Mauro Gatti, Alma Mater-Studiorum – Università di Bologna, Membro della redazione

The EU has issued tepid statements in response to the recent 11-day crisis in Palestine, ignoring the violence perpetrated by Israeli authorities. This post suggests that the EU’s silence is consistent with the positions of the Member States and the EU’s established policy but does not sit well with its alleged “values”. 

The crisis in Palestine has sparked reactions across the globe. Some actors have energetically condemned Israel’s actions; before the 21 May ceasefire, the Tunisian foreign minister, e.g., “called on ending the savage Israeli aggression on the occupied Palestinian territories and the besieged Gaza Strip”. Others have sided with Israel; the US, in particular, stressed its “strong support for Israel’s right to defend itself”. 

The European Union largely followed the US approach. The statements of EU leaders stigmatised the violence perpetrated by Hamas but not the abuses conducted, on a larger scale, by Israeli authorities (see below, section 1). The silence of EU institutions is unsurprising, since it is consistent with the priorities of its Member States (section 2), the EU’s established policy (section 3) and the pragmatic character of the EU’s external relations: the Union often preaches its “values” but seldom practices them (section 4).

1. The EU’s Statements on the Crisis in Palestine

In response to the crisis, the leaders of EU institutions adopted several statements. The statements differ in terms of their author, the moment of adoption, and their degree of formality (some are formal statements, others mere tweets), but they convey similar messages.

In the first place, the statements generically called for an end to violence, apparently placing the Union in an intermediate position between pro-Palestine and pro-Israel actors. For instance, on 12 May the High Representative (HR) stated that “the grave escalation in Israel and the Occupied Palestinian Territory, including the major upsurge in violence in and around Gaza, must stop”; the EU, therefore, called “for an immediate end to the ongoing violence” and to prevent a broader “conflict”, which would affect the civilian populations on “both sides”  (see also, inter alia, tweet of the President of the European Council, 12 May; tweet of the President of the European Commission, 13 May). Later, the EU “welcome[d] the announced ceasefire bringing to an end the violence in and around Gaza” (HR Statement, 21 May, emphasis added). The message was clear: the priority was to protect “civilians” from a “conflict” involving “two sides”. 

Secondly, the EU’s statements stigmatised the conduct of Hamas (thus partially contradicting the EU’s seemingly neutral position). According to the EU, “the indiscriminate launching of rockets from Hamas and other groups towards Israeli civilians is unacceptable” (HR statement of 12 May). The High Representative further “reaffirmed the EU’s support to Israel’s security & condemned Hamas indiscriminate firing of rockets” (HR tweet of 13 May; see also HR statement, 15 May). The President of the European Commission also condemned the “indiscriminate attacks by Hamas on Israel” (tweet, 13 May). Such a criticism for Hamas seems reasonable, as Hamas targeted civilians (killing 12 persons, see BBC) and the EU considers it as a terrorist organisation (see Council Common Position 2001/931/CFSP; ECJ, Hamas), but it appears remarkable in light of the EU’s “softer” approach towards Israel.

Thirdly, while the EU’s criticism for Hamas was explicit, the criticism for Israel was mostly implicit. One EU statement expressed the EU’s “strong opposition to Israel‘s settlement policy” (EU Delegation at UN statement, 16 May, emphasis added) but the others systematically avoided an explicit criticism of Israel. For instance, the EU “reiterate[d] its position that all settlements in the occupied Palestinian territory are illegal under international law” (HR spokesperson statement, 5 May). Consequently, “the evictions of Palestinian families in Sheikh Jarrah and other areas of East Jerusalem […] are illegal under international humanitarian law” (HR spokesperson statement, 8 May; see also HR statement, 10 May). “It is vital that Israel does not allow them to be carried out” (statement on behalf of the HR, 19 May, emphasis added) – as if Israel were not carrying them out itself. Moreover, the Union stressed that “the status quo of the holy sites needs to be respected and any acts of incitement around them avoided” (HRstatement, 15 May; statement on behalf of the HR, 19 May; see also HR spokesperson statement, 8 May). In other words, the Union identified a conduct but not its author: whereas the Union unequivocally criticised “Hamas” for attacking civilians, it did not identify the subject that is evicting Palestinians from Sheikh Jarrah, creating illegal settlements in Palestinian territory, or violating the “status quo” related to the “holy sites”. Of course, the reader can easily identify the responsible subject – the Israeli government – but it is certainly not by chance that the Union generally avoided placing the blame on Israel in an explicit manner.

