A ball of fire erupts froCan The Conference On The Future Of Europe Prevent Another #SofaGate? – Analysism the al-Jalaa Tower as it is destroyed in an Israeli air strike in Gaza City on May 15, 2021 (AFP) By Dania Akkad When Israeli F-16s flattened the 11-storey Al-Jalaa building in Gaza City, the Israeli army said the high-rise was targeted because it contained Hamas intelligence assets. It’s a claim that was repeated by Prime Minister Benjamin Netanayhu the following day on CBS’s Face the Nation, without further detail. Soon after, US Secretary of State Antony Blinken said he had not seen any Israeli evidence of Hamas operating in the building. Two days later, Blinken said the US had received further information, but declined to discuss it. Those housed inside the building, meanwhile, have denied the claims. Gary Pruitt, president and CEO of the Associated Press, which has had a bureau there for 15 years, says the company “had no sense Hamas was there”. AP chief Sally Buzbee has called for an independent investigation, while Reporters Without Borders has called on the International Criminal Court to investigate. But will there be a definitive answer – or consequences? Israel’s bombing of the Al-Jalaa building garnered headlines because of the international media outlets that were located in the building (the facility was also used by by Middle East Eye). That attention, however, has reportedly led some high-ranking Israeli officials to believe the attack was a mistake – not because it was potentially illegal, but because it has turned international opinion against Israel. But the attack on Al-Jalaa was not out of the ordinary. The Israeli army regularly justifies attacks on residential buildings, schools, hospitals and other civilian buildings by saying that Hamas or other Palestinian armed groups are operating out of them, claims that receive little scrutiny from the mainstream media or Israel’s allies. MEE spoke to three human rights experts on six key points to find out what these claims mean, whether anyone is actively investigating them – and what happens when evidence suggests they aren’t true. 1. Who checks whether Israel’s claims are true? There is no single independent entity responsible for investigating Israel’s justifications for bombing civilian targets in Gaza. That said, individual claims have been investigated by NGOs and by international committees organised by the UN during previous attacks on Palestinian territories. One example is the Gaza Platform, a digital mapping tool from Amnesty International and Forensic Architecture: it was launched after Israel’s 2014 offensive, known as “Operation Protective Edge”, which tracked and analysed Israel attacks using photos, videos, eyewitness accounts and satellite imagery. But these types of investigations aren’t automatic and don’t happen for the majority of attacks. They are also often conducted without cooperation from Israel, which also actively blocks international investigations into Gaza, so their scope is limited. “They won’t even let UN investigators in,” says Sarah Leah Whitson, executive director of the Washington, DC-based Democracy for the Arab World Now (DAWN). She says that 10 years ago, Human Rights Watch, where she was Middle East and North Africa director until recently, sent teams of investigators to Gaza “to expose their lies bit by bit, one by one. Now that’s too difficult. They don’t let them in”. The Israeli military does carry out its own internal investigations. But Yael Stein, research director at B’Tselem, a human rights group in Jerusalem, cautions “that’s inside the army, so they never have to show anything”. 2. If the claims are true, are attacks on civilian targets legal? The question of what is legal under international law is much more complicated than whether or not these claims alone are true. The Geneva Conventions were created after World War Two to protect non-combatants during conflict. Specific to our question are articles 48 through 52 in the first Geneva Protocol which states must follow, whether or not they signed up for them. There are two key points to examine. First, the articles examine exactly what is being targeted. To be legal, the object of an attack must be a military target and meet two criteria: the intended target must give the military forces which control it a clear advantage and the destruction of that target should give the attacking side a military advantage That means, says Stein, that bombing a house in Gaza City because members of Hamas met, or even lived, there would not be legal. “Demolishing a house where a phone meeting – or a meeting even with people – it’s not infrastructure,” she says. “It’s not part of the security apparatus of the military. Destroying it won’t give any military advantage to Israel because they can have the meeting in other places.” What if, for example, Hamas hid 100 rockets in the basement of the same building in Gaza City. Stein says that this would make the building a legitimate military target. But then there is the issue of proportionality to consider – and this is where the second key point raised in the articles comes in. “You have on the one side the civilian loss that is anticipated by the bombing,” Stein says, “and, on the other hand, you have the military advantage that you anticipate from the bombing. “If you anticipate that the military advantage is higher than the civilian loss you anticipate, then it would be a proportionate bombing.” Such legal definitions are subject to interpretation. Stein says that she, of course, would have a different take on the situation from a military officer. But even in this grey area, Israel has, in her opinion, regularly overstepped the bounds of reasonable legal interpretation. “Israel did Cast Lead. Israel did Protective Edge. Israel is doing it now,” she says, in reference to Israel’s previous attacks on Gaza in 2008-2009 and 2014 respectively. “They bombed against every rule of international law,” she says, “against every instinct of morality, they just bombed and killed unproportionally all those civilians with no legal justification, with no proof and they get away with that again and again.” 