditionality was imposed since 2001. In particular, with Israel’s withholding of
revenue transfers to the PA, the EU provided the PA approximately €10m per month in direct
budgetary assistance in 2000-03. These funds, critical to the survival of the Authority, were disbursed
under strict conditions and IMF monitoring. In addition to the recommendations of the RocardSiegman Report, EU conditions have focused on the reforms called for by the Palestinian Legislative
Council in 2001, numerous Palestinian NGOs and PA officials. These have included ratifying and
enacting the Basic Law and the Law on the Independence of the Judiciary, establishing a
Constitutional Court and a High Judicial Council, abolishing State Security Courts, holding general
elections, redistributing competences between the President and the Cabinet, ensuring transparency of
public finances and restructuring municipalities, the civil service and most critically the security
sector. These calls were supplemented by the 100-day reform plan, approved by President Arafat in
June 2002, which focused on a selection of the above reforms. In particular, EU conditions called for
greater transparency in PA public finances through the consolidation of all revenues in a single
51
Poul Nielson, “Give Relief Agencies the Space to do their Job”, Financial Times, 17 June 2004.
European Commission, Response to the EP Questions by Erik Meijer on EU measures against colonisation,
destruction and eviction activities by Israel on 30 September 2002 on the basis of article 2; and by Emilio
Menendez del Valle on 25 January 2002 concerning the destruction of Palestinian infrastructure financed by the
EU.
53
Yezid Sayigh and Khalil Shikaki (1999), Strengthening Palestinian Public Institutions, Task Force Report,
Council of Foreign Relations, New York.
52
16 | NATHALIE TOCCI
account monitored by the IMF and under the full responsibility of the Finance Ministry, a freeze on
public sector hiring, the adoption on a Law on the Independence of the Judiciary and the passing and
preliminary application of the Basic Law.
As Israel partially resumed revenue transfers in 2003, the EU cut direct budgetary support and
established a new Reform Instrument. The new Instrument included €80m for the targeted support of
SMEs, municipalities and social services, and €10m in technical assistance for the ongoing fiscal
sector reform. The Commission has also financed the preparation for new elections, the institutional
reform of the judiciary and the security services and counter-terrorism measures. In view of the
January 2005 presidential elections, the Union committed over €3m to finance an observer mission.
Several EU-demanded reforms have been implemented. In 2002 the Palestinian Basic Law was
adopted, and it was revised in 2003 to allow for a Prime Ministerial post (pushed for strongly by the
US and Israel). In October 2002, the Cabinet was restructured and reshuffled. A Law on the
Independence of the Judiciary was passed. Significant progress was made in the management of the
PA’s finances, thus curbing the potential for corruption. PA revenues were included into a single
transparent account, the President’s budget was cut and work has been ongoing on an effective audit
system. In 2003, the security sector was partly restructured, as the former twelve (poorly coordinated)
apparatuses were streamlined into six sectors, although three remained under the President’s direct
authority.54 Particularly in the areas of judicial and financial reform, EU conditionality has been
pivotal. At specific moments in 2002-03, EU threats to withhold budgetary assistance generated the
necessary incentives to pursue the reform agenda.
There have been also clear limits in the effectiveness of EU conditionality. At times reforms have been
superficial and implemented for the sole objective of pleasing EU (and US) interests. The creation of
the Prime Minister’s post did not come with its effective empowerment, as most control remained in
the President’s hands. The Cabinet was reshuffled in 2002, but apart from a few exceptions, the
changes were largely cosmetic. Despite the passing of the Law on the Independence of the Judiciary,
this was immediately followed by amendments introduced by the President, diminishing its effective
independence. In the security sector, the bulk of the reform has yet to be undertaken.55 In the fiscal
sector, Arafat retained approximately 8% of the budget, i.e. enough to persist in the nepotism that lay
at the fore of the corruption and concentration of powers in the President’s hands. Despite the
announcement of elections in early 2003, presidential elections took place only in January 2005 due to
the imperative to replace late President Arafat.
The reasons underlying the limits of EU conditionality are manifold. The most critical reasons are
those linked to the deteriorating status quo. The persisting and deepening Israeli occupation erected
two sets of obstacles to Palestinian reform and the end of violence. First are the objective problems
posed by the restrictions on movement and Israel’s withholding PA tax revenues to the
accomplishment of reform as an aim in itself. In order to strengthen and empower different
institutions, to hold successful elections and to reform the security sector, legislators, civil servants
and police forces need to dispose of the necessary resources and need to move freely across
Palestinian territories. However, as put by a Palestinian minister, ‘how can we speak of a separation of
powers when we don’t have any?’56 Put differently, how can reformist domestic actors be empowered
to pursue reform under the status quo? Second, and linked to the corollary aim of reforming the PA in
order to promote an end of violence (bearing in mind the proviso mentioned above on the tenuous link
54
Security apparatuses under the President :1) National Security Force, 2) General Intelligence, 3) Military
Intelligence. Security Apparatuses under the Interior Ministry: 4) Civil Police, 5) Preventive Security, 6) Civil
Defence.
55
Apart from more effective streamlining and coordination between the different departments, security reform
also foresaw the downsizing of forces, a separation of powers, training and technical assistance, the
establishment of a National Security Council, a real budget and oversight committees with financial and
budgetary powers.
56
Interview in Ramallah, November 2002.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 17
between these two objectives), is the limited political ability of any Palestinian leader to quell
violence. The extent to which any moderate PA leader can use his (limited) powers to quell Palestinian
violence is directly linked to Israel’s conduct. It has often been argued that without Israel’s easing of
the situation in the OTs, no Palestinian leader could repress violence without causing internal chaos or
civil war.
The Palestinian reform movement was also weakened domestically by the blunt approach adopted by
the US and Israel to the question. So long as the peace process continued, the international community
(including the EU) refrained from heavy criticism of the Authority concerning its corruption, lack of
accountability and human right abuses.57 Yet, during the entire Oslo period, internal Palestinian calls
for reform mounted from several and often opposing directions. With the eruption of the intifada,
additional calls for reform stemmed from the desire to refocus Palestinian resistance and to rebuild ties
with the Israeli ‘peace camp’. In early 2002, Israel, following the US, began focusing on the question
of Palestinian reform. Yet their discourse was framed in terms of ‘regime change’ and focused on
particular personalities (and most notably the demonisation of Arafat). The frontal attack on the
Palestinian leadership strengthened the waning legitimacy of the late President, hindered his
succession, weakened Palestinian voices that had long called for reform and at most triggered merely
ostensible reform.
Finally, internal Palestinian political dynamics constitute another key reason for the limited success of
EU conditionality. The Palestinian political scene is highly complex, with many actors interacting in
continuously evolving ways. When it comes to EU conditionality aimed at curbing Palestinian
violence, the principal problem has been that the targets of conditionality were not the direct authors
of most violent acts perpetrated against Israel. The EU has had no direct official contact with and thus
leverage on Palestinian actors such as Hamas (Hamas was included in the EU’s terrorist list in 2003).