Fourthly, the EU’s criticism for Israel was quite bland. The Union failed to stigmatise the acts of violence by Israeli citizens and authorities against person and property in the Al-Aqsa mosque, which are among the direct causes of the escalation (see AA; Arab News; New York Times; ICG). The EU omitted to mention the Israeli mobs that lynched Palestinians (see e.g. IMEU; France Presse; The Guardian), with the apparent support or tolerance of the Israeli authorities (see e.g. IMEU; Middle East Eye). Moreover, the EU should have used harsher words regarding the displacement of Palestinians in East Jerusalem (see further AlJazeera; France 24), since such a displacement is illegal under international law, as it occurs in a territory illegally occupied by Israel (see ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004) and constitutes a violation of humanitarian law (for instance, Art. 49 of the Fourth Geneva Convention; see further Avocats sans frontières 2011). One might note, in particular, that the displacement of Palestinians in Jerusalem is part of the Israeli government’s policy to ensure a Jewish majority in the city (see inter alia UN OCHA 2009; IPCC 2018; Palestinian Human Rights Organisation Council 2021). In other words, a strategy aimed at “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area”, something that in other contexts might have been termed as “ethnic cleansing” (UN Secretary General 1993, para. 55; cf. Kampala Convention, Art. IV; on the problematic definition of ethnic cleansing in international law see inter alia Pegorier 2013).

The blandness of the EU’s language is particularly evident with respect to the Israeli’s bombing of Gaza. In its statements, the EU repeatedly recognised “Israel’s legitimate need to protect its civilian population” and affirmed that “this response needs to be proportionate and with maximum restraint in the use of force” (HR statement, 12 May; see also HR statement, 15 May; HR spokesperson statement, 10 May; EU Delegation at UN statement, 16 May). The EU’s statements contain only a vague criticism of Israel, as they indirectly imply that its response might perhaps be disproportionate; the criticism is further tempered by the systematic reference to Israel’s right to self-defence. Despite the EU’s cautious remarks, the Israeli bombing of Gaza appears hardly proportionate. It is sufficient to note that Israel’s bombings killed at least 243 persons, including more than 100 women and children (BBC). Such a loss of civilian life might well be excessive in relation to the concrete military advantage anticipated (see Protocol I to the Geneva Convention 1949, Art. 51(5)(b); on proportionality in customary law, see inter alia Henckaerts and Doswald-Beck 2005; Crowe 2020). The indiscriminate character of Israel’s bombing seems confirmed by the destruction, among others, of medical facilities (The Guardian) and the building hosting the Associated Press and Al Jazeera (Associated Press). Needless to say, the EU did not feel the urge to address these events in its statements. 

2. The Position of the EU Member States

To explain the EU’s silence about Israeli violence, one must look at the procedure for the adoption of EU statements. Unlike national governments, EU representatives (e.g. the High Representative or the European Commission, see Art. 17(1) and 27(2) TEU) have limited margin of manoeuvre when it comes to making international statements. Before making any statement, EU representatives “must always ascertain what the EU position is and, if it does not exist, take the necessary steps to obtain a decision in that respect” (European Commission 2011; see also, to that effect, Council, EU Statements in Multilateral Organisations: General Arrangements, para. 3; ECJ, Swiss Memorandum). All decisions regarding the EU’s position must be taken by the Council or its preparatory bodies, i.e., by organs composed of the representatives of the Member States. In the field of foreign policy stricto sensu – which is the case of the Statements on Palestine – the EU position must be approved by unanimity (Art. 24 TEU). In other words, each Member State has a de facto veto power on the definition of the EU’s position (unless that position has already been defined in the past, in which case a new vote is not necessary).

Since it is difficult to draft a statement that satisfies each of the 27 EU Member States, the EU representatives often respond to international events by repeating the established position of the Union. For instance, the EU frequently “reiterates its position that all settlements in the occupied Palestinian territory are illegal under international law” (HR spokesperson statement, 5 May). Similarly, the EU was able to affirm that “the evictions of Palestinian families in Sheikh Jarrah […] are illegal under international humanitarian law” (HR spokesperson statement, 8 May) because the EU has a well-established position regarding the illegality of Israeli colonies (see e.g. EU statement, July 2012).

By contrast, if EU representatives intend to take a stance on questions that do not reflect an established position of the Union, a preliminary approval by the Member States is required. This procedural restraint might contribute to explaining, e.g., why the Union has not adopted any formal statement that stigmatises the disproportionate character of Israel’s attack against Gaza. 

