Adri Nieuwhof
The Electronic Intifada / June 1, 2021
A European Union court has thrown out an undemocratic decision by Brussels officials that torpedoed a citizen’s initiative to ban trade with settlements in occupied territory.
The measure would have targeted Israel’s illegal colonies on Palestinian land in the West Bank and Syria’s Golan Heights, as well as trade with Western Sahara.
In July 2019, seven nationals of EU states filed a European Citizens Initiative with the European Commission, the EU’s executive.
This is a tool that is supposed to make the notoriously unaccountable EU more democratic by giving citizens a say over policy and legislation.
But instead, in September 2019, the Commission refused to register the initiative, claiming that it did not have authority to consider what would amount to imposing sanctions.
The Commission asserted that such a step could only be adopted collectively by EU governments, not by the executive in Brussels.
So with assistance from the European Legal Support Center (ELSC), the seven citizens took their case to the General Court of the European Union.
They won.
Attempt to protect Israel
In May, the court backed the citizens, ruling that the Commission failed to give adequate reasons or a sufficient legal basis for refusing to register the initiative and allowing it to move forward.
Gilles Devers, the lawyer who represented the citizens, welcomed the ruling.
The Commission “deprived my clients of their fundamental right to provoke a debate amongst EU institutions on trade with occupied territories,” Devers said. “They are now expecting the European Commission to uphold its responsibilities and register their initiative.”
The Commission will have to appeal the court ruling or reconsider its decision to throw out the citizens’ initiative.
The original refusal to register the initiative appears to have been a disingenuous attempt to protect Israel from accountability over its violations of international law.
Fatin al-Tamimi, chair of the Ireland Palestine Solidarity Campaign, pointed out that when her country’s parliament tried to pass its own legislation banning trade with settlements, the Commission insisted it had exclusive authority over trade under the EU’s Common Commercial Policy.
“The Commission even threatened to take member states to EU Courts,” Al-Tamimi said.
But when citizens tried to address the issue using a European Citizens Initiative, all of a sudden the EU Commission claimed it had no authority over the matter.
Settlement trade
There can be no doubt that Israeli settlements in the occupied West Bank and the Syrian Golan Heights are illegal under international law.
Colonization of occupied territory is a war crime.
As recently as last month, the EU reaffirmed its longstanding position that “all settlements in the occupied Palestinian territory are illegal under international law.”
Yet despite this lip service, the EU continues to reward Israel with aid, trade and benefits in the face of its escalating illegal acts.
Tom Moerenhout, an expert on international economic law who teaches at New York’s Columbia University, addressed the duty of states to prohibit settlement in a 2012 legal publication.
The obligation follows from the duties of non-recognition and non-assistance to illegal settlement in territories under military occupation.
Trading with settlements helps occupying powers to maintain and expand their illegal colonies, says Moerenhout.
As a matter of principle, the EU recognizes that such an obligation exists. For example in March, the EU asserted that it would continue “to enforce its non-recognition policy of the illegal annexation of the Crimean peninsula.”
But whereas the EU has imposed sanctions on Russia in order to bolster its policy, it does nothing when it comes to Israel – a clear double standard.
“Bad faith”
Moerenhout is one of the seven EU nationals who launched the European Citizens Initiative on trade with settlements.
The refusal to register the initiative reveals the EU’s utter disrespect for citizens’ fundamental right to participate in democratic life.
“The European Commission has consistently evaded accountability,” Moerenhout said, forcing him and the others to go to court.
“When member states wanted to stop trade with illegal settlements, the Commission said trade is its exclusive competence,” Moerenhout stated.
“When we asked the Commission to stop trade with illegal settlements, they said this was a matter of sanctions which are the competence of the European Council” – the governments that make up the EU.
“That is evading accountability in bad faith,” Moerenhout added.
Whether the Commission will comply with the court – and put its duty to the citizens it supposedly serves over its loyalty to Israel – remains to be seen.
Adri Nieuwhof is a human rights advocate based in the Netherlands and former anti-apartheid activist at the Holland Committee on Southern Africa
