By Mitchell Plitnick
For many years, the Israeli government has waged what we might call a campaign of normalization regarding its military occupation of the West Bank. Israel has spared no effort to erase the demarcation between its internationally recognized boundaries—the territory Israel controlled prior to the 1967 war when it captured the West Bank, Gaza Strip, Sinai Peninsula, and Golan Heights—and the areas under military occupation.
The effort has never gotten the attention it deserves, and that problem has only gotten worse in recent years as the two-state solution has retreated further and further into the realm of fantasy. Still, its importance remains, whatever ultimate solution one supports. This week, a ruling by the European Court of Justice raised the issue again, and in doing so, clarified the importance of the issue.
The Court ruled that products made in Israeli settlements needed to be labeled as such, so that European consumers could make an informed choice as to whether they wanted to buy them. This is a long-standing regulation in Europe, one which the EU started to enforce in 2015, and which Israel has been fighting all along. The reactions to the latest ruling are typical.
“We strongly reject the discriminatory European Court’s decision, and suggest that the court label and condemn the hundreds of rockets fired into Israeli territory today,” tweeted Yuval Rotem, the Director-General of the Foreign Ministry. Deputy Foreign Minister Tzipi Hotovely called the ruling political and hypocritical and said it gave a “tailwind” to haters of Israel. In typical fashion, back in 2015, when the EU first instituted procedures to enforce its labeling laws, Prime Minister Benjamin Netanyahu invoked the Holocaust, saying the ruling “brings back dark memories” and that “Europe should be ashamed of itself” for taking an “immoral decision.”
Does this matter in a post-two-state political reality?
When a two-state solution was still a realistic, even if unlikely, possibility, the stakes in the fight over labeling settlement products were self-evident. Now, we must look a little deeper to see the importance, beyond the principle of enforcing international law, which should always be prioritized.
The Israeli argument is that the EU law is discriminatory, singling out Israel while ignoring similar situations elsewhere. Israel further argues that such laws contradict the principle of not pre-determining outcomes of final status issues under the Oslo Accords, and as a result makes “peace” harder to achieve. Leading occupation apologist and law professor Eugene Kontorovich summarizes the argument: “This is not about consumer protection, it is about adopting a unique legal standard for the Jewish state. The EU labels for these Jewish products are also unique among all product labeling in that they are not geographic — they are not about ‘where’ something was made but by ‘whom,’” he said.
As Kontorovich demonstrates, the Israeli argument rests, as so many do, on the idea that the EU law is simply an extension of the global antisemitic conspiracy, the universal hatred of Jews that finds its expression in any opposition to, or even disagreement with, Israeli policies. This threadbare argument is increasingly becoming the main argument in defense of Israeli stances and policies. That is why it’s important that we confront it clearly and firmly.
Singling out Israel. Kontorovich alleges that the EU labeling law is “a unique standard for the Jewish state.” His terminology there is not accidental, it is meant to imply an accusation of antisemitism. But there is nothing unique about this standard for the West Bank (and, notably, this judgment would apply as well to products of Israeli settlements in the Golan Heights). In February 2018, the European Court ruled that products that came from Moroccan settlements in Western Sahara cannot share in any trade agreements between Morocco and Europe, the same regulation, based on the same principle of international law, which governs Israeli products from its settlements. Even in the midst of Brexit, the United Kingdom affirmed in April that the ruling on Western Sahara was binding there as well.
Another example might be Crimea. One might compare Russia’s seizure of the peninsula and its use of Crimean resources for its own export purposes to Israel’s establishment of settlements which generate products for export. And in this case, Kontorovich would be correct, there is a clear double standard at work. Russia faces harsh international sanctions over its occupation of Crimea. It is important to note that those sanctions object to Russia’s occupation, and would have the same force whether the desired resolution was an independent Crimea or returning the peninsula to Ukraine. This counters the Israeli argument that it isn’t really occupying the West Bank since it was previously under Jordanian occupation and was not an independent Palestinian state. This point, repeated often, is irrelevant to the condition of occupation.
Sanctions over Crimea have had a severe impact on the Russian economy. Yet Israel’s occupation, which pre-dates Russia’s by nearly half a century and is much more entrenched, has elicited no such response from the United States or the European Union. Presumably, this is a double standard to which Kontorovich and the Israeli government do not object. And the one to which they have objected does not exist.
Clearly, with no double standard employed, the accusation of antisemitism evaporates like the chimera it is. The idea that the Oslo Accords somehow demand recognition of Israel’s settlements as a part of Israel is even more absurd. Even setting aside the complete disregard Israel has shown for key provisions of the Accords from the outset—particularly the commitment to refrain from changing the status quo conditions on the ground—and ignoring the manifest collapse of the Accords, there is simply no basis to infer that Oslo granted any legitimacy on the settlements. Under international law, the settlements are illegal. The fact that Israel, supported by the United States, challenges that truth does not confer legality, temporary or otherwise, on them.
To the contrary, it is Israel that is demanding unique and special standards here. They argue that the EU treat settlements as part of Israel until the alleged “dispute” over them is resolved. That’s an intolerable stance, as it would bestow legitimacy on any illegal act as long as someone challenged its legality. Its especially egregious when the challenge is being issued by two countries who refuse to recognize the international legal system as binding upon them.
It is frankly obscene that Israel would claim discrimination and imply antisemitism over this issue. Yet increasingly, the argument that opposition to Israeli policies, from the debatable to the obviously criminal, must stem from antisemitism is the one that Israel and its supporters fall back on because the others have been so badly tarnished by Israel’s actions. Yet that makes it no less morally repugnant, nor any less dangerous for Jews around the world, including in Israel.
The principle at stake in the labeling issue is clear: European consumers have the right to decide for themselves whether they want to support businesses in the settlements, and European countries have the right to decide whether agreements they made with Israel, which were never meant to include settlements, should be altered to accommodate those illegal colonies. But the disingenuous arguments and the faux outrage from Israeli officials and defenders like Kontorovich of its worst policies, expand those stakes, taking them from the realms of law and international relations and into a place of ethical turpitude. With antisemitism rising in the West—overwhelmingly due to the nationalism, racist-inspired and otherwise, being promoted by American and European leaders—it is utterly intolerable that Israeli occupation, dispossession of Palestinians, and denial of Palestinian rights be defended by crying antisemitism where there is none, as we are witnessing in the response to the labeling issue.
Double standards are rightly decried, and Israel should not benefit, nor face penalties from them. The claim that the latter is occurring is demonstrably false and cannot be excused as a mistake. It is a blatant lie, and when that happens, it means you’re trying to enact a double standard to your benefit. That’s what Israel is doing.