Well-respected Palestinian rights organization Al Haq has published a report about the responsibility of states in relation to Israel’s settlement enterprise. The legal memorandum reviews the Israeli actors, the supportive infrastructure and services, and the associated regime of Israeli laws, policies and practices that compose the “settlement enterprise.”
Al Haq’s memorandum provides a solid legal framework for advocating Palestinian rights, based on the recommendations of the 2004 International Court of Justice advisory opinion on the wall Israel built on Palestinian land, and the internationally accepted 2001 general rules on legal obligations of states when international law is violated. International legal scholars have endorsed the memorandum including Professor John Dugard.
The report also gives legal backing to governments wishing to sanction Israel, stating that ‘it is lawful for any injured party, including any affected State, to take “countermeasures”’.
The document is in particular relevant for the boycott, divestment and sanctions (BDS) movement because it explicitly strengthens the legal basis for activism against Israel’s illegal settlement enterprise. The document presents useful examples of public and corporate complicity. The following summary of the legal paper focuses on information which is particularly relevant for the BDS movement.
Israeli settlement development is a state enterprise
Israeli settlements in the occupied Palestinian territory violate Article 49 (6) of the Fourth Geneva Convention, which states that “the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
Israeli governments, the Israeli military, the Jewish Agency and the World Zionist Organization (WZO) played a crucial role in the strategic and operational planning at the early stages. More recently, settlement expansion has been driven by the Ministry of Construction and Housing, the Ministry of Defense - including the Minister’s Assistant on Settlement Affairs - the Israeli military and its “Civil Administration” in the occupied territories, regional and local authorities, and the Settlement Division of the WZO, writes a 2005 official government report. These bodies have mapped Palestinian land allocated for confiscation, identified suitable locations for settlements, supported their construction, and facilitated populating them with Jewish Israeli settlers. Israeli settlements in the occupied territories are therefore the outcome of a state enterprise and not merely the work of the settlers.
Moreover, the Israeli parliament (Knesset) and the courts, in particular the Israeli High Court, have passed over the years legislation and jurisprudence to “justify” the settlement enterprise.
Complicity of institutions and companies
Several public and private actors receive contracts or subsidies for their services to Israel’s settlement enterprise such as postal authorities, academic institutions, the Israeli labor union (Histadrut) and Israel’s national water company Mekorot, which plays a key role in the discriminatory water supply to Israeli settlements and Palestinian communities in the occupied territories.
Other players in the settlement enterprise are Israeli security, trade and export companies, such as Elbit, Agrexco and Mehadrin. Businesses and associations provide essential services for the maintenance and development of the settlements in the area of construction, transport, supply, and services in health, education, culture and sports.
Moreover, private Israeli security companies such as G4S Israel perform tasks in the occupied territories that were traditionally executed by the Israeli security forces. G4S provides equipment and services for the incarceration of Palestinians or the operation of checkpoints and the police headquarters in occupied Jerusalem.
IT companies like Hewlett-Packard subsidiary EDS Israel provide and maintain surveillance and other security-related technology for the Israeli army and settlements.
Israeli banks provide the financial infrastructure and services for all settlement activity including foreign companies.
States must ensure Israel’s respect for international law
During the 45-years settlement enterprise, Israel has realized dramatic changes of the status and demographic composition of the occupied territories. It violated the Fourth Geneva Convention and human rights treaties, as well as customary international law prohibitions on colonialism, racial discrimination and apartheid.
All 194 states who ratified the Fourth Geneva Convention are responsible to ensure Israel’s respect of the provisions of the Convention.
Under the International Convention against Torture, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Rome Statute of the International Criminal Court, states have the obligation to ensure that persons responsible for serious breaches amounting to international crimes are brought to justice.
