In July 2013, the European Commission adopted guidelines announcing that the EU would no longer fund Israeli entities in the occupied Palestinian territories. A few years earlier, the European Court of Justice clarified that settlement products are not entitled to preferential treatment under the EU-Israel Association Agreement.
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These settlement products, however, often continue to be sold under the “Made in Israel” label. For this reason, the EU is now finalizing guidelines to make clear that under EU consumer protection law, retailers must specify the correct origin of products imported from Israeli settlements. One formula being envisaged is to label these as “Products from Israeli settlements (West Bank /East Jerusalem/Golan Heights)”.
The European Commission is also preparing a document to inform firms of the possible legal consequences of doing business with Israeli entities in the territories.
The EU has let it be known that it does not intend to publish these two documents as long as the discussions between Israel and the Palestinians continue, so as not to hinder them. This explanation is unsatisfactory, since the documents do nothing more than put into practice the EU's legal obligations to its own citizens, whether consumers or businesspeople.
This week, on February 27, a legal report will be presented in Brussels concluding that international law indeed obliges the EU to take further steps - it must prohibit all imports into the EU from settlements. The report is sponsored by the National Center for Development Cooperation (CNCD-11.11.11), a Belgian umbrella organization coordinating NGOs and trade unions, and the International Federation for Human Rights (FIDH). The report will form the basis of these organizations’ campaign to demand a complete end to imports to the EU of settlement products. Its author, François Dubuisson, teaches international law at the Université Libre de Bruxelles.
In a foreword, former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory and international law professor John Dugard stresses the relevance of Dubuisson's analysis, explaining that the report "comes at an important time as there is confusion among EU states as to their obligations on this subject. Dubuisson makes it clear that settlements are unlawful under international law and that states are obliged not to assist the settlement enterprise by doing business with settlements or by permitting their products to be sold in EU countries."
The report describes the numerous violations of international law resulting from Israel’s settlement policy. It explains why the EU must not simply issue formal condemnations, as it has done in the past, but take practical steps to ensure that Israel complies with its obligations, which can be summarized as follows:
Firstly, Article 49, paragraph 6, of the Fourth Hague Convention (which Israel has ratified) prohibits an occupying power such as Israel from transferring parts of its civilian population into the territory it occupies; in other words, it prohibits the establishment of settlements in Palestine ;
Secondly, Article 1 of the same convention obliges the EU not only “to respect“ but also “to ensure respect” for its provisions;
Finally, international customary law imposes a duty on all members of the international community, including the EU, not to recognize as lawful or render aid or assistance in maintaining a situation created by a serious breach of a peremptory norm of international law.
Allowing economic relations with Israeli settlements and importing their products into the EU contributes to their prosperity and assists in their development, contrary to the international law principles just described.
Based on a thorough analysis of these principles and a comprehensive review of recent developments showing a growing awareness of the illegality of the settlement enterprise in EU Member States and elsewhere, Dubuisson argues convincingly that the EU must proactively adopt concrete measures to halt business relations with firms established in the settlements and prohibit imports of settlement goods. These measures do not constitute a boycott of Israel, but address exclusively Israel’s settlement policy and its consequences.
By advocating a more active role for the EU regarding the Israeli-Palestinian conflict, the Dubuisson paper brings an important contribution to the current debate on defining what this role should be. It also constitutes an invaluable reference document for all those who strive to find a just solution to the conflict, and sends a clear message to EU policymakers as to the approach they should adopt.
Willem Aldershoff held various positions in the Departments for International Relations and Justice and Home Affairs at the European Commission and is now an independent advisor on EU policy on Israel and Palestine, Brussels.
Michel Waelbroeck, previously a visiting Professor at the Law Schools of New York University and Michigan University, the European University Institute in Florence and Columbia University, is Emeritus Professor of European Law at the Université Libre de Bruxelles.