The EU’s failure to formulate a common message became evident on 18 May, during a virtual meeting of EU foreign ministers. Since the meeting was informal, it did not lead to the adoption of any act (not even statements or conclusions). Nonetheless, in the press conference following the virtual meeting, the High Representative noted that 26 out of 27 Member States supported a common position on the crisis in Palestine (the exception being Hungary). This common position is as vague as the statements previously made by EU representatives (see above, section 1), with one exception: during the press conference, the High Representative noted that, according to 26 Member States, “we support Israel’s right to self-defence, fully. We remind that this has to be done in a proportionate manner and respecting International Humanitarian Law. And the number of civilians dead and injured  – among them a high number of children and women – is unacceptable” (HR Press remarks, 18 May, emphasis added). For the first time, an EU leader suggested that Israel’s “self-defence” is indeed disproportionate. While the High Representative can say this informally during a press conference, he cannot affirm it formally, through the adoption of a statement, because at least one Member State (Hungary) disagrees with this position.

In fact, Hungary seems to oppose any criticism of Israel. A few days before the informal meeting of EU foreign ministers, Hungary prevented the EU delegation to the UN from delivering a statement at the UN Security Council on behalf of “the EU and its Member States” (Politico).  Eventually, the delegation delivered the statement on behalf of “the European Union”, presumably because this statement reflects the established EU position – and is indeed quite vague (EU Delegation to the UN, statement, 16 May). While the approval of the representatives of “the Member States” is always necessary to issue a statement in their name, it is not indispensable in order to make a statement on behalf of “the EU” only, as long as that statement corresponds to an established position of the EU (see Council, EU Statements in Multilateral Organisations: General Arrangements, para. 4). The incident at the UN Security Council probably had limited consequences from a practical viewpoint, but shows the limits of the EU’s decision-making, as well as the unabashedly pro-Israel stance of the Hungarian government.

Hungary, at any rate, is not entirely isolated: several Member States have a strongly pro-Israel position. For example, the Austrian government expressed solidarity with Israel by flying the Israeli flag on its chancellery and foreign ministry (France24). The Dutch Prime Minister tweeted (14 May): “very concerned about ongoing violence in Israel and Gaza. Hamas firing rockets indiscriminately at civilians is unacceptable. The Netherlands respects Israel’s right to proportionate self-defence, within the limits of international law.” A similar message was reportedly conveyed by the German chancellor to the Israeli prime minister. Similarly, the Italian Minister of Foreign Affairs “strongly condemn[ed] the rocket attacks from Gaza towards Israel’s territory”, which “cannot be justified under any circumstances” (11 May). The party leaders of the Italian parliamentary majority (ranging from the nominally leftist Democratic party to the far-right Lega) even participated in a pro-Israel demonstration (12 May 2021). France was slightly more balanced, as it reiterated its “firm opposition to settlement activity in all forms”, but nonetheless focused its attention on the “attacks carried out against much of Israeli territory” (13 May). Among the few critical voices, one might mention the Irish foreign minister, who expressly called out the disproportionate character of the Israeli bombing, recalling the “legal obligation to protect children in conflict” (15 May).

In light of the positions of some Member States, and the EU’s decision-making procedures, the EU’s silence on the violence recently perpetrated by Israeli authorities was probably inevitable. The policies of EU Member States might also contribute to explain the constancy of the EU’s “soft” reactions to Israeli abuses in the past.

3. The EU’s Constant Support for Israel

EU and Israel have always had a close relationship. They concluded a trade agreement already in 1964. Currently, the Association Agreement of 1995 ensures free movement of goods between Israel and the EU (while agriculture is subject to special rules). The Association Agreement also regulates scientific and technological cooperation; for instance, Israel participates in the Horizon 2020 programme of the EU (though Israeli entities established in occupied territories are excluded from EU financing).

In theory, the EU endorses a “two state solution” for Israel and Palestine (see e.g. Council 2014). Consistently with this approach, the Union has concluded an Association Agreement with the Palestinian Liberation Organisation. The EU also refuses to recognise the annexation of the territories illegally occupied by Israel since 1967. The EU does not treat goods produced by colonists in the occupied territories as Israeli products; such products, therefore, are not subject to the preferential treatment that applies to Israeli products (see further ECJ, Brita, para. 64). Products originating from an Israeli settlement in occupied territories must be labelled as such, as the Court of Justice held in the Psagot judgment (2019; see further Kassoti and Saluzzo, eds.). The EU’s stance toward occupied territories has been vigorously opposed by Israeli authorities. The Psagot judgment, in particular, was labelled by the Israeli government as a “political and discriminating” ruling, whose “entire objective is to single out and apply a double standard against Israel”.