Its conditionality has targeted the PA, in direct opposition to the Islamic camp. Could EU
conditionality have been indirectly effective by inducing the PA and Fatah (the dominant party in the
PLO) to repress violence orchestrated by others? It has been difficult to ascertain to what extent this
could have happened. The degree to which late President Arafat could have curbed violence, had he so
wished, will be determined in the period following his death. Yet as aptly put by Henry Siegman,
Arafat’s principal problem was that, by representing the symbol of the Palestinian cause and
embodying the Palestinian consensus, he was paradoxically a follower unable to live up the autocratic
image he had cultivated worldwide. Hence, his inability to confront his people with difficult choices
and to face internal resistance or even defeat by curbing violence.58
While the ability/willingness of the late President to curb violence can at most provide a limited
explanation of the status quo, the hindrance posed by the late President becomes more evident when it
comes to wider questions of reform. The reshuffling of Palestinian politics after November 2004 could
allow for more effective reform and use of EU conditionality. Greater empowerment of the Prime
Minister is largely expected, with Prime Minister Qureia and PLO Secretary General and President
Mahmoud Abbas, already sharing powers between them. Dialogue between the Palestinian factions
has enhanced and improved in the run-up to the elections and is expected to persist under Abbas’
presidency. The security sector, having now come fully under the Prime Minister’s control is
undergoing a more systematic process of reform with British and Egyptian support. The ‘death squad’
unit under the Preventive Security Force in Gaza has been officially disbanded and there appears to be
a greater willingness to disarm all those not belonging to the Palestinian security apparatuses. A
legislative and administrative process is currently underway to create a twelve-member Palestinian
National Security Council, under the Prime Minister’s chairmanship. The Council would include the
three streamlined branches of the reformed security services, namely general security (including
57
Amira Haas, “Two Government Crises”, Haaretz, 30 October 2002. See for example the letter written by
Human Rights Watch to the US President concerning the functioning of Palestinian State Security Courts: HRW,
A Letter to President William Jefferson Clinton, 19 March 1999 (www.hrw.org).
58
Henry Siegman (2003), “Partners for War”, New York Review of Books, 16 January.
18 | NATHALIE TOCCI
policing functions), general intelligence and national security (i.e. the embryo of a future Palestinian
defence force). Greater transparency in PA public finances through the control of the President’s
funds, could serve to counter nepotism and corruption.
Equally important has been the shift of Israel and the US in response to Arafat’s death, in particular by
allowing presidential elections in January 2005 (blocked since 2001 due to the expectation of Arafat’s
re-election) and by partially relaxing restrictions on movement. Even more important for the overall
legitimacy and accountability of the Authority, legislative elections have been scheduled for July 2005
(municipal elections began in December 2004 and will take place until late 2005). The Islamic parties
have indicated their likely participation in these elections, signalling the move towards greater
coherence and unity in the Palestinian movement. Finally and perhaps most importantly, the sixth
Fatah Congress, the first held in sixteen years, is set to take place in August 2005. The Congress will
likely see the rise of young Fatah activists with strong backing from the public. The Congress will
determine whether Fatah should transform itself into a political party (Arafat was adamantly against
the idea), and it will shape the overall Palestinian liberation strategy.
EU-Israel Relations: Firm in Rhetoric, Compromising in Practice
In the declaratory aspects of its bilateral relations with Israel, irrespective of harsh Israeli criticisms
over the decades, the EU has remained firm. This firmness in rhetoric has had some tangible success.
Most importantly, it has transformed the concept of a Palestinian state led by the PLO from heresy in
the 1970s to the accepted rhetorical goal of the international community by 2000.59 The latest evidence
of EU firmness has been in the negotiation of the Israeli ENP Action Plan, where despite strong Israeli
resistance, the Union insisted on references to the Roadmap (and weapons proliferation) in the
‘priorities for action’ section of the Plan.60 Yet beyond the rhetoric, the Union has been
uncharacteristically compromising in practice. Not only has it refrained from any conditionality (either
negative or positive) on Israel, but it has compromised itself to the extent of bending its own norms
and rules to accommodate illegal Israeli practice. As such, Israel has had little incentive to modify its
behaviour in line with European rhetorical wishes.
Despite the grave human rights and international law violations documented above, no attempt has
been made to impose negative conditionality, let alone arms embargoes or sanctions, on Israel.61
However, as discussed above, despite widespread human rights and democracy violations, the EU has
never applied negative conditionality on any southern Mediterranean country. Negative conditionality
in general is uncharacteristic of the EU’s foreign policy’s ethos. The Union has made clear its
preference for the concept of ‘constructive engagement’ with Israel.62
Yet typical of the EU’s concept of ‘constructive engagement’ with third countries has been the idea of
positive conditionality, i.e., the ‘dangling carrot’.63 In other words, EU contractual relations have
offered specific benefits in principle, but have delivered on them on the basis of the specific conduct
of the third country in question. This approach has not been applied to Israel. Carrots have been rarely
dangled, and normally simply given. Apart from a few exceptions, such as the European Parliament’s
59
Elena Aoun (2003), “European Foreign Policy and the Arab-Israeli Dispute: Much Ado About Nothing?”,
European Foreign Affairs Review, Vol. 8, pp. 289-312, p. 293. See also Martin Ortega (2003), “Conclusion:
Peace Lies in Their Hands”, in M. Ortega (ed.), The EU and the Crisis in the Middle East Chaillot Paper, EUISS,
Paris, pp. 52-63.
60
European Commission (2004), “Proposed EU-Israel Action Plan”, 9 December, p. 3 (www.europa.eu.int).
61
Question by Lousewies van der Laan, MEP, and others to the Commission on 17 June 2002 on Arms Embargo
against Israel’, Brussels (www.cec.eu.int).
62
See
Commission
of
the
EC
(2004),
“Sanctions
on
Israel?”
(www.europa.eu.int/comm/external_relations/mepp/faq/index.htm); FCO (2004), “Imposition of Trade
Sanctions and Breaking off relations with Israel” (www.fco.gov.uk).
63
Conversation with Commission official, Brussels, September 2004.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 19
delayed ratification of EC-Israel trade agreements in 1987-88 and in 1995-2000, the Union has never
attempted to exert any form of positive conditionality on Israel. This has led to several paradoxical
incidents damaging the EU’s credibility. The most recent was in the autumn of 2004, when the
Commission negotiated an ENP Action Plan with Israel following the ICJ ruling condemning Israel
and the EU Council’s own criticisms of the Israeli raids in Gaza. This atypical EU approach led a
German official to question in reference to the ENP: “Imagine if disproportionate use of force is being
condemned by everyone, and at the same time the EU offers this magic plan to move Israel and the EU
closer to each other – a plan which benefits the Israelis… at the bottom of this is how we can use for
the best our leverage with Israel. After all, they will get everything but institutions”.64
In the EU-Israel Action Plan itself, there has been no effective attempt to formulate political
conditionality. The Action Plan does mention the peace process, security, human rights and
international law, but specific references are only included as subjects for discussion in reinforced
political dialogue. In its obligations (“priorities for action”), only one in six bullet points refers to
“facilitating efforts to resolve the Middle East conflict” and to “promoting the respect for human
rights”. However, the scope for positive conditionality is extremely weak. The Plan only loosely states
that “progress in meeting these priorities will be monitored….On this basis, the EU and Israel, will
review the content of the Action Plan”.65 In practice, Israel’s only ENP obligations concerning
conflict-related issues are likely to be their discussion within political dialogue. This is in clear
contrast to the political conditionality developed in the EU-PA Action Plan, which goes as far as
stating that the very raison d’être of the PA’s inclusion in the Neighbourhood Policy is that of
promoting the PA’s political and economic reform agenda.66
However, by far the most serious and atypical way in which the EU has related to Israel has been its
progressive bending to illegal Israeli policies, to the extent of risking a distortion to own law and
practice. The dispute over the preferential export of Israeli goods produced in settlements has received
sparse attention from academia and civil society. It has either been sidelined by pro-Palestinian NGOs
that have been more enthusiastic about calling for sensationalist measures such as ‘sanctions’ against
Israel. Likewise, it has been brushed off by EU policy-makers, who have argued that the issue has
been simply an irritant, amounting to a few hundred million euros per year, which has disturbed the
EU’s quest for improved political relations with Israel.
