EU and US Clash on Legality of Settlements

editor - 16 December 2019

The EU and US now have diametrically opposed views on whether Israeli policy on settlements in the “occupied territories” is legal.

The European Court of Justice decided on 12 November 2019 that the ‘occupied Palestinian territories’ are not part of Israel. Therefore products imported into Europe from those territories may not be labelled ‘made in Israel’. In the Court’s view, Israeli settlements are ‘illegal’, and products from settlements must be labelled as such. The Court said that consumers need to be informed if the place from which the products emanate somehow is in breach of fundamental rules of international law. This is a far-reaching decision. It means all ‘occupied’ territories – such as Taiwan (China), Ukraine (Russia), Western Sahara (Morocco) and Tibet (China) – do not belong to the occupier, and ‘settlements’ in those territories could be illegal. As Psagot’s lawyers argue(*), the case opens up a ‘Pandora’s box’ of problems. How are European importers of products to know when international law is being breached, or determine what consumers want to be informed about?

The EU position that Israeli settlements are illegal stands in direct contrast with the announcement several days later on 18th November by US Secretary of State Mike Pompeo that the US no longer considers the establishment of Israeli settlements ‘per se inconsistent with international law’. The announcement goes back to the policy of the Reagan administration and reverses the policy implemented by President Obama. Pompeo said: “After carefully studying all sides of the legal debate, this administration agrees with President Reagan. The establishment of Israeli civilian settlements in the West Bank is not per se inconsistent with international law.”

Pompeo said “we recognise that, as Israeli courts have, the legal conclusions relating to individual settlements must depend on an assessment of specific facts and circumstances on the ground. Therefore, the United States Government is expressing no view on the legal status of any individual settlement.”

Pompeo also stressed the US is “not addressing or prejudging the ultimate status of the West Bank. This is for the Israelis and the Palestinians to negotiate. International law does not compel a particular outcome, nor create any legal obstacle to a negotiated resolution…The conclusion that we will no longer recognise Israeli settlements as per se inconsistent with international law is based on the unique facts, history, and circumstances presented by the establishment of civilian settlements in the West Bank. Our decision today does not prejudice or decide legal conclusions regarding situations in any other parts of the world.”

Pompeo concluded that “calling the establishment of civilian settlements inconsistent with international law hasn’t worked. It hasn’t advanced the cause of peace. The hard truth is there will never be a judicial resolution to the conflict, and arguments about who is right and wrong as a matter of international law will not bring peace. This is a complex political problem that can only be solved by negotiations between the Israelis and the Palestinians. The United States remains deeply committed to helping facilitate peace, and I will do everything I can to help this cause. The United States encourages the Israelis and the Palestinians to resolve the status of Israeli settlements in the West Bank in any final status negotiations.”

Although Pompeo did not state the reasons why the US no longer considers Israeli settlement policy illegal, the position that their establishment does not necessarily infringe international law reflects, in our view, a much more accurate and balanced view of international law than the EU position.

There are several reasons why the US position is to be preferred, and the EU position is mistaken.

The occupied territories are not part of the territory of Israel

The Court reasons that ‘under the rules of international humanitarian law, these territories are subject to a limited jurisdiction of the State of Israel, as an occupying power, while each has its own international status distinct from that of that State.’ Further, the European Court states that ‘the West Bank is a territory whose people, namely the Palestinian people, enjoy the right to self-determination.’ All of this means, according to the Court, that these territories are not ‘in Israel’, and therefore products originating from these territories may not bear the label ‘made in Israel’.

These statements are astounding in their incompleteness and inaccuracy.

First, it is questionable whether all of these territories are ‘occupied’ within the meaning of the law of occupation. The argument consistently made by Israel and others is that the territories captured by Israel in June 1967 are not ‘occupied’ because when Israel captured the territories, they did not belong to another state. The law of occupation, it is argued, only applies when there is a state of belligerency (i.e. war) between two states. This argument has, admittedly, been rejected by most international tribunals and organisations (such as the International Red Cross), but it is not an unreasonable proposition. The Court does not even address it.

But, secondly, and perhaps more importantly, even if these territories are ‘occupied’ within the meaning of the law of belligerent occupation, this does not necessarily mean they cannot be part of the State of Israel. The law of occupation does not make the occupation itself illegal (as many seem to assume). Clearly an occupying power cannot obtain valid legal title to territory by means of the occupation, but the law of occupation does not say anything about the prior territorial sovereign status of the territory. It simply imposes certain obligations and prohibitions on the occupying power, which are to be respected pending the finalisation of a peace treaty to resolve the dispute. It is quite possible under international law for territory to be both ‘occupied’ and ‘disputed’.

Both Israel and the Palestinians make claims to sovereignty over these territories. Admittedly, Israel has not been very clear or effective in its claims. Its agreement in 1967 to ‘voluntarily’ apply the law of belligerent occupation to the territories has muddied the waters. But Israel has never completely abandoned its claims to sovereignty over these territories. The question of where Israel’s borders lie – the geographical scope of its ‘territorial integrity’ – is a matter between Israel and its neighbours. It is not up the European Court of Justice to decide on this.

