Thursday, Oct 28, 2021

Of Hypocrisy and Double Standards

Not long ago, a friend criticized a piece I wrote in which I pointed out the hypocrisy of some public figure. If by hypocrisy we mean failing to live in accord with our professed values, he argued, then the vast majority of us are hypocrites to one degree or another. Every time a Torah Jew speaks lashon hara, for instance, he or she can fairly be accused of hypocrisy, as presumably none of us advocate speaking lashon hara.

To call someone a hypocrite, then, according to my friend, is almost to humanize them, and far from a damning criticism. Hypocrisy might even be said to have a positive side: As the great epigramist Francoise de la Rochefoucauld put it, “Hypocrisy is the homage vice pays to virtue.”

 

Double standards, particularly legal double standards, however, are something else. When a legal rule is applied to one party in a way that is diametrically opposed to the way it is applied to other similarly situated parties, then we can be pretty sure that the professed basis for the legal rule is not the real explanation for manner of its application.

 

Nothing corrupts a legal regime more than differing applications of a legal rule to similarly situated parties. When the differential application is particularly glaring, we have left the realm of law altogether and entered what one of my law professors used to refer to as “Kadi justice” – every case is treated as sui generis and decided according to the whim of the local Kadi (potentate).

 

NOTHING IS EASIER than pointing out instances of double standards applied to Israel. To take one example: Israeli military action in the Gaza Strip in response to lethal rocket fire directed at Israeli civilians from the Gaza Strip in Operation Cast Lead and Operation Defensive Shield provoked mass demonstrations protesting Israeli genocide and gross violations of international law in virtually every major European capital.

 

Yet, the mass slaughter in Syria, with casualties more than a hundred times greater than in Operation Cast Lead, or the killing of hundreds of thousands of black Muslims by their co-religionists in Darfur province of Sudan, or the slaughter of 700,000 Tutsis by Hutus in Rwanda provoked no such protests.

 

Professors of international law, Prof. Avi Bell and Prof. Eugene Kontorovich, have now provided a particularly glaring example of the application of legal double standards to Israel by the European Union in a study for the Kohelet Policy Forum titled “EU’s Israel Grants Guidelines: A Legal and Policy Analysis.”

 

On June 30, 2013, the European Commission promulgated a notice prohibiting the allocation of European Union grants, prizes and financial instruments to any Israeli “entity” based in territories beyond Israel’s borders [actually the 1949 Armistice Lines, never recognized as an international border] as of June 5, 1967, or that would support activity in those territories carried by an Israeli entity. Any Israeli business or other entity applying for EU funding must file an affidavit of compliance certifying that it does no business beyond Israel’s June 5, 1967, “borders.” The rule made an exception for entities and activities designed to benefit protected persons living in those territories – i.e., the Palestinians.

 

The new EU guidelines appear to be the handiwork of Catherine Ashton, the EU’s High Representative for Foreign Affairs and Security Policy. Ashton cut her teeth in the nuclear disarmament movement, which advocated unilateral European nuclear disarmament in the face of the Soviet Union’s vast nuclear arsenal and has been aptly described by The American Interest’s Adam Garfinkle as “an idiot from central casting.”

 

The legal justification offered for the new guidelines is that they are required by international law: Since Israeli occupation and settlements beyond the 1967 borders is illegal under international law, the European Union is obligated to make sure no EU funding aids the occupation, directly or indirectly.

 

While the argument is highly contestable on numerous grounds – in particular, the claim that the settlements constitute a violation of the Geneva Conventions – they at least enunciate an intelligible legal argument.

 

The problem is that it is not an argument that the EU follows with respect to any country other than Israel. Bell and Kontorovich point out that there are approximately 200 cases at present around the world involving territorial disputes in which countries are exercising control over territory in which they have no internationally recognized sovereignty. Yet. in not one of those cases has the EU imposed any restrictions on businesses active in the disputed territories or established special rules for grant recipients located in those areas.

 

In 1974, Turkey invaded Cyprus and installed a Turkish Cypriot government in the northern part of the island. Tens of thousands of Greek Cypriots fled their homes in the area under Turkish control. Those homes were subsequently occupied by ethnic Turks, many imported by the Turkish government from Turkey itself.

 

Turkey’s invasion and subsequent occupation were condemned by the UN Security Council and the EU. Besides Turkey, no country in the world recognizes the government of Northern Cyprus.

 

Yet, that has not kept the EU from establishing an office in Northern Cyprus specifically for the purpose of overseeing approximately 1,000 grants, totaling 28 million euros annually, to Turkish Cypriot NGOs, rural communities, farmers, schools and students. Among the sponsored infrastructure projects are telecom upgrades, waste disposal, and upgrading cultural sites. As Eugene Kontorovich put it in a Jerusalem Post op-ed titled, “How the EU directly funds settlements in the occupied territory,” the EU might as well have been sponsoring infrastructure projects in Judea and Samaria in conjunction with the Shomron Regional Council.

 

Recently, the EU entered into an agreement with Morocco to develop the latter’s fisheries, including in the waters of Western Sahara, an area under Moroccan occupation, but over which the EU does not recognize Moroccan sovereignty. The UN Security Council’s legal advisor determined in 2002 that foreign businesses did not violate international law by entering into contracts with the Moroccan government for the development of the Western Sahara, even over the objections of “protected people” in the area who lack Moroccan citizenship.

 

CLEARLY, THE EU’S CLAIM that international law requires it to ensure that no EU funding goes to entities or activities operating in areas where Israel is not the internationally recognized sovereign is bunkum. The EU’s own practice in Northern Turkey and the Western Sahara makes that clear.

 

Ironically, the definition of anti-Semitism adopted by the EU Monitoring Centre on Racism and Xenophobia applies in full force to the double standard applied to Israel, on the one hand, and Turkey and Morocco, on the other. Among the definitions of anti-Semitism is: “applying double standards [to Israel] by requiring of it behavior not expected or demanded of any other democratic nation.” As they say, “If the shoe fits, wear it.”

 

The Kohelet Policy Forum study will likely be largely suppressed by the European media. A group of European parliamentarians have called for rescission of the grant guidelines for Israel, but that move has not yet developed traction. EU officials, for their part, have maintained the position that “Israel is different,” without specifying the precise nature of that difference. So let me: Israel is the only state with a majority Jewish population and the only refuge for Jews of the world.

 

Any other distinction that might be made between the EU’s treatment of Israel and that of Turkey and Northern Cyprus is what is called in law school a distinction without a difference – or at least any difference that should matter in the application of legal rules.

 

There is a lesson here for the Israeli Foreign Ministry, which tends to be acquiescent to European sanctions against the settlements: The settlements are not the issue; Israel’s Jewish character is. Israel does not have to let itself be bullied, and is not without leverage of its own. Its high-tech expertise is highly sought after by Europe. That is the reason that Israel was the only non-European country invited to participate in the EU’s Horizon 2020 initiative.

 

Moreover, the guidelines enunciated against Israel and the legal rationale offered for them open up the EU to suits in the European High Court of Justice by Greek Cypriots evicted from their homes in Northern Cyprus or protected people in the Western Sahara. Those suits would place EU foreign policymakers in an uncomfortable position. So would suits against Turkey for its de facto occupation of Northern Cyprus in the International Criminal Court.

 

Professors Bell and Kontorovich (both mitzvah observant Jews, incidentally) are to be commended for having pointed the way to a less supine Israeli response to rank discrimination.

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