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On 17 December 2014, the European Union General Court, the second-highest court in the bloc, annulled the EU decision to keep the Palestinian Islamist movement Hamas on its list of terrorist groups.
The ruling surprised many and was followed by a wave of criticism from several governments, including those of the United States, Canada, and Israel, which called for Hamas to be put back on the list. Several Western journalists described the decision as “legally founded but unreasonable.”
The EU had added Hamas’s military wing, the al-Qassam Brigades, to its terrorism blacklist in 2001 and then blacklisted the movement’s political wing in 2003.
“The General Court finds that the contested measures are based not on acts examined and confirmed in decisions of competent authorities but on factual imputations derived from the press and the Internet,” the court said.
Hamas deputy political leader Moussa Abu Marzouk thanked the EU and praised the decision as “a correction of a historical mistake.” He also described the step as “a victory of all supporters of the Palestinian people’s right of resistance, and of all advocates of liberation from all kinds of colonization.”
It appears, however, that Hamas missed a major part of the story: The court allowed a period of three months for appeals, during which the funding-freeze against the group and sanctions against its members will remain in place, unless an appeal brings closure.
In January 2015, the EU foreign-policy chief, Federica Mogherini, stated that the EU had decided to challenge the court’s decision. “This ruling was clearly based on procedural grounds and did not imply any assessment by the court of the merits of designating the Hamas as a terrorist organization,” Mogherini said in the statement.
As a result of the appeal, Hamas will remain on the EU’s list of terrorist groups, and its assets will remain frozen, pending a final judgement by the European court of justice.
In its response to the decision, Hamas showed little realization of the importance of that opportunity. It seems, too, that Hamas did not understand how European politics works in dealing with the Middle East in general and with Israel and Hamas in particular.
The decision to blacklist al-Qassam Brigades in 2003 was a response to Hamas’s continual suicide attacks against Israel after the outbreak of the second Intifada.
Immediately before it entered the political process by competing in the legislative elections, Hamas had taken a strategic decision in 2005 to freeze all suicide attacks against Israel. The decision was made after Qatar intervened and mediated the matter. But freezing suicide attacks was not enough for the European governments to take Hamas off the blacklist.
Early in 2006, when Hamas formed its tenth government, the International Quartet, which included the EU, set three preconditions for Hamas to meet before Europe would recognize its government: Hamas had to recognize Israel’s right of existence, reject violence, and recognize all previous agreements between Israel and the Palestinians.
Hamas’s response to the conditions was mostly positive. The movement agreed to declare a Palestinian state on the lands occupied in 1967 only, as this would imply a recognition of another state on the rest of Palestine’s historical land.
Hamas said it would prefer to resist occupation peacefully but that it continued to support all kinds of resistance.
Finally, Hamas said it would only respect those agreements, not accept them, leaving the door open to recognizing some of them and rejecting others.
At the time, some observers believed that Hamas’s response was more flexible than its previous stances, but the EU refused to take any steps to meet Hamas half way, although the latter documented its position in a National Concordance Document that was signed in the summer of 2006.
The Swiss and Norwegian governments (not EU members) and several EU MPs thought that it was a mistake to blacklist Hamas and boycott its government. They believed that Europe could have exerted more political pressure on Hamas had the EU maintained some sort of diplomatic relations with Hamas. They argued that Hamas was part of the Muslim Brotherhood, which was ideologically distinct from such terrorist organizations as al-Qaeda and the Taliban.
Hamas’s formal position is that “ending the occupation” should be given top priority. Hence, the movement sees “resistance” as a legitimate right of the Palestinian people, as long as Palestine is occupied.
Hamas has carried out limited military operations within the borders of Israel and the Palestinian territories, but it has never used the lands of neighbouring countries to launch attacks against Israel, and it has always showed itself to be committed to the ceasefire agreements reached with Israel through Egyptian mediation.
Policy of the European Union
Europe realizes this. It also realizes that Palestinians view Hamas as a national liberation movement of a religious nature, similar in that respect to European conservative parties. The movement’s manifesto for the 2006 elections, which was a complete about-face from Hamas’s Charter of 1988, did not go beyond what political parties in democratic Europe often propose.
Now the question is: Has Europe just been following the United States’ foreign policy? (The US had blacklisted the political and military wings of Hamas as early as 1996). Or is it following its own course? Many accuse the European governments of following the US, especially in its policies towards the Middle East, but others believe that is not the case.
Slowly but surely, the EU has been moderating its stances on the Palestinian issue. Several recent European positions reflect a better understanding of the Palestinian-Israeli conflict. Instances include diplomatic efforts made by several European governments towards recognizing a Palestinian state. Palestinians have optimistically viewed this as a sign that Europe is going to play a truly different role from the United States concerning the Palestinian cause.
The Palestinian-Israeli conflict is, however, perceived in two ways in Europe: some believe that no real solution can be reached without involving Hamas, as the latter represents many Palestinians, but some decision makers in Europe believe in preserving the status quo, as does the current Israeli Prime Minister Benjamin Netanyahu. They see no urgent need to involve Hamas, for the time being.
By and large, though, there is a consensus among European politicians that Hamas will not simply fade away. They realize that Hamas will remain a significant political and social power in the Palestinian communities, but they are divided over how to involve Hamas and encourage it to take a pragmatic position, similar to that of conservative political parties in Europe.
Hamas is supposed to make a conciliatory gesture within the three-month period of appeal in order to avoid being put back on the EU list of terrorist organizations but has not done so thus far. Some Hamas leaders mistakenly believe that an appeal would be a legal formality that would not change the ruling.
Given its timing, the court’s decision can be read as a message to Hamas that there is a window of opportunity for Hamas to initiate some dialogue with Europe and demonstrate more pragmatic stances.
On the other hand, several Western observers believe that EU decision makers should show more flexibility with Hamas. Instead of asking it suddenly to abandon its ideology, they say, Europe should encourage Hamas to find a peaceful solution to the conflict with Israel.