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The Gratuitous Nature of EU’s Israel Policy

When the European Union announced new restrictions on its dealings with Israeli entities in Jerusalem and the West Bank, there was some confusion, thanks to the initial reporting by Haaretz, of what the new rules meant in practice. But clearing up the confusion does not seem to have done the EU and its regulations any favors. Yair Rosenberg read through the document and explained that the EU rules did not amount to a full-blown economic boycott of Jews living where the EU doesn’t want Jews to live. That is true enough; I wrote about the new rules and preferred to call them a “move toward boycotting Jews in the West Bank and parts of Jerusalem,” which it plainly was.

And Wednesday at the Times of Israel, American law professor Eugene Kontorovich made the sensible point that because the new rules don’t restrict trade but rather apply to grants and the like, the regulations won’t harm EU economies the way a trade boycott would. Kontorovich was not writing in defense of the morality of the EU’s discriminatory action; he was simply noting that withholding grants and barring trade are two very different things. Nonetheless, the newfound clarity on the rules should not inspire a sense of relief. If anything, Kontorovich’s explanation of the regulations shows the EU’s policymakers to be not just intent on discriminating against Jews in their current and historic capital but also ignorant of international law even while using their interpretation of such law as the basis for their collective actions:

The Europeans regard Israel as an occupier in the West Bank, despite the illegitimacy of the previous Jordanian presence there. They also see Jewish communities there as violating the Geneva Conventions prohibition on the “occupying power… transferring its civilian population” into the occupied territory, despite the fact that Jews living in the West Bank there were not “transferred” by Israel in any meaning of the word; they just moved themselves.

Set such quibbles aside. Let’s assume the European position on settlements is correct. Even so, international law does not forbid or restrict the operations of private groups based in or operating in the West Bank. International law prohibits governments from “transferring” settlers to occupied territory; it does not make the settlers themselves illegal, international lepers, or legitimate objects of discrimination. It does not prohibit business from operating in occupied territory, or require the denial of services to “transferees” and their descendants. Such a broad reading of international rules finds absolutely no support in the treatment of any other occupation. Indeed, in an important recent decision concerning a company involved in building the Jerusalem light rail, a high-level French court held that international law does not restrict companies from doing business across the Green Line, or even working on Israeli government-funded projects.

The EU, Kontorovich notes, doesn’t apply this standard even to territorial disputes involving European countries. So it can’t really be about international law, since the EU only wants to apply this standard to Israel. What else could it be? Kontorovich provides a clue when he writes of another aspect of the EU rules that undercuts the argument it is about enforcing international law. The EU rules apparently contain a carve-out for those groups determined to be consistent with EU peace process policy:

Moreover, the guidelines contain a massive exception that undermines the notion that this is about international law rather than EU foreign policy. Article 15 exempts groups that “promot[e] the Middle East peace process in line with EU policy.” Either the Geneva Conventions and related rules prevent Israelis from having anything to do with the West Bank or they do not – but they certainly do not contain a “things the EU likes” exception. The exemption reveals the true purpose of the rules: to promote European foreign policy, not to vindicate international law. Indeed, the essence of the rule of law is about applying general rules to similar cases, regardless of one’s sympathies. The application of unique rules to Jewish State is the opposite of lawful.

This is about EU foreign policy, not international law. And that is what makes it so distressing. The EU’s exclusionary and discriminatory actions against Jews in the Middle East are not an unfortunate step compelled by laws and norms; they simply want to do it. From time to time the EU will attempt to portray its actions as upholding justice and the law. But that is manifestly untrue, as is any claim the EU is acting in its own self-interest. EU leaders are following their hearts, and their hearts are telling them to take a swing at Israelis from time to time, just to remind them who their true friends are–and who they aren’t.


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