Yet scratching beneath the surface reveals that the problem lies at the very core of the conflict. This is
not simply because it is connected settlements, which represent a major hindrance to a viable two-state
solution. But also because the issue exemplifies a key reason underlying the status quo: the
international community’s decades-old acquiescence to Israel’s insistence on the right to differ in its
respect for international law.67
Since 1975, the territorial scope of all EC-Israeli agreements has been limited to the ‘territory of the
State of Israel’.68 Based on international law, the EU has considered the ‘territory of the State of Israel’
to exclude the territories occupied in 1967. As such, the Community does not entitle preferential
treatment to products, wholly produced or substantially processed in Israeli settlements.69 Yet Israel
64
Quoted in Sebastian Alison, “EU Faces Row over Neighbourhood Pact with Israel”, 7 October 2004, Reuters.
European Commission (2004), “Proposed EU-Israel Action Plan”, Brussels, 9 December, p. 3
(www.europa.eu.int).
66
Ibid., p. 1.
67
The following paragraphs draw heavily from conversations with Charles Shamas of the Mattin Group,
Ramallah.
68
Article 38 of the 1995 Interim Cooperation Agreement, Article 83 of the Association Agreement and Protocol
5 of the Association Agreement.
69
Commissioner Chris Patten’s Reply to Charles Tannock, MEP on 6 November 2003: ‘The Commission’s
interpretation of the agreement is clear: products originating from the Israeli settlements are not entitled to
benefit from preferential treatment...’
65
20 | NATHALIE TOCCI
has determined the origin of its exports in a manner that does not distinguish between production
carried out within its borders and in the OTs. It has done so arguing that Israel’s territorial borders
have not been defined yet and that until they are, Israel will include the OTs in its customs envelope.
This has resulted in the illegal preferential treatment of Israeli settlement products. This illegality has
put the member states, as High Contracting Parties, in violation of Article 1 of the Fourth Geneva
Convention.70 In addition, the violation of the territoriality clause represents a material breach of the
Association Agreement. The failure to rectify the situation has also put the Commission, as Guardian
of the Treaties, in contravention of its own obligations under EC Law.
The Commission and the member states have acknowledged the need to rectify the situation.71 In 1997
the Commission issued a first Notice to Importers stating that there were grounds for doubt concerning
the validity of all Israeli origin certificates and that importers could be liable to duty recovery.72 It
followed suit in September 1998 with a mission to Israel, which confirmed that the Government of
Israel did not respect the origin rules. As the Commission could no longer deny it had proof of Israel’s
malpractice and in order to avoid the legal hazards of continued inaction (‘estoppel’), EU institutions
have attempted a series of remedies. All have been at best marginally effective and at worst legally
dangerous by threatening to accommodate Community Law and practice to Israel’s illegal policies.
In 2000, attempting to wash its hands from the affair, the Commission argued that there was a
“difference in interpretation” of the agreement between Israel and the Community.73 It argued that the
‘difference’ did not entail a material breach of the agreement (requiring unilateral Commission action),
but rather called for arbitration under Article 75 of the Association Agreement. It then referred the
issue to the Council. Member states Germany, the Netherlands and the UK vetoed the proposal for
political reasons (not wishing to antagonise Israel). Yet unintentionally their decision was welcome.
Arbitration would not only leave the issue pending in so far as any party could indefinitely hold up the
appointment of the third arbitrator. Moreover, arbitration was not intended to adjudicate on issues that
have already been settled under public international law. While a final settlement could see the
extension of Israeli territory to the West Bank and Gaza, until and unless this happens, the territories
have been clearly designated as ‘occupied’ rather than ‘disputed’ and the Geneva Convention is
considered as applicable there.
Moving on to a second track, the Commission proceeded with a first round of verifications of Israeli
consignments in August 2000. Unsurprisingly, Israel replied to the verification questions stating that
the products originated from Israel. Having to rely on Israel’s good faith, member state customs could
not recover duties. In turn they asked for the Commission’s political guidance, and the latter issued a
second Notice to Importers. The second Notice stated that if verification replies either confirmed the
non-originating status of the products, or contained insufficient information, member state customs
should deny preferences.74 On the basis of this new Notice, several member states proceeded with duty
recovery in 2003-04. Yet the situation remained inadequate and duty recovery has been ad hoc,
susceptible to importers’ challenges, and it has relied on Israel’s provision of ‘insufficient’ answers.
70
Article 1 of the 4th Geneva Convention prevents any state or their nationals from participating in, or
facilitating, the Convention’s violation.
71
Council of the EU, Declaration of the EU for the First Meeting of the EU-Israel Association Council,
Luxembourg 22 June 2000; Council of the EU, Draft Declaration of the EU for the Second Meeting of the EUIsrael Association Council, Brussels, 14 November 2001, paragraph 2; Council of the EU, Declaration of the EU
for the Third Meeting of the EU-Israel Association Council, Brussels, 15 October 2002, paragraph 3; Council of
the EU, Declaration of the EU for the Fourth Meeting of the EU-Israel Association Council, Brussels, 17-18
November, 2003, paragraph 15.
72
Notice to Importers published on the 8 November 1997, Importations from Israel into the Community, OJ
C338, p. 13.
73
Plenary debate in the European Parliament on 2 March 2000.
74
Notice to Importers published on the 23 November 2001, Importations from Israel into the Community OJ
C3382001/C.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 21
Paradoxically, if Israel provided sufficient information on the location of production (in the OTs) and
specified that these products originated from Israel, member states customs would not be entitled to
recover duties.
The last move in this ongoing saga has been the search for a ‘technical arrangement’ to ease the
administrative burden of verifications on member state customs. Of all the attempted ‘solutions’, the
arrangement and its possible consequences could compromise most the EU’s position towards the
conflict. Based on an initial proposal by Israeli Trade Minister Ehud Olmert in November 2003, the
Commission internally agreed on a ‘technical arrangement’ in November 2004. The arrangement
would consist in Israel naming the locality of final substantial transformation on the origin certificates
of Israeli exports. The Commission would then provide member state customs with a list of settlement
localities. This would allow EU customs to deny preferences without verifications when the stated
localities fall beyond Israel’s territorial scope. Verifications could still be carried out in other cases and
preferences denied as provided for in the Commission’s Notice to Importers.
