OPINION: The audacity of Belgium

Belgium asks the Israelis to stop the demolitions and to repair the affected projects or to compensate for the damage suffered.

By Alan Baker, JNS

In an official announcement by the “Belgian Federal Public Service Foreign Affairs” department, on Nov. 6 the Belgian government voiced its condemnation of the demolition by Israel of structures built illegally and without any planning and zoning approval in parts of the disputed territories administered by Israel. The buildings were constructed with Belgian funding.

According to this official announcement, “Belgium supports such infrastructure projects because they meet urgent needs. They are always carried out in accordance with international humanitarian law … the demolition of infrastructure and housing is contrary to international humanitarian law, in particular, the Fourth Geneva Convention, Israel’s obligations as occupying power and UN Security /council resolutions.”

Belgium’s heavy involvement in illegal construction in violation of the planning, zoning and construction regulations and requirements applicable in what the Palestinians and Israelis have denominated as “Area C” is made clear in the announcement:

“Since 2017, at the initiative of Belgium, a group of partner countries affected by similar actions has systematically intervened with the Israeli authorities to ask them to stop the demolitions and to repair the affected projects or to compensate for the damage suffered.”

Belgium’s audacity in demanding compensation is equaled by its blatant disregard of the legal infrastructure agreed upon between Israel and the Palestinians, applicable in the areas in which Belgium is so actively involved in illegal construction.

Who legally governs Area C?

The 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, commonly known as the “Oslo 2” Agreement, divided the territories into three distinct areas of jurisdiction, pending final agreement between Israel and the Palestinians on their permanent status.

In areas A and B, covering all the major populated areas—Palestinian cities, towns, villages, refugee camps, and hamlets—all governmental powers and responsibilities, including legislation and land regulation, internal security (Area A) and public order (Area B) were transferred to the Palestinian Authority. The parties to the agreement determined that in Area C, covering the remaining parts of the territory including Israel’s settlement areas and military installations, Israel continues to administer the area, subject to P.A. responsibility for civil public order, pending agreement between the parties on the permanent status of the territories.

In its 3rd Annex, entitled “Protocol Concerning Civil Affairs,” the Interim Agreement sets out detailed provisions on planning and zoning in the respective areas defined by the parties to the agreement.

As regards areas A and B, it was agreed that:

“Powers and responsibilities in the sphere of Planning and Zoning in the West Bank and the Gaza Strip shall be transferred from the military government and its Civil Administration to the Palestinian side. This includes initiating, preparing, amending, and abrogating Planning Schemes, and other legislation pertaining to issues regulated by Planning Schemes (hereinafter: “Planning Schemes”) issuing building permits and supervising and monitoring building activities.”

Regarding Area C, it was agreed that responsibility for planning and zoning remained under the authority of Israel’s Civil Administration, pending possible future transfer of such powers and subject to the permanent status negotiations.

Planning and zoning legislation in Area C4

Since Israel and the Palestinians have not entered into any other agreements regarding allocation, regulation and administration of land, the above arrangements regarding all the areas, including Area C, remain valid.

Any proposed building project in Area C is thus subject to the applicable planning and zoning requirements as set out in the land legislation applied in the territory, which is the still valid Jordanian land planning legislation—“Law concerning the planning of Towns, Villages and Buildings No 79, 1966,” as amended from time to time by Israeli security legislation and jurisprudence.

Pursuant to this legislation, the statutory authority in Area C, the Israeli Military Governor of the Area of Judea and Samaria, issued an order dated April 17, 2018, entitled “Order regarding the removal of new structures” (Temporary Order Judea and Samaria) (No. 1797) 2018.

As is the case regarding building requirements in any legal framework (including Belgium—see below), this order requires the acquisition of a building permit for any new structure. In the event that such permit is not forthcoming or that the structure has been built in violation of the conditions stipulated in the permit, and after a process of appeals to the various building regulation bodies, the offender is required to remove the structure.

In the event of failure to remove the structure by those responsible for building it, the building may be removed by the responsible authority.

Status of the Oslo Accords

The 1995 Israeli-Palestinian Interim Agreement (Oslo II) is an integral part of the Oslo Accords negotiated by Israel and the Palestinian Liberation Organization (PLO) between 1993-1999. The agreement, in addition to being signed by the leaders of the PLO and Israel, was countersigned by the leaders of the United States, Russian Federation, Egypt, Jordan, Norway and the European Union, who signed as witnesses. It was subsequently endorsed by the United Nations in various resolutions of the General Assembly and Security Council.

These witnesses to the agreement, including the Kingdom of Belgium as an integral component and member state of the European Union, are to all intents and purposes guarantors of the agreement, and as such are expected to ensure that the provisions of the Oslo Accords and the commitments by the parties are duly implemented.

By the same token, the actions of Belgium in openly undermining the agreement by supporting, encouraging and financing building projects that violate the agreement serve to undermine the integrity of the agreement and credibility of those states and organizations that are guarantors of its proper implementation.

