Tom Moerenhout
The Electronic Intifada / April 19, 2022
After Russia occupied and annexed Crimea in 2014, the European Union quickly banned the import of products made there. The reason cited was that Crimea is not a sovereign territory of Russia.
To thunderous applause, the EU did the same with respect to the non-government-controlled territories of Donetsk and Luhansk this year when Russia waged a full-scale war on Ukraine.
The EU stopped that trade by using a sanction.
By using sanctions, it can effectively pick and choose when to apply international law – and when not.
This hypocrisy is undermining international law.
What the EU needs is a general rule that prohibits trade with all illegal settlements, anywhere, anytime, now and in the future, once and for all.
EU citizens can now confidentially sign an official European Citizens’ Initiative that demands the adoption of such a law.
This petition is addressed to the EU’s executive, the European Commission.
That institution had previously refused to register our citizens’ initiative. Following a court ruling last year, the European Commission saw no other choice but to register it.
The citizens’ initiative mechanism enables ordinary people in EU countries to demand action on any issue where the European Commission has the power to legislate.
International law is crystal clear
One of the most important rules of international law is the obligation of states to refrain from using force unless they are acting in defense. In particular, the conquest and annexation of territories is prohibited.
In addition to Crimea, there are at least three such long-running cases of military occupation violating sovereignty: Western Sahara, occupied by Morocco in 1975, the West Bank (including East Jerusalem) and Gaza, occupied by Israel in 1967 and Syria’s Golan Heights, occupied by Israel that same year.
The occupation of those territories have long been defined by the United Nations Security Council and International Court of Justice as blatant violations of international law. In Western Sahara, the Golan Heights and Palestine, large-scale human rights violations are commonplace.
In all three cases, the occupier has relocated its civilian population to settlements. According to the International Criminal Court, such colonization is a war crime.
Population resettlement policy is particularly serious because it shows the objective of keeping occupied territories permanently occupied and de facto annexed.
As stated by Amnesty International and Human Rights Watch, states have an obligation to ban imports from illegal settlements.
Trading with such settlements provides them with support and implicitly involves recognition of the illegal situation. By doing so, states help perpetuate the illegal situation.
For that reason both the EU collectively and its individual governments have to stop trade with settlements.
The rules must be general and applied in all cases. Yet it is vital to be specific about what a ban on settlement goods would involve and what it would not.
The law would not apply to products from people living under occupation and who are not, in principle, nationals of the occupying power. While goods from Israeli settlements would be banned, exports from Palestinians in the West Bank and Gaza would be permitted.
EU governments are allowed to implement a ban on settlement goods under the EU rules on imports.
The ban would also not violate world trade law.
World Trade Organization law does not apply to illegal settlements. And the law itself has exceptions allowing import bans that support international peace and stability.
Hypocrisy
Current EU practices require the correct indication of the origin of imports, so-called labeling.
Yet while the EU has strongly condemned Israeli settlements, it still does business with them.
Labeling is insufficient under international law.
Rather, trade with illegal settlements should not be taking place at all. The fact that it does take place means countries are violating their international law obligations.
Although the United Nations has requested its members not to assist Israeli settlements on several occasions, the EU continues to trade with them, even if it recognizes that they are illegal.
It has been shown that EU trade with settlements has contributed directly to their expansion.
In the recent past, the European Commission has told EU governments such as Ireland that they could not stop trade with illegal settlements.
The European Commission has claimed that it has power over trade policy, rather than individual governments. Yet when pushed, the European Commission would say that a ban on settlement goods would be a sanction and require a unanimous vote by EU governments to be introduced.
By using convoluted arguments, the European Commission completely evaded accountability.
Turnaround
Last year, there was a significant turnaround. The European Commission finally recognized that banning products from illegal settlements would not be a political sanction but a trade measure and that it had the power to propose such a measure.
Why did the European Commission change its position? Because it was forced to do so.
I and six others sued the European Commission as it had refused to register our citizens’ initiative to stop trade with all illegal settlements.
We won our case at the European Court of Justice.
Our victory in court shook things up.
After years of evading its own responsibilities, the European Commission has now officially recognized that it has the power to propose prohibitions on the importation and exportation of goods from illegal settlements.
Why, then, is the EU still trading with the illegal settlements? The only conclusion we can draw is that the European Commission is knowingly assisting war crimes.
Under EU rules, its individual governments are allowed to stop imports for reasons of public morality and social policy. Individual governments can, therefore, ban settlement goods themselves without the need for the EU to have a common position.
It is undeniable that the EU has come to a crossroads. Having only partial or inconsistent respect for international law and human rights amounts to showing no respect for international law and human rights.
Territorial aggression is on the rise. The world is watching.
It is the European Commission’s move.
By signing the citizens’ initiative ordinary people can demand that the EU takes the right decision.
A simple procedure that only takes 20 seconds can help end impunity for war crimes.
Tom Moerenhout is a legal scholar
