Swiss food giant Migros to differentiate between products made in Israel and made in Israeli settlements in occupied Palestine. (Photo: Keystone)
The Netherlands are about to ask Dutch commercial distributors to implement labelling measures for the identification of products from Israeli colonies. England and Denmark have already taken similar measures. Like those two countries, the Dutch authorities do not intend to institute any sanctions to compel distribution networks to observe these "recommendations". Announcing these measures, it made this important point: "the import of products from the colonies is not illegal."
These measures to label products from the colonies have stirred up a debate. For some, they are a step in the right direction. They tend to show that European institutions and governments, considering the Israeli colonies to be illegal and an obstacle to peace, have finally taken the decision to act by implementing the law. This is seen as a first step.
Others see labelling products from the colonies as a red herring. Such measures are a diversion the consequences of which would be disastrous for the Palestinians. They are primarily aimed at providing a cheap fix for European public opinion, which is concerned about Palestinian rights, and which largely condemns the violations of law committed by Israel. In this matter of labelling, its advocates are not seeking the observance of international and EU law. On the contrary, these "soft" legal measures aim to deconstruct and delegitimise the status of that law, as an essential primary source of reference for a just settlement of the question.
In order to form an opinion, it is certainly necessary to listen to the primary interested party: the Palestinians. It is they who are confronted with the colonial businesses, the production and marketing of whose products represents major harm. It is noteworthy that the Palestinians, their civil society resistance networks no less than the farmers and their unions, are not demanding the labelling of these products in Europe, but that their marketing be prohibited. This explicit demand was reaffirmed on 4 February 2013, in the appeal "Farming Injustice: End all Trade with Israeli Agricultural Companies" on the occasion of a worldwide day of action against the Israeli agri-food industry. All the Palestinian farmers’ organisations signed that appeal within the framework of the BDS (Boycott, Disinvestment, Sanctions) campaign.
We should also examine the legal situation on the question of products from the colonies. This examination will enable consideration and assessment, from a legal point of view, of how well-grounded are the Palestinian demand for prohibition and the labelling measures proposed by certain European governments.
I – Products from the colonies: what does international law say?
From the legal point of view, the situation of the Palestinian Territories is extremely clear. Since the war launched by Israel in 1967, and during the occupation that continues to this day, the Palestinian Territories are occupied territories governed by international humanitarian law. The 4th Geneva convention of 1949 and the 1907 Hague Convention are the two fundamental, applicable texts, supplemented since 1995 by the Treaty of Rome which instituted the International criminal Court.
The fallacious arguments set out by the Supreme Court of the State of Israel, seeking to deny the legal reality of occupied territories and, consequently, asserting the non-applicability of international humanitarian law, were swept aside by the International Court of Justice , as well as by the Conference of States Parties to the 4th Geneva Convention (1999) . The reminders, by the UN General Assembly and by the Security Council, of the Convention’s applicability to the case of Palestine also remain unchanged .
1) Hague Regulations
The 1907 Hague Regulations set out the definition of an occupied territory , they specify the occupier’s duties , what it may and may not do. Requisitions in kind are allowed, but only for the needs of the army of occupation . On the other hand, private property must be respected and may not be confiscated . The occupier is only an administrator and usufructuary, of public buildings, real estate, forests and agricultural estates .
With regard to the Hague Regulations, the establishment of colonies, whether agricultural, industrial or residential, does not stem from any military requirement ; indeed, it involves the destruction of real property and public buildings as well as major violations of private property.
2) Fourth Geneva Convention
This Geneva Convention regulates the treatment of civilian populations in the event of armed conflict and occupation. It expressly prohibits forced transfers, whether collective or individual, as well as deportations from the occupied territory. Similarly, the Convention prohibits the occupying power from either transferring part of its own civil population into the territory that it occupies , or destroying property and real estate belonging collectively or individually to private persons or public bodies .
These "serious violations" of the 4th Geneva Convention are the very basis of Israel's colonisation and occupation policies that European governments constantly and repeatedly condemn without, however, attempting to put an end to them. Nonetheless, these same States have undertaken  "… to respect and to ensure respect for the present Convention in all circumstances".
This undertaking, set out in the Article 1 of the 4th Geneva Convention, as in all the Geneva conventions is not just a figure of speech. The purpose of the Convention is so much loftier, it is so universally recognised as a necessity for civilisation, that we feel the need to proclaim it as much, if not more so, for the sake of the respect it commands as for that we can expect the opposing side to afford it. The lack of will on the part of the European states to respect this undertaking by applying measures that could put an end to the colonisation of the Palestinian territories by Israel, in itself constitutes a violation of the 4th Geneva Convention.
