Why the UK and EU can and should ban settlement products

Israeli settlements can face trade bans, says counsel

Donald Macintyre
July 09, 2012

JERUSALEM–European governments, including Britain’s, have received legal opinion from a leading international counsel who argues they would be fully within their rights to ban trade with Israeli settlements in the occupied West Bank.

The formal opinion from James Crawford, professor of international law at Cambridge University, is likely to inject fresh momentum into campaigns in the United Kingdom and elsewhere for a ban, at a time when some EU member states are examining ways of hardening their position on the imports of settlement produce.

Israeli settlements in the West Bank are considered illegal under international law, a position upheld by all EU member states.

In particular the opinion will be seen as challenging received wisdom in official circles that for a state such as Britain to ban imports of settlement produce, or prohibit banks from financing settlement activity, would contravene European or global trade law. Professor Crawford says in his 60-page opinion, shown to senior officials of EU member states in the past few months and seen by The Independent, that “there do not appear to be any EC laws which could be breached by a member state taking the decision to ban the import of settlement produce on public policy grounds.”

He argues that member states wishing to block the import of produce from settlements could “have recourse” to the EU’s Association Agreement with Israel, which stipulates that the agreement “shall be based on respect for human rights and democratic principles.” He argues that, by executing such a ban on trade with settlements, the EU would not be in breach of its World Trade Organisation obligations since, “as a matter of international law, the West Bank and Gaza cannot be considered to be Israel’s territory”.

The opinion will be published this week by the Trades Union Congress, which has mounted a sustained campaign for a ban on settlement trade – as distinct from a boycott of Israel itself, which the TUC does not support.

Brendan Barber, TUC general secretary, said that the UK had made a “real difference” by ensuring supermarket goods from settlements were properly labelled.

But, adding that a ban was needed, he said that every settlement weakened the hope of a Palestinian state living peacefully alongside Israel. “Governments across Europe agree with this, but they need to move beyond words to practical action.”

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.

Professor Crawford’s opinion rejects arguments that EU member states are obliged – rather than merely able – to enforce a ban.

But it suggests that states – as distinct from private sector corporations – which directly buy produce from settlements or provide financial or other assistance, for example, could be liable to penalties under international law.

It could also indirectly renew focus on the £1m paid by the European Commission through a scientific co-operation fund to Ahava, the prominent Israeli Dead Sea cosmetics company, which has a mineral extraction facility in the occupied West Bank.

Although the commission suggests it may review the criteria for a successor fund running from 2013, it has repeatedly told MEPs that there is no legal impediment to the grants.

EU funding for Ahava Dead Sea Laboratories

Question for written answer, Keith Taylor MEP, Green party, UK SE region
June 21, 2011

The Commission will be aware:
that Ahava Dead Sea laboratories (ADSL) has received EU funding through one FP5 and three FP7 research projects;
that only the overall grant sums for each project are available in the public domain;

that the ADSL factory is located in the illegal settlement of Mitzpe Shalem, which openly defies the fourth Geneva Convention concerning the colonization of occupied territory (Section III, Article 49); and

that the ADSL actively appropriates natural resources from the occupied Palestinian territories, also in open defiance of the fourth Geneva Convention (Section III, Article 53) as well as Article 52 of the annex to the Hague Regulations, 1899.

I would like to ask the Commission:
As a partner in different consortiums receiving EU funding, how much did ADSL, as an individual organisation, receive from the EU under the FP5 (for ‘CELLAGE’) and how much is it currently receiving from each of the three FP7 projects (‘SKINTREAT’, ‘NANOTHER’ and ‘NANORETOX’)?

How does the Commission justify granting EU research funds to ADSL, whose activities breach the fourth Geneva Convention as well as the EU’s policy on colonization of the Occupied Palestinian Territories?

Parliamentary questions
European Parliament
August 26, 2011
E-007464/2011

Answer given by Ms Geoghegan-Quinn on behalf of the Commission
Ahava Dead Sea Laboratories is a legal entity as defined in Article 2(1) of the Rules for Participation(1) of the Seventh Framework Programme for Research and Technological Development (FP7, 2007‑13), as it is a legal person which is formally established within the internationally recognised borders of the State of Israel, having legal personality and which may, acting in its own name, exercise rights and be subject to obligations.

Israel has been associated to FP7 through an agreement on scientific and technical cooperation signed on 16 July 2007(2) (hereafter referred to as ‘the Agreement’). The Agreement stipulates in Article 2(1) that legal entities of Israel shall participate in indirect actions under the same conditions as those applicable to legal entities of Member States, subject to the terms and conditions established by, or referred to, in Annexes I and II. Annex I defines legal entities for the purpose of the agreement as any natural person, or any legal person created under the national law of its place of establishment or under Community law, having legal personality and being entitled to have rights and obligations of any kind in its own name. As this definition is in substance the same as in the FP7 Rules for Participation, Ahava Dead Sea Laboratories is to be considered as a legal entity of Israel for the purposes of the Agreement.

Even if the Agreement does not specifically mention that in the case of natural persons, references to establishment are deemed to refer to habitual residence, this clarification also applies when legal entities of Israel participate in FP7 as it is part of the FP7 Rules for Participation which are explicitly rendered applicable in Article 1 of the Agreement. Therefore, a natural person of Israeli nationality which is not habitually resident in the territory of the State of Israel in accordance with the FP7 Rules for Participation cannot be considered to be established in Israel for the purpose of implementing the Agreement. Nevertheless, such a natural person could theoretically participate as a participant from a non-associated third country.

