More than 20 international law experts and jurists convened at The Hague to put together their understanding of the law.
By JENNY AHARONEuropean Union flags flutter as people take part in the demonstration "One Europe for all", a rally against nationalism across the European Union, in Vienna, Austria, May 19, 2019.(photo credit: LISI NIESNER)
The EU court’s ruling to label the goods originating from the Israeli settlements is based on various non-binding politicized resolutions and does not necessarily reflect a balanced interpretation of the law. This ruling is now defied by the Trump administration, in light of US Secretary of State Mike Pompeo’s recent declaration.The court ruled that to ensure that European consumers are not misled about the provenance of imported Israeli products, the foodstuffs must bear not only the indication of the territory but also a specific mention of the Israeli settlement within that territory.Although the ruling is no surprise, as it merely reflects the European consensus on the legal aspect of Israel’s presence in the West Bank, there are other narratives and interpretations of the law that haven’t been explored until recently, and, it appears, were not presented to the European Court.More than 20 international law experts and jurists convened at The Hague to put together their understanding of the law. This article is an attempt to reveal some of their findings and ultimately start a debate.Firstly, the resolutions on which such a ruling is based were passed by the UN General assembly, the Security Council, the ICJ and other UN bodies. None of them were passed under Chapter 7 of the UN charter so none are binding. And just because the General Assembly and Security Council say something is illegal does not make it illegal.Secondly, apart from the fact Israel applies military law, there is space to claim that in 1967, Israel lawfully seized the territories that were already their own. For this seizure of land to be defined as occupation, it needed by definition to have another state lawfully owning this land. In this case, Jordan’s occupation of the West Bank was never recognized which brings us to the following question: which recognized state lawfully owned the West Bank prior to Israel’s presence in the territories?Based on Balfour’s promise to the Zionist Federation, the Supreme Council of the Associated Powers (Britain, France, Japan, Italy and US) convened in San Remo in 1920 to deliberate on the future of the territories and ended up adopting the following resolution:“The mandatory will be responsible for putting into effect the declaration originally made in November 8, 1917, by the British government, and adopted by the Supreme Council, in favor of the establishment in Palestine of a national home for the Jewish people.”Transjordan was subsequently formally separated from Palestine to create an Arab state. Yet, everything west of the Jordan River was supposed to become the Jewish homeland.Although the remaining land was a smaller portion of what Balfour had promised, and given the dire situation that emerged in the area, the UN decided to divide the remaining land into two states, which the Jewish people unequivocally accepted and the Arabs rejected.
Pointing out this fact is widely regarded as an argument misused by Israel to not pursue peace plans and blame all failures on the Arab rejection of this very plan. Yet what Israel fails to emphasize is that this is not only a rightful argument, it also has a legal significance; the rejection makes this non-binding resolution void.Furthermore, the recent UN SC Resolution 2334 “calls on Israel to dismantle the Israeli settlements as this would be essential for salvaging the two-state solution.” For a body that aims for equality and respect for minorities, it is odd that the resolution calls to remove the Jews from the West Bank instead of calling on them to be integrated in a Palestinian state. Why is it that the mere existence of Jews in the West Bank is seen as obstructing the creation of a Palestinian “Arab” state?In addition, that same resolution also “calls upon all states to distinguish, in their relevant dealings, between the territory of the state of Israel and the territories occupied since 1967.” This is a way to criminalize Israel and force the state to recognize borders without any peace agreement.Lastly, there are 200 unresolved territorial conflicts in the world, but somehow Israel was singled out by the UN to be portrayed as the worst international law violator. In the human rights council, Israel is treated as a criminal state while Venezuela has a seat in the same council and goes untouched. Yet, dozens of resolutions are targeting Israel, while only a few resolutions are passed against serious human rights violators such as Iran, Syria or China, and how many against Venezuela?THE LAW isn’t absolute and the resolutions are based on selective interpretations of international law and ICJ advisory opinions. Since Israel has maintained its position to pursue a two-state solution, it didn’t dig in to explore its rights. UN bodies took advantage of the loopholes and attempt to force on Israel a border that hasn’t been recognized under international law. Israeli factories beyond the Green Line are not in violation of any tangible, non-politicized legal principle. Every ruling that claims otherwise is either based on a political statement or an expression of soft law based on a non-binding resolution.The EU has clearly based its ruling on the aforementioned politicized resolutions. Ironically, while the EU has decided to take legal action against what it considers to be illegal settlements, it has been funding settlements of its own in the West Bank under the guise of humanitarian aid which are in direct violation of the Oslo accords, international law and its own EU charter.The Trump administration, on the other hand, has reversed the highly discriminatory Resolution 2334 of December 2016, and thus defies the EU court’s decision on the labeling issue and restores a long-standing US policy.According to Andrew Tucker, director of The Hague initiative (Thinc.), the judgment of the EU Court of Justice ignores important historical facts and reflects a one-sided interpretation of international law.“This judgment will do nothing to promote a peaceful resolution of this dispute,” Tucker says. “On the contrary, a true and complete account of historical facts and a balanced interpretation of the law are needed if there is to be better understanding between the parties and a just solution.”The writer is director of Golden Gate public affairs, adviser of EU-Israel affairs and works with EU institutions in Brussels.
