Lawfare Project letter to the EU

This is a letter that the Lawfare Project is planning to send to the EU; they are looking for lawyers to sign it before sending.

H.E. Catherine Ashton, EU High Representative for Foreign Affairs

Excellency

Re: EU directive regarding Israeli settlements

We, the undersigned, attorneys from across the world who are involved in international law issues as well as being closely concerned with the Israeli-Palestinian dispute, respectfully call upon you and the EU to revoke the abovementioned directive which we feel is based on legally flawed and incorrect assumptions regarding both the legality of Israel's settlements and the status of the pre-1967 Armistice lines as Israel's border.

Furthermore, the reasoning behind the directive summarily ignores the historic and legal rights of Israel and the Jewish people in and to the areas of Judea and Samaria, including the internationally acknowledged rights of the Jewish people as the indigenous people of the area.

The long-held view of the EU as to the illegality of Israel's settlements is a misreading of the relevant provisions of international law, and specifically Article 49 of the Fourth Geneva Convention, which is neither relevant to the unique circumstances of Israel's status in the area, nor was it ever applicable, or intended to apply to Israel's circumstances in Judea and Samaria.

The EU together with other international bodies has consistently ignored authoritative sources, including the 1958 official commentary by International Committee of the Red Cross, as well as the published opinions of prominent international jurists, all of which explain the provenance of Article 49 in the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War. This has no relevance to Israel's settlements in Judea and Samaria.

The EU totally ignores the very agreement to which it is signatory as witness, the 1995 Israeli-Palestinian Interim Agreement, in which it was agreed by the parties, pending a permanent status agreement, to exercise powers and authority in the areas under their respective control. Such powers include planning, zoning and construction. The issues of settlements and Jerusalem, as agreed upon between the parties, are negotiating issues, and hence, determinations by the EU undermine the negotiating process and run against the EU's status as signatory.

The legality of Israel's presence in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question. This includes the 1922 San Remo Declaration unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea and Samaria and Jerusalem) as well as close Jewish settlement throughout. This was subsequently affirmed internationally in the League of Nations Mandate Instrument, and accorded continued validity, up to the present day, by Article 80 of the UN Charter which reaffirmed the validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).

The inference regarding Israel's borders as recognized by the EU is no less misguided and historically and legally wrong. The pre-1967 Armistice lines (so-called "green" line) were never considered to be borders. UN Security Council resolution 242 (1967), endorsed by the European members of the Council, called for "secure and recognized boundaries" to replace the pre-1967 Armistice lines. The European leaders further endorsed this principle in their 1980 Venice Declaration. By its persistence in referring to the pre-1967 lines, the EU is undermining future negotiation on this issue by predetermining its outcome.

In a similar vein, the repeated use by the EU of the term "occupied Arab" or "Palestinian territories" to refer to the area of Judea and Samaria, has no basis in law or fact. The area has never been determined as such, and thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.

Excellency,

The position taken by the EU and the action presently being taken pursuant to its directive, regarding Israel's settlements in Judea and Samaria, is, in our view, incompatible with the EU's standing as a member of the international Quartet, and serves to neutralize any pretentions it might have to serve a useful function in the negotiating process between Israel and the Palestinians.

Frankly, the EU cannot, in all sincerity, presume to come with clean hands and claim to be an impartial element in the negotiating process. The EU has taken sides and as such, in its actions against Israel, it is undermining the negotiating process.

The position and actions of the EU against Israel are all the more unfortunate and regrettable in light of the tragic Jewish history in Europe, which cannot be ignored or forgotten. One might have expected that realization of this factor would guide the wisdom and logic of the actions of the EU.

(h/t Irene)