Letter in Reaction to EU’s Foreign Affairs Council Conclusions

Dear EU and EU Member States Representatives,

EMHRN wishes to express its deep concern regarding the gravely problematic conclusions of the EU’s Foreign Affairs Council issued on 22 July 2014 and the damaging stance of the EU and its Member States with regard to the ongoing hostilities in Israel and the Occupied Palestinian Territory (OPT).

As violence resumes on the 32nd day of Israel’s military operation in Gaza, violations of international humanitarian law (IHL) and human rights law (IHRL) remain rife EMHRN is deeply concerned about the indiscriminate and disproportionate attacks and the deliberate targeting of civilians and civilian objects by Israel’s military forces and armed Palestinian groups. As of 5 August 2014, Al Mezan Center for Human Rights and the Palestinian Center for Human Rights (PCHR) recorded at least 1,884 Palestinian deaths, 1,538 of whom are civilians including 430 children and 239 women. Meanwhile at least 7376 Palestinians were injured during the same period, of whom at least 2033 children and 1526 women.  On the Israeli side, three civilians have been killed as a result of indiscriminate rockets coming from Gaza.

Civilian objects including houses, schools and hospitals continue to be targeted in blatant violation of the principle of distinction[1] and proportionality[2]. Such flagrant disregard for IHL and the right to life was evident in the six different attacks on UNRWA schools – including the 23 July attack in Beit Hanoun , the 30 July Israeli attack in Jabalia and the 3 August Israeli attack next to UNRWA school in Rafah, which led to the death of at least 38 Palestinian civilians – and in the various attacks on hospitals, including the 28 July attack on Gaza city’s Al Shifa hospital, where nearly 2,000 civilians are sheltering. Israeli shells have also hit fuel tanks at Gaza’s only power plant during the night of July 28 threatening massive power shortages for the 1.8 million people in Gaza. Dozens of other civilian facilities have been destroyed or damaged, including facilities funded by the EU such as hospitals and UNRWA schools. The EU must request compensation for these.

The intentional targeting of Palestinian civilians and civilian objects may result in the commission of war crimes. Indeed, as has been confirmed by the UN High Commissioner for Human Rights, there is a strong possibility that the actions of Israel’s military forces may amount to war crimes.

Israeli violations committed during both the ongoing hostilities in the Gaza Strip as well as during Israel’s military operation in the West Bank, codenamed ‘Operation Brother’s Keeper’, are illustrative of Israel’s 47-year long occupation. Since the beginning of the occupation, a deep-rooted culture of impunity has prevailed in Israel and the EU has repeatedly failed to uphold justice and international law through its relations with Israel.

In the most recent conclusions of the EU’s Foreign Affairs Council, like in the joint statement in the name of the EU of 3 August 2014 and in the European Parliament Resolution of 17 July 2014, the EU and its Members States once again failed to clearly identify and condemn Israel’s violations of international law. While strongly condemning the indiscriminate firing of rockets into Israel by Hamas and other militant groups, they failed to condemn Israel’s indiscriminate and disproportionate attacks with equal vigour. Worse yet, the EU failed to explicitly recognise that Israel’s actions are directly harming and killing Palestinian civilians. This disregard for Israel’s violations of international law was further compounded by the legally flawed reference to Israel’s “right to defend itself”; a right Israel cannot rely on given that the hostilities erupted in the context of an already ongoing armed conflict and occupation[3].

The EU and its Members States also failed to call for investigations or the need to bring perpetrators of international law violations to justice. Meanwhile, on 23 July, not a single EU Member State voted in favor of the UN Human Rights Council mandated Commission of Inquiry to be sent to investigate violations of international law. This is sadly reminiscent of the EU governments’ positions regarding the establishment of and subsequent recommendations of the 2009 UN Fact-finding mission following Operation Cast Lead. The EU and its Member States must call for investigations of all international law violations, including but not exclusively those which disregard the inviolability of UN premises.

Even worse than the EU and its Member States’ silence and lack of support for accountability, is their active discouragement of the Palestinians to seek justice through the International Criminal Court in the Council conclusions. This is contrary to the principles that are meant to guide the EU’s foreign policy and its Common Position on the ICC.

Finally, the parameters for re-launching the peace negotiations set forth in the conclusions disregard international law by expressing willingness to support land swaps and recognize changes to the 1967 borders while insinuating that a just solution to the refugee question is unrealistic. This negates the centrality of respect for international law in the resolution of not only this conflict but also in others. The EU’s call to disarm all parties in Gaza rather than to respect international law is moreover unrealistic and unconstructive.

For years the EU has sought to pursue peace in the Middle East through a framework where respect for international law was side-lined in the interest of maintaining futile peace negotiations. A sustainable peace, however, is only possible if grounded on respect for IHL and IHRL as reflected in the EU Strategic Framework on Human Rights and Democracy .

As history reveals, the EU’s deafening silence on accountability has only further emboldened the relevant parties by validating their crimes and authorizing their repetition in the future. Indeed, six years after “Operation Cast Lead” and two year since “Operation Pillar of defense” Israel has failed to properly investigate or prosecute any breaches of international law committed by its military forces. Today we see equally grave if not worse violations being committed in this operation. In order for the EU not to be complicit it must act. Given the dire situation on the ground, it is time for the EU to consider the full application of Article 2 of the EU-Israel Association Agreement, including the non-execution clause which provides for sanctions or the suspension of the agreement.

As stated in Article 21 of the Treaty of Lisbon, the EU’s action on the international scene must be guided by the principles which have inspired its own creation, including the rule of law, human rights and respect for international law. Moreover as, as High Contracting Parties to the Fourth Geneva Convention EU Member States have an obligation to respect and ensure compliance with IHL. In this regard, the EU has committed itself to address third states’ compliance with IHL in its Guidelines on Promoting Compliance with IHL. These principles must be consistently upheld regardless of the political context.

EMHRN regrets that the EU and its Member States’ recent positions have once again illustrated their double standards with regard to the conflict in Israel and the OPT and have seriously damaged their credibility on the international scene.

[1] The principle of distinction requires all parties to distinguish between civilians and combatants, as well as between civilian objects and military objectives.

[2] The principle of proportionality prohibits launching an attack which may be expected to cause excessive incidental loss of civilian life, injury to civilians or damage to civilian objects, in relation to the concrete and direct military advantage anticipated.

[3] The ongoing Israeli military attack erupted in the context of an already ongoing armed conflict and occupation. As such, Israel cannot rely on the right to self-defence within the meaning of Article 51 of the UN Charter (jus ad bellum) but must instead act in accordance with the laws regulating the conduct of hostilities i.e. IHL (which forms the basis of jus in bello). This does not mean that Israel does not have an obligation to protect its own civilian population, but it must do so in accordance with the international laws on the conduct of hostilities.