Frictions over the Israeli-Palestinian conflict have occasionally “soured” EU-Israel relations (Pardo and Peters 2010) but never seriously affected the close relationship between the EU and Israel. 

Since the EU is Israel’s biggest trade partner (see European Commission), the EU might have exploited its economic power through the use of conditionality mechanisms in order to influence Israel’s conduct and foster the attainment of the “two state solution”. For instance, the EU might have suspended the application of the EU-Israel Association Agreement, claiming that Israel had violated an “essential element” of the Agreement, such as the “respect for human rights and democratic principles” (Art. 2). The EU itself certified the problematic character of certain Israeli policies, ranging from the demolition of Palestinians’ houses, the administrative detention of Palestinians without charges, or the worsening of their life conditions under occupation (see e.g. EU statement, July 2012). Given Israel’s failure to respect the “essential elements” of the Association Agreement, the EU might have “take[n] appropriate measures”, including the suspension or termination of the Agreement (Art. 79(2) of the EU-Israel Association Agreement). 

However, the EU never suspended the application of the Association Agreement. On the contrary, the EU repeatedly offered “upgrades” of EU-Israel relations (Lovatt 2016). Allegedly, “even formal annexation of the West Bank would not be enough to persuade member-states to suspend the [EU-Israel] Association Agreement” (Oppenheim 2020).

4. A Global Force for Human Rights – Or Not

Although the EU’s silence on Israeli violence is in line with its policy, it is at odds with its alleged “values”. According to EU constitutional law, the Union “is founded on the values of respect for human dignity […] and respect for human rights” (Art. 2 TEU). In its relations with the wider world, the EU should uphold and promote its values, contributing to “the protection of human rights” and “the strict observance and the development of international law” (Art. 3(5) TEU). The EU’s action on the international scene is indeed “guided by the principles which have inspired its own creation”, including “the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity” (Art. 21(1) TEU).

EU institutions routinely stress the “value-based” character of the EU and its foreign policy. Executive bodies often describe the Union with emphatic expressions such as “a global force for human rights” (Commission and the High Representative 2011). The European Parliament also assumes that promoting the EU’s “values”, including the universality and indivisibility of human rights and respect for the principles of the United Nations Charter and international law, “is at the core of the EU’s common foreign and security policy” (European Parliament 2020). Moreover, the Court of Justice repeatedly noted that EU “values” are essential to the EU (see, e.g., ECJ, Repubblika,para. 63); compliance with the principles of “human rights, as well as respect for human dignity” is required, in particular, of all external actions of the EU (ECJ, Tanzania, para. 47).

Several EU scholars seem to support such claims, by stating, e.g., that “the EU has a normatively different basis for its relations with the world” because it “is normatively different to other polities with its commitment to individual rights and principles in accordance with the ECHR and the UN” (Manners 2002). Although the Union might “occasionally” appear to act inconsistently with its values, its commitment to the respect for human rights by means of its foreign policy “is genuine and distinguishes its foreign policy from that of the traditional powers” (De Witte 2011). Allegedly, “the human rights objective puts the EU as a self-declared shaper of international norms at the forefront of human rights advancement” (Kube 2016).

However, this optimism seems increasingly at odds with reality: “values” are part of the rhetoric of EU foreign policy but tend to be absent from its practice. For instance, despite the EU’s abstract commitment to human rights and the rule of law, the EU cooperates with Libyan authorities in order to reduce migration, implicitly accepting the incarceration, torture and murder of migrants in Libyan camps (see e.g. Human Rights Watch). Moreover, notwithstanding the EU’s theoretical support for “solidarity and mutual respect among peoples” (Art. 3(5) TEU), the EU opposes the waiver of COVID-19 vaccine patents, which is indispensable in order to “save lives and advance us towards global herd immunity” (as noted by over 100 Nobel prize winners, see People’s Vaccine Alliance; see further EUObserver). The EU’s silence about the Israeli violence against the Palestinians is just another example of the EU’s “unprincipled” foreign policy. 

In light of the EU’s pragmatism in foreign policy, past EU-Israel relations, and the preferences of the Member States, the EU’s reaction to the events in Palestine of April-May 2021 is regrettable but unsurprising. Despite its formalistic equidistance from Israel and Palestine, expressed by the “two state solution”, the EU is hardly impartial. As many have noted over the last few days, “if you are neutral in a situation of injustice, you have chosen the side of the oppressor” (D. Tutu).