Israel’s settlements are legal

1. Israel’s settlements are legal

   By Professor Geoffrey Alderman

   UK government

   What role, if any, does the present UK government see for itself as a peacemaker in the Middle East? Does it see itself as an honest broker, or has it already taken sides? Some developments over the past fortnight — which build on the lesson we must learn from the UK government’s refusal to condemn or even criticise the Goldstone report — do I think enable us to answer these important questions.

   At the beginning of the month, feverish diplomatic to-ing and fro-ing in Brussels centred on a Swedish attempt to have EU member states endorse a resolution demanding the creation of a Palestinian state with East Jerusalem as its capital. This proposal was defeated –- thanks to some impressive maneuvering by Israel’s Foreign Minister, Avigdor Lieberman. Instead, on December 8, EU Foreign Ministers announced their agreement that Jerusalem must become a “shared” capital.

   Palestinian President Mahmoud Abbas was clearly annoyed that the Swedish draft had been killed off. But the British government was among the backers of the Swedish proposal and, within 48 hours of its defeat, presented Mr Abbas with a consolation prize. On December 10, the department for the environment, food and rural affairs (DEFRA) published new guidance to shops and supermarkets on the labelling of produce sold in the UK that originated from Judea and Samaria. Hitherto, such goods have been labelled as “Produce of the West Bank.” Henceforth, warned DEFRA, they should be branded either as “Palestinian Produce” or “Israeli Settlement Produce.”

   A spokesman for UK Foreign Secretary David Miliband wasted no time in explaining that “this is emphatically not about calling for a boycott of Israel. We believe that would do nothing to advance the peace process. We oppose any such boycott of Israel. We believe consumers should be able to choose for themselves what produce they buy.” But, he added ominously: “we have been very clear, both in public and in private, that settlements are illegal and an obstacle to peace.” And in an announcement (hilariously labelled “technical advice”) quite separate from its new guidance on labelling, DEFRA’s head, Hilary Benn, warned that UK food outlets would be committing a criminal offence if they labelled produce that originated in Judea and Samaria as “produce of Israel”.

   Although it is being sold as nothing more than an aid to consumer choice, this spiteful policy looks very much like a boycott invitation to me. My recommendation to the government of Israel is to take appropriate steps to frustrate the intentions of Messrs Miliband and Benn, and to refuse absolutely to label produce from Judea and Samaria other than as originating from Israel. This could perhaps be done by re-routing produce through distribution points within Israel’s pre-1967 borders.

   But the success or failure of this latest boycott initiative is not my present concern. My present concern is with the assumption — virtually unchallenged in the media — that Jewish settlements in the West Bank are illegal.

   In — of all places — the excellent online journal of the Law Society of Scotland (September 14 2009), the distinguished Anglo-Canadian jurist, Professor Gerald Adler, considers this very assumption. In a painstaking analysis of Jewish claims stretching back to the Balfour Declaration of 1917, the Treaty of Sèvres of 1920 and the Palestine Mandate of 1922, Professor Adler demonstrates that Jews have a right to “close settlement” on the West Bank, and that this right was in fact specifically preserved, and carried forward on the demise of the League of Nations, through the deliberate wording of article 80 of the founding charter of its successor body, the United Nations organization.

   In his “technical advice”, Mr Benn is silent on these matters, preferring to dwell instead on the fourth Geneva Convention (1949), which prohibits an occupying power from transferring its own civilian population into occupied territory. But, quite apart from the fact that Israel has done no such thing (no Israeli is compelled to live in Judea or Samaria), Mr Benn needs to understand that the right to which Professor Adler draws attention pertains to Jews, not Israelis.

   This is a right – granted by the League of Nations and guaranteed by the UN at its foundation – with which neither Mr Benn nor Mr Miliband (nor, incidentally, Mr Netanyahu) has the moral or legal authority to interfere.