It may seem strange that we are taking this action around the same time that the EU’s top court ruled that all products from Israel’s settlements in the occupied West Bank and Golan Heights must be labeled accurately.
Yet it should be emphasized that despite this verdict, the EU still allows trade with settlements. By doing so, the EU and its governments violate their obligations under international law.
Trading with settlements – all of which breach the Fourth Geneva Convention – is tantamount to conferring recognition on them. It also helps occupying powers to maintain and expand their illegal colonies.
Since the European Court of Justice verdict was delivered earlier this month, the US has, in effect, given its approval to Israel’s settlement activities. The declaration by Mike Pompeo, the secretary of state, that the US does not view the settlements as illegal is itself a grave assault on international law.
It is all the more urgent, then, that the EU finally takes a tough stance against settlement activities.
Those activities contribute to a whole range of international law violations.
They obstruct the rights of Palestinians to self-determination. They involve the acquisition of land by force and the transfer of Israel’s civilian population to territories under military occupation – which, by definition, is a war crime.
And – by ensuring the domination of one ethnic group over another – they reinforce an apartheid system.
When one state systematically violates the highest rules of international law – as Israel does – other states have an obligation not to recognize or assist the violations.
The duties of non-recognition and non-assistance are automatic. No UN resolution should be required to tell states what they should refrain from doing.
Trading with Israel’s settlements is exactly the kind of measure that the European Union should avoid in order to fulfill these duties.
Both the Brussels bureaucracy and the individual governments in the EU have to shoulder their responsibilities.
Power over trade policy is held by the EU’s executive, the European Commission.
Yet each EU government has the power to halt the importation of goods from Israel’s settlements. To date, none of the 28 governments in the EU have exercised that power.
As well as refusing to accept its responsibilities, the EU has tried to shield itself from accountability.
The seven people suing the European Commission are doing so because it has declined to act when we have previously challenged it.
We have used a mechanism known as the European citizens’ initiative to try and ensure that the EU upholds international law in its trade policy toward occupying powers.
The citizens’ initiative has been presented by Brussels officials as a form of “participatory democracy.” Under it, ordinary citizens can recommend changes in any area where the European Commission has the power to legislate.
Our initiative was submitted to the European Commission in June.
We urged the European Commission to reassess its trade policy. We argued that the European Commission has to ensure that its policy complies with international law.
Without mentioning Israel’s settlement activities directly, the initiative defends principles relevant to any territory in the world under military occupation. These principles would apply, for example, to Western Sahara, which is occupied by Morocco.
We were simply seeking that the EU uphold international law. Banning goods from a territory under military occupation would not be a formal sanction.
In September, the European Commission decided not to even register our initiative.
In the letter refusing registration, the European Commission claimed that the issues we raised fell outside its remit.
Not only was that claim wrong, it was also very odd.
The European Commission contradicted a stance it had taken in the recent past.
When Ireland’s parliament, the Oireachtas, was discussing legislation aimed at banning such goods, the European Commission insisted last year that it alone bears responsibility for EU trade policy.
Both the European Commission and EU governments bear collective responsibility for guaranteeing that trade policy respects international law.
At the very least, then, the European Commission can issue a legal opinion on the trade in settlement goods and seek that EU governments follow its recommendations.
Undoubtedly, the European Commission has many intelligent people on its staff, who are fully aware of the institution’s duties under international law. Yet for political reasons – probably including the influence of professional lobbyists – they are willing to accommodate Israel’s illegal activities.
The European Commission knows that a ban on settlement goods is necessary. It has been told so by legal scholars and by Michael Lynk, the UN’s special rapporteur on human rights in the West Bank and Gaza.
Despite all the advice at its disposal, the European Commission has tried to stop Ireland from banning settlement goods.
The European Commission is not allowing any real scrutiny. In 2005, it reached a “technical arrangement” with Israel on how to deal with trade in settlement goods.
The team behind our court case has requested a copy of that deal under the EU’s freedom of information rules. The European Commission refused to give it to us, stating that Israel has demanded that the arrangement be kept secret.
It is hard to imagine how disgraceful this situation is. The European Commission – which handles trade policy for one of the world’s largest trading blocs – has been strongarmed by Israel to protect an arrangement that is neither public nor legal.
The European Commission has repeatedly called on Israel to halt its settlement activities. By failing to back up its words with action, the EU’s executive is ensuring Israel’s settlements thrive and expand.
The situation is dangerous and must be challenged. That is why we are going to court.
Tom Moerenhout is a professor of international and public affairs at Columbia University in New York.