3. Was bringing down the Al-Jalaa building illegal? Experts say more details are needed about what was actually targeted in the building by the Israeli military forces to make their judgement call. But many believe, on the evidence they have, that the bombing was illegal. Saleh Hijazi, deputy regional director for Amnesty International’s Middle East and North Africa office, points to reports, in Hebrew media, that Israel told Washington that a Hamas military intelligence unit was inside the building, scrambling Israeli military signals at sea and providing information to help Hamas make attacks. But Hijazi says that even if the reports are true, it still leaves the question of proportionality. “Israel does have the ability to carry out what they call surgical strikes and they’ve demonstrated that over and over in the past, and including in this military operation,” he said. “Was it proportionate to take down the whole building? It’s really hard to imagine that that was a proportionate attack and disproportionate attacks are war crimes,” he says. With the end of the latest assault, Netanyahu declared in a speech on Friday: “We regret every loss of life, but I can tell you categorically, there is no army in the world that acts in a more moral fashion than the army of Israel.” Morality aside, Stein says that to her mind the attack on Al-Jalaa was illegal. There would have to have been immovable military infrastructure – like a military base on one of the floors – to justify such an attack, she says. “If they had any evidence, they would show it. There is no reason why not to show it. I think they don’t have anything.” Demographics could also feed into the debate. Gaza is one of the most densely populated places in the world, with just under 5,500 people per square kilometre. One could argue, Stein says, that given over-crowding, any bombing from the air will, by definition, be disproportionate, unjustified – and therefore illegal. “Israel keeps saying that international law is not applicable to the ‘war against terror’. But this is of course nonsense. The civilians are there. We can’t just make them disappear.” 4. If these aren’t military targets, why hit them? One justification that Israeli officials have given for the destruction of civilian infrastructure in Gaza is that it will change the political dynamics in the Palestinian territory to Israel’s eventual advantage. But that’s also not a legal justification to bomb, says Stein. ‘This is one of the things they say in public relations: ‘We are demolishing all of those very tall houses with seven- or nine-storey buildings in Gaza and then the people in Gaza are taking it hard and therefore they will push the Hamas government to stop bombing Israel.’ That is not military advantage.” Israeli forces fire three white phosphorus shells above a UN-run school in Beit Lahiya, Gaza on 17 January 2009, killing two (AFP) Hijazi says that the real reason targets like high-rises are picked is very similar to the siege of Gaza, which began in 2007: collective punishment. “Israel wants to inflict pain. They still think that this is good logic to follow. The more we inflict pain on the people of Gaza, the more they will turn on Hamas,” Hijazi says. “This is, of course, totally illegal. You do not push civilians in order to force the government to change the policy.” 5. Are Hamas and other armed groups breaking the law? It is beyond question that Hamas and other armed Palestinian groups are breaking international law when they fire rockets indiscriminately into Israel. Stein says: “Of course, what Hamas is doing is a war crime and, of course, it’s illegal.” However, she says, the number of civilians killed and injured by these rockets in Israel is so much lower during operations against Gaza that comparison between the two is unhelpful. Vehicles are set ablaze and buildings damaged after rockets launched by Hamas from Gaza hit the southern Israeli city of Ashkelon on 11 May 2021 (AFP) “This is illegal and this is illegal,” she said of comparing attacks on civilian targets by both sides. “So what? I think Israel is the one who has much more power, it’s actions are much more affecting life and property. You can’t really compare.” Additionally, Stein says, just because Hamas or other armed groups break international law, that doesn’t justify Israel’s war crimes. “The line of Israel is that: ‘Well, Hamas is throwing rockets. We told them not to do that. We told them to evacuate their houses’,” she says. “This actually means: ‘They are doing it, we told them to stop, they refused, so we can do whatever we want’. “This argument is so wrong from the legal point, the moral point. Israel cannot do whatever it wants in reaction to the illegal things that Hamas is doing.” 6. If Israel broke international law, what next? There are three main options of legal recourse for international investigators and states, namely universal jurisdiction, the International Criminal Court or the UN Security Council. Each have their limitations. Courts in countries that have universal jurisdiction laws may prosecute individuals for crimes against humanity even if the crimes happened in another country or were committed by leaders of another state. However, in recent years, many states have limited the use of universal jurisdiction, including the UK, which ammended its laws in 2011 to protect Israelis. The ICC has global jurisdiction to investigate and try those responsible for the world’s worst crimes when states are “unable or unwilling” to do so themselves. The court announced in March that it had opened an investigation into possible crimes committed by both Israelis and Palestinians in the West Bank, Gaza and East Jerusalem since 13 June 2014. Israel has said it will not cooperate with the investigation. The latest attack on Gaza may very well become part of that investigation, but the entire process is expected to take years to complete. The UN Security Council has the authority to say that what Israel is doing is illegal through issuing resolutions or even applying sanctions. However, the US regularly vetoes these types of resolutions. In 2016, for example, the US was the only UN Security Council member to veto Resolution 2334, which said that Israel’s settlement activity violated international law and called on Israel to stop. Experts point out that these processes are only as strong as the political will of states and governments to carry them out. And at this moment, the will-power of the most powerful countries, namely the US, is in question. “We live in a world where the international court doesn’t have international troops to send in and has to rely on member states to enforce its warrants and uphold its decisions, so the international community is very weak,” says Whitson. “China does whatever it wants and nothing stops it. Syria does whatever it wants and nothing stops it. The difference with Israel is it’s the US that’s the one that’s not stopping it. China doesn’t claim to be the human rights leader of the world and neither does Syria. The US does and that’s the incongruity.” Middle East Eye


