The legal case for banning the Settlement trade
The TUC firmly backs a two-state solution for Israel and Palestine, but every new Israeli settlement on Palestinian land makes that goal harder and harder to achieve. Back when the Oslo peace accords were signed in 1993 there were only 280,000 Israeli settlers, today there’re over 600,000 and it seems that new settlements are announced and condemned every other week.
That’s why we’ve just published a Legal Opinion by Professor James Crawford that states that it would be legal for the UK to ban the trade that sustains the illegal Israeli Settlements in the Occupied Palestinian Territories.
Of course, it’s just an opinion (and to be clear, it’s not the TUC’s formal opinion), but it’s potentially a highly influential one. Professor Crawford is an eminent jurist whose work is often quoted in the judgements of the highest national and international courts. (For more details about him, see the bio on him at the end of our briefing).
And it’s significant because it overcomes concerns that EU or World Trade Organisation law would prevent the UK or the EU from instituting such a ban. The only thing stopping them now is their own lack of political will.
The Opinion also adds to the growing mood that governments must move beyond words of condemnation to do something practical to stop the continued expansion of settlements. The Independent, which has just covered the release of the Opinion, states that: “Denmark and Sweden, as well as South Africa, are considering following the UK lead on labelling, while the Irish government has suggested the EU should consider an all-out ban on settlement goods.” We could also add Finland, Norway, as well as charities such as Christian Aid and business such as the Co-op. Former Israeli Knesset Speaker Avraham Burg and former Israeli Ambassador to South Africa Alon Liel have also recently backed moves to accurately label settlement goods.
So what does the Opinion actually say?
It’s 60 pages of fine legal prose so let me try to help you navigate it.
Professor Crawford was asked to consider what the legal obligations are for European States, specifically the UK, regarding their support for and involvement with Israeli Settlement activity. He reconfirms that “Israel has engaged in internationally unlawful conduct in pursuing its settlement agenda” (paragraph 70). Israel’s de facto annexation of West Bank territory has prevented the Palestinian people from exercising their right to self-determination (paragraphs 28, and 33). The Israeli transfer of population to the settlements is also in breach of the Fourth Geneva Convention and a war crime under the Rome Statue of the International Criminal Court (paragraph 18).
He also confirms that all States have a collective duty to end such breaches of international law. No individual state (apart from Israel) has an obligation to take positive action, but individual states are entitled to take individual legitimate action to end Israeli breaches. For example, it would be lawful for the UK to ban the import of settlement goods (paragraph 125) or to restrict financial flows to the settlements (paragraph 115). But there is nothing compelling states to take such action.
Banning settlement trade would not breach European Union law because Member States could justify such actions on the public policy grounds of seeking to ensure compliance by Israel with international humanitarian law (paragraph 125). Nor would such a ban breach WTO/GATT obligations because the West Bank and Gaza cannot be considered to be Israel’s territory (paragraph 133).
Further, all states are under an obligation not to recognise Israel’s illegal acts (the obligation of “non-recognition”). This means not engaging in treaties or diplomatic relations in respect of the illegal settlements. This supports the ECJ’s view that the EU-Israel Association Agreement does not provide tariff preferences to goods from the Israeli settlements (unless of course, the Palestinians agree).
The Opinion also says that States are under an obligation not to aid or assist Israel in its perpetuation of the settlement program (paragraph 45). Nor should they engage in activities, such as trading, which might entrench the control of the occupying power over the territory (paragraph 79). For example, a State directly contributing to construction of infrastructure related to the settlements is arguably in breach of its obligation not to recognise the unlawful regime (paragraph 90). Such a finding however is “highly fact dependant” (paragraph 91).
The Opinion also states that it is arguable that the purchase of settlement agricultural produce by a third state, aids and assists the ongoing commission of an internationally unlawful act given that:
- Israeli settlement agricultural practices are highly dependent on water irrigated under a system established in breach of Article 43 (of the Fourth Geneva Convention) (paragraphs 88); and
- Palestinian resources are being used in circumstances that are not “necessary for the administration of the territory and to meet the essential needs of the local population (paragraph 89) and therefore in breach of Article 55 of the 1907 Hague Regulations.
So in summary putting in place a ban would be legal. If government’s refuse to do so, then at a minimum they should conduct a thorough due diligence to ensure that they are not are not procuring goods or otherwise doing something which might “aid or assist the ongoing commission” of these act as described above. I’m not sure the UK actually does this due diligence.
Why are we pushing for a ban?
My boss, TUC General Secretary Brendan Barber put it succintly in today’s release accompanying the Opinion:
Every settlement that is built weakens the hope of a sovereign Palestinian state that can live peacefully alongside a secure Israel. Governments across Europe agree with this, but they need to move beyond words of condemnation to taking practical action to stop the growth of any more settlements…
The TUC does not support a ban against Israel, but we do support a boycott of goods from Israeli settlements because these are illegal, make life a misery for ordinary Palestinians and are ruining any chance of peace.
The other reason why we say a ban is needed is because the consumer-led boycott of settlement goods in the UK has pretty much run its course. Nearly all supermarkets have stopped stocking settlement goods, but the settlement trade may have simply shifted into areas where consumer pressure just can’t reach such as wholesale and catering channels. We explain this in more detail in this TUC briefing.
So consumers have spoken, and now the lawyer has spoken. It’s time for a total ban.