I contributed a chapter to Labour Friends of Palestine and the Middle East's Making the progressive case for peace in Palestine and Israel: Labour Party policies to support the rule of law and human rights. My chapter is entitled Trading For Peace and you can read it below.
The UK and EU’s public position on settlements is clear and unambiguous: Israeli settlements in the West Bank and East Jerusalem are “illegal under international law, constitute an obstacle to peace and threaten to make a two-state solution impossible”.
Article 49 of the Fourth Geneva Convention states clearly that ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’.
UN Resolution 446 states: “the settlements have no legal validity” and that they “constitute a serious obstruction to achieve a comprehensive and lasting peace in the Middle East”.
Despite the overwhelming legal principles and rulings, the creation of illegal settlements in the West Bank has increased significantly since the signing of the Oslo Accords in 1993. In 1995 there were approximately 110,000 settlers and today there are over 600,000 Israeli’s living in illegal settlements in the West Bank.
The EU’s commitment to the rule of law and the centrality of its internal economic cohesion require that it implement policies that de-incentivise settlements and the settlement enterprise. By standing firm behind these two pillars of European unity, the EU can play a central role in neutralising the largest obstacle to peace.
Now is the optimal moment for action. In June 2014, the EU Council prohibited imports of goods from Crimea and Sevastopol as part of a commitment to non-recognition of Russia’s illegal annexation of those places. This sets a precedent for a UK and EU policy of non-recognition of illegal Israeli settlements and present a strong legal case to ban trade with illegal Israeli settlements in the West Bank.
Illegal settlements in the West Bank
The settler population is growing at around two-and-a-half times faster than the population inside Israel with a growth rate of 4.9 per cent, or 29,000 settlers each year. One reason for this elevated growth rate is that successive Israeli governments have provided economic incentives for Israeli citizens to move to the settlements.
In addition to these political and financial considerations, the influx of nearly 600,000 Israeli settlers into the West Bank and East Jerusalem significantly increases tension in the region and results in multiple human rights violations on a daily basis. These violations are well documented and include: violence perpetrated by and against settlers; freedom of movement restrictions placed on the Palestinian population by the Israeli military; the detention and prosecution of Palestinian adults and children in military courts; house demolitions; land expropriation; and restrictions on agricultural and other economic activity virtually guaranteeing perpetual dependency.
Whilst supporters of the illegal settlement enterprise argue that the fenced areas of the settlements cover approximately three per cent of the West Bank, in total 43 per cent of the territory is appropriated by the wider settlement infrastructure, which includes: settler-only roads, the illegal separation barrier and areas cordoned off as military zones and nature reserves.
This fact has led the UN to note that the establishment of the settlements has fragmented the West Bank placing at risk the possibility of a Palestinian State, and by implication, a viable two state solution – stated policy goals of the UK, EU, US and UN into which nearly two billion Euros are invested annually.
In consequence of the establishment of Israeli settlements, the population in the West Bank is also governed by two separate legal systems. Those who possess Israeli citizenship – that is, in practice, the population of the settlements – are subject to Israeli civilian law. Those who do not – that is, for practical purposes, the Palestinian population – are subject to Israeli military law. This gives rise to a situation whereby Israel discriminates between those over whom it exercises penal jurisdiction based on race or national identity in violation of its international legal obligations and giving rise to negative historical comparisons which will increasingly damage its international standing.
Settlements and the law
We either support absolute rule of law or we do not. The transfer by an Occupying Power of parts of its own civilian population into the territory it occupies constitutes a breach of the 1949 Fourth Geneva Convention and violates the 1998 Rome Statute of the International Criminal Court. Such acts are war crimes under international law. Furthermore, under the Hague Regulations which are binding on all nations in of the world, Israel is in violation of the following articles:
a. Article 55 that states Occupying powers cannot claim sovereignty on occupied land
b. Article 46: Occupying powers cannot confiscate private land
c. Article 49: exploitation of occupied land resources must be temporary and used for military needs proportionate to need.
The settlements are illegal because they contravene a number of articles in the Fourth Geneva Convention, specifically in reference to the treatment of civilians in occupied territories; the convention prohibits the forced transfer of populations, the transfer of the occupying population to the occupied territories, and causing even mild physical discomfort among civilians.
The establishment of Israeli settlements in the West Bank and East Jerusalem also violates a fundamental principle of international law enshrined in Article 2 of the UN Charter concerning the non-acquisition of territory through aggression, even in circumstances where a State purports to act in self-defence.
Finally, as of 1 April 2015, the Rome Statute of the International Criminal Court (Rome Statute) has entered into force in Palestine. Article 8 of the Statute classifies the transfer of Israel’s civilian population into the West Bank and East Jerusalem as a war crime in addition to being a “grave breach” of the Fourth Geneva Convention. The legal obligations contained within both treaties have been incorporated into UK domestic law.
Trade with illegal settlements
If we accept that settlements are “illegal under international law, constitute an obstacle to peace and threaten to make a two-state solution impossible”, by implication the settlements also threaten the billions of Euros already invested in the two-state solution. In practice however, some European policies are helping to sustain the settlements, such as:
- Europe continues to import settlement products valued at around £198m per year;
- European owned companies continue to invest in the settlements and related infrastructure or provide services to them; and
- The EU has failed to fully exclude settlements from the benefits of its cooperation programmes and bilateral agreements with Israel. In several cases, EU public funds for research and development have been used to directly support activities in settlements.