The Oslo Accords, upon their acceptance by the parties and their entry into force in 1995, including the various territorial divisions and respective transfers of powers and authorities, replaced any former, applicable legal regime in the areas, whether the former British mandatory regime, the Jordanian regime and even the regime of belligerent occupation set out in the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War, that some, including Belgium, claim still applies.

As such, the regime agreed to in the Oslo Accords became the applicable “lex specialis”—the unique legal regime agreed upon by the parties and instituted by them in the territories.

Since the planning and zoning requirements in Area C are based on this applicable regime, any claim by Belgium, the European Union or others that Israel’s application of its planning and zoning requirements in Area C, including removal of illegally constructed buildings, is contrary to international humanitarian law and the Fourth Geneva Convention, has no legal authority and is devoid of any legal basis.

Does the Fourth Geneva Convention apply?

Regarding the European Union and Belgium’s reliance on the Fourth Geneva Convention, it is noteworthy that since Israel’s entry into the areas of Judea, Samaria and the Gaza Strip in 1967 and the immediate institution of its military administration, doubts have been expressed as to whether the Fourth Geneva Convention (1949) has ever indeed been applicable to these areas.

Apart from undertaking to observe its humanitarian provisions, Israel never formally applied the convention. But even if, theoretically, there are those who consider it to have applied prior to the institution of the lex specialis regime of the Oslo Accords, or even those, like Belgium, that consider that it still applies, article 53 of the convention, while indeed prohibiting the destruction of property, provides an exception “where such destruction is rendered absolutely necessary by military operations.”

The official, authoritative commentary to the convention by the International Committee of the Red Cross, edited by Jean S. Pictet (1958), states:

“The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the Occupying Power to judge the importance of such military requirements…. The Occupying Power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done.”

Clearly, buildings constructed at the behest and with the financial and political support of Belgium and the European Union, in clear violation of the applicable planning and zoning requirements of Israel’s administration in Area C, constitute a security violation of the type referred to.

The Belgian and E.U. contention that these well-funded projects constitute humanitarian aid does not afford any exemption from the requirement of international law to apply for and receive building permits from the jurisdictional authority. Since both Belgium and the European Union maintain open diplomatic channels with Israel, it might be expected that rather than openly undermining the Oslo Accords and the regime established by those accords, they could have utilized the prerogative to consult with the Israeli authorities regarding requests for planning permission for buildings that they seek to construct in Area C.

As stated by Israel’s Foreign Ministry in response to Belgium’s demand for compensation for demolishing illegally built structures:

“It is regrettable that European aid money finds its way to the financing of illegal activities…. Donor states should use their taxpayers’ money toward the funding of legal construction and projects in territories that are controlled by Israel and make sure those are planned and executed in accordance with the law and in coordination with the relevant Israeli authorities.”

Palestinian policy of encroachment in Area C

Palestinian land strategy since 2009 has been aimed at unilaterally altering the agreed-upon arrangements regarding the administration and control of Area C.

Salaam Fayad, then prime minister of the Palestinian Authority, set out this strategy in an interview in The New York Times, dated Aug. 29, 2009:

“We have decided to take the initiative, to accelerate the end of the occupation through hard work, and to create facts on the ground that are consistent with the idea that the establishment of a state is not something that can be ignored. This is our agenda, and we intend to implement it with determination.”

A detailed study on Palestinian land strategy was published by Regavim, an organization dedicated to the protection of Israel’s national lands and resources, titled, “The War of Attrition – The Palestinian Authority’s Program for an Arab State in Area C: The Fayyad Plan, One Decade Later, on Land Status in Judea and Samaria 209-2019.” In the study, strategic expert IDF Brig. Gen. Yossi Kuperwasser, former head of the Research Division of Israel’s Military Intelligence and director-general of the Strategic Affairs Ministry, and presently director of the Project on Regional Middle East Developments at the Jerusalem Center for Public Affairs, wrote the following:

“Since the ratification of the Oslo Accords, and more so since 2009, the Palestinians – with the support of the United Nations and the EU – have been waging a multi-dimensional offensive to create a virtually irreversible reality in Area C. In this context, they have built tens of thousands of illegal structures, taken over agricultural land, paved new roads, and re-defined Israeli state land as Palestinian nature reserves, seizing areas that were designated by internationally ratified treaties as firing zones and nature reserves.

“These activities are being orchestrated by the Palestinian Authority itself through institutions under the PA umbrella such as the Palestinian Ministry of Environment, the Palestinian Ministry of Agriculture, the Palestinian Ministry for Resistance to the Wall and the Settlements, as well as non-governmental organizations. The failure of the Israelis to take decisive action, enabling the Palestinians to construct over 25,000 illegal structures in Area C since 2009, proves that the Palestinian’s operational assumptions were correct, which encouraged and emboldened the Palestinians and their supporters to increase their activities on the ground.

