INTRODUCTIONThis paper points out nine key inconsistencies in the European Union’s position on theMiddle East Peace Process (MEPP) as defined in the EU’s Council Conclusions over recentyears and puts forth concrete recommendations for rectifying them. The paper wasprepared by a group of 15 European and international humanitarian, development,human rights and peace organisations with operations or partners in Israel and theoccupied Palestinian territory (OPT). The paper, based on an analysis of the conclusionsof the EU’s General Affairs and External Relations Council (GAERC) on the MEPP, does notaim to provide a comprehensive assessment of all inconsistencies, but to address severalof the most significant ones.The undersigned organisations believe that in order to play a genuinely constructive andimpartial role in the search for a just and viable solution to the Israeli-Palestinian conflict,the EU must correct these inconsistencies in future Council Conclusions.Why the EU’s position mattersThe EU’s words are important. The EU is a major trading partner of Israel, a major donorto the Palestinian Authority, and member of the Middle East Quartet. The positions takenin Council Conclusions, often after lengthy discussions among the Member States, are thebasis for policies and actions of the EU on the ground. They also guide the EU’s andMember States’ diplomacy on the MEPP in dealing with the parties to the conflict and onthe international level. The EU's positions have an impact on the diplomatic process andon developments on the ground. The support, condemnation or silence of the EU inrelation to various actions of the parties to the conflict also send important signals thatmay affect their calculations and behaviour as well as the positioning and behaviour ofother members of the international community.At the same time, while improving the EU’s declaratory stance is important andnecessary, it is not enough. Crucially, the EU also needs to act on its statements byadopting policies and concrete measures that give effect to its declared positions.

1. GAZA INQUIRYThe Council failed to support an independent inquiry into the Gazaconflict in contrast with its active support for such investigations intoother recent conflicts.•Overwhelming evidence of major violations of international humanitarian law (IHL)and international human rights law (IHRL) by all parties to the Gaza conflict ofDecember 2008 - January 2009 has been collected by impartial human rightsorganisations. In spite of this, and in spite of civil society calls for ensuringaccountability for these violations, the Council has refrained from calling for anindependent inquiry or from supporting or endorsing the ongoing United Nationsinquiries (primarily the UN Headquarters Board of Inquiry and the fact-finding missionled by Justice Richard Goldstone on behalf of the UN Human Rights Council). In itsJanuary 2009 Conclusions, the Council only stated that it would “follow closely

investigations into alleged violations of international humanitarian law”, a formulationwhich was repeated in the June Conclusions. The EU eventually did express supportfor the Goldstone Mission in a statement at the UNHRC on 15 June 2009 calling "onall parties to fully co-operate with the Mission" although it failed to do so in theCouncil Conclusions from the same day.This is in stark contrast with the EU’s unambiguous and active support for suchinvestigations into other recent conflicts:‐In the case of Sri Lanka, the Council stated in its Conclusions of 18 May 2009:“The EU calls for the alleged violations of [international humanitarian law andhuman rights law] to be investigated through an independent inquiry. Thoseaccountable must be brought to justice.”‐On the Georgia conflict, the EU went a step further and launched its ownIndependent International Fact-Finding Mission on the Conflict in Georgia(IIFFMCG). The aim of the mission was “to investigate the origins and the courseof the conflict in Georgia, including with regard to international law, humanitarianlaw and human rights, and the accusations made in that context...includingallegations of war crimes”.1The EU allocated €1.6 million for the mission, which isexpected to present its findings in September 2009.In the Israeli-Palestinian context, the Council has only called for accountability inrelation to the intra-Palestinian conflict between Fatah and Hamas in June 2007. TheCouncil then strongly condemned attacks by Hamas stating: “All those responsible forcriminal acts in violation of the standards safeguarded by international humanitarianlaw and of fundamental human rights must be held accountable.”2

