by Mitchell Plitnick
The Irish Senate passed a bill last week that would criminalize doing any business, in goods or services, with Israeli settlements. As with most legislation that concerns Israeli settlement activity, the bill is already highly controversial. Supporters of the Boycott, Divestment, and Sanctions (BDS) movement have hailed it as a great victory while the usual suspects in and outside of Israel have leveled baseless accusations of anti-Semitism at Ireland and made disingenuous arguments to oppose any action against Israel’s blatantly illegal settlement program.
The bill’s chances to become law are uncertain. The Irish government is dead set against it, and it’s unclear whether it violates European Union rules. Still, it’s likely to pass the Lower House of Irish parliament.
If it does become law, it would be the single most significant step any European country has ever taken in opposition to Israel’s occupation of Palestinian lands. As Jim Zogby of the Arab American Institute wrote,
As delighted as I was with the outcome, it was the debate, itself, that was so impressive. It was, in a word, lopsided. Not a single voice was raised in support of Israel’s policies vis a vis the Palestinians. Even those who voted against the bill denounced Israeli settlements and the unilateral U.S. move to open an embassy in Jerusalem, and more than one member compared the situation in the occupied Palestinian territories to South Africa’s notorious “Apartheid regime.”
That says a lot about how many people—not only in Ireland but throughout Europe and the rest of the world, including a growing number in the United States—recognize that Israel’s occupation is unjust, even criminal. In the end, this is more significant than whether the bill becomes law.
The Pro-Israel Reaction
As illuminating as the Irish debate may have been, a discussion in the American Jewish weekly Forward was just as revealing. The opinion editor, Batya Ungar-Sargon, took on the question of whether the Irish bill is anti-Semitic or a good law opposing the occupation.
Ungar-Sargon is not a reflexive or thoughtless pro-Israel writer. I have not seen her declare specific ideological stances, but the sum total of her work indicates someone who is supportive of Israel and generally opposed to the occupation, a liberal US Jew who dislikes the current Israeli government and who tries to be a fair-minded journalist. She concludes, “The bill is not anti-Semitic. But it’s a terrible bill nonetheless, one that Ireland’s government should not sign into law.”
Her first objection is that the bill is too vague about what is considered “occupied territory.” The bill defines it thus:
(1) In this Act, “relevant occupied territory” means a territory which is occupied within the meaning of the Fourth Geneva Convention, and which has been—
(a) confirmed as such in a decision or advisory opinion of the International Court of Justice,
(b) confirmed as such in a decision of the International Criminal Court,
(c) confirmed as such in a decision of an international tribunal, or
(d) designated as such for the purposes of this Act in a regulation made by the Minister pursuant to section 4.
Section 4 provides that the minister must submit a new designation to both houses of the Irish legislature and, crucially, that “The Minister may make regulations prescribing a territory as being a relevant occupied territory within the meaning of section 3.” It’s not nearly as open-ended as Ungar-Sargon suggests. Her fear, that “Without a clearly determined border, the bill leaves open the possibility of prosecuting people who don’t even know they’ve committed a crime,” is baseless. But it has a connection to another contention she makes.
Ungar-Sargon quotes Lara Friedman: “This isn’t about free speech, it’s about law. International law, the guiding framework for the European Union, says settlements are illegal. What follows from that legally, if you talk to any international lawyer, is that settlement products are illegal and should be banned.”
This is obviously true, but Ungar-Sargon takes issue, at least in this case.
To me, it does seem like a violation of a person’s right not only to free speech, which includes spending one’s cash where one wishes, but a person’s freedom of thought—the freedom to consider, say, Otniel a settlement but not some sections of Jerusalem, or Gush Etzion, a huge settlement bloc that no one expects to be part of a future state of Palestine.
The problem is that one does not have the right to spend one’s money in or on an illegal enterprise. Nor does one have the right to decide where law applies and where it does not. Speaking to LobeLog, Friedman elaborated on this point, saying,
According to international law, settlements are illegal, and the products of settlements are, in effect, the proceeds of crime or stolen goods. In the US, nobody would argue that, as a matter of free speech, there is the right to buy or sell stolen goods or the proceeds of crime. Under international law, the same holds true. When defenders of settlements say Israel and settlements are being singled out for unfair treatment, what they mean is that they demand that Israel and settlements be exempted from international law, and that doing anything but holding Israel to a different, lower standard will be attacked as anti-Israel and anti-Semitic.