By Elcano Royal Institute

By Ilke Toygür*

What can be learnt from #SofaGate?

Commission’s President, Ursula von der Leyen, hit the headlines when she was left standing in Ankara while two men sat down very comfortably and prominently in front of her. The verdict was immediate: it was deeply offensive from a whole range of perspectives. Some objected on the grounds of gender equality, including President von der Leyen herself in her speech to the European Parliament. Some thought it was the price for engaging in business with Turkey’s authoritarian government. Others, those most interested in the institutional dynamics of European decision making, took it as a visualisation of the EU’s intergovernmental drift. There was, however, a common thread: it was not how the EU ought to be represented in the global theatres of power.

Although the Turkey dossier has a character of its own, it shares some features with the EU’s external action in general, such as the lack of a coherent policy. There are stark differences between member states, rivalry between EU institutions, a lack of effective policy tools that both respect democratic conditionality and guarantee cooperation, and an over-personalisation of relations with third countries of strategic importance for the Union. The Conference on the Future of Europe provides a platform to at least discuss some of these issues, even if it cannot settle them. There are three specific issues to watch: the definition of external action, qualified majority voting (QMV) in foreign and security policy affairs, and the Spitzenkandidaten process.

The main interlinked challenges of the EU’s external action

Following the incident in Ankara, looking at the larger picture there are two main interlinked conundrums when defining the reasons underlying the lack of coherent policy-making in view of an external challenge, First, there are stark differences between member states as regards common policies. When devising policies for Russia or Turkey, for instance, not all member states have the same interests at stake. The divergences between member states when it comes to history, geography, foreign-policy making, cultures and interests are hard to bridge. It is also widely accepted that in a policy area such as foreign and security policy, where competence corresponds to each member state, they all want to call the shots. They can only be convinced to act in harmony while facing external challenges under the motto ‘stronger together’.

Secondly, and equally importantly, there are struggles between EU institutions that edge into rivalry. The problems between the European External Action Service (EEAS) and the European Commission are not just Brussels bubble gossip. And this is not to mention the insistence of the European Parliament in various dossiers on democratic conditionality while the European Council is willing to settle for transactional deals.

The differences between EU institutions should be dealt with if the Union wishes to act with a coherent united voice. In a multi-layered governance system such as the EU’s, representation is a tricky issue. A veteran EU official, Jim Clos, encourages all leaders to find a modus vivendi. He is quite right: if the issue is not resolved, Henry Kissinger’s well-known quote –‘Who do I call if I want to speak to Europe?’– will continue to haunt us. The Conference on the Future of Europe could an opportunity to reflect on this.