2. GAZA BLOCKADEThe Council has failed to stress the illegality of the blockade of Gaza, incontrast with its language recognising the illegality of Israelisettlements.•The Council has taken a firm stance on the blockade of Gaza’s borders, calling for“the immediate and unconditional opening of crossings for the flow of humanitarianaid, commercial goods and persons to and from Gaza without which the unimpededdelivery of humanitarian aid, reconstruction and economic recovery will not bepossible”.3However, the Council has not declared the blockade illegal, in contrastwith the EU’s position on settlements which it affirms as “illegal under internationallaw”.4This can give the impression that the EU does not unequivocally consider theblockade illegal or that compliance with international law is not a centralconsideration in its approach to Gaza.The blockade of Gaza’s crossings constitutes a serious contravention of multipleprovisions of IHL and IHRL:5‐Punishing the entire civilian population living in Gaza for the acts of combatantsviolates the IHL prohibition of collective punishment.6The EU has twice referred to

Council Decision 2008/901/CFSP of 2 December 2008 concerning an independent international fact-finding mission on theconflict in Georgia.2Council Conclusions, 18 June 2007.3Council Conclusions, 15 June 2009.4Ibid.5“Gaza Closure Defined: Collective Punishment. Position Paper on the International Law Definition of Israeli Restrictions onMovement in and out of the Gaza Strip”, Gisha - Legal Center for Freedom of Movement, December 2008. “Rafah Crossing:Who holds the keys?”, Gisha - Legal Center for Freedom of Movement and Physicians for Human Rights – Israel, March 2009.

the blockade as “collective punishment” in statements of the Slovenian andFrench presidencies in 20087, but it has failed to do so in Council Conclusions.The blockade violates the duty of Israel as the occupying power to safeguard thehealth and welfare of the civilian population of the Gaza Strip.8Israel remains theoccupying power given its continued effective control over Gaza - a view sharedby the United Nations, the International Committee of the Red Cross and otherparties.The blockade also violates IHRL, including the right to freedom of movement, tohealth, to decent living conditions, to protection from hunger, and special dutiesto protect children.9Restrictions on humanitarian supplies and staff by states controlling the bordercrossings violate the duty that all states owe under IHL to allow and facilitate thepassage of humanitarian goods to civilians affected by an armed conflict,irrespective of the existence of a state of occupation.10

3. WALLThe Council has ceased criticising Israel’s construction of the Wall in theOPT since July 2007 despite the EU’s obligation to challenge it.•Since the start of Israel’s construction of the Wall until July 2007, the EU has in itsCouncil Conclusions regularly expressed concern about it. The EU has also demandedthat Israel stop and reverse construction inside the OPT, including in and around EastJerusalem, which it affirmed is in contradiction of international law.11Since July 2007,however, the Wall has disappeared from Council’s language and has not beenmentioned in its Conclusions ever again, even though the construction on occupiedPalestinian land has continued.As the Quartet stated in June 2005, the route of the Wall “results in the confiscationof Palestinian land, cuts off the movement of people and goods, and underminesPalestinians' trust in the Roadmap process as it appears to prejudge the final bordersof a Palestinian state”. If completed, the Wall will result in 9.5% of the West Bankterritory including East Jerusalem being de facto annexed to Israel. 35,000Palestinians in the West Bank and the majority of Palestinians in East Jerusalem willlive between the Wall and the Green Line, cut off from the rest of the West Bank.125,000 Palestinians will be surrounded on three sides and 26,000 others will live inclosed enclaves.12The Advisory Opinion of the International Court of Justice (ICJ) of July 2004 confirmsthat construction of the Wall in the OPT is illegal and calls for its dismantling. It alsoemphasises that states party to the Fourth Geneva Convention have the obligation toensure Israel's compliance with IHL as embodied in that convention. All EU MemberStates voted in favour of the UN General Assembly Resolution endorsing the ICJ’sAdvisory Opinion and demanding Israel’s compliance with it.13

