On 23 December last year the United Nations Security Council passed a resolution condemning Israel’s settlement activity. It received widespread coverage mainly because it marked a rare occasion on which the United States did not use its veto power to block resolutions critical of Israel’s occupation of the West Bank.
One week later then-US Secretary of State John Kerry explicitly called settlements the main obstacle to peace between Israel and Palestine – and the key threat to a two-state solution. This was the clearest political statement made by any US policymaker in recent times and a belief widely shared by EU policymakers.
With President Donald Trump indicating that “things will be different after January 20” one might wonder how consequential the UN resolution and Kerry’s speech can really be. Granted international law tends to suffer under the short-term diplomatic concerns of national governments.
Will the resolution and speech put pressure on Israel to question its illegal settlement policy? Israeli Prime Minister Benjamin Netanyahu’s rejection of the UN vote and condemnation of Kerry’s speech shows that this is rather unlikely. Israel’s violations of international law have indeed been widely reported before; yet the country has continued expanding illegal settlements on the territory of Palestine unabated.
No the real power of this UN resolution and Kerry’s speech lies in the effect it can have on third-party countries that are directly or indirectly supporting Israel’s violations of international law. Many European countries do so particularly by providing an economic lifeline through trade with Israeli settlements.
Last Christmas dozens of prominent legal experts called on the EU to stop trading with settlements. For years now economic and legal experts have been pointing to the importance of EU trade with settlements. Israeli settlements are by no means temporary. They are cities with large economies that need economic relations to flourish.
The fact that EU countries still trade with settlements is not because international law is unclear but rather because of a lack of compliance.
Why trading with settlements violates international law
Israel’s settlements violate the highest norms of international law. This UN Resolution highlights the prohibition on acquiring territory by force. Other violations are Israel’s obstruction of Palestinians’ right to self-determination the transfer of Israel’s population to occupied territories and Israel’s economic conduct on occupied territories for the state’s own benefit.
When these highest norms of international law are violated third-party states have an obligation not to recognise or assist them. This is a self-executing obligation on all states which means that they do not need action under the UN Security Council to trigger their responsibility. Due to inaction however this UN resolution explicitly calls upon all states “to distinguish in all relevant dealings between the territory of the State of Israel and the [Palestinian] territories occupied since 1967”.
Trading with settlements is very different from trading with Israel. Trading with Israel is legal. Trading with settlements however is not. A prohibition on such trade would not be a sanction but rather would rectify an error in international trade relations. Settlement trade should not exist in the first place.
Trade measures were an important tool in bringing down apartheid South Africa. Like the apartheid regime Israel realizes the potential of trade measures and tries to undermine them before they materialize. As such they have enacted a controversial law blocking the freedom of speech to call for boycotts. Just a few weeks ago about 200 legal experts confirmed that there was no question on the legality of settlement boycott calls. The EU has also confirmed the inalienable right to the freedom of expression in the form of BDS.
The powerful pro-Israel lobby in the United States also managed to have President Barack Obama sign into law provisions that make a rejection of an Israel boycott a key objective in trade talks with the EU. With this strategy they tried to tie the hands of European countries before any of them were even considering the political courage needed to comply with their international legal obligations.
The fact that Obama allowed this UN resolution to pass – and urged Kerry to explicitly explain why – shows his frustration with Israel’s political games and his conviction that allowing further settlement expansion fundamentally undermines the rule of law and consequentially democracy. EU member states have shared this sentiment for a long time.
Last year was a political hurricane of many sorts announcing the dawn of a dark reality where hard learned lessons in law and ethics are at risk of being comfortably forgotten.
Let us not allow that to happen. Let us start where we have a hard legal advantage and in this case stopping trade with settlements.
-Tom Moerenhout is an independent consultant providing legal and policy advice to the International Institute for Sustainable Development based in Geneva with expertise in international trade law subsidies and EU external policies.
His article was published in the Middle East Eye website.
