Trading with Israeli settlements is against the law

Tom Moerenhout The Electronic Intifada 11 April 2017

Palestinian youths look at Israeli soldiers protecting an Israeli settlement outpost being built on the lands of the Kafr Malik and al-Mughayyar communities, east of the occupied West Bank city of Ramallah, 24 March.

Oren Ziv ActiveStills

Stopping trade with Israeli settlements in occupied territories is long overdue, and the European Union’s continued refusal to do so is a hypocritical violation of its obligations under international law.

International lawyers overwhelmingly acknowledge the legal obligation to stop such trade. Major human rights organizations have also concluded that governments and firms cannot fulfill their human rights obligations if they facilitate or engage in any trade in or with the settlements.

However, we continue to see political debates on labeling and preferential access of settlement goods to foreign markets.

This is insufficient and potentially even distracting from the real international legal obligation.

EU double standard

In 2012, I published the first peer-reviewed legal argument on the matter – a 40-page article in International Humanitarian Legal Studies.

Back then, I naively thought the EU was merely inconsistent in its application of international law. I considered it possible that the EU did not prohibit settlement trade because the international law behind that obligation was complex.

But it’s quite straightforward. The key obligation is something called the duties of non-recognition and non-assistance.

In 2014, the EU condemned “the illegal annexation of Crimea” by Russia and declared that it “will not recognize it.”

EU leaders instructed their bureaucrats “to propose economic, trade and financial restrictions regarding Crimea.”

Within months, the EU issued a ban on imports from Crimea, framing this as an integral part of its obligation of non-recognition.

The EU also considers Israel’s settlements in occupied territories to be “illegal under international law,” but after five long decades of Israeli settlement building the EU has yet to impose such a trade ban.

The opinion that settlement trade violates international law is supported by a vast community of international legal scholars. Among those who signed an open letter to this effect are two UN special rapporteurs, two ad hoc judges with the International Court of Justice, a former president of the UN’s International Law Commission, a former judge of the International Criminal Tribunal for the Former Yugoslavia and dozens of other experts.

These scholars affirm that if the EU fails to stop trade, its member states have a legal obligation to act unilaterally.

Do not assist a crime

I wrote a summary of the legal argument recently for EJIL: Talk! – one of the world’s most influential legal blogs, where international lawyers give peer-reviewed analyses of current issues.

In short, states have a duty not to recognize and assist Israel’s violations in occupied territories.

This obligation was already recognized by the International Court of Justice in its 2004 ruling on Israel’s wall in the West Bank.

The duties of non-recognition and non-assistance apply to the most serious breaches of international law, including Israel’s obstruction of the Palestinians’ right to self-determination by seizing land and building settlements, population transfer and practicing apartheid.

Trading with settlements constitutes implicit recognition. And not only does trade provide an economic lifeline for settlements, it even helps them to expand.

Aside from the question of whether broader sanctions against Israel may be justified given its apartheid practices, it is clear that trade with settlements is illegal. Activists should make the point that banning such trade is not a “sanction” but a legal obligation: this trade should simply not exist.

Israel’s fear of trade measures

Trade measures were an important tool in bringing down apartheid in South Africa.

Like its South African counterpart a generation ago, the Israeli apartheid regime fears the potential of trade measures and tries to undermine them before they materialize.

Aggressive Israeli efforts to try to thwart the boycott, divestment and sanctions (BDS) movement include a 2011 law that allows boycott advocates to be sued for damages, and recent legislation that bars supporters of BDS from entering the country.

In the United States, President Barack Obama signed into law in 2015 a provision backed by Israel lobby groups that makes thwarting a boycott of Israel a key objective of trade talks with the European Union.

Meanwhile, Israel and its surrogates have supported a raft of legislation that aims to stigmatize or penalize BDS in Europe and North America.

But rather than silence the movement, this has only spurred resistance, which governments have heard.

Last year, the European Union joined several of its member states – Sweden, Ireland and the Netherlands – in recognizing the right of its citizens to advocate for the boycott of Israel.

This position was backed by 200 European legal experts, who wrote that efforts to prohibit BDS curtail basic human rights and aim at “exempting a particular state from the advocacy of peaceful measures designed to achieve its compliance with international law.”

