| Letter to José Manuel Barroso, President of the European Commission. |
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18th July 2005 The European Council stresses the global strategic importance of peace, stability and prosperity in the Mediterranean… The European Council recalls in this regard the importance of full implementation by the parties of the obligations incumbent upon them under the first phase of the Roadmap. It notes that the latter provides for measures to be taken in parallel by the two sides. The European Council stresses the importance for the Palestinian Authority of fulfilling all its obligations with regard to security, including those accepted at Sharm el-Sheikh… The European Council also stresses the need for a halt to Israeli settlement activities in the Palestinian Territories. This implies a complete cessation of construction of dwellings and new infrastructures such as bypass roads. The European Council also calls for the abolition of financial and tax incentives and direct and indirect subsidies, and the withdrawal of exemptions benefiting the settlements and their inhabitants. The European Council urges Israel to dismantle illicit settlement outposts. Settlement policy is an obstacle to peace and threatens to make any solution based on the coexistence of two States physically impossible. The European Council, while recognising the right of Israel to protect its citizens from attacks, remains concerned by the continuing construction of the separation barrier in the occupied Palestinian territory, including in and around East Jerusalem, which is contrary to the relevant provisions of international law.’
Our clients welcome the references to the ‘separation barrier’, including its illegality. It is our clients’ view that, regardless of the Road Map or any political imperatives of the day, the EU is bound by international legal obligations to ensure respect for Israel’s compliance with human rights and international humanitarian law. Our clients seek urgent assurances from you in this regard.
From previous announcements, it is clear to our clients that the EU considers Israel to be bound, de jure, during its continued occupation of the Palestinian territories, known as the West Bank (including East Jerusalem) and Gaza Strip, by:
‘Security GOI takes no actions undermining trust, including deportations, attacks on civilians; confiscation and/or demolition of Palestinian homes and property, as a punitive measure or to facilitate Israeli construction; destruction of Palestinian institutions and infrastructure; and other measures specified in the Tenet work plan. Humanitarian Response Israel takes measures to improve the humanitarian situation. Israel and Palestinians implement in full all recommendations of the Bertini report to improve humanitarian conditions, lifting curfews and easing restrictions on movement of persons and goods, and allowing full, safe, and unfettered access of international and humanitarian personnel. Settlements GOI immediately dismantles settlement outposts erected since March 2001. Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements).’ Our clients consider that the above provisions simply recite certain matters that are required of Israel so as to comply with its international legal obligations as an Occupying Power, rather than being matters of choice or subject to political expediency. However, if in supporting these requirements it was the intention of the EU to seek to ensure Israel’s respect for, inter alia, the provisions of the Fourth Geneva Convention 1949, then those terms of the road map need to be enforced effectively. Our clients are concerned that EU policy is (wrongly) driven by the perceived need to act in a politically balanced manner as regards what is (also wrongly) viewed as a symmetrical situation that exists between the Israeli occupiers and the occupied Palestinians. Our clients consider that the rule of law should not bend to such political considerations. Further, the legal reality is that international humanitarian law has been framed by nations in such a way that the (obvious) imbalance between an occupied people and an occupying power can be corrected, to some extent, through third party interventions (for example, the prosecution of war criminals under articles 146-147 of the Fourth Geneva Convention of 1949). Notwithstanding your clearly expressed support for the ICJ’s conclusion that the separation barrier is unlawful to the extent that it is built on occupied Palestinian land, it does seem necessary to our clients to spell out to you their understanding of the legal consequences of the Advisory Opinion for ‘third parties’. First, it is necessary to appreciate what Israel is obliged to do, according to the ICJ. We respectfully draw your attention to the following extracts from the Advisory Opinion of the ICJ of 9th July 2004 as to ‘The legal consequences of the construction of a wall in the occupied Palestinian territory’: “149. The Court notes that Israel is first obliged to comply with the international obligations it has breached by the construction of the wall in the Occupied Palestinian Territory…Consequently, Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its control following the 1967 War (see paragraph 129 above). 150. The Court observes that Israel also has an obligation to put an end to the violation of its international obligations flowing from the construction of the wall in the Occupied Palestinian Territory. The obligation of a State responsible for an internationally wrongful act to put an end to that act is well established in general international law, and the Court has on a number of occasions confirmed the existence of that obligation (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 149; United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para. 95; Haya de la Torre, Judgment, I.C.J. Reports 1951, p. 82). 