3) Statute of the International Criminal Court
The latest advances with regard to international law render this European apathy the more surprising. Indeed, the statute of the International Criminal Court that came into force in 2002 reclassified certain requirements of international humanitarian law. Thus, forced transfers of populations and deportations, destruction of goods and the transfer of its own population by the occupying power, defined by the 4th Geneva Convention as "serious violations" of the laws of war, have been reclassified and designated as "war crimes" by the Statute of the International Criminal Court .
4) Products of the colonies
Products of the colonies and, consequently, their labelling, are not questions explicitly dealt with by international humanitarian law or international criminal law. However, these define and proscribe the actions and processes that make them possible. These products from the colonies are the direct consequence of these illegal acts and processes. The general legal principle Fraus omnia corrumpit” (fraud corrupts everything) applied to this particular case elicits an unequivocal response: the illegality of the colonisation renders fraudulent or null and void all activities and claims based upon it, in particular the production and marketing of merchandise arising from it. Labelling seems, at the very least, a problematic response. How can one use a marketing arrangement to respond to a war crime?
Furthermore, the question of facilitating or contributing to the crime is another factor, introduced into international criminal law by the Statute of the ICC, which must be taken into account. Indeed, production of merchandise in the colonies constitutes a war crime and this raises the question of the criminal liability of those who fail to oppose its production and marketing . It is justifiable to consider labelling that does not prohibit the crime but that accommodates it, as falling within this concept of complicity.
From the point of view of international humanitarian law, it is clear that the products of the colonies are illegal and, on this point of legal scrutiny, it is unchallengeable that the Palestinians' demand, that marketing of these products be prohibited, appears to be well-grounded.
However, before drawing a definitive conclusion, it is as well to look at EU law. This might contradict international humanitarian law.
II – What does EU law say about products of the colonies?
1) General context
The Treaty of Lisbon holds that: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail." (Article 1 a)
The CFSP (EU Common Foreign and Security Policy) reaffirms these values and principles in the context of external action. This rests upon "respect for the principles of the United Nations Charter and international law".
Even if this is obvious, we note that Israeli colonial actions (forced movements of population, deportations, theft of land and water, settling its own population in the occupied territories, unlawful exploitation) do not meet the norms and values that the EU member states have established for themselves.
2) Association agreement
In 1995, within the framework of the Barcelona Process , the EU committed itself to the development of partnerships with other countries in the Mediterranean basin (Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Syria, Tunisia, Turkey and the Palestinian Authority).
The EU-Israel Association Agreement, which was concluded in November 1995  and which came into effect in June 2000, exempted imports and exports between the EU and Israel from customs duties. Only products entirely sourced in Israel, or of different provenance but having been sufficiently transformed in Israel, are covered by the Agreement. The latter applies only in the context of Israel’s internationally recognised borders, those of 1949. Products originating in colonies in the Occupied Territories administered by Israel should not benefit from the preferential customs treatment. A similar agreement was signed by the EU with the PLO (Palestine Liberation Organisation) acting for the Palestinian Authority . The West Bank and the Gaza Strip are the sole territories where this Agreement applies.
The duration of these Association Agreements is subject to compliance with the EU’s founding and governing values and principles . The European Parliament voted the suspension of these Association Agreements in April 2002 on the basis of Israel’s non-compliance with these values. The Commission and the Council failed to act on this, on the pretext that the Parliament's vote was not binding.
3) A continuing fraud
Since the entry into force of the Association Agreement, the State of Israel has not complied with its terms and has made fraudulent declarations of origin, exporting products originating from the Occupied Palestinian Territories (both colonies and Palestinian), under Israeli certificates.
On a number of occasions, the European authorities have communicated their doubts over the validity of certificates issued by Israel, in particular in 1997, 1998 and 2001. In the face of the massive and repeated nature of these frauds, the Commission promulgated a technical arrangement (Notice No. 2005/C 20/02) . This Notice required that, from 1 February 2005, all product transport certificates should bear “the name of the town, village or industrial area, or the place of production conferring originating status”. In spite of this new regulation, the fraud continued to be systematic, due to the lack of joint, on-site inspection of certificates of origin issued by Israel.
4) Labelling to avoid imposing sanctions
In the 2008, the British Government conducted an enquiry into agricultural products exported by Israel to the United Kingdom. Customs inspections revealed the ineffectiveness of the 2005 technical arrangement. The enquiry report concluded that it was impossible to guarantee that the products really came from the area shown on the certificate of origin. The investigators noted numerous false declarations . One might have expected that the British government would punish these frauds according to EU law. However, it did nothing but, in the name of the protection of consumers’ rights, in December 2009 it published a non-binding code of conduct asking distributors to differentiate the labelling of products from Israeli colonies .