The Israeli side portrayed this move as a major concession on their part. Yet in reality, the
arrangement entails at best a partial practical answer to the problem. The arrangement has the
advantage of lightening the administrative burden on member state customs to carry out onerous
verifications. However, if the arrangement only calls upon Israel to state the location of final
substantial transformation, this will exclude the vast majority of settlement trade. Published estimates
of the volume of Israeli exports to the Community that directly ‘come from’ settlements range
between €150-200m annually. However, the volume of Israeli exports that have undergone critical
working or processing in settlements is much larger, and could reach up to $2bn.75
At worst the arrangement presents major legal hazards to the Union. Under the arrangement, the EU
would entitle Israel to represent all localities as situated within the State of Israel, to issue proofs of
origin on that basis, and thus to count and verify settlement trade as being entitled to preferential
treatment. If the Community considered the arrangement as legally binding, its enactment would
invert the legal meaning of the association agreement in international law. If the arrangement legally
allows Israel to issue proofs of origin for settlement products, then these products’ preferential
treatment would also become legal. No CFSP statement on the 4th Geneva Convention or on the
illegality of settlements would alter this fact. Indeed, Israel’s occupation would have become
enshrined in Community Law, which in turn, would have become inconsistent with the member states’
duties under public international law (i.e. those of not lending support to a third state’s violation of the
Geneva Conventions).
Aware of these hazards, the Commission has insisted that the arrangement would not be legally
binding and that its enactment would only ease rather than ‘solve’ the problem. However, the
Commission has also wished to shelve the origin rule headache, which has poisoned its relations with
Israel. It has thus called upon the Council to endorse the arrangement. Most problematic, the
Commission has also considered that the arrangement would provide a sufficient solution to proceed
with replacing the Protocol on Origin, to allow for Israel’s inclusion in the system of diagonal
cumulation of origin rules, as mentioned in the EU-Israel Action Plan.76 Yet replacing the Protocol on
Origin prior to an effective solution would not only magnify exponentially the problem in practice
(given the increased difficulty of detecting settlement cum Bulgarian, Romanian, Jordanian, Egyptian,
etc., commingled products). The replacement of the Protocol on Origin prior to a solution could also
poison the EU’s rights to arbitration and to suspension, as the only legal remedies it has left to halt
75
Reported on the New York Times on 22 May 2001. $2 billion may be an excessive estimate. However, if only
a fraction of that estimate represents ineligible imports that cannot be detected with the ‘technical arrangement’,
it is only a matter of time before the verification burden on the member states customs services mounts again.
76
The 2003 Council concluded that the Origin Protocol would be amended only after ‘solving the bilateral issue
of rules of origin’, Council of the EU, Declaration of the EU for the Fourth Meeting of the EU-Israel Association
Council, Brussels, 17-18 November, 2003, paragraph 15.
22 | NATHALIE TOCCI
Israel’s material breach of the Association Agreement.77 Several concerned member states have acted
to halt these developments. When made aware of these risks, the Customs Cooperation Committee
simply ‘noted’ (rather than ‘endorsed’) the arrangement and concluded that the arrangement only
indicated sufficient good faith to open the way for negotiations on diagonal cumulation. At the time of
writing it remains unclear whether, how and when the Union, in the context of the ENP, will proceed
to enhance its trade relations with Israel.
But what explains EU policies towards Israel? Why did the Union abdicate on the use of positive
conditionality? Most importantly why has it accommodated Israel to the extent of bending its own
system of law and harming its credibility in the region? As in the case of relations with the
Palestinians, during the Oslo years, the EU refrained from exerting any pressure on Israel, including
pressure to respect international law. It argued that it did not wish to “prejudice the positions of any of
the parties”. Indeed the entire peace process was conducted on the premise that, while Israel
cooperated in the peace process, the international community would accept its ‘right to differ’ on the
interpretation and application of international law. Yet, the continuation of this attitude following its
demise, has cast doubt over the Union’s rationale.
Some have argued that there would be little point in the EU’s attempt to exert positive conditionality
on Israel, given that the latter would never accept conditions that run counter to its perceived national
interests and project. In other words, if Israel were faced with the choice of deepening its ties with the
Union or persisting in its policies towards the OTs, it would certainly choose the latter. In line with
this argument, others have argued that this is the case not least because the Union has already
delivered many of its most valuable carrots to Israel, particularly in the area of trade.78 A key EU
incentive to Israel would be that of threatening to suspend aid to the PA, thus triggering its collapse. It
has been repeatedly suggested that EU (and other donor) funds to the PA have effectively ‘subsidised’
the Israeli occupation in so far as they have lightened Israel’s onerous legal responsibilities, as the
occupying power, to provide basic services to the Palestinians. Yet due to the expected humanitarian
crisis this would entail, the Union is unlikely proceed on this track.79 And Israel is well aware of this,
eliminating any credibility of a possible EU threat of this kind.
EU policies have also been influenced by Israeli strategies towards the EU. A first pillar of Israel’s
strategy has been that of criticising Europe for its alleged anti-Israeli bias and its anti-semitism. EU
member states and particularly countries such as Germany and Austria, for evident historical reasons,
have been highly sensitive to any criticism of this kind. When highlighting Europe’s anti-Israeli bias,
Israeli officials and analysts have carefully focused on the realm of EU rhetoric, where indeed the
Union has been often critical of Israel. Rarely have Israelis criticised in the same terms the substance
of the relationship, well aware that in practice, Israel enjoys a far closer relationship with Europe than
any non-EU candidate country to the south or east of the Union.
To bolster and explain EU criticism, Israel has also used and manipulated the discourse of antisemitism. While anti-semitism certainly exists in pockets of European society, this is far from
widespread and cannot be conflated with common public sentiments critical of Israel’s conduct
towards the Palestinians. Yet Israeli officials have often merged the two. The controversy in the
autumn of 2003 over the Eurobarometer poll, indicating that a majority of Europeans considered Israel
as the greatest threat to world peace was an interesting case in point. Prime Minister Sharon responded
77
According to Article 45 of the Vienna Convention of the Law of Treaties (1969), if the parties proceed to
amend an agreement in the light of a persisting malpractice, the right of suspension could be voided. This is
because Article 31 states that an amendment in view of inaction to end an acknowledged malpractice could
commit the parties to an interpretation of the agreement that renders the malpractice permissible for as long as
the agreement persists.
78
Conversation with Commission official, October 2004, Brussels.
79
See Muriel Asseburg, “From Declarations to Implementation: The Three Dimensions of European Policy
towards the Conflict”, in M. Ortega (ed.), The EU and the Crisis in the Middle East, Chaillot Paper, EUISS,
Paris, 2003, pp.11-26.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 23
to the results by stating: “Today there is no separation. We are talking about collective anti-semitism.
The State of Israel is a Jewish State and the attitude towards Israel runs accordingly…I would say, in
my opinion, EU governments are not doing enough to tackle anti-semitism”.80 The logical conclusion
of this line of argument was that Europe should make up for its sins to Israel. In policy terms, this
would entail refraining from recurrent criticism of Israel and compensating Israel with forms of virtual
membership in the Union.
A second major line of Israeli reasoning has been that of separating ‘politics’ from ‘economics’. This
argument has had three major strands. The first has highlighted the need to ‘compartmentalise’ the
Arab-Israel conflict and not allow it to poison EU-Israel relations.81 This argument appears intuitively
correct. However, the close enmeshment of the conflict with issues concerning international law
entails that compartmentalising the conflict in reality means accepting Israel’s reading of it. The
dispute over the rules of origin highlights this point. The origin rules issue concerns a technical trade
question, which has been affected by one party’s disrespect for IHL. In this case, ‘compartmentalising’
the conflict and preventing it from affecting EU-Israel relations, would presumably entail accepting
Israel’s positions.