151. Israel accordingly has the obligation to cease forthwith the works of construction of the wall being built by it in the Occupied Palestinian Territory, including in and around East Jerusalem. Moreover, in view of the Court’s finding… that Israel’s violations of its international obligations stem from the construction of the wall and from its associated régime, cessation of those violations entails the dismantling forthwith of those parts of that structure situated within the Occupied Palestinian Territory, including in and around East Jerusalem… 152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned…. 153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction. 154. The Court will now consider the legal consequences of the internationally wrongful acts flowing from Israel’s construction of the wall as regards other States. 155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law. 156. As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor case, it described as “irreproachable” the assertion that “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88), “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .” 157. With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, it stated that “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ . . .”, that they are “to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character. 158. The Court would also emphasize that Article 1 of the Fourth Geneva Convention, a provision common to the four Geneva Conventions, provides that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” It follows from that provision that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with. 159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention. 160. Finally, the Court is of the view that the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.” The Advisory Opinion clearly indicates that the EU is obliged not to recognize the ‘barrier’ or assist Israel in its construction, but non-recognition and non-assistance entail in this context, where necessary, the severance of diplomatic, treaty and economic and other forms of relations. The EU is obliged, for example, to pursue collective responses through the UN to ensure compliance. The EU collectively, as its member States are parties to the Geneva Conventions, has an obligation not only to respect but “to ensure respect” for international humanitarian law. Through the EU-Israel Association Agreement, the EU is in a unique position to ensure compliance by Israel with international norms. EU-Israel Association Agreement You are of course familiar with the key provisions for present purposes of the above agreement, which are: Article 2 Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guides their internal and international policy and constitutes an essential element of this Agreement. Article 79
In the selection of measures, priority shall be given to those which least disturb the functioning of the Agreement. These measures shall be notified immediately to the Association Council and shall be the subject of consultations within the Association Council if the other Party so requests. We respectfully refer you to the recent report published by the Euro-Mediterranean Human Rights Network (EMHRN), a network of 80 Arab, European, Israeli and Turkish human rights organisations, institutions, and individuals committed to universal human rights and based in more than 20 countries of the Euro-Mediterranean region. You will be aware of the recommendations contained in that report, one of which was as follows: ‘The conclusion and implementation of an Action Plan with Israel under the European Neighbourhood Policy (ENP) should be conditioned on a clear acknowledgement by Israel of its status and duties as an Occupying Power, and on the incorporation within the Action Plan of a provision for technical dialogue and practical cooperation aimed at promoting the implementation of international human rights and humanitarian law in occupied Palestinian territory.’ We welcome your views as to the lawfulness of proceeding with an Action Plan at this stage without ensuring Israel’s respect for the terms of the ICJ ruling, bearing in mind the ruling itself and the above provisions of the EU-Israel Association Agreement. Israeli violations of Palestinian human rights and of international humanitarian law since 9th July 2004 Notwithstanding Israel’s planned unilateral ‘disengagement’ from the Gaza Strip, and certain political developments since the death of Yasser Arafat, the past twelve months have seen continued violations of international law by Israel in the OPT. No doubt you are aware of the Weekly Briefing Notes (WBN) published by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in occupied Palestinian territory.1 Since July 2004, OCHA has documented:
You will also be aware of, inter alia, the reports of:
Further, at the beginning of April 2005, OCHA published its March 2005 Update no. 5, The Humanitarian Impact of the West Bank Barrier on Palestinian Communities.2 Section 1 of that report provides an overview, which includes the following:
OCHA’s weekly reports since April 2005 record very intensive Israeli activity in the continued construction of the barrier and its increasing impact on local communities. We enclose a Position Paper published by the Palestinian Centre for Human Rights in April 2005, entitled Securing the Wall from International Law: an initial response to the Israeli State Attorney. As PCHR point out in that Paper, despite the clear terms of the ICJ Advisory Opinion, Israel has not only refused to put an end to the violation of its international obligations flowing from the construction of the wall, but ‘accelerated the pace of construction of the Wall, announced the expansion of existing settlements and continued to impose [an] “associated regime”. As part of pending litigation before the Israeli High Court, the first official Israeli response to the ICJ Advisory Opinion on the wall was issued on 23 February 2005, in the form of a 180 page statement from the State Attorney, prepared by Osnat Mandel, Head of the High Court Section of the State Attorney’s Office, and Avi Licht, a Senior Deputy to the State Attorney. The document, thus-far released only in Hebrew, seeks to argue that the Advisory Opinion has no effect on the cases before the Israeli High Court. Crucially, the State Attorney asserts that the factual situation has dramatically changed since the Advisory Opinion, and that the judgment is therefore not relevant any more. In particular, statistics are provided by the State Attorney which claim that Israel will now only include a small part of Palestinian territory on the Israeli side of the Wall. PCHR’s Paper shows that, despite Israeli claims, ‘the ICJ’s Advisory Opinion not only remains relevant, but is in need of urgent implementation.’ PCHR show that the Israeli State Attorney used flawed methodology in asserting that the planned route of the wall would alienate to Israel just 3.3% of the West Bank: ‘The Israeli authorities do not take into account East Jerusalem, which was formally annexed by the Israeli Parliament, the Knesset, in 1980. Under international law and according to several UN resolutions, East Jerusalem remains occupied territory and should be included in the statistics. A high Wall now surrounds the eastern Jerusalem area (part of Jerusalem Municipality under Israeli law), forbidding access to the holy city for Palestinians from the West Bank. The statistics provided by Israel deal only with the already approved route of the Annexation Wall, however, many sections are still to be added. The areas which will be on the Israeli side of the Wall will, certainly, significantly increase the overall percentage of de facto annexed land….Instead of the declared 3.3%, and according to our statistics, 7.4% of Palestinian land will be on the Israeli side of the Wall. A further 2.1% should be added to this figure if a wall was to be erected around the Ariel Bloc of settlements, which is very likely. The other settlement blocs which will remain behind the Wall will represent another 8%, while the Jordan Valley, a prohibited area for Palestinians, counts for 28.5% of the West Bank. As of yet the Israeli authorities have not announced any decision regarding the future path of the Wall in the Jordan valley. However, the land there has effectively been annexed already and the continued construction of the Wall along the ‘obvious’ north-south link path would only seek to confirm this annexation. Altogether, the remaining areas on which the Palestinian Authority will have control will reach a small 54%. In fact, the ICJ’s Advisory Opinion remains, today, up to date.’ Indeed, the wall and the gate and permit regime is causing additional costs, delays and blockages to the delivery of humanitarian services and effectiveness of service providers, including EU funded organisations such as UNRWA.3 Case Studies The above matters are particularly evident from OCHA’s March 2005 update (see above), which includes case studies on the impact on Palestinian lives. The difficulties that the gates present for affected residents and humanitarian agencies trying to service them are exemplified by UNRWA in its document concerning UNRWA’s access to Barta’a enclave disrupted by IDF restrictions.4 (See also the most recent report on Barta’a in general.)5 Both UNRWA and OCHA have recently reported in detail on the loss of access to lands by local farmers because of tightening restrictions on permit eligibility in the Qalqilya area. Contrary to Israel’s claims, the status of the ‘seam zone’ has changed, affecting services in the areas concerned and causing restrictions to humanitarian providers; and landowners’ access to land is being severely restricted in the seam zone. All this violates the ICJ opinion and any number of IHL and IHRL provisions. We attach the following additional documents/ ‘case studies’:
Accordingly, all the evidence indicates that:
The actions of the EU since 9th July 2004 We attach a document that gathers together EU statements since 9th July 2004 as to Israel and the Middle East peace process, which includes some passing references to the legal consequences of the ICJ ruling of 9th July 2004. However, we have not seen any evidence that a clear stance has been adopted in relation to the duty of the EU to seek to ensure Israel’s compliance with its international obligations. Indeed, we note that none of the EU documents we have seen that discuss trade relations with Israel since July 2004, address the possible moral and legal imperatives to take effective economic and political measures to ensure Israeli compliance with its international obligations. We are also aware that the Special Rapporteur of the UN Commission on Human Rights on the right to food has been in correspondence with you regarding his request to temporarily suspend the Association Agreement until the food situation in the OPT improved, but we have not seen the full terms of that correspondence. Formal request for action by the EU and provision of information Our clients have noted that you have done nothing in the past 12 months which has succeeded in preventing the Israeli authorities from literally ‘ploughing on’ with the erection of the ‘separation barrier’, with all the suffering that has caused and will cause to communities up and down the West Bank (see above). Accordingly, please now provide our clients with details of all actions that you now propose to take to ensure that Israeli human rights violations cease and, in particular, that all further work on the ‘separation barrier’ cease forthwith and that Israel comply with the terms of the ICJ Advisory Opinion. If you are unable or unwilling to take effective measures please provide your reasons for your refusal. Please also set out the consideration given by you to suspension of the EU-Israel Association Agreement. Further, pursuant to REGULATION (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, kindly provide our clients with all the following documents that have come into existence since 9th July 2004 (or reasons why any of the items cannot be supplied):
We look forward to hearing from you. Yours faithfully, HICKMAN AND ROSE References:
cc. Dr. Benita Ferrero-Waldner, Commissioner for External Relations and European Neighbourhood Policy & Secretariat-General, Unit SG/B/2 — Openness, access to documents, relations with civil society, B-1049 Brussels, Belgium, Fax (32-2) 296 72 42 & Karen Betts This email address is being protected from spam bots, you need Javascript enabled to view it |