Udenrigsudvalget 2016-17
URU Alm.del Bilag 215
Offentligt
Hugh Lovatt
–
speaking notes
ECFR will short be publishing a new
epo t y D Vale ti a Aza o a looki g at the legal i pli atio s of Is ael’s
prolonged occupation and its implications for third party actors.
“he a gues that Is ael’s p olo ged
occupation has created an unlawful situation and given rise to structural
violations of international law. These include:
Violation of International Humanitarian Law (IHL) which are well documented: violation of the 1949 Fourth
Geneva Convention and 1907 Hague Regulations
–
the obligation to safeguard the welfare of the population in
the occupied territory, and protect its political and legal order from sweeping transformation by the occupying
state. Settlements are the most egregious example of this.
Violation of International Human Rights Law (IHRL): Israel has established a system of racial discrimination in
the occupied territory through the unlawful transfer of its civilian population and the operation of two spate
systems of governance of Israeli settlers and Palestinians.
Violation of the right to self-dete
i atio . Is ael’s i te t to pe a e tly a ui e the Palesti ia te ito y has
led to the denial of the Palestinian independence in their territory
Violation of jus ad bellum which sets out conditions in which states can use force (and enact an
occupation): The use of force that Israel uses to maintain its control over the occupied Palestinian territory
(OPT) is unlawful. Israel can no longer justify its occupation based on military necessity. Instead, Israeli
institutional practices and actions over 50 years reveal its annexationist agenda: de facto annexation of over
60% of West Bank Territory in addition to the de jure annexation of East Jerusalem in 1980. (Cf 2004 ICJ ruling
on the separation wall re annexation). Consequently, Israel's presence in the OPT is no longer lawful.
Based o this, Is ael’s o upatio of Palesti e has e o e u la fully p olo ged. Be ause Is ael’s p olo ged
occupation is unlawful, many of its actions in the administration of the territory are deemed unlawful under
international law.
This impacts third party dealings with Israel and its settlements at the level of both interstate relations and
private business dealings with the settlements.
Third party states are obligated under international law to refuse to recognise
Is ael’s u la ful
acts (as well as
the rights and benefits they generate). This obligation is particularly acute for the EU and its member states,
who have extensive interstate relations and private dealings with Israel, and whose own legal order depends
on respect for international law.
Practically, this means ensuring non-recognition of Israeli settlements and settlement entities, non-recognition
of its unlawful practices, and non-recognition of Israel sovereignty over the OPT.
To guarantee the integrity of their domestic legal order, states must therefore ensure that they effectively
differentiate between Israel and the settlements in order to exclude settlement entities from within their
bilateral relations.
This has e o e k o
as differe tiatio .
The need to differentiate between Israeli and occupied Palestinian territory is an imperative of EU law and
poli y that is eeded to e a le the full a d effe ti e i ple e tatio of EU a d e er states’ do esti
laws.
In addition, third party states have a duty to ensure that their businesses respect international law and
domestic legislations when conducting private business dealings with Israeli entities.
Private companies that do not exclude Israeli settlement entities from their dealings risks exposing themselves
to Is ael’s
widespread violations of international law
–
including the violation of Palestinian human rights. They
could also be in contravention of domestic legislation.
 URU, Alm.del - 2016-17 - Bilag 215: Materiale fra høring om danske investorers ansvar og handlemuligheder i forhold til investeringer i virksomheder med aktiviteter i israelske bosættelser den 1. juni 2017
Crucially, this applies to any Israeli entities involved in supporting or maintaining settlement activities
–
including Israeli banks.
To minimise the legal, financial, and reputational risks of dealing with settlement-lined entities, private actors
need to conduct appropriate due diligence.
The above process is already happening: @ EU & member state level (July 2013 financial guidelines,
November 2015 labelling guidelines, 18 member state business advisories); @US and China level; @UN
Security Council level (R 2334); @private level: banks and pension funds, and companies
In parallel though, there has been an active counter effort promoted by the settler dominated government of
PM Netanyahu to intimidate, smear, and arm twist countries, organisations, and individuals, who differentiate
between Israel and the settlements and seek to abide by their international law based duties. This campaign is
also being fought though the US Congress and US States.
None of what has been described above constitute a boycott of Israel, or even the boycott of Israeli
settlements demanded by Palestinians.
It is ot BD“
ut the correct implementation of domestic legislation
and respect for international law.
---
Next Steps:
The EU should use the 50th anniversary of the occupation to spur a comprehensive assessment of its dealings
with Israel and Israeli entities, in line with the imperative of non-recognition, based on the need to ensure the
full a d effe ti e i ple e tatio of EU la a d the EU’s deep-seated
commitment to respect international
law.
The EU and its member states have not yet devised a coherent policy and process for proactively detecting and
correcting dealings with Israeli entities that give effect to its unlawful acts.
While some 18 member states have issued advisories alerting EU-based companies of the risks of activities in
relation to the settlements, they have yet to be coupled with appropriate domestic compliance measures to
inform domestic regulatory authorities and domestic subjects, including public authorities and nationals.
A transparent process for the adoption of non-recognition measures would also minimise attempts to obstruct
su h easu es th ough politi al p essu e a d u de i e thei sig ifi a e fo states’ i te al legal o de s.
The EU is also well positioned to encourage other third states and international actors, including regional
organisations and blocs such as the European Free Trade Association and Mercosur, whose member countries
engage in relations and dealings with Israel and Israeli entities to review their dealings and correct them as
necessary to ensure the non-
e og itio of Is ael’s i te atio ally u la ful a ts.