The second strand of this argument has highlighted Israel’s level of economic development, which
cannot be compared to the condition of the rest of the Middle East. Hence, Israel should not be
relegated to the EMP where it is surrounded by poor and misgoverned Arab countries. As put by one
Israeli analyst: ‘If Israel can compete with the Silicon Valley, why should it compete with the Nile
Valley?’82 Following this logic, Israeli analysts and policy-makers for years have attempted to
reinvigorate the logic of the 1994 Essen European Council, which acknowledged that due to Israel’s
high level of development, it should enjoy a ‘special status’ in its relations with the EU. Israeli
scholars have researched in detail how Israel could upgrade its economic ties with Europe, by finding
a sui generis blend modelled on the EU’s relations with developed yet non-member countries such as
Norway or Switzerland.83
The third strand of this argument concerns Israel’s intimate knowledge of the EU system. Most Israeli
analysts are well aware that full EU accession would not be in Israel’s political interests, in so far as it
would require an radical transformation of the Zionist project (through the adoption of the
Copenhagen political criteria). Far more interesting to Israel would be other forms of ‘virtual
membership’. ‘Virtual membership’ would allow Israel to benefit economically and politically from
close association with Europe, without the intrusive political conditionality that full accession entails.
In elaborating ideas for ‘virtual membership’, Israeli officials and scholars have displayed an intimate
understanding of the Community system. This has been most evident in the EU-Israel Action Plan
negotiations. In clear contrast with other EU neighbours, with scant knowledge of what the EU has to
offer, Israel’s cadre of professional officials and academics had the necessary knowledge to cherrypick exactly what EU ‘carrots’ would be in Israel’s best interests.84 The EU-Israel Action Plan is
indeed a long list of EU benefits to Israel in many areas, ranging from reinforced political dialogue, to
economic and social cooperation, trade and internal market integration, cooperation in justice and
home affairs, cooperation and integration in the areas of transport, energy, environment, information
society and research, and people-to people contacts. While ‘political’ issues are discussed in the Plan,
no effective conditions are attached to the receipt of these EU benefits.
80
Reuters, 24 November 2003.
Mark Heller (2004), “Israel-EU Relations: The Political Dimension”, paper presented at the IEPN meeting, 14
October, Berlin.
82
Conversation with Israeli analyst in Tel Aviv, June 2002.
83
Alfred Tovias (2004), “The EU Models of External Relations with EEA Countries and Switzerland in Theory
and Practice: How Relevant for Israel?”, paper presented at the IEPN meeting, 14 October, Berlin.
84
Conversation with Commission official, Brussels , October 2004.
81
24 | NATHALIE TOCCI
The arguments above go a long way towards explaining EU policies towards Israel in practice. A final
reason explaining why the Union has largely bent to Israel has been the leverage that Israel can exert
on Europe. In economic terms, close EU-Israeli trade ties have benefited Europe as well as Israel (the
Union enjoys a strong trade surplus with Israel). Even more importantly, despite being a small country
just over half the size of Belgium, Israel has been key to European security interests. Since the second
World War, what Europe has needed most in the Middle East has been stability. Stability has always
been key to European energy security. The stability and development of the Middle East has been also
linked to other key issues facing Europe, such as rising immigration from Middle Eastern countries.
Most recently, peace, stability and progressive development in the Middle East have been viewed as
key to tackle the new threats facing Europe, first and foremost those of political extremism and
terrorism. The ills of the Middle East by no means hinge exclusively on a resolution of the ArabIsraeli conflict. Yet a solution has been considered by European leaders and publics alike as a main
ingredient to the stability, peace and prosperity of the region. As such, Israel, as a principal party to the
conflict, has been a key to Middle East stability, entailing its significant relative leverage on Europe.
The EU’s limited carrots on offer to Israel, its unwillingness to condition them politically, as well as
Israel’s political hold on Europe, add up to a complex explanation of the status quo. Which other third
country at the EU’s periphery could afford to boycott an EU Special Envoy and receive only rhetorical
accusations in return?85
Policy Avenues in the Period Ahead
Despite the rhetorical commitment to specific goals in the Middle East, EU policy has not only failed
to meet its objectives (a task that could not be achieved by Europe alone), but has at times
paradoxically worked against them. Unlike many other cases of EU foreign policy, EU shortcomings
in the conflict have not derived from major incongruences between national aims and interests. To
differing degrees and with minor exceptions, all member states have both endorsed EU goals and have
shared similar views of how to formulate and implement EU policies towards the conflict. Neither has
the principal problem lied in absolute shortcomings of EU instruments. With the sole exception of the
US, the EU has been the external actor with the greatest potential influence on the parties. Potential
EU influence has derived from the EU’s structural and contractual ties with both Israel and the PA.
The outcomes thus beg the question: should the Union revise its aims or/and should it alter the manner
in which it deploys its instruments?
Revising EU Goals?
Presumably a revision of EU objectives in the Middle East would not entail abandoning the
commitment to human rights and international law. Not only are member states bound to international
law through their own legal commitments, but the Union collectively has made the promotion of rights
and law the cornerstone of its internal and external raison d’être in its Constitutional Treaty.86
Alternatively, the EU could abandon the goal of a two-state solution. Due to the development of the
status quo, there has been a growing discussion in both Israel and Palestine on whether and how to
revert to ‘one-state solution’ ideas. The substance of these ideas varies and stems from radically
different political points of departure.87 However, at the heart of this rationale is the growing
awareness that time may be running out (or may have run out already) for a viable two-state solution.
85
In the autumn of 2003, Israel boycotted EU Special Envoy Marc Otte following his visit to Arafat.
Article III-193(1) of the Constitutional Treaty states that the Union would be ‘guided by, and designed to
advance in the wider world, the principles which have inspired its own creation, development and enlargement’.
87
Gary Sussman (2004), ‘The Challenge to the Two-State Solution’, Middle East Report, Summer 2004. See
also Michael Emerson and Nathalie Tocci (2003), The Rubik Cube of the Wider Middle East, CEPS, Brussels,
pp.28-29.
86
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 25
Indeed the European Council and the Council of Ministers have repeatedly acknowledged this
possibility since 2002.88
There are equally pressing dangers both in retaining the goal and language of the two-state solution
and in abandoning it, embracing one-state solutions instead. The risk of retaining the aim of a twostate solution is the increasing detachment from realities on the ground. One could imagine that in the
period ahead, through a re-engagement of the second Bush administration aided by European support
in the governance and security of Palestinian territories, Israel’s unilateral disengagement plan would
acquire international legitimacy. The result could be a set of largely-disconnected Palestinian entities,
which could be declared a ‘state’, irrespective of their evident lack of viability.
Equally dangerous could be the formal abandonment of the two-state solution idea. Not only would
this mean foregoing the long-sought recognition of Israeli and Palestinian rights to self-determination
through statehood. Most critically, it could entail an acceptance and legalisation of the expanding
Israeli hold over Palestinian territories.