International law is not ambiguous, despite the self-serving arguments that Israel and many of its supporters have made for years. The territory Israel captured in 1967 is occupied territory under international law. That Israel passes laws to call parts of these territories something else—in service not to justice but to its own territorial ambitions—has no more weight than, say, AT&T deciding it can merge with another corporation whether the US government likes it or not. It can say it, and it can try to defy the US laws, but that doesn’t make it legal, and other businesses and countries will act against them on that basis.
The reasoning Ungar-Sargon employs here blurs the line between the political and the legal. In the minds of many Israelis and American Jews, there are meaningful distinctions between settlements, depending on whether the various maps of the Oslo era anticipated their remaining in Israeli hands. There are distinctions between occupied Palestinian territory in the West Bank and the Golan Heights. And, as she says, settlements in Jerusalem are different from them all.
Those differences are debatable at best, but any validity they might have is purely political. As a matter of international law, all of the territory seized in 1967—the West Bank, East Jerusalem, the Gaza Strip, and the Golan—is occupied and subject to international law governing belligerent occupation. No country, including Israel, gets to decide to apply the law in some cases and not in others.
Does the Irish Bill Criminalize People?
Ungar-Sargon also argues that the bill essentially makes a criminal of anyone who ever set foot in a settlement. That would be a concern for many of us, myself included. Indeed, many Israeli and other activists who work for Palestinian rights have been in a settlement at one time or another. Could the Irish bill really make them criminals, as she suggests?
No, the argument is absurd. Ungar-Sargon’s fear is based on the definition of “illegal settler” in the bill. “’Illegal settler’ means a member of the civilian population of an occupying power who was or is present within the relevant occupied territory and whose presence is being, or has been, facilitated directly or indirectly, by the occupying power.”
Ungar-Sargon argues, “It’s a shocking thing for a government to craft a bill that seeks to imprison individual citizens for ‘extracting’ items from the settlements or one-time settlers.”
The language is, admittedly, sloppy. The intent of the bill, however, is clearly to prohibit Israelis who often move back and forth across the Green Line and who might live in Israel while having business interests in the settlements from selling their settlement products—and only those products—to Irish citizens. The language must be cleaned up to clarify this, and the bill is far from a finished product. But Ungar-Sargon is clearly overreacting.
To her credit, her overreaction is a far cry from the all-too-routine hysteria that has come from Israel. Benjamin Netanyahu said that the bill “gives a tailwind to those who seek to boycott Israel and is utterly contrary to the principles of free trade and justice.” Defense Minister Avigdor Lieberman called for closing the Israeli embassy in Dublin.
Eugene Kontorovich, head of the international law department at the Kohelet Policy Forum and the go-to guy when you want to find a lawyer who will defend Israel’s most egregious violations of international law, said, “They’re creating a contaminated criminal presence around Jews. They’re saying it is a crime to simply be an Israeli in the Old City, and that further it is a jailable crime for third-parties to have any commercial contact with them.”
The bill says nothing of the kind and Kontorovich gives away the game when he says, “Anyone who takes a tour of the Golan is liable under this. They didn’t even limit it in a way that it would be about the Palestinians.”
Exactly so. The bill is not a political statement, but a legal one. As such, it must apply to all the occupied territories, not only the Palestinian part. Anything less would be a political, not a legal act. This is a distinction Kontorovich, as a lawyer, is surely aware of. That he willfully chooses to ignore it tells us all we need to know about his views on the matter.
Irish lawmakers would be well-advised to clarify some of the language in the bill. Perhaps these terms are commonly understood in Irish legal language; I am not versed in those nuances. But when good people like Ungar-Sargon react to those terms by saying that the bill should be scrapped, it appears more like looking for an exploitable weakness in the Irish action rather than trying to do justice.
Irish Senator Frances Black put it plainly: “How can we condemn the settlements as illegal, as theft of land and resources, but happily trade in the proceeds of this crime?”
This has been the question for decades, not only regarding Irish policy, but for all countries who are willing to do business in the settlements. This hypocrisy has only deepened the occupation. Contrary to the bogus arguments of the Israeli foreign ministry that the Irish bill “would hurt the chances of dialogue between Israel and Palestine,” it is the decades of talking with no action that have undermined diplomacy. Whether the Irish bill fails or becomes law, it has already rocked that status quo. It needs to be followed by decisive political pressure throughout Europe and elsewhere.
The purpose of this action must also be clear. It cannot be to revive a peace process, although one can hope that would be one outcome. It must be based on one principle: Israeli treatment of the Palestinians is unconscionable, unjustified, illegal, and can no longer be tolerated.