On 8 September 2021, the European Commission (the Commission) registered the European Citizens Initiative (ECI), which is entitled “Ensuring Common Commercial Policy conformity with EU Treaties and compliance with international law”.[1] The ECI seeks to regulate commercial transactions with the Occupant’s entities based or operating in occupied territories by withholding products originating from there from entering the EU market.[2] The European Commission had first rejected registering the ECI claiming a lack of competence.[3] However, the organizers of the Initiative won a lawsuit against the European Commission at the Court of Justice of the European Union (CJEU) which annulled the Commission’s rejection.[4]

The ECI invited the Commission, as Guardian of the Treaties, to act on its initiatives’ objectives. The ECI stated in its legal basis documents, that the Commission “has to ensure consistency of Union’s policy and compliance with fundamental rights and international law in all areas of EU law.”[5] Moreover, the ECI affirmed that the commission “must propose legal acts to prevent EU legal entities from both importing products originating in illegal settlements in occupied territories and exporting to such territories, in order to preserve the integrity of the internal market and to not aid or assist the maintenance of such unlawful situations.”[6]

Al-Haq welcomes the registration of the ECI and joins it in inviting the European Commission to ensure consistency of EU’s policies and compliance with international law and fundamental human rights, especially the rights to self-determination of the Palestinian People. Further, Al-Haq reiterates that the Israeli colonial settlements in the occupied Palestinian territory (OPT) “ha[ve] no legal validity and constitute a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”[7] Moreover, the Israeli colonial settlements constitute a war crime pursuant to Article 8(2)(b)(viii) of the (ICC) Rome Statute of the International Criminal Court. 

Notably, Israel has continued to expand its illegal settlements with impunity, with the current trade relations with the EU offering a veneer of validity to Israel’s de facto annexation of the territory.  Notwithstanding, trade with the illegal settlements may amount to aiding and abetting the commission of war crimes and crimes against humanity linked to the establishment and furtherance of the illegal settlement enterprise.

That the  territory demarcated by the Green Line and encompassing the West Bank, including Jerusalem and the Gaza Strip, is the occupied Palestinian territory, has been reaffirmed by numerous international institutions, including investigative and judicial institution.[8] For example, the Committee on the Elimination of All Forms of Racial Discrimination (CERD), ruled by majority that it has jurisdiction over the OPT, including East Jerusalem, in an inter-State communication submitted by Palestine against Israel, the Occupying Power.[9] Another recent example is the ICC’s Pre-Trial Chamber I (PTC), where the majority held that the “Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”[10]Similar practice is exemplified in the mandate of  UN fact-finding missions,[11] and the UN Human Rights Council resolution establishing the UN Database,[12] the jurisprudence of the Court of Justice of the European Union (CJEU),[13] and the European Court of Human Rights (ECtHR). [14]

As eloquently put by Professor John Dugard, the Israeli colonial settlements in the OPT “severely impede the exercise of the right of the Palestinian people to self-determination and therefore constitutes a breach of Israel’s obligation to respect this right.”[15] Further, Israel’s colonial settlement enterprise in the OPT, which continues unabated, has resulted in a system of apartheid and institutionalized racial segregation and discrimination are imposed to maintain the domination of illegally transferred colonial settlers above the Palestinians.[16] Therefore, trading with such illegal colonial settlements directly contributes to the maintenance of such system of apartheid where Palestinian basic human rights are systematically violated under an Israel’s institutionalized regime of systematic oppression and domination. Moreover, such trade with the illegal settlements may amount to aiding and abetting the commission of the crime against humanity of apartheid pursuant to Article 7(1)(j) of the Rome Statute. 

In continuing importing goods from the Israeli illegal colonial settlements, the EU is contributing to the international community’s failure to hold Israel accountable for its war crimes, and crimes against humanity in the OPT, including apartheid and persecution.[17] This runs contrary to the EU core values of human dignity, freedom, democracy, equality, the rule of (international) law, and human rights. Under international law, the EU and its Member States have obligations under what lawyers call the principles of non-recognition and non-assistance. Put simply, under these principles, States must not recognize illegal situations as legitimate and must make sure that they are not assisting in maintaining the illegal situation by trading with it and importing its goods. Such actions would represent an actual assistance and economic incentive to maintain Israeli apartheid.

Al-Haq welcomes the registration of the ECI and calls on the EU and its Member States to end trade with illegal settlements in the OPT. Al-Haq also joins the ECI in inviting the European Commission to ensure consistency of EU’s policies and the compliance with international law and fundamental human rights, especially the Palestinian rights to self-determination. In addition, Al-Haq reiterates the words of the President of the European Commission, Ursula von der Leyen, that:

“doing business around the world, global trade – all that is good and necessary. But this can never be done at the expense of people’s dignity and freedom. [...] We can never accept [...] that these products then end up for sale in shops here in Europe. […] Human rights are not for sale.”[18]

Finally, Al-Haq recommends the EU, its States, its people and their representatives, the following:

• The EU must adopt restrictive measures to end trade with Israel’s illegal settlements in the OPT;
• Governments of Member States of the EU can and must move forward on adopting restrictive measures in their domestic systems to prohibit trade with illegal settlements;
• Members of the European Parliament (MEPs) are also invited to play a more active role, especially concerning the EU’s external economic relations. Together with the Committee on International Trade, MEPs can request the Commission to implement a general restrictive measure that entail the immediate stop of any form of trade with illegal settlements in occupied territories.
• Member State must also advance the discussion of stopping of trade with illegal settlements in the European Council. The Council can request the Commission to work out a proposal by simple majority, and vote over it by qualified majority, noting that unanimity of Member States in the Council is not needed.