By Andrew Tucker, Director thinc.
The European Union is the only group of Western nations that takes a fixed position on the legal status of the Old City of Jerusalem, and the region of Judea and Samaria, often referred to as the “West Bank”. According to the EU, this is “Occupied Palestinian Territory”: it “belongs” to “the Palestinian people”, not Israel, and any Israeli activity there that impedes the establishment of a Palestinian state on that territory is illegal. This explains the EU’s vehement – almost violent – objection to Israeli “settlements”, which is a euphemism for Jews who live in the territories the Palestinians claim to be theirs. That obsession manifests itself in the rules issued by Brussels requiring goods made by Jews in these territories to be labelled as “imported from an illegal settlement” when imported into the EU. For some observers, this stigmatization bears all the hallmarks of the restrictions imposed on Jews in the 1930’s. Again, Europeans are telling Jews where they can, and where they cannot, live. This EU policy is not only morally objectionable, it is itself misleading, because it distorts international law.
Israel Products Centre (IPC) is a Dutch company that imports and sells in Europe products made in Israel. It includes some products made in Judea and Samaria. IPC is connected with Christians for Israel (C4I), an international Christian non-profit movement headquartered in Nijkerk, the Netherlands. IPC and C4I were founded in 1979 by Karel van Oordt, a Dutch Christian businessman with a passion for supporting Israel and the Jewish people.
In 2019, the Dutch Food and Consumer Product Safety Authority (NVWA) inspected IPC’s shop in the Israel Centre in Nijkerk as well as its webshop, responding to complaints made by BDS activists that IPC sells wines produced outside the Green Line with a “made in Israel” label. The NVWA is responsible for implementation of Dutch consumer protection legislation, including legislation implementing EU Regulation 1169/2011. This Regulation requires European importers of products to specify in the labels the country of origin or place of provenance, where failure to do so “would otherwise imply that the food has a different country of origin or place of provenance” (art 26).
Labels– what’s in a word?
In 2015, the European Commission (at the request of 16 EU member states) published its infamous “Interpretative Notice on indication of origin of goods from the territories occupied by Israel since June 1967”(2015/C 375/05). Essentially, this Notice says that goods imported into the EU from outside the Green Line may not have a label “made in Israel”, and must somehow indicate they are from outside Israel. And if they originate from a settlement, they need to refer to that fact.
But the European Commission gets itself into murky water when it tries to define what should be on the label. The Notice is a curious document that is itself arguably misleading. For example, it says the label on a product made in any part of the ‘West Bank’ can read: “made in Palestine” – even though this could suggest that Palestine is a State, and the Commission admits that most people don’t accept that a “State of Palestine” exists. It promotes the use of the term ‘West Bank’ – even though that term is itself controversial, as it is short for “West Bank of the Hashemite Kingdom of Jordan” and was introduced by Jordan after it illegally attacked, occupied and subsequently annexed the area west of the Jordan River known to the Jewish people as Judea and Samaria. The name is a deliberate attempt to erase the Jewish history of the area. If that is not misleading it is hard to imagine what might be.
IPC had labels on wines imported from Hebron that stated: “made in Israel”. A group of BDS activists brought this to the attention of the NVWA. The NVWA made a surprise visit to IPC’s premises, and threatened to impose a fine. News got out. Questions were asked in Parliament: why is the government targeting Israeli goods, and not goods made in other allegedly occupied territories?
The EU Commission’s 2015 Notice has been a hot political item in the Netherlands for years. For some, it is a welcome tool supporting the Dutch government’s policy of promoting Palestinian statehood and condemning Israel’s settlement policies. For others, it is a discriminatory document that singles out Israel for special treatment; there are no such notices for products originating in territories occupied by other countries, such as Crimea (occupied by Russia) or Western Sahara (occupied by Morocco). Moreover, the Notice was the subject of proceedings before the European Court of Justice last year in the Psagot Winery case, in which the Court was expected to rule on the legality of the Notice. The NVWA’s action was thus seen as prejudging matters. The government agreed to await the Psagot ECJ ruling before deciding what to do.
In the meantime IPC, seeking to comply with the law, amended its labels on wines produced outside the Green Line. The labels now state: “made in a Jewish village in Judea and Samaria”. IPC refuses to use the words ’settlement’ or ‘West Bank’, considering them pejorative and misleading.
Following the Psagot judgment in late 2019 (upholding the validity of the Notice) a motion was adopted by the Dutch Parliament (instigated by Christian parties) demanding the government not to apply EU labelling requirements in a discriminatory manner. In response, on 26 Nov 2019, the relevant ministers (Stef Blok – Foreign Affairs, and Sigrid Kaag – Trade and Development) said the government will apply the 2015 Notice. In light of Psagot, they consider the Notice to be binding European policy in the interpretation of EU consumer protection legislation, and that application of this Notice to products from territories occupied by Israel is not discriminatory because it does not prevent consumers from filing complaints about products imported from other “occupied” territories.
The political dust having settled, a group of BDS activists launched a fresh campaign casting IPC as a gross infringer of the law, and urging the NVWA to re-open its investigation into IPC’s labels. Dutifully, a few weeks ago NVWA inspectors again visited IPC and announced they have decided that the new labels are misleading and in breach of the legislation. The NVWA has so far given no explanation for its action. A formal statement of reasons will be published within the next few weeks, specifying on what basis the NVWA considers the (new) labels do not satisfy the requirements. This is likely to be just the beginning of a long procedure. IPC has indicated it believes its labels correctly indicate the wines’ place of provenance, and has no intention of giving in to the EU’s demand to use the words ‘settlement’ and ‘West Bank’ which it regards as pejorative and misleading terminology.