Article 33 of the Fourth Geneva Convention.EU Presidency Statement of 2 March 2008; Declaration by the Presidency of the Council of the European Union of 14November 2008; The European Parliament has also used the term “collective punishment” in its resolution of 15 January 2009on the situation in the Gaza Strip.8Article 43 of the Hague Regulations and articles 55, 56, 59 and 61 of the Fourth Geneva Convention.9Articles 13 and 25 of the Universal Declaration of Human Rights, article 12 of the International Covenant on Civil and PoliticalRights, articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, and the InternationalCovenant on the Rights of the Child.10Article 23 of the Fourth Geneva Convention and article 70(2) of the First Additional Protocol to the Geneva Conventions.11Council Conclusions, 12 July 2004.12”Five Years After the ICJ Advisory opinion: A Summary of the Humanitarian Impact of the Barrier”, OCHA , July 2009.13United Nations General Assembly Resolution ES-10/15 of 20 July 2004.7

4. SETTLEMENTSThe Council has taken a strong position on Israeli settlements but hasdropped its earlier calls to reverse the settlement policy.•The EU has repeatedly stressed through Council Conclusions its deep concern aboutcontinuing settlement construction as an illegal activity and an obstacle to peace. Ithas urged Israel to “immediately end settlement activities, including in EastJerusalem and including natural growth”.14In the past, however, the Council also repeatedly urged Israel to “reverse its settlementpolicy”15, making clear that a freeze of settlement activity is only the first step. TheCouncil has failed to maintain this stance since 2004, which could give the impressionthat the EU now views existing settlements as irreversible facts on the ground.The EU has also failed to repeat its demand for “the abolition of financial and taxincentives and direct and indirect subsidies, and the withdrawal of exemptionsbenefiting the settlements and their inhabitants” as expressed by the EU heads ofstates in the European Council in June 2005.While a freeze of settlement activity is a necessary first step, all existing settlementsare illegal under international law, as recognised by the EU. Moreover, the existingsettlements and the related infrastructure including checkpoints and roads for settlersare causing gross human rights violations as well as economic and social costs toPalestinians.The EU has a duty not to recognise or give assistance to violations of internationallaw committed by a third country. Concern remains that the EU has not adoptedsufficient policies to uphold this obligation with respect to settlements. Nor has ittaken sufficient safeguards to ensure that settlements and settlers are not benefitingfrom EU-Israel cooperation instruments.

5. SETTLER VIOLENCEThe Council is calling on the Palestinian Authority to improve law andorder in the West Bank, but not on Israel to enforce law upon settlersperpetrating violence.•The EU has been urging the Palestinian Authority (PA) “to continue to make everyeffort to improve law and order”, as stated in the latest Council Conclusions on theMEPP of June 2009. At the same time, the Council fails to address Israel’s serious lackof enforcement of the rule of law in the West Bank, for example with regard toviolence perpetrated by settlers. The lack of enforcement comes on top of theillegality of many Israeli policies and actions under international law, including thesettlement enterprise and the Wall.16When Palestinians attack Israelis, Israeli authorities invoke all means – often inviolation of IHL and IHRL – to punish the perpetrators. In contrast, when Israelisettlers attack Palestinians (or Israeli and foreign peace activists and human rightsdefenders), the authorities generally fail to enforce the rule of law. Usually they fail tointervene to stop attacks when they are happening, make filing complaints difficultand inadequately follow up complaints that are filed, thereby effectively encouragingsettler violence.17More than 90% of investigations into settler attacks monitored bythe Israeli organisation Yesh Din were closed by the Israeli police without indictingany suspects.18At the same time, PA security forces do not possess law enforcementpowers vis-à-vis Israeli citizens, so they cannot protect Palestinians from settlerviolence.Settler violence against Palestinians is not less serious than Palestinian attacks onIsraelis in the West Bank. Between January 2006 and October 2008, more Israelicivilians were killed by Palestinians than vice versa (10, compared to 4), but thenumber of Palestinians injured by Israeli settlers far outnumbered Israelis injured byPalestinians (293, compared to 116).19The settler actions against Palestiniansinclude, inter alia, physical assaults, throwing stones, gunfire, destroying olivetrees and crops, stealing or killing livestock, damaging houses, and blockingroadways.The failure of the Council to express specific concern about settler violence and tourge Israel to improve the rule of law, while only calling on the PA to improve law andorder, resembles Israel’s double standard in its treatment of Palestinian and Israelisettler violence. Settler violence has not been specifically mentioned in CouncilConclusions on the MEPP over the recent years.20