In order to avoid both dangers, a possible way forward would be that of paying less attention to the
formal constitutional end-point of one or two states, and to focus instead on the imperative of
respecting rights and law, by all internal and external parties, both in the process yielding a final
settlement and as part of the core parameters of that settlement. This would include first and foremost
the respect for international humanitarian law, followed by the respect of wider civil, economic and
political rights as and when a final settlement is reached. Other complementary principles, often
applied in conflict and negotiation contexts could include:
-
the equality of treatment of the parties, including the proportionality of the demands made of them
relative to their capabilities;
-
a single undertaking: nothing is agreed until everything is agreed, both in the process towards a
settlement and in the parameters of the settlement itself;
-
minimising path-dependent conditionality, whereby new pre-conditions demanded by either of the
parties find their way into the international consensus determining the ‘rules’ governing the peace
process.
This would mark a clear break both from the current status quo and from the premise underpinning the
Oslo process. This exclusive focus of EU policy would not alone alter the ongoing realities. Yet, much
like the Venice Declaration, viewed as anathema to many in 1980 and accepted by most by 2000, this
shift in the EU’s policy focus, could ultimately lead to the desired results.
Seeking Greater Consistency in the Deployment of EU Instruments
In order to do so, greater consistency should be sought between EU rhetorical goals and the
deployment of EU instruments to meet them. This could be done is several ways, focusing primarily
on the EU’s bilateral relations with the Palestinians and the Israelis.
EU-Palestinian Relations
The renewed international attention to internal Palestinian politics following the death of Yasser
Arafat offers scope for enhanced EU action on Palestinian reform. The concomitant publication of the
EU-PA Action Plan, largely focused on questions of reform, provides the avenue for revamped EU
efforts in this direction.
88
European Council in Copenhagen on the 12-13 December 2002, Declaration on the Middle East; European
Council in Thessaloniki on the 19-20 June 2003, Presidency Conclusions, (11638/03), point 86; Conclusions of
the Council of Ministers on the Middle East, 20 June 2003; European Council in Brussels on the 16-17 October
2003, Presidency Conclusions, (15188/03); European Council in Brussels on 17-18 June 2004, Presidency
Conclusions, (10679/2/04).
26 | NATHALIE TOCCI
One of the major challenges stems from the Palestinian elections and the desirability to allow these to
enhance the legitimacy and accountability of the PA. In order for desired effects to occur, competitive,
free and fair presidential, legislative and municipal elections would be in order. The conduct of
presidential elections on 9 January 2005 was largely considered a success story. The same effort
should be devoted to securing successful legislative and municipal elections. The EU’s commitments
to support free and fair elections through its voice in the Quartet, through financial and technical
assistance and through monitoring, are all welcome.
On longer-term questions of reform, the Union could pay greater attention to three key factors
underlying the reform agenda; namely, domestic actors, incentives and capability. First, EU policies
could focus more on local Palestinian actors and their interaction, in so far as these, rather than
externally-imposed conditions, represent the driving force of any progress (or lack thereof) of reform.
One step to support home-grown reform is to encourage greater involvement of Palestinian civil
society. The Quartet set up a separate track on civil society. But the reform process could benefit if
civil society actors were not simply part of a separate reform track but were included as stakeholders
in the determination and implementation of the reform agenda.
Another key issue, which resurfaced in late 2004, is that of Palestinian intra-factional dialogue,
particularly between the PLO and Islamic bloc. Ideas for dialogue or joint leadership with the Islamic
(or rather Islamist) parties have been long sought by several key personalities on both sides. In
November 2004, the interim PA leaders rejected the concept of a national unity leadership. However
they supported strengthened dialogue with the Islamist parties. The purpose of dialogue would be that
of providing greater clarity and unity in Palestinian national objectives as well as in the legitimate
means to achieve them. Beyond the Islamist parties (and affiliated armed groups), dialogue with and
participation of Islamic (rather than Islamist) groups, particularly those active in civil society, would
also contribute to the effectiveness of humanitarian assistance and, beyond it, socio-economic
development in Palestine. The merits of intra-factional dialogue should not overlook its potential
draw-backs. These draw-backs are reflected also in other contexts, and relate to the general desirability
of including ‘anti-system’ groups within the legal political system. The merits are those of enhancing
moderation and receptiveness to the rule of law. The dangers lie in legitimising radicalism or violence.
The same dilemmas certainly exist in the Palestinian context.
A greater understanding of the intricacies within the Islamic bloc and in particular the important
distinctions which exist between groups operating in different sectors (i.e., between armed groups,
political parties and civil society actors), would be a first place to start to resolve this dilemma. Greater
European understanding of these distinctions could contribute to more effective humanitarian and
development strategies towards the Palestinians. When it comes to political participation, whether and
what dialogue will take place following elections will depend not only on Mahmoud Abbas’ success in
engaging with the Islamic parties, but also on the mode of participation of the Islamist parties in the
legislative and municipal elections. In any event, irrespective of whether their full inclusion in the
PLO is on the horizon, the need for dialogue is likely to persist. The Union, and in particular High
Representative Solana, building on its former support for intra-Palestinian ceasefire talks, could
contribute more actively in mediating strengthened dialogue, if and when needed.
Second, the EU could formulate more consistently the incentives in its conditionality policies towards
the Palestinians. The EU-PA Action Plan goes far in specifying the ‘priorities for action’ in the areas
of democracy, human rights, the judiciary, the legal system, the fiscal and security sectors, institutions
and administrative capability.89 Greater clarity in the reform objectives, to be followed through in
political dialogue and monitored through joint EU-PA sub-committees, are all welcome developments.
However, while rightly heavy on the obligations, the Action Plan is thin on the incentives. The only
additional incentives mentioned in the Plan include efforts to implement the trade aspects of the
association agreement and possible cooperation in the areas of transport, energy, research and people
89
European Commission (2004), “Proposed EU-PA Action Plan”, Brussels, 9 December 2004, pp. 3-8
(www.europa.eu.int).
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 27
to people contacts. It is indeed hard to draw-up feasible ‘integration incentives’ for a non-state actor
under occupation. Moreover, given that the overarching Palestinian preoccupation is that of liberation
and state-building, the most valuable EU incentives would be those directly or indirectly related to
these aims. As such, firmer EU commitments to persuade Israel both to facilitate Palestinian trade and
development, as well as to respect human rights and international law in the OTs would be viewed as
the most valuable incentives to the Palestinians. In this respect, it is interesting to note that while the
EU-Israel Action Plan covers internal Palestinian questions (such as reform and terrorism), the EU-PA
Action Plan makes no mention of Israeli policies towards the Palestinians. EU pledges geared towards
increasing Palestine’s political and economic autonomy vis-à-vis Israel would also be valued highly
by the Palestinians. High on the agenda would thus be aiding the PA to reach full fiscal autonomy
through an amendment of the Paris Protocol and supporting early accession to the WTO.
Third, effective EU conditionality would factor-in the limited capability of the PA as a non-state actor.
As such, in the context of the EU-PA Action Plan, EU policy-makers would need to distinguish
between reform priorities that the PA can and should meet, priorities that require Israeli cooperation,
and priorities that need external support. On the first, including fiscal, judicial, legal and education
reform, the EU could strengthen targeted positive and negative conditionality, particularly following
amendment of the Paris Protocol, granting the PA full fiscal autonomy. On the second, such as
security sector reform, the Union would hold the PA responsible up to and not beyond its capabilities,
lest it fuel unrealistic expectations. Beyond PA capability, EU policy-makers should make the most of
the enhanced EU-Israel relations to encourage Israeli cooperation. On issues requiring external
support, including administrative reform, institution-building, trade and development, the EU, and
other donors, would continue to focus on targeted financial and technical assistance.