In addition, all states have the legal obligation to cooperate to bring Israel’s international crimes to an end. They should also not recognize the illegal situation created by Israel in its settlement enterprise, nor render aid or assistance in maintaining that situation. Therefore, all states have to ensure that its organs, public and private entities, and persons whose activities are attributable to the state under international law, do not violate these obligations. This includes state-funded or otherwise-supported aid agencies and businesses performing certain official functions in the settlement enterprise.
Complicity of states in Israel’s international crimes in relation to settlements
Many states are complicit in Israel’s settlement enterprise by rendering unlawful aid or assistance via state organs, entities and individuals whose activities are attributable to the state. Grave examples are military aid or cooperation with Israel’s oppression of Palestinians in the occupied territories. Official aid or support for the construction and development of Israel’s wall, checkpoints, terminals, prisons and detention centers are other examples.
The same counts for aid or support the so-called joint Israeli-Palestinian industrial zones in the occupied territories, which benefit Israeli business, undermine Palestinian development and exploit Palestinian labor. States are also complicit by allowing direct, often tax-exempt, support of the illegal settlements by Jewish and Christian Zionist organizations registered in their country.
A grave act of complicity is the international protection the United States provide to Israel. Through diplomatic pressure on other states, in the full knowledge of the circumstances, it obstructs efforts of states - within and outside the United Nations - to counteract Israel’s serious breaches.
Furthermore, states who cooperate with or support settlement activities of Israeli state-organs or public and private entities violate the legal obligation not to provide aid or assistance in maintaining the unlawful situation. This happens in numerous cases of official cooperation in the area of trade and research, including the EU. State support to activities or projects of (transnational) business companies who contribute to Israel’s unlawful settlement enterprise in the occupied territories. Such aid or assistance amounts to recognition of the illegal situation created by Israel in the occupied territories.
The 2010 OECD decision to accept Israel as a member, with its settlements in the occupied territories but without the occupied Palestinian population, is mentioned as another grave example of complicity.
Complicity of donor governments and state funded aid agencies
Donor governments and state-funded aid agencies render aid or assistance to Israel’s settlement enterprise when they construct Palestinian infrastructure, in particular roads, which indirectly contributes to the maintenance of Israel’s regime of segregation and apartheid in the occupied territories and the expansion and entrenchment of Israel’s settlements in the occupied territories. The same counts for the procurement of materials or goods for humanitarian and development aid from Israeli suppliers implicated in violations linked to the settlement enterprise.
In addition, states or state-funded aid agencies provide recognition of the settlement enterprise when they abide by Israel’s illegal permit regime in the occupied territories, or when state representatives conduct relations with Israeli organs or entities endorsing the illegal settlement enterprise.
Moreover, donor governments and state-funded agencies provide recognition when they fail to hold Israel accountable for its serious breaches in public statements or UN resolutions, or tolerate destruction or damage of aid-infrastructure or aid-equipment by the Israeli army without military necessity, or by private settlers.
States can lawfully impose embargoes and sanctions against Israel
The serious breaches linked to Israel’s settlement enterprise in the occupied territories legally affect all states. Therefore, states are entitled to act individually or collectively on behalf of the Palestinian victims. They can lawfully take countermeasures such as reprisals or sanctions, because Israel has failed to comply with its obligation of cessation of the illegal settlement enterprise and reparation for Palestinian victims.
To bring down Israel’s settlement enterprise states can, for example, lawfully adopt measures to prohibit import of Israeli goods or export to Israel, suspend cooperation agreements with Israel, impose other forms of embargoes on trade and cooperation; freeze funds and assets of the Israeli state, entities and persons responsible for the serious breaches; bar Israeli banks from international financial transfers (SWIFT); and suspend agreements on landing rights of airplanes or impose flight bans.
However, states have failed to adopt appropriate countermeasures to end Israel’s illegal settlement enterprise. That is why the BDS movement campaigns against governments, local authorities, companies or other actors who are involved in Israel’s breaches of international law against the Palestinians in the occupied territories. The BDS movement can build on the legal arguments presented in Al Haq’s paper to strengthen its strategy and actions.