And the Conference? What’s the debate?

Before considering what the Conference can offer, it is important to understand the institutional dynamics of the ‘EU in the world’. Decades of cooperation in various foreign policy areas led to the creation of the Common Foreign and Security Policy (CFSP) as a separate and intergovernmental pillar in the Maastricht Treaty. The Treaty of Lisbon, which entered into force in 2009, led to an even more differentiated institutional structure, but one that was even more difficult. The creation of the EEAS and the appointment of a HR/VP who is responsible for the EU’s CFSP have been perceived as positive steps by the member states. Today, Josep Borrell chairs the Foreign Affairs Council while occupying the post of Vice-President of the Commission. Having said that, the dominance of member states in the Service through secondments and the insistence on choosing EU Delegation Heads from major countries have been severely criticised. A recently published report by the EEAS 2.0. task force has placed on the table suggestions as to how to improve the efficiency of the EEAS, which is an integral part of the debate. The European Commission became a more complex institution to manage as regards external action.

In addition, the Treaty of Lisbon also formally recognised the European Council as an EU institution while replacing the six-month rotation system with a permanent President. This development placed the European Council President in the spotlight, while presenting him with the task of representing the Union in CFSP matters. The Commission, on the other hand, continues to represent the Union in matters other than the CFSP. These areas, however, are extremely important when considering the EU’s external action in a broader sense. This is where the power battles have started.

It is important to understand the current institutional dynamics to judge the starting point. Is it possible to have an operational EU foreign policy in the light of the two interlinked conundrums mentioned above? Not an easy task. Is it worth trying? Definitely.

To increase its influence on global challenges, the EU should come up with a plan to deal with this problem that is very hard to resolve and touches on so many dimensions of European integration. Having said that, the Conference opens up a space to discuss at least three key issues.

The first is its definition. The Conference on the Future of Europe has titled external action as the ‘EU in the world’ and set the tone: ‘reinforcing responsible global leadership’. While doing so, it has not only focused on foreign and security policy per se but shown a more holistic approach, including other dimensions of external action such as trade policy, enlargement and neighbourhood policies, and development cooperation. It is clearly a good start.

The second issue on the table at the Conference, already demanded by many, is the transition to QMV1 in foreign and security policy. The Lisbon Treaty already empowered the European Council with a passerelle clause in CFSP. With this clause, the European Council, on the basis of unanimity, could allow the Council of the EU to take decisions by QMV in certain areas. There is also the option of ‘constructive abstention’, which allows a member state to abstain from a vote without blocking it. These options provide states with alternatives without entering into the black hole of Treaty change. A firm commitment to QMV could be achieved during the Conference.

A third issue on the table, which will indirectly help resolve the representation issue, is the empowerment of the Spitzenkandidaten process. We all remember the distribution of top jobs back in 2019 . It was mostly the leaders, with their respective political families in the European Parliament, who did the bargaining. This did not lead to the powerful figure of the European Commission President elected by the citizenry. If the process is secured and enforced for the 2024 elections, it would clearly imply an improvement in the EU’s representative character.

What next?

How to deal with institutional rivalry? Is it a problem of design? Or of the people occupying the positions? Do big member states talk too much? There are many questions on the table. Even so, there is one goal shared by many: the EU needs to act as a cohesive and principled force on the world stage. This is not only to not end up as a playground for the major powers but also to leave a rules-based fingerprint in the world.

The world is moving very fast and creativity should always be on the table. A well-defined external action based on the Union’s strengths rather than weaknesses, centred far away from the meta-level debates such as full strategic autonomy in security and defence, is a very good starting point. The EU should aim for its goals while securing the most effective cooperation with the US. The Conference is a platform: it is the citizens, civil society, national parliaments, EU institutions, political parties and leaders that can make it a source of inspiration for the future. If we focus on specific issues that can promote the EU’s capacity to act in the world, we can end up with concrete success stories.

*About the author: Ilke Toygür, Analyst of European affairs with the Elcano Royal Institute and CATS fellow with the German Institute for International and Security Affairs | @ilketoygur

Source: This article was published by Elcano Royal Institute

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