The arguments that some, if not all, the territories captured in 1967 already belonged to the territory of Israel, is based primarily on the Mandate for Palestine (1922). The argument is essentially that the State of Israel emerged in May 1948 as a result of the Mandate for Palestine (1922), the core purpose of which was the creation of a ‘Jewish homeland in Palestine’. The Mandate–an international treaty ratified by all 51 member states of the League of Nations in 1922–conferred on the Jewish people the right to settle in the territory of ‘Palestine’ – which initially included all territory west and some of the territory east of the Jordan River. It was undoubtedly intended that Jews should have a right to live in what is now known as ‘East Jerusalem’ and the ‘West Bank’ (known to the Jews as ‘Judea and Samaria’). After termination of the Mandate, and pending the establishment of a Trusteeship (which, in the case of Palestine, never happened), Article 80 of the UN Charter expressly preserved the pre-existing rights of the Jewish people under the Mandate.

When Israel was created on 14 May 1948, upon the termination of the Mandate, its borders were arguably – on the basis of the principle of uti possidetis juris – the pre-existing administrative boundaries under the Mandate – in accordance with the same principle that has determined the borders of all other States emerging out of Mandates – such as Iraq, Syria and Lebanon – as well as many other states in the world.

It is quite possible under international law for territory to be both ‘occupied’ and ‘disputed’.

Jordan (with other Arab states) attacked the infant State of Israel on 15 May 1948, resulting in Jordan’s control of East Jerusalem and the West Bank until 1967. This attack was clearly illegal and could not have resulted in Jordan acquiring any territorial sovereignty over these territories. So when, in effect, Jordan ‘abandoned’ its claims to East Jerusalem and the West Bank in the late 1980s in favour of the Palestinians, it could not confer on the Palestinians more rights than it itself possessed.

Further, it is simply not true – as the European Court suggests – that the Palestinian people have an absolute ‘right’ to self-determination in all of the territories captured by Israel in 1967. On the contrary, international law requires that the right to self-determination cannot infringe the territorial integrity or security of neighbouring states. Israel has consistently argued that it has a right to secure borders (this is a legal right, as was conceded in UN Security Council resolution 242 in 1967) and that the ‘1967 lines’ are indefensible. Particularly Israel argues that it must have control of areas around Jerusalem and the Jordan Valley in order to be able to defend itself against both against Palestinian terror and the threat of attack from beyond the Jordan River. This is a complex matter, and no international institution – not even the UN Security Council or the International Court of Justice – has the knowledge needed to make that call. In any event, no international institution has the right to make a binding determination on where a state’s secure borders lie, without its consent.

The territorial scope of the Palestinian right to self- determination is precisely one of the topics of negotiation under the Oslo agreements. In the Oslo Accords, the PLO itself agreed to a process for achieving self-determination, in which it was agreed that issues like borders, settlements and Jerusalem would be the subject of permanent status negotiations.

Israeli Settlements are Illegal

According to the court, any product that ‘comes from an Israeli settlement located in one of those territories’ must indicate that fact. This is because ‘the settlements established in some of the territories occupied by the State of Israel are characterised by the fact that they give concrete expression to a policy of population transfer conducted by that State outside its territory, in violation of the rules of general international humanitarian law.’

Here again, the Court’s reasoning is open to criticism.

First, as we have already observed, there are good arguments that these territories are not ‘occupied’ within the meaning of the law of belligerent occupation. But even if the territories are ‘occupied’ (as most – but not all – people seem to think), not all Israeli settlements in these territories are illegal. Under the law of belligerent occupation, it is only an Israeli policy to ‘transfer or deport’ Israeli civilians into those territories that could be said to be illegal (article 49(6) Fourth Geneva Convention). There is no clear evidence that Israel has a policy to ‘deport’ or ‘transfer’ its population into Judea and Samaria. At best, it can be argued that Israel encourages and facilitates Israeli’s to live in the territories; but that is hardly the kind of ‘deportation’ or ‘transfer’ that was envisaged by the drafters of Article 49(6) of the Fourth Geneva Convention.

Even if such a policy exists, a particular settlement can only be regarded as the product of such a policy if it can be shown that the Israeli person or company concerned is living/working/residing in the occupied territory as a result of an Israeli policy to transfer or deport that person into the occupied territories. The fact is that many Israeli’s living in these territories are doing so voluntarily. Their decision to do so was taken independently of Israeli government policy. The mere granting of government approval can hardly be regarded as ‘deportation’ or ‘transfer’ and thus is not sufficient to bring the government’s actions within the purview of Article 49(6).

Because the label ‘made in an Israeli settlement’ is clearly intended to stigmatise the producer, the EU’s policies have the perverse effect that they are penalising Israeli’s who are seeking to establish productive businesses in the West Bank. Many Jews and Arabs simply want to live in peaceful co-existence, and there are many examples of Jewish/Arab partnerships in the territories. Most Israeli businesses in the territories employ Arab Palestinians and are aimed at growing the economy in the West Bank. Why is the EU so determined to undermine cooperation between Israeli’s and Palestinians?

Moreover, the conclusion that all Israeli settlements are ‘illegal’ undermines the terms of the Oslo agreements, in which it was agreed that the status of settlements is a matter of negotiation. The EU policy on settlements is not only breaching Israel’s rights to political independence and territorial integrity; it is undermining its right to negotiate under those agreements. As the EU was a witness to the Oslo agreements, the EU policy effectively breaches the EU’s own commitments.

The Court’s reasoning is deficient. It simply has no jurisdiction to make a determination that these territories do not belong to Israel. The most it should have done was to conclude that the status of the territories is disputed. The judgment interferes with difficult and complex matters of negotiation between two parties (Israel and the PLO).

(*)The Psagot Winery labeling case (ed)

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