“Much of this activity is carried out in the framework of a systematic program known as ‘The Roots Project’ (‘Juth’ur’ in Arabic), whose aim is to expand the Palestinian hold on Area C. The activity on the ground is, therefore, neither haphazard nor coincidental but elements of an actual program.

“On the political plane, the Palestinian program was intended to illustrate that Area C is part and parcel of the Palestinian state, and that Israel has no connection to this area. Therefore, these are not to be considered contested territories, as Israel has argued based on the Oslo Accords, but part of the Palestinian state which the UN General Assembly has already recognized. In their view, which was adopted by the international community and codified in United Nations Security Council Resolution 2334, ratified with the approval of the United States (which abstained in the vote on this resolution), these areas are considered occupied Palestinian lands, which gives the ‘State of Palestine’ authority to seize land in this region and to build on it as it sees fit, without the need for Israeli approval or permission.”

Hypocrisy—Belgium’s own planning and zoning laws

While Belgium has no compunctions about actively sponsoring and financing illegal building activity in Israel-controlled Area C, its own national legislation regarding planning, zoning and building is no different from that of Israel.

Belgium’s land legislation is summarized in an October 2020 guide to international planning and zoning regulations, published by the global real estate law firm DLA Piper titled: “Controls on Specific New Construction and Refurbishment – Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?”

In light of this, why and how does Belgium presume to reproach Israel for applying its planning and zoning regulations to illegal construction in Area C sponsored by Belgium itself, when Belgium’s own planning and zoning legislation is basically identical to that of Israel?

Belgium’s consistently defiant and delegitimizing approach to Israel

In its official complaint and demand for compensation, Belgium proudly admits that it has initiated a group of partners to intervene with the Israeli authorities to ask them to stop the demolitions and to repair the affected projects or to compensate for the damage suffered.

For many years, Belgium appears to have been at the forefront of European states’ fixation on singling out and criticizing Israel.

In 2002, Belgium permitted the institution of a criminal prosecution in its courts by a group of Palestinians against former Israeli minister of defense Ariel Sharon and other military officers, accusing them of involvement in enabling massacres against Lebanese and Palestinian refugees in the Lebanese refugee camps of Sabra and Shatilla, carried out by armed Lebanese Christian Phalange militants.

The prosecution was introduced on the basis of a unique Belgian law of 1993 enabling universal criminal jurisdiction in Belgian courts for war crimes trials against foreign persons, regarding crimes carried outside Belgian territory. The prosecution was permitted by Belgium to proceed despite the contention of Israel’s Justice Ministry as to a lack of jurisdiction, since the crimes were committed by Lebanese Phalange militants and not by Minister Sharon, and the Sabra-Shatilla issue was under investigation in Israel by the Khan Commission.

Ultimately, after similar proceedings were instituted in Belgium against American and Congolese military and political officials (as well as against Yasser Arafat, Fidel Castro, Saddam Hussein, former U.S President Bush, Secretary of State Powell and U.S. General Norman Schwarzkopf, who led the U.S. forces in Iraq), the International Court of Justice ruled that former and current government ministers and leaders are protected from prosecution by a foreign state because of their diplomatic immunity and can only be held to account in their own countries, and therefore Belgium could not proceed against them.

Belgium’s Appeals Court later ruled that the complaint was inadmissible on the ground that the Parliament did not intend to give prosecutors and investigating judges jurisdiction to investigate crimes under international law when the suspect was not present in Belgium. This was ultimately affirmed by the Belgian Senate.

More recently, Israel has found cause to reprimand Belgium for issuing a February 2020 invitation by the Belgian president of the U.N. Security Council to terror-supporting organizations connected to the Popular Front for the Liberation of Palestine. Israel claimed that the presence by such a terrorist element constituted abuse of the Security Council and an effort to delegitimize Israel.

Similarly, Israel’s Foreign Ministry recently reprimanded the Belgian ambassador after the Belgian premier received delegations from Israeli organizations advocating the delegitimization of Israel.

Conclusion

Regrettably and mistakenly, Belgium, together with its E.U. partners, appears to believe that undermining Israel’s legal status in Area C, sponsoring illegal building projects and supporting international resolutions singling out Israel will contribute to advancing the Israel-Palestinian peace process.

This is a naïve, hypocritical and even audacious viewpoint on the part of Belgium.

Rather than using its evident leverage with the Palestinian leadership to urge and encourage them to return to bona fide negotiations with Israel on the permanent status of the territories, as agreed upon in the Oslo Accords, Belgium is encouraging the Palestinian leadership to undermine the Oslo Accords and to violate international agreements.

This will not advance peace one iota. To the contrary; it will simply strengthen the Palestinian leadership in its attempts to enforce and impose a one-sided and unacceptable reality.

Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.

This article was first published by the Jerusalem Center for Public Affairs.

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