International law – or just prejudice?
The reason for describing this in such detail is that at the heart of this saga is a very important and disturbing matter. It is the EU’s policy that the whole of Judea and Samaria is “occupied” territory that by definition (according to the EU) cannot be part of the sovereign territory of Israel. It is because the EU considers the occupied territories (including “East Jerusalem”) to be “Palestinian”, and NOT Israeli, that it is so opposed to Israeli settlements.
This is a bizarre policy, and one that is not shared by many other States. There are many reasons why it is unhelpful for the EU to prejudge the status of these territories. Not least is the fact that it creates perverse incentives; the Palestinian leadership, confident that the EU supports its claims to sovereignty over all of East Jerusalem and the ‘West Bank’, has no incentive to make compromises on the matters it has agreed to negotiate in the Oslo Accords. It is no wonder the negotiations have stalled.
There is something arrogant, and daresay hypocritical, in the European attitude that purports to tell Israel where its borders are. One cannot help but observe that, having attempted to annihilate the Jewish population less than a century ago, the European nations are again – with Germany at the front – seeking to dictate Jewish life.
Moreover, this policy is not only morally and politically objectionable, it is inconsistent with international law. In fact it is arguably itself in breach of international law.
The fact is that the status of ‘East Jerusalem’ and the ‘West Bank’ are contested. Israel asserts that control of these territories is necessary from a security perspective, and that it has valid sovereignty claims based on a pre-existing line of legally-binding international instruments, beginning with the San Remo resolution of the Principal Allied Powers in 1920, the Mandate for Palestine endorsed by all 51 member States of the League of Nations in 1922, and the preservation of the Jewish people’s rights under both documents by virtue of Article 80 of the UN Charter.
Denying that any part of Judea and Samaria can (without Palestinian consent) ever be part of the Jewish State of Israel is a fundamental breach of the commitments given by Europe and the world community after WWI that the Jewish people have a legal right to reconstitute their homeland “in Palestine”, based on their historical connection with the land. The EU is doing nothing less than ripping the heart out of that homeland, leaving the Jews with a territorial rump that is barely defensible against a hostile enemy.
Status of Judea and Samaria
It is important to note that it has never been established – by any tribunal or institution having the authority to do so – that these territories do not belong to the territory of the State of Israel, or that Israel has no valid claims to sovereignty. Not even the International Court of Justice in its controversial Advisory Opinion in 2004 opined on that point. On the contrary, Israel has valid sovereign claims that, while they are contested, must nevertheless be respected.
The status of the territories is currently the subject of proceedings before the International Court of Justice and the International Criminal Court. These Courts have to decide whether or not “Palestine” is a state, and if so what its territory is. A number of the world’s most highly-respected international law academics have made submissions to the ICC explaining that “Palestine” is not a state, and the Palestinian people do not have sovereignty over these territories. One group of these academics has made submissions (read here) emphasizing that Israel has valid claims to these territories, and that the status of the ‘West Bank’ has never been decided and cannot be determined by external parties. This reasoning would suggest that the EU’s policy is not based on international law, and in fact breaches Israel’s rights under international law.
Following are some quotations from their opinion:
“… every pronouncement or discussion regarding the territory of a future State of Palestine starts with and centres on the uncertainty or indeterminacy of that territory or its border. Resolutions, decisions and other statements by the [United Nations], the [International Court of Justice], and even the [Palestinian Authority] itself refrain from determining or affirm the uncertainty regarding the scope of the relevant territory.”
“… Neither the laws of occupation nor the principle of self-determination equate to the conferral of territorial sovereignty or fixing of territorial boundaries. Thus, in the Wall advisory opinion [the International Court of Justice Advisory Opinion in 2004], even though the ICJ affirmed the Palestinians’ right to self-determination and analysed issues through the lens of occupation, it did not decide the territorial boundaries of Palestine.”
“The law of belligerent occupation protects the civilian population in the occupied territory and preserves the legal status quo of sovereignty over the territory, pending the end of the armed conflict. The principle of self-determination affirms the right of peoples to freely determine their political status and freely pursue their economic, social and cultural development. Neither has the effect, on its own and without more, of creating territorial sovereigns or conferring sovereignty over territory.”
“… More importantly, … resolutions of organs of the UN do not determine territorial boundaries or resolve territorial disputes between States. The relevant UN resolutions only serve to reinforce the uncertainty and indeterminacy regarding Palestinian territory – in fact, to show that the UN Security Council and the UN General Assembly continue to affirm this indeterminacy in recognition that the agreed-upon mechanism for resolution of this question, according to all interested parties, is negotiation. The Prosecutor’s reference to UN resolutions as any confirmation of Palestinian territory is therefore mistaken.”
The EU is entitled to have an opinion about the legal status of Judea and Samaria. But it is not entitled to impose that opinion on others. The fact is that by insisting that Judea and Samaria are not part of Israel, the European Commission itself – and all the EU member states that, like the Netherlands, adopt the Commission’s policies – is misleading consumers.
Worse, the EU’s obsession with Palestinian statehood and its distorted view of history and international law are undermining prospects of a negotiated agreement between Israel and the PLO based on a fair and level playing ground.
A footnote. The Hebron wines sold by IPC are produced in a winery that employs both Jews and Palestinians. Sales of those wines thus benefit not only the winery’s owners, but also its Palestinian employees. Since the BDS activists launched their campaign to condemn the IPC labels on their Hebron wines, sales of these wines have rocketed. So the BDS campaign has ended up benefitting Palestinians – which is an excellent thing – but not in the way they intended. That says a lot about the perverse logic of the BDS movement.