Making such distinctions in practice is no simple feat. Measuring relative capability is not only open
to subjective interpretation, but it also requires continuous review, in so far as capability alters over
time as circumstances change. Yet however imperfect, breaking down reform priorities along these
categories would be a first necessary step for an effective EU policy of conditionality. This could be
done by EU and PA officials together through an appropriate sub-committee under the existing EU-PA
Joint Committee. One method to move forward on this issue would be that of projecting what
conditionality benchmarks would look like under ‘normal’ circumstances of sovereign statehood, and
then work backwards from this end-point to current circumstances.
One final dilemma epitomising the difficulties embedded in bridging rhetoric and reality concerns the
overall desirability of international support for the PA. The danger of ongoing support is that rather
than contributing to viable Palestinian statehood, it also eases and thus perpetuates Israel’s occupation.
The dilemma arises because developments on the ground inevitably shape international assistance
priorities. Hence, the growing international focus on Palestinian municipalities, given that ongoing
‘cantonisation’ has placed on them rising responsibilities for service provision. Yet when aid follows
developments on the ground, developments which are also largely shaped by Israeli policies, the risk
becomes that of simply acting to support spoiling strategies, viewed as incongruent with EU aims. The
most recent example of this has been Prime Minister Sharon’s open-ended invitation to the EU and the
UN to support governance and security in Gaza following disengagement. There seems no easy way
out of this dilemma. The most effective way out could be that of strengthening conditionality and
support to the PA on the one hand, but only if the Union holds Israel legally and thus financially
responsible (in deed and not only in word) for its actions in the OTs. Without this double track
approach, the Union would unintentionally add incentives to conflict continuation.
EU-Israel Relations
Turning to EU-Israeli relations, the starting observation is that the EU is unwilling to forgo entirely its
relations with neighbouring countries, first and foremost with Israel. Hence, expecting a radical policy
shift to embrace muscular negative conditionality is unrealistic. A more fruitful and likely avenue is
that of reshaping EU strategies towards Israel through a complementary policy of upgrading
international law as the guiding principle of EU actions and of pursuing positive conditionality. In
28 | NATHALIE TOCCI
practice, EU policy towards Israel has marginalised the importance of IHL and has shielded Israel
from the consequences of its violations to the extent of bending the EU’s own system of rules and
laws. Strong political and legal rationales call for a reversal of this strategy. Politically, EU policies
have added incentives to Israel to pursue actions which the Union views as counter to its interests.
Recognising the validity of this concept in its general applications, the EU Security Strategy noted that
there would be ‘a price to be paid, including their relationship with the EU’ for countries which
‘persistently violate international norms’. Legally, the July 2004 ICJ ruling reaffirmed the
responsibilities of the High Contracting Parties to the 4th Geneva Convention (including all member
states) ‘not to render aid or assistance’ to Israeli policies which contravene IHL (paragraph 163).
What would reasserting IHL as a guiding principle of EU actions entail? Beginning with the origin
rules problem, rather than seeking technical solutions that distract attention and fail to tackle the
underlying issues, the Union could act by ‘least disturbing the functioning of the agreement’ by
conducting broad verifications on all Israeli exports. In order to sustain such a policy legally, this
would require an official Commission acknowledgement that Israel’s policies on origin derive from its
general public policy that contravenes international law. Without such an official acknowledgement,
member state customs could not sustain this comprehensive method of duty recovery, and could face
importers’ challenges.90 Such a solution would naturally entail high administrative and thus financial
costs to EU customs, which could either be endorsed by the latter or passed on Israel by adjusting the
terms of trade. A less onerous solution, which would however ‘disturb’ more the functioning of the
agreement, would be that of partially suspending those elements of the agreement affected by Israel’s
material breach.
The same arguments are beginning to apply to other aspects of EU-Israel relations. A key area is that
of research. As in the case of trade, only legal entities within the territory of the State of Israel are
intended to benefit from funds available in EU Framework Programmes. Yet Israel, in line with its
public policy, has considered as eligible Israeli entities within the OTs. An informal search of the Fifth
Framework database has revealed that two settlement companies (one from the Golan Heights and one
in the Jordan Valley) have benefited from EU funds.91 As in the case of trade, the Union has taken no
effective action to ensure Israel’s respect with its rules and principles. Without special attention paid to
the sui generis problems posed by Israel, there is little scope within the EU’s Framework Programmes
to exercise effective control. DG Research, in charge of managing research programmes, has stated
that these problems are of a ‘political’ nature and thus fall under the competence of DG External
Relations. Future problems are likely to emerge in other areas as well. In 1997, Israel signed an
agreement on public procurement with the Union. But the Union has taken no precautionary action to
prevent the possibility of European companies participating in Israeli tenders for the construction of
infrastructure in the OTs (settlements or the barrier). Another example is in the area of grants and
loans. As of 2007, Israel will be eligible for EIB loans. Israel will also be eligible for funds under the
European Neighbourhood Instrument. But how can and will the Union ensure that these funds will not
be directed to support Israeli policies in the OTs?
These examples highlight a general dilemma, which, far from simply representing an irritant to a
deeper relationship between the Union and Israel, lies at the heart of the EU’s role in the Middle East
conflict: how can the Union relate to a third country whose public policy contravenes international
law, without itself acquiescing to the ensuing malpractices? How and what kind of precautionary
action would be necessary for the Union to protect itself legally and to pursue a foreign policy whose
in-built incentives (however small these may be) would encourage a veritable commitment to law and
rights?
90
In 2002, Italian customs had attempted this solution, withholding guarantees on all products pending broad
verification (and then offering preferential treatment only for products where effective verification demonstrated
veritable Israeli origin). Italy had to abandon this practice due to its legal vulnerability without clear Commission
guidance supporting it.
91
Susan Rockwell and Charles Shamas (2004), op. cit., pp. 22-24.
EU POLICY TOWARDS THE ISRAELI-PALESTINIAN CONFLICT | 29
One avenue would be that of basing all bilateral ties with Israel on a clear and shared
acknowledgement of the parties’ respective duties under international law.92 This could create the
basis for the establishment of a technical dialogue on the respect for human rights and IHL in the OTs.
Such a dialogue could take place through the formation of a human rights sub-committee in the
context of the current Association Council and any future institutional mechanism established under
the ENP. In line with the format of the ENP joint review mechanism, the objective of such dialogue
would be to seek agreement on human rights and international law benchmarks as well as to monitor
the respect for such benchmarks. In the event of disagreements, conditioning present and future
agreements on the shared acknowledgement of the parties’ international law obligations would provide
the Union with additional legal and political ammunition to prevent the possible acquiescence to
Israel’s violations.
It would be grossly mistaken to view these measures as ‘punishments’ or ‘sanctions’ on Israel. Far
from constituting negative conditionality, these measures would represent minimalist readings of the
implementation of a customary norm of general international law, which states that the noncompliance by one party negates the obligation of compliance by the other.93 It would indeed entail a
price to the third party, a price, which as mentioned by the EU Security Strategy, inevitably comes
with the systematic disrespect for international norms.