Four years after its publication, it is noteworthy that the main result of this measure has been the intensification of Israeli fraudulent practices. Products from the colonies are now exported under cover of places of origin located within Israel. The fraud is not difficult to commit. In the absence of any joint, on-site inspection, it is sufficient for Israel not to apply the 2005 technical notice; a simple amendment of entries on packaging and certification documents is all that is needed. Dawood Hammoudeh, Executive Manager of the Palestinian Farmers Union, UAWC, quite rightly declared, at the beginning of 2013, "Accurate labelling of products from settlements becomes almost impossible in the context of outright deception by Israeli suppliers, especially when it is Israeli companies themselves managing the import of products from the colonies … .»
5) The BRITA Ruling
This 2010  ruling by the European Court of Justice caused much commotion. For the first time, the highest legal authority of the EU made a legal ruling on the question of products from the colonies.
The affair goes back to 2002. The German company Brita was importing drinks makers and syrups made, by Soda-Club, in Mishor Adumim, the industrial park of the West Bank colony of Ma'ale Adumim. The German customs service refused to apply the preferential customs duty demanded by Brita because of the geographic location of Soda-Club.Questioned by German customs on the precise origin of the merchandise, the Israeli authorities replied that they originated from an "area subject to Israeli customs authority". Taking issue with the vagueness of this reply, the German customs upheld their original decision. Brita challenged this before the Hamburg Finance Court, which asked the European Court of Justice to issue an interlocutory ruling on a specific question:
– whether goods manufactured in the Occupied Palestinian Territories could benefit from preferential treatment under the EU-Israel Agreement.
– In the event that the response to this question was negative, could the State of Israel use the EU-PLO Agreement to certify products manufactured in the Occupied Palestinian Territories?
– Are certificates issued by Israel for those products that originate in the Occupied Territories enforceable against EU countries?
The European Court of Justice replied in the negative to these three questions. However, the BRITA Ruling has further repercussions, as the legal arguments used by the judge in response to the questions posed are, legally, as important as the actual conclusions. What did the judge say with regard to the Notice?
First, the EU concluded two distinct association agreements, one with Israel and the other with the PLO acting on behalf of the Palestinian Authority.
Second, each of those Association Agreements applied to a particular territorial area. The UE-Israel Association Agreement provides that it applies to the "territory of the State of Israel" (Article 83). The EU-PLO Association Agreement states that it applies to the "territory of the West Bank and the Gaza Strip" (Article 73).
Finally, Israel and the PLO each have exclusive authority to issue certificates of origin for merchandise or to grant approval to exporters located within the territory under their administration.
Therefore: only the Palestinian Authority is qualified to issue a certification document for merchandise originating in the West Bank and Gaza and this is the case whoever the producer may be, whether Palestinian, Israeli colonist or national of any other state. This certifying power is exclusive. The state of Israel has no power to certify for the West Bank or the Gaza Strip and, therefore, certification documents that it issues for the products of West Bank Israeli colonies are worthless and are null and void. The regulation states that merchandise without a certification document is prohibited from entering the territory of the European Union.
In fact, the BRITA Ruling gives a definitive answer to the question of labelling. That question is irrelevant and cannot be posed, as one cannot label merchandise that is prohibited from entering the territory of the EU because it lacks the necessary certification documents. Merely applying the decision of the European Court of Justice should, purely and simply, entail the prohibiting of entry of products from the colonies.
6) Labelling as a means of not applying the Brita Ruling
One can easily understand the reluctance of European leaders to acknowledge the BRITA Ruling when they talk about the problem of products from the colonies, because this decision clearly shows them how it should be legally resolved: prohibition of entry to EU territory.
Just recently, the reply by Laurent Fabius, Minister of Foreign Affairs, to the written question from Patrice Carvalho,  Deputy for Oise, perfectly illustrates this refusal to apply the ruling of the European Court of Justice which would entail sanctions against Israel.
Presenting the most recent Israeli violations of Palestinian rights, the Deputy for Oise recalled that these should incur the suspension of the Association Agreement. While waiting for such a measure to be taken by the EU, he asked Laurent Fabius whether France " … could not prohibit the entry of products coming from the colonies, since it does not recognise the legitimacy of these colonies in the light of the 4th Geneva Convention?"
In his response, the Minister of Foreign Affairs, completely stonewalling on the BRITA Ruling, indicated that "France complies with the C-20 Notice to importers, of 25 January 2005, published in the official Journal of the European Union." As we saw previously, this 2005 technical notice has shown itself to be ineffective because there is no joint inspection of Israeli certification practices. But, more seriously, this just refers to a technical notice, which has no legal standing compared to the BRITA Ruling of the European Court of Justice. Why should Laurent Fabius commit such an omission? The rest of his reply sheds light on this: "France is currently investigating, together with several of its European partners, the possibility of promulgating a code of conduct on distinctive labelling of products from the colonies, such as currently exists in the United Kingdom and Denmark." This project contradicts the BRITA Ruling.