Further, many of the products imported from the settlements have their origin designated as “Israel”, thus acquiescing to Israel’s extension of sovereignty over occupied territory whilst at the same time misleading consumers potentially in breach of EU consumer protection legislation.
Since 1967, the appropriation of Palestinian land and natural resources, have turned the illegal settlements in to a profitable enterprise for Israel. Continued and expanding trade with the UK and wider EU places no incentive or pressure on Israel to abide by its obligations under international law and instead sends a message that it can continue without recourse. The EU-Israel preferential trade agreement enshrines human rights and political progress as basic conditions in return for trade benefits; Israel has reaped the rewards, but ignored the conditions.
The EU’s position on settlements is very clear, that they are “illegal and an obstacle to peace”. This contains both a principled position in line with International Law, and a practical political position that settlements are an obstacle to the achievement of peace (a stated objective of the EU and UN).
I am pleased that EU parliamentarians voted overwhelmingly just recently (September 2015) to support labelling of consumer goods produced in Israeli settlements and to ‘differentiate between Israel and its activities in the Occupied Palestinian territories’. EU-Wide guidelines on labelling are a welcome step but we can and must do more by enforcing a ban on all trade with the illegal Israeli settlements under Article 215 of the Treaty on the Functioning of the European Union.
In 2012 the EU Heads of Mission voiced a number of serious concerns in a report on East Jerusalem, in which they condemned settlement building and recommended that EU member states place economic sanctions on settlements. I fully agree.
We can start with the British organisations that are complicit in the illegal settlement enterprise. According to Richard Falk, the former UN special rapporteur, companies or institutions involved in the illegal settlement enterprise ‘may be held criminally accountable for their involvement with the illegal settlements’.
I would also call for review of organisations that enjoy tax exemptions under UK charitable status and are involved with the illegal settlement project. The Jewish National Fund (JNF) for example has close ties with the Government of Israel to the extent that in 2007 the Israeli Knesset approved a Jewish National Fund Bill to authorise the JNF’s practice of refusal to lease land to Arab citizens. The JNF has been actively complicit in the illegal enterprise for decades and its political activities are in clear breach of Charity Commission guidelines.
There is growing recognition in Europe, the US and beyond that we cannot allow business as usual to continue; below are just a few examples that illustrate the shifting sands:
In 2012 the UK Cooperative Group took a decision to end trade with companies that export produce from illegal Israeli settlements. The Coop clarified that this was not a boycott of Israel and continues to trade with companies in Israel.
In January 2014 the Norwegian Ministry of Finance announced that it would exclude Israeli firms Africa Israel Investments and Danya Cebus from its Government Pension Fund Global, due to the their involvement in illegal construction in East Jerusalem and what it called ‘serious violations of individual rights’.
In February 2014, Denmark’s largest bank blacklisted Israel’s Hapoalim over it’s involvement in the funding of settlement construction. Danske Bank said that due to its corporate accountability rules and the fact that Hapoalim was ‘acting against the rules of international law’ it was added to the blacklist.
In March, authorities in Argentina suspended a proposed contract worth $170 million with Israel’s largest water company Mekorot. Israel’s discriminatory practices in controlling and distributing water resources in the West Bank are also in breach of the fourth Geneva Convention and companies such as Mekorot are complicit in the illegal appropriation of Palestinian water and redirecting it to illegal settlements and towns inside Israel
Though the history of the occupation is undoubtedly complex, the facts on the ground are relatively simple. As long as the settlements are expanding there can be no viable negotiations and as long as the settlements remain it is hard to see what a viable Palestinian state would look like. The presence of 600,000 Israeli settlers on land that has been internationally recognised as occupied is what drives this conflict.
Prime Minister Netanyahu made it clear during his recent election campaign that under his watch there would be no compromise over settlements. More pressure must be applied to render the settlement project no longer economically viable.
Unfortunately we will not find willing partners among the leadership of our sister party in Israel, Labour. Despite its official position, that they would be willing to swap occupied territory for a lasting peace, successive Labour aligned governments have entrenched the settlement problem and they have offered no real opposition on this matter to Netanyahu’s governments.
It is important to clarify that the positions outlined in this article differentiate between Israel and illegal settlements; I do not advocate the extension of sanctions to trade with Israel itself, ours is an anti-settlement policy, which I believe is in the best interests of peace and prosperity for both Israel and Palestine.
LFPME submits that it is unrealistic to expect a change in nearly 50 years of Israeli settlement policy in the absence of initiatives that impose consequences for illegal activity. It is important to note that LFPME is not recommending the imposition of sanctions on Israel, but a strong and targeted policy response towards what is widely acknowledged as the biggest impediment to peace - the settlements.
LFPME also submits that failure to take firm action in accordance with the UK’s international and domestic legal obligations will not only result in the failure to achieve our stated policy goal of a viable two-state solution, but is likely to have dire consequences for both Palestinians and Israelis alike, whilst potentially undermining the international legal order to the detriment of all.