Yet the Union need not stop at corrective measures. Through a more effective use of positive
conditionality, it could deepen its relationship with Israel, yet careful of doing so in a manner that
would not accommodate illegal Israeli policies. Most of the steps envisaged in the EU-Israel Action
Plan would benefit the State of Israel and Israeli citizens, without extending benefits and thus
supporting Israeli policies in the OTs. In the ensuing implementation of the Plan, the EU and Israel
could pursue all measures of cooperation and integration that would not put Israel in the condition of
violating international law (and the Community in the danger of accepting Israel’s violation). Other
issues, which would instead necessitate a comprehensive solution to Israel’s interpretation of the
territoriality clause, could instead be left pending.
Concerning integration measures that could be pursued immediately without generating mounting
violations of international law, the EU could develop further the concept of positive conditionality.
The option to pursue positive conditionality exists in the Action Plan, but its current formulation is
extremely vague. This is not to say that the Union should specify in minute detail how economic and
social benefits should be conditioned to political obligations. For example, strictly conditioning the
liberalisation of services to Israel’s human and minority rights policy would be neither logical nor
effective. But neither the opposite extreme of abandoning the option of conditionality and merely
discussing the peace process and human rights within political dialogue would be an effective way
forward. Between these two extremes, there is wide room for manoeuvre, in which the Union, both
formally and informally, could generally condition economic, social and institutional benefits to
political and legal conditions.
EU credibility in the region would be greatly enhanced were the Union to pursue vigorously its
substantive bilateral relations with the parties through a more effective use of positive conditionality
and the upgrading of IHL as the guiding principle of its external policies. By doing so, the EU could
not, alone, reverse the ongoing developments on the ground. Let alone could it achieve a just and
viable solution to the conflict. Yet the EU would contribute, far more than it has done so far, to
bridging that glaring gap between rhetoric and reality that has increasingly besieged the IsraeliPalestinian conflict.
92
Ibid., pp. 10-11.
The principle of ‘inadimplenti non est adimplendum’ has been codified in the Vienna Convention on the Law
of Treaties.
93
References
Aoun, Elena (2003), “European Foreign Policy and the Arab-Israeli Dispute: Much Ado About
Nothing?”, European Foreign Affairs Review, Vol. 8, pp. 289-312.
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Dachs, Gisella and Joel Peters (2004), “Israel and Europe, the Troubled Relationship: Between
Perceptions and Reality”, paper presented at the IEPN Meeting, 14 October, Berlin.
Emerson, Michael and Nathalie Tocci (2003), The Rubik Cube of the Wider Middle East, CEPS,
Brussels.
European Commission (2004), “Proposed EU-Israel Action Plan”, Brussels, 9 December,
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Olsen, Johan P. (2001), The Many Faces of Europeanisation, Arena Working Papers, WP01/2.
Ortega, Martin (ed.) (2003), The EU and the Crisis in the Middle East, Chaillot Paper, EUISS, Paris.
PLO Negotiations Affairs Department (2002), Israel’s Pre-emption of a Viable Two-State Solution,
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PLO Negotiations Affairs Department (2003), Bad Fences Make Bad Neighbours, December 2003,
Ramallah.
Rockwell, Susan and Charles Shamas (2004), “A Human Rights Review of the EU and Israel 20032004”, EMHRN, Brussels, draft.
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Report, Council of Foreign Relations, New York.
Shikaki, Khalil (2002), “Palestinians Divided”, Foreign Affairs, Vol. 81.1, p. 92, January/February.
Siegman, Henry (2003), “Partners for War”, New York Review of Books, 16 January.
Sussman, Gary (2004), “The Challenge to the Two-State Solution”, Middle East Report, summer.
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Theory and Practice: How Relevant for Israel?”, paper presented at the IEPN Meeting, 14
October, Berlin.
| 30
Annex 1: Israel’s Barrier/Wall
Source: http://www.palestine-pmc.com/maps/route.jpg.
| 31
Annex 2: Israel’s Disengagement Plan
Source: http://www.palestine-pmc.com/maps/15-9-04.gif
| 32
StrataGen - Strategic Agenda for the Greater European Neighbourhood
A Programme of the Centre for European Policy Studies (CEPS), for 2005-2010
StrataGen Mission Statement
•
•
•
•
•
To define a vision for a Wider European order and the relationship between the enlarged EU
and its Arab/Muslim neighbourhood;
To develop these proposals in-depth and in policy-operational terms;
To combine in-house research capacity with networks of individuals from leading research
institutes in the EU and the neighbourhood, and to disseminate and advocate proposals
throughout the region;
To work independently from the EU institutions but in close interaction with them; and
To decide on the sequencing and selection of priority topics with core stakeholders.
Over the last five years, CEPS has developed an exceptional expertise in European Union policies
in the area often called the Wider Europe. This has been reflected in publications that have been
both regional and thematic: CEPS Plan for the Balkans (1999), Stability Pact for the Caucasus
(2000), The Elephant and the Bear – EU, Russia and their Near Abroads (2001), Cyprus as
Lighthouse of the East Mediterranean (2002), Norway, the European Economic Area and the
European Union (2002), Europe’s Black Sea Dimension (2002), The Rubic Cube of the Greater
Middle East (2003), The Wider Europe Matrix (2004), Economic Transition in Central and
Eastern Europe (2004), Europeanisation and Conflict Resolution (2004), Readings in European
Security, Vols. I (2002) and II (2004). These publications and related working papers are
available from the CEPS’ on-line bookshop, at http://shop.ceps.be
CEPS has decided to build on and strengthen its work in this broad area through the StrataGen
programme over the five-year period 2005-2010. The rationale for this initiative follows from
both the EU’s historic enlargement on 1 May 2004, which now leads the EU to define a new
neighbourhood policy, and the unprecedented turmoil in the Middle East in the aftermath of
September 11th and the Iraq war, with its consequences for transatlantic relations.
The StrataGen programme will be organised under the following broad geographic areas:
•
•
•
•
Northern neighbourhood policy, covering CIS states targeted by EU neighbourhood policy
EU-Russian relations
Southern neighbourhood policy, covering Mediterranean states, but reaching also into what is
now officially called the Broader Middle East and North Africa (BMENA)
Implications for transatlantic relations will be considered for all three regions above.
The analytical methodology will be multi-disciplinary: political science, international relations
and European studies, economics and law.
The programme is led by Michael Emerson, CEPS Senior Research Fellow, together with Daniel
Gros, CEPS Director. CEPS gratefully acknowledges financial support for the StrataGen
programme from the Open Society Institute and the Compagnia di San Paolo.
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About CEPS
Founded in 1983, the Centre for European Policy Studies is an independent policy research
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challenges facing Europe today. Funding is obtained from membership fees, contributions from
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To achieve high standards of academic excellence and maintain unqualified independence.
To provide a forum for discussion among all stakeholders in the European policy process.
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Complete independence to set its own priorities and freedom from any outside influence.
Authoritative research by an international staff with a demonstrated capability to analyse policy
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Formation of seven different research networks, comprising some 140 research institutes from
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greatly extend our reach in a wide range of areas from agricultural and security policy to
climate change, JHA and economic analysis.
An extensive network of external collaborators, including some 35 senior associates with
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Programme Structure
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CEPS is a place where creative and authoritative specialists reflect and comment on the problems
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