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Labelen of verbieden?

 In Nederland woedt het debat over het labelen van producten uit de illegale Israëlische nederzettingen in bezet Palestