Can Europe overcome its paralysis on Palestine?

Opinion piece (Haaretz)
Beth Oppenheim
05 December 2019

When Federica Mogherini took office as the EU’s high representative for foreign policy in November 2014, she declared that a two-state solution could be reached within her five-year term.

As her successor, Spanish foreign minister Joseph Borrell, takes over, there has been no progress. Instead, Israel has strengthened its grip over the Palestinian territories, the Palestinian leadership is weak and divided, and the EU stands by uttering condemnations without consequences.

For decades, Israel has been de facto annexing the West Bank, encouraging Jews from Israel and the diaspora to move to settlements there. This is illegal under international law. Settlements are designed to fragment the remaining Palestinian-controlled territory, thus preventing the creation of a viable Palestinian state. 

Settlement construction has increased on Mogherini’s watch, and Israel began a creeping de jure annexation process where the Knesset passes laws that apply to the occupied West Bank – expanding the parliament’s sovereignty into the occupied territories.

Netanyahu has also threatened several times to fully annex parts of the West Bank. However, he has little reason to transition from creeping to full-throttle annexation. Annexation without granting Palestinians citizenship would create one legal space and an unequal population in terms of civil rights. This would draw unwanted international consternation, even among Israel’s traditional partners.

Israel has also continued its blockade on the Gaza Strip in response to the threat posed by Hamas. Gazans are routinely and illegally denied access to electricity, clean water, construction materials and medical care. Israel’s brutal crack-down on protests at the Gaza fence probably also violated international law. 

In response to Israel’s actions, the EU has issued only paper-thin rhetorical condemnations, without practical consequences. Why?

Mogherini faced a challenging context. Across the Atlantic, President Donald Trump unpicked decades of U.S. policy, offering unconditional support for Israel, while turning the screws on the Palestinians. The administration has begun a slippery descent from the international consensus, avoiding the term "two-state solution"; casting doubt on the idea of a Palestinian state; and questioning whether the settlements are even illegal.

At home, the EU’s member-states became increasingly divided on Israel and Palestine. Prime Minister Benjamin Netanyahu pursued a highly effective divide and rule policy, exploiting shared illiberal and nativist tendencies with governments in central and eastern Europe, while ignoring their anti-Semitic tendencies; and winning support by playing on Greece and Cyprus’s desire for greater energy co-operation with Israel. EU foreign policy, decided by unanimity, is paralysed, with little appetite for sanctions.

Understanding the threats to the two-state framework, Mogherini devoted her energy to preserving it. She succeeded in stopping member-states from radically diverging from agreed positions, and continued to express support for international law. She released statements in response to destructive U.S. decisions - recognition of Jerusalem as Israel’s capital, the embassy move to Jerusalem and recognition of the Golan Heights.

But the limits of EU unity were revealed at the UN Security Council when Croatia, the Czech Republic, Hungary, Poland and Romania abstained from a vote on the status of Jerusalem in December 2017. Mogherini’s support for the two-state solution may have kept it alive at the level of rhetoric, but on the ground, Israel has trampled it - and the EU has stood by.

Mogherini used diplomatic soft soap while neglecting a stronger instrument: the EU’s policy of "differentiation" between Israel proper and the territories occupied after 1967, which excludes the settlements from the benefits of the EU-Israel bilateral relationship. Differentiation measures include labelling the origin of products, preventing settlement entities from participating in EU research programs, and ensuring that goods produced in the settlements do not get preferential treatment.

Differentiation protects the integrity of the EU legal system by ensuring that settlements, which are illegal under international law, are not treated as though they were part of Israel. And it increases the cost to Israel of maintaining the settlements, deterring it from pursuing the policy.

But implementation of differentiation is very patchy at the EU and member-state level: Mogherini should have given the policy stronger support.

Europe tends to exaggerate its impotence in the Israeli-Palestinian conflict, citing the need for unanimity. But Borrell, the incoming foreign policy chief, should not limit his ambition to rhetorical defenses of the two-state solution, as Mogherini did.

Some argue that stern dialogue from the EU only drives a wedge between Europe and Israel, and does not yield policy change from Jerusalem. This is because Europe’s condemnation has rarely been accompanied by consequences. When the EU has imposed consequences, though, Israel has acquiesced.

In 2014, the EU excluded Israeli projects undertaken in the occupied territories from its research and innovation programme, Horizon 2020. When the Israeli government threatened to pull out of the program, it was met by an outcry from the Israeli research community and the public, who recognized the "price tag" of their government’s policies. Under pressure, Netanyahu conceded and signed up. Again, in 2017, Netanyahu yielded, when he signed a multi-million euro economic agreement with the EU which explicitly excluded the settlements.

The argument that, should Europe get tougher, Israel would simply opt for other partners, like the Gulf countries, is overstated. The connection between Israel and Europe runs deep, culturally and historically, alongside thick economic, technological and security ties. These bonds would not be easily cast off.

Given the lack of consensus in the EU, Borrell should sidestep the paralysis by supporting coalitions of member-states that are willing to act. Borrell should also launch a process to review the EU and the member-states’ bilateral ties with Israel and ensure that differentiation is applied. This would not require consensus, as Borrell has a legal basis (UN Security Council Resolution 2334) and a mandate from EU member-states.

He will need to be ready to defend the policy from Israeli accusations of anti-Semitism, which met the recent European Court of Justice ruling on the labelling of settlement goods.

Like Mogherini, Borrell should protect the two-state perspective. But he must also address the gulf between the EU’s rhetoric and an emergent one-state reality. Israel now controls almost all the Palestinian territories, to varying degrees, and operates two unequal legal systems in the West Bank. Borrell should spell out the consequences for Israel’s status as a democracy. He should also begin an internal debate in the EU on adjusting to a unitary state with unequal rights for its inhabitants.

Unless there is progress on the peace process and a halt to the creeping annexation of the West Bank, Borrell should resist pressure to deepen the EU’s relationship with Israel any further. Israel already receives plenty from the EU – a deep association agreement that provides free trade, as well as agreements in dozens of areas, including aviation and agriculture, and participation in EU research and innovation programmes.

Borrell needs to be firm with the Palestinian Authority too. In 2018 alone, the EU paid €155 million to sustain the PA, as part of its ambitions for a future Palestinian state. But the Palestinian leadership is ideologically and geographically divided, and Palestinian institutions are in a dire state.

The judiciary is controlled by the executive; rule is by presidential decree; the legislature is dissolved; civil society space is shrinking; and PA security forces violate the human rights of Palestinians. Assistance to the PA needs to be conditional on reconciliation, democratic progress and fair treatment of Gaza. 

Finally, Borrell should raise the issue of no-contact with Hamas with the member-states. Informal contact, not yet de-listing Hamas as a terrorist organization, would amplify moderate voices and force the organisation to play the diplomatic game. Contact will be essential for supporting Palestinian reconciliation and national elections.

When he served as Spain's foreign minister, Borrell had a record of supporting the Palestinians, advocating for Spain to recognize the state of Palestine unilaterally. But his social democratic credentials, like Mogherini’s, may point in the direction of another five years of diplomatic business as usual.

More of the same from the EU will permit a hardening of today’s one-state, unequal reality. Instead, Borrell must translate words into deeds.

Beth Oppenheim is a research fellow at the Centre for European Reform.