Both international and EU law are inclined to support the position of the Palestinians who, justly, demand that the products of the colonies be prohibited from being marketed in Europe. The refusal of the European authorities to apply the law and to impose sanctions in response to the violations committed by Israel, allows the injustice to continue with complete impunity. Laurent Fabius' concern and that of his peers is that public opinion, which supports the Palestinians, should not see them as being the promoters and sworn protectors of that impunity. Thus, they have to continually renew the argument and invent stratagems that have the trappings of legality, but that carefully avoid implementing the law, labelling products from the colonies being the latest manifestation of this
We have seen that these labelling measures are not about applying the law but about denying it. They negate international humanitarian and EU law.
Moreover, regardless of the opinion that one might have on the two-state option supported by the EU states, it is clear that these labelling measures totally destroy the credibility of the political position of the EU Member States with regard to Palestine. Can the leaders of these European states seriously pretend to support the establishment of a viable Palestinian state, when they trample on the tiny amount of sovereignty they have granted it up until now? For, in the context of the EU-PLO Agreement, the Europeans accorded to the Palestinians the exclusive right to certify merchandise produced on their territory. Yet, implementing labelling of products from the Palestinian territory, but which has been certified by another state negates that right. This is certainly a negation of Palestinian sovereignty.
Translation : Barbara Fink
1 ICJ 9/72004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
2 The States Parties to the 4th Geneva Convention adopted the application of the text to the Occupied Territories, at their conference of 15 July 1999. In the final statement, they "reaffirmed the applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem." Then, on 5 December 2001, the High Contracting Parties having regard, in particular, to Article 1 of the 4th Geneva Convention of 1949, reaffirmed once more "the applicability of the Convention to the Occupied Palestinian Territory, including East Jerusalem”. Furthermore, they recalled “the respective obligations under the Convention of all High Contracting Parties (para. 4-7), of the parties to the conflict (para. 8-11) and of the State of Israel as the Occupying Power.”
3 General Assembly, Resolutions 56/60 of 10 December 2001 and 58/97 of 9 December 2003.
Security Council Resolution 237 (1967);
Security Council Resolution 271 (1969);
Security Council Resolution 446 (1979);
Security Council Resolution 681 (1990);
Security Council Resolutions 799 (1992) and 904 of 18 December 1992.
4 Article 42. “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
5 Article 43 imposes upon the occupier the duty to "take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country."
6 Article 52. “Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country."
7 Article 46. “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”
8 Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
9 The International Court of Justice holds that the principle of distinction between military and civil property is one of the "intransgressible principles of international customary law”.
10 GC IV Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
11 GC IV Art. 53. “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”
12 GC IV Art. 1. – “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
13 ICC Statute, Art. 8. 2.a.iv. and Art. 8. 2.b.viii.
14 ICC Statute Art. 25. 3.c-d: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: …
c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.
15 CFSP Art. 21.
"1. The Union's action on the international scene is guided by the principles which have inspired its own creation, development and enlargement, the principles it seeks to advance in the wider world: democracy the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the Charter of United Nations and international law.
“2. The Union shall seek to develop relations and build partnerships with third countries and with international organizations, regional or global organizations which share the principles referred to in the first paragraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.”
“3. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations in order to: …
“c. to preserve peace, prevent conflicts and strengthen international security, in accordance with the principles of the UN Charter and the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those relating to external borders;”
16 Euro-Mediterranean Ministerial Conference, Barcelona, 27 and 28 November 1995.
17 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995 (OJ 2000, 147, p.3).
18 Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997, L 187, p. 3).
19 EU/Israel Agreement, Art. 2. “Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guides their internal and international policy and constitutes an essential element of this Agreement”.
20 Notice to Importers, Imports from Israel into the Community (2005/C 20/02).
21 House of Commons debate, 27 January 2010, Column 313 WH EU-Israel Trade Agreement.
22 Technical advice: labelling of produce grown in the Occupied Palestinian Territories – Department for Environment, Food and Rural Affairs 10/12/2009.
23 BDS: Farming Injustice – International trade with Israeli agricultural companies and the destruction of Palestinian farming 9/2/2013.
24 Judgment of 25 February 2010, C-386/08 Brita GmbH / Hauptzollamt Hamburg-Hafen.
25 French 14th National Assembly, Question No. 15233 – published in the OJ of 08/01/2013, page 120. Reply published in the OJ of 19/02/2013, page 1812.