Finally, the Commission is not aware of any provision of EC law that obliges it not to fund activities under an FP7 project carried out in Israeli settlements that have been established in occupied territories.[our emphasis]

UK government can legally ban Israeli settlement goods

Media release, TUC
July 09, 2012

The UK can lawfully ban goods from the illegal Israeli settlements, concludes a legal opinion from Professor James Crawford SC, published by the TUC today (Monday).

The TUC is calling on the UK government to bring in such a ban following a successful consumer-led campaign that has seen most supermarkets take settlement goods off their shelves. But consumer pressure is unable to reach all parts of the settlement trade into Britain, with wholesale and catering industries being especially difficult, says the TUC.

TUC General Secretary Brendan Barber said: ‘Professor Crawford’s opinion is clear. The Israeli settlements are illegal under international law and on this basis the UK could, under EU and World Trade Organisation law, unilaterally ban the trade that sustains them.
‘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.

‘UK governments have taken the lead. Since 2009 ministers have been encouraging retailers to make sure they accurately label goods from the settlements. This has made a real difference. Consumer pressure has persuaded most supermarkets to take settlement goods off their shelves.

‘But there are parts of the settlement trade that consumer pressure simply cannot reach, such as the wholesale and catering industries, and that’s why we need a total ban.

‘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.’

Professor Crawford’s opinion also supports the case for the UK acting alone, or with EU partners to place a ban on financial transactions that directly support the illegal settlements.

NOTES TO EDITORS:
-The Opinion on Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories is available here [60 page document, pdf]
– TUC briefing note on the legal opinion which includes a biography of Professor Crawford is available below.

Briefing note: legal opinion on the Israeli settlements
TUC
July 2012

Introduction
The TUC believes that only when a sovereign and viable Palestinian state is created, living side by side with a secure Israel will there be a chance for peace and stability in the Middle East. Yet this widely-accepted vision of a two-state solution is seriously threatened by the continued growth of Israeli settlements in the West Bank and East Jerusalem.

To reverse the spread of settlements, TUC Congress policy seeks “a ban on the importing of goods from the illegal settlements” and to “actively encourage affiliates, employers and pension funds to divest from and boycott the goods of, companies who profit from illegal settlements, the Occupation and the construction of the Wall”.1

While the UK government has refused to ban settlement goods, the consumer-led boycott of settlement goods in the UK has been very successful. All but one of the major UK supermarkets have stopped sourcing from the settlements. Yet there are

parts of the settlement trade to the UK and EU that consumer pressure is just unable to reach. This strengthens the case for a ban on imports of settlement goods.

The TUC has published a Legal Opinion by the eminent jurist Professor James Crawford SC addressing the legal obligations of states, especially the UK, regarding their support for and involvement with Israel settlement activity.2 This Opinion argues that a ban on settlement trade between the UK and the Israeli settlements would not be unlawful and can be implemented unilaterally by the UK government as well as with other EU partners.

The legal case for banning settlement goods

The Opinion on Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories by Professor James Crawford SC (the “Opinion”) advises on the legal obligations facing European states, specifically the UK, regarding their support for and involvement with Israeli settlement activity.

The Opinion confirms the well established legal position that “Israel has engaged in internationally unlawful conduct in pursuing its settlement agenda” (paragraph 70). All States have a collective duty to end these 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 prohibit UK banks from directly financing illegal settlement activity in the West Bank (paragraph 115).

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 Israel’s compliance with international humanitarian law (paragraph 125). Nor would such a ban breach WTO/GATT obligations because the Occupied Palestinian Territories cannot be considered to be Israel’s territory (paragraph 133).

Time to end the settlement trade
The UK government introduced voluntary labelling guidance in December 2009 calling on retailers to state if produce from the West Bank was from the settlements. While this fell short of a ban on settlement goods the TUC called for, it was publicly welcomed as a positive step forward.

And it has been a success. The TUC lobbied and surveyed the top nine British supermarkets last year. All of them claimed to be applying this guidance. And all but one of them had then decided to stop sourcing produce from the settlements altogether – presumably as a result of the additional pressure that better informed consumers were able to apply.

This is a campaign victory, yet it is limited for two reasons. Firstly, there are settlement goods coming into the UK where consumer pressure simply cannot reach. This is particularly the case where wholesalers are selling settlement produce for industrial or catering purposes. While in theory consumers could demand that e.g. catering companies list the place of origin for each ingredient in their menus, this is highly impractical for all parties involved. The best solution would be to simply institute a ban on settlement produce. The UK would be acting lawfully in doing so, as the Crawford Opinion concludes.

Secondly, while UK supermarkets, on the whole, may no longer be selling settlement goods, such goods may simply be entering other EU countries. At the moment, the UK is the only EU member state to currently apply any sort of labelling guidance, although others such as Sweden and Denmark have indicated that they may follow suit. Progress in the rest of Europe has been slow.

Recommendations to the UK government and EU

Tougher action is needed to prevent the expansion of illegal settlements. This is the conclusion of the recent EU Heads of Mission Report on East Jerusalem which documents the worrying expansion of settlements. There is a compelling moral and political case for further action, clearly supported by consumers in Britain. And now the Crawford Opinion further strengthens the legal case for doing so. Accordingly, the UK government should:

• Seek an EU-wide ban on settlement goods, or failing that, institute a UK ban.

• Seek an EU-wide ban on financial transactions from EU member states that directly support illegal settlement activities, or failing that, institute a UK ban.

• Conduct a “due diligence” of all activities of the UK government, including procurement, to ensure that the UK is not recognising, or aiding and abetting in the commission of, an internationally unlawful act in relation to the settlements.

For the EU:

• Seek an EU-wide ban on settlement goods. As a first step, the EU could provide guidance on origin labelling for settlement produce for EU member states and retailers.

• Seek an EU-wide ban on financial transactions that directly support illegal settlement activities.