Stopping trade with Israeli settlements in occupied territories is long overdue, and the European Union’s continued refusal to do so is a hypocritical violation of its obligations under international law.
International lawyers overwhelmingly acknowledge the legal obligation to stop such trade. Major human rights organizations have also concluded that governments and firms cannot fulfill their human rights obligations if they facilitate or engage in any trade in or with the settlements.
This is insufficient and potentially even distracting from the real international legal obligation.
EU double standard
In 2012, I published the first peer-reviewed legal argument on the matter – a 40-page article in International Humanitarian Legal Studies.
Back then, I naively thought the EU was merely inconsistent in its application of international law. I considered it possible that the EU did not prohibit settlement trade because the international law behind that obligation was complex.
But it’s quite straightforward. The key obligation is something called the duties of non-recognition and non-assistance.
In 2014, the EU condemned “the illegal annexation of Crimea” by Russia and declared that it “will not recognize it.”
EU leaders instructed their bureaucrats “to propose economic, trade and financial restrictions regarding Crimea.”
Within months, the EU issued a ban on imports from Crimea, framing this as an integral part of its obligation of non-recognition.
The EU also considers Israel’s settlements in occupied territories to be “illegal under international law,” but after five long decades of Israeli settlement building the EU has yet to impose such a trade ban.
The opinion that settlement trade violates international law is supported by a vast community of international legal scholars. Among those who signed an open letter to this effect are two UN special rapporteurs, two ad hoc judges with the International Court of Justice, a former president of the UN’s International Law Commission, a former judge of the International Criminal Tribunal for the Former Yugoslavia and dozens of other experts.
These scholars affirm that if the EU fails to stop trade, its member states have a legal obligation to act unilaterally.
Do not assist a crime
I wrote a summary of the legal argument recently for EJIL: Talk! – one of the world’s most influential legal blogs, where international lawyers give peer-reviewed analyses of current issues.
In short, states have a duty not to recognize and assist Israel’s violations in occupied territories.
This obligation was already recognized by the International Court of Justice in its 2004 ruling on Israel’s wall in the West Bank.
The duties of non-recognition and non-assistance apply to the most serious breaches of international law, including Israel’s obstruction of the Palestinians’ right to self-determination by seizing land and building settlements, population transfer and practicing apartheid.
Trading with settlements constitutes implicit recognition. And not only does trade provide an economic lifeline for settlements, it even helps them to expand.
Aside from the question of whether broader sanctions against Israel may be justified given its apartheid practices, it is clear that trade with settlements is illegal. Activists should make the point that banning such trade is not a “sanction” but a legal obligation: this trade should simply not exist.
Israel’s fear of trade measures
Trade measures were an important tool in bringing down apartheid in South Africa.
Like its South African counterpart a generation ago, the Israeli apartheid regime fears the potential of trade measures and tries to undermine them before they materialize.
Aggressive Israeli efforts to try to thwart the boycott, divestment and sanctions (BDS) movement include a 2011 law that allows boycott advocates to be sued for damages, and recent legislation that bars supporters of BDS from entering the country.
In the United States, President Barack Obama signed into law in 2015 a provision backed by Israel lobby groups that makes thwarting a boycott of Israel a key objective of trade talks with the European Union.
Meanwhile, Israel and its surrogates have supported a raft of legislation that aims to stigmatize or penalize BDS in Europe and North America.
But rather than silence the movement, this has only spurred resistance, which governments have heard.
Last year, the European Union joined several of its member states – Sweden, Ireland and the Netherlands – in recognizing the right of its citizens to advocate for the boycott of Israel.
This position was backed by 200 European legal experts, who wrote that efforts to prohibit BDS curtail basic human rights and aim at “exempting a particular state from the advocacy of peaceful measures designed to achieve its compliance with international law.”
At a moment when the world appears to have entered a phase of profound and dangerous political polarization, the only silver lining is that it is easier to stand up for what is right and, in this case, legally just.
In December, Israel reacted with rage to the UN Security Council resolution condemning its settlements, as well as to the speech by John Kerry, then US secretary of state, explaining that it simply restated long-standing policy.
Rather than addressing the criticisms of its actions, Israel cozied up to Donald Trump – a man whose manipulation of contemporary, legitimate popular anger is clearly not matched by a willingness to learn from the tragedies of human history, whose bitter lessons spurred the development of modern international law.
Together, they form a destabilizing duo: Trump advocated international crimes during his campaign and Israel routinely commits them.
Their joint contempt for international law was on display again last month, when the US administration pressured the UN secretary-general into censoring a landmark report that found Israel practices apartheid.
Stand up for what’s right
None of this makes international law less relevant. Rather, an active legal discipline and self-disciplined activists working together are the key to ensuring compliance.
Individual scholars must have the courage to vigorously demand compliance with the most fundamental norms of international law. Or we can sit back and wait for the next human catastrophes, from which we can then again “draw lessons.”
Israel has no serious responses to the evidence of its violations, which is why it resorts to bullying and smear campaigns.
Just as in a court of law, it is up to activists to remain calm and to unapologetically and repeatedly explain why trade with settlements should be banned.
This plea is not to convince the guilty party, but to engage and activate the public and the few honorable politicians who care about doing what is right.
We need to build on the political momentum we have now, where more people are ready to recognize a stark reality: Israel unquestionably implements apartheid practices, and settlements violate fundamental norms of international law.
What can we do about that? Stop trading with them. It is not an option, but a legal obligation.
Tom Moerenhout is a legal scholar at the Graduate Institute of International and Development Studies, and Associate at the International Institute for Sustainable Development.