It should also be noted that Israeli settlers and Palestinians residing in the West Bank are subject to two different legalsystems: Israeli settlers are governed by civil law while Palestinians are subjected to military law.17”Unprotected: Israeli settler violence against Palestinian civilians and their property”, OCHA, December 2008.18“A Semblance of Law. Law Enforcement upon Israeli Civilians in the West Bank”, Yesh Din - Volunteers for Human Rights,June 2006.19This does not include the much higher number of Palestinian casualties of Israeli military actions in the West Bank over thesame period. See: “Unprotected: Israeli settler violence against Palestinian civilians and their property”, OCHA, December2008.20While ignored in Council Conclusions, settler violence has been condemned “in the strongest possible terms” in a declarationby the French presidency of the EU on 31 October 2008, as well as in the Quartet statement of 26 September 2008, which“condemned the recent rise in settler violence against Palestinian civilians, urging the enforcement of the rule of law withoutdiscrimination or exception”.

6. INTRA-PALESTINIAN HUMAN RIGHTS VIOLATIONSThe Council supports the Palestinian Authority’s security efforts but issilent about the related human rights violations and the impact onPalestinian reconciliation efforts.•PA security forces have been committing serious human rights violations in the WestBank, targeting individuals and organisations suspected of affiliation with Hamas. Atthe same time, Hamas forces have been committing serious abuses against membersand suspected affiliates of Fatah in Gaza.21Both sides have arbitrarily detainedhundreds of individuals without charge or trial, and often tortured or otherwise ill-treated them.22They have also closed down media and organisations linked to therival factions.23The Council has not addressed these abuses in its Conclusions while it has continued tocommend the PA for its progress in the security field and encouraged further efforts.The Council’s unqualified support for the PA’s security efforts, while remaining silentabout the widespread and well-documented violations, can be seen as an endorsementof these practices which are banned under international human rights treaties.The detention of the supporters of rival factions and other intra-Palestinian abusesare deepening the divisions among Palestinians and blocking efforts at reconciliation,which the EU says it supports. The EU’s unqualified stance on the PA’s security effortsis thus at odds with its position on Palestinian reconciliation. As a major donor to thePA, the EU has a responsibility to ensure that PA forces respect human rights and arepolitically neutral.The EU guidelines on torture adopted by the Council in 2001 commit the EU to actagainst torture by urging third countries to, inter alia, prohibit and condemn tortureand ill-treatment, adopt and implement legal safeguards against torture, ban secretplaces of detention, bring those responsible for torture and ill-treatment to justice,and ensure that no exceptional circumstances whatsoever may be invoked as ajustification of torture or ill-treatment.24

7. PRISONERSThe Council regularly calls for the release of Israeli Corporal Gilad Shalitbut is usually silent about thousands of Palestinian prisoners anddetainees.•Since Palestinian militants from Gaza captured Israeli Corporal Gilad Shalit in June2006, they have denied him his right to receive visits by the International Committeeof the Red Cross (ICRC), violated his right to correspond with his family, and overallheld him as a hostage in order to compel Israel to meet certain demands, in violationof IHL. The Council has in its Conclusions regularly called for his immediate release -10 times since June 2006. The undersigned organisations share and support the EU’sconcern about and attention to Shalit.

“Amnesty International Report 2009. State of the World’s Human Rights”, 2009; “Internal Fight: Palestinian Abuses in Gaza andthe West Bank”, Human Rights Watch, July 2008; “The Status of Human Rights in the Palestinian-controlled Territory. FourteenthAnnual Report”, Independent Commission for Human Rights, 2008; “Annual Report 2008”, Palestinian Centre for Human Rights.22“Torturing Each Other: The Widespread Practices of Arbitrary Detention and Torture in the Palestinian Territory”, Al-Haq, July2008.23“Amnesty International Report 2009. State of the World’s Human Rights”, 2009.24“Guidelines to EU Policy Towards Third Countries on Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment”, 9 April 2001.