Destabilizing duo

At a moment when the world appears to have entered a phase of profound and dangerous political polarization, the only silver lining is that it is easier to stand up for what is right and, in this case, legally just.

In December, Israel reacted with rage to the UN Security Council resolution condemning its settlements, as well as to the speech by John Kerry, then US secretary of state, explaining that it simply restated long-standing policy.

Rather than addressing the criticisms of its actions, Israel cozied up to Donald Trump – a man whose manipulation of contemporary, legitimate popular anger is clearly not matched by a willingness to learn from the tragedies of human history, whose bitter lessons spurred the development of modern international law.

Together, they form a destabilizing duo: Trump advocated international crimes during his campaign and Israel routinely commits them.

Their joint contempt for international law was on display again last month, when the US administration pressured the UN secretary-general into censoring a landmark report that found Israel practices apartheid.

Stand up for what’s right

None of this makes international law less relevant. Rather, an active legal discipline and self-disciplined activists working together are the key to ensuring compliance.

Individual scholars must have the courage to vigorously demand compliance with the most fundamental norms of international law. Or we can sit back and wait for the next human catastrophes, from which we can then again “draw lessons.”

Israel has no serious responses to the evidence of its violations, which is why it resorts to bullying and smear campaigns.

Just as in a court of law, it is up to activists to remain calm and to unapologetically and repeatedly explain why trade with settlements should be banned.

This plea is not to convince the guilty party, but to engage and activate the public and the few honorable politicians who care about doing what is right.

We need to build on the political momentum we have now, where more people are ready to recognize a stark reality: Israel unquestionably implements apartheid practices, and settlements violate fundamental norms of international law.

What can we do about that? Stop trading with them. It is not an option, but a legal obligation.

Tom Moerenhout is a legal scholar at the Graduate Institute of International and Development Studies, and Associate at the International Institute for Sustainable Development.

Tags

Comments

picture

tom hal replied on

Can those of us who are European Union citizens initiate formal action of some kind to compel the union's adherence to international law in this instance? What would be required? How could we begin?

picture

Blake Alcott replied on

With all due respect to the author's clear-cut reasoning and his urging individual states to act, the analysis unfortunately respects the Green Line. It fences off the 1948-occupied territories (Israel) from legal critique.
Almost every village, town and city in Israel is an (illegal) 'settlement'. Israel is a mere continuation of the British-Zionist settler-colonial project. There is no conceptual distinction between (usually Jewish-only) settlements established in 1925, or in and just after 1948, or since then. They were all done against the will of the indigenous Palestinians, done by the use of force, and (most of them) done on stolen or outright conquered land.
If the West Bank settlements were brought to their knees through boycott and sanctions, would all be well? No. Settler-colonial Israel occupies all of historic Palestine.
The author himself distinguishes between "what is right" and what is "legally just". The whole Zionist project is not right, and it is dangerous to focus, as does the author, on the low-hanging fruit of the West Bank.

picture

DP replied on

You say that states have a duty of "non-recognition and non-assistance" of Israeli settlements. How does this implicate private, non-state actors, who presumably have no such duty? If a store wishes to import produce from a settlement, is a state obliged to have a customs office to ban the activity of private actors? If a state grants carte blanche to all imports, how is that "recognition" and "assistance"? What if travelers wish to import low-value settlement souvenirs? Must all customs forms include a declaration that no goods were produced in a settlement? If so, would the same obligations apply to non-Israeli settlements (Western Sahara, Turkish Cyprus, etc.)?

picture

tom hall replied on

Non-state actors are indeed subject to their government's trade policies. When a government allows importation from territories controlled by a sovereign state, it is certifying that the goods involved were produced in accord with norms of international law. This cannot be the case with materials arising from Israeli settlement activity in the West Bank, the Golan Heights or East Jerusalem. (Israel's own embargo against Gaza constitutes a particularly harsh and perverse application of the principle of economic sanctions.)

The law is clear with respect to Israel's colonization of occupied Palestinian territory. If you wish to introduce trade sanctions with respect to Western Sahara, Turkish Cyprus, or any other region, you are of course free to organize and militate on behalf of that initiative. That's what advocates of Palestinian rights are doing, and they're not obligated to desist merely because sufficient pressure hasn't been brought to bear in other instances around the world.