Over the same period, however, the Council has paid much less attention to thethousands of overwhelmingly civilian Palestinian prisoners and detainees held byIsrael including hundreds of individuals held in administrative detention withoutcharge or trial. In 2006 and 2007, the Council called 5 times for “immediate release”of Palestinian ministers and legislators detained by Israel – but without mentioningthe other prisoners. In July 2007, the Council welcomed the release of 255 Palestinianprisoners and detainees by Israel. Only in December 2008 did the Council address thebroader issue by stating that “Palestinian prisoners should be released in greaternumbers, with priority being given to minors”.Although the situation of Palestinian detainees and prisoners is different to that ofShalit, it also deserves prompt international attention:‐There are currently approximately 7,800 Palestinian prisoners held by Israel.25Palestinian detainees are usually tried in Israeli military courts which fall far shortof due process and fair trial standards.26‐More than 387 Palestinians are held under military administrative detention orderswithout charge or trial, including several who have been held for over five years.27The way the administrative detention is applied contravenes multiple provisions ofinternational law.28‐Palestinian prisoners include approximately 342 minors29whose rights under theUN Convention on the Rights of the Child are not respected.‐The vast majority of Palestinian prisoners are held in prisons in Israel in violationof IHL, which prohibits the removal of detainees from the occupied territory.30Thismakes it difficult in practice for detainees to receive visits from family memberswho are often denied permission to enter Israel.31In many cases family membersof detainees have not been allowed visits to their imprisoned relatives for morethan five years. In addition, since the Hamas takeover of Gaza in June 2007,Israel has placed a total ban on visits by family members from Gaza to theirrelatives in Israeli prisons.32‐There are many reports of torture and other ill-treatment of Palestinian prisonersincluding minors by the Israel Security Agency. Methods reported includeprolonged tying in painful stress positions, sleep deprivation, beatings and threatsto harm detainees’ families.33The EU guidelines on torture adopted by the Councilin 2001 commit the EU to act against torture in a number of ways, as mentionedabove in the case of intra-Palestinian abuses.

HaMoked statistics on Palestinian prisoners, July 2009.“Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories”, YeshDin - Volunteers for Human Rights, December 2007.27B’Tselem statistics on administrative detention, July 2009.28“Alternative Report for Consideration Regarding Israel’s Fourth Periodic Report to the UN Committee Against Torture (CAT)”,United Against Torture Coalition, September 2008; “Israel – Briefing to the UN Committee Against Torture”, The PublicCommittee Against Torture in Israel, OMCT - World Organisation Against Torture, April 2009; “Human Rights in the OccupiedTerritories”, B’Tselem 2008 Annual Report.29Figure as of 30 July 2009 provided by Defence for Children International.30Article 76 of the Fourth Geneva Convention.31“Barred from Contact: Violation of the Right to Visit Palestinians Held in Israeli Prisons”, B’Tselem, September 2006.32“Gaza: families should be allowed to resume visits to relatives detained in Israel”, ICRC, 10 June 2009.33“Absolute Prohibition: The Torture and Ill-Treatment of Palestinian Detainees”, B’Tselem, May 2007; “Palestinian ChildPrisoners: The systematic and institutionalised ill-treatment and torture of Palestinian children by Israeli authorities”, Defencefor Children International, June 2009; “Torture and Ill-Treatment. Israel and the occupied Palestinian territory”, United AgainstTorture Annual Report 2008.

8. QUARTET PRINCIPLESThe EU has conditioned engagement with a Palestinian government onits compliance with the three Quartet principles, although the Israeliside would not satisfy equivalent principles.•Following the electoral victory of Hamas in January 2006, the EU conditionedengagement with the Palestinian government on the three principles adopted by theQuartet: commitment to non-violence; recognition of Israel; and acceptance ofprevious agreements and obligations. Referring to these principles the EU imposed adiplomatic and financial boycott on the Hamas-led government, which continued alsoafter the Palestinian government of national unity was established in March 2007. TheQuartet principles were continuously stressed in the Council Conclusions in 2006 and2007, but the Council has refrained from mentioning them since then, signalling apossible softening of the EU’s position. However, as a member of the Quartet it hascontinued to restate the three principles, most recently on 26 June 2009.34The EUhas also maintained its no contact policy with Hamas in practice.Israel has never been asked to comply with such (or any other) principles as aprecondition for negotiations and would fail the test of compliance with equivalentprinciples. Most obviously, Israel continues to use violence, including in violation ofIHL and IHRL.35Also Israel’s acceptance of the right of Palestinians to self-determination is at best questionable and Israel’s actions on the ground are directlyundermining this right. As for past agreements, Israel has been flouting a number ofits obligations under the agreements it has nominally accepted including theRoadmap, the Oslo Accords, and the Agreement on Movement and Access.While strongly condemning unlawful violence by all parties, the undersignedorganisations support an inclusive process and not ostracising either Israeli orPalestinian governments and key actors. The EU’s boycott of the winner of ademocratic Palestinian election has been co-responsible for the ever-worsening Gazacrisis and has severely damaged the broader MEPP. In addition, by isolating Hamas,the EU has rid itself of possibilities to exert influence on the movement and hasoutmanoeuvred itself, delegating what could have been a key mediating role to othernon-EU actors such as Turkey, Norway and Switzerland.36

Unlike with arms smuggled into Gaza, EU Member States themselves engage insignificant arms exports to Israel. In 2007, EU Member States authorised a total of1,018 arms export licences to Israel worth €199 million.38Yet the Council Common Position on arms exports (former EU Code of Conduct onArms Exports)39includes the following criteria where Israel generally fails the test:‐“Member States shall deny an export licence if there is a clear risk that themilitary technology or equipment to be exported might be used for internalrepression”, including, inter alia, “torture and other cruel, inhuman and degradingtreatment or punishment, summary or arbitrary executions, disappearances,arbitrary detentions and other major violations of human rights and fundamentalfreedoms as set out in relevant international human rights instruments” (criterion2a);‐Member States will “exercise special caution and vigilance in issuing licences, on acase-by-case basis and taking account of the nature of the military technology orequipment, to countries where serious violations of human rights have beenestablished by the competent bodies of the United Nations, by the European Unionor by the Council of Europe” (criterion 2b);‐Member States will “deny an export licence if there is a clear risk that the militarytechnology or equipment to be exported might be used in the commission ofserious violations of international humanitarian law” (criterion 2c);‐“Member States shall deny an export licence for military technology or equipmentwhich would provoke or prolong armed conflicts or aggravate existing tensions orconflicts in the country of final destination” (criterion 3);‐“Member States shall deny an export licence if there is a clear risk that theintended recipient would use the military technology or equipment to be exportedaggressively against another country or to assert by force a territorial claim”(criterion 4);‐Member States shall take into account inter alia “the likelihood of the militarytechnology or equipment being used other than for the legitimate national securityand defence of the recipient” (criterion 4c);‐“Member States will take into account, inter alia, the record of the buyer countrywith regard to its compliance with its international commitments, in particular onthe non-use of force, and with international humanitarian law”; and “itscommitment to non-proliferation and other areas of arms control anddisarmament, in particular the signature, ratification and implementation ofrelevant arms control and disarmament conventions” (criteria 6b and 6c).

This paper was prepared and endorsed by:Amnesty International EU Office, Broederlijk Delen (Belgium), CAFOD (England andWales), CCFD Terre Solidaire (France), CIDSE Working Group on Palestine/Israel,Defence for Children International, Diakonia (Sweden), Euro-Mediterranean HumanRights Network, medico international (Germany), MS ActionAid Denmark, OxfamInternational, Pax Christi International, Trócaire (Ireland), United Civilians for Peace (acoalition of Dutch organisations - Oxfam Novib, Cordaid, ICCO and IKV Pax Christi), WarChild UKFor more information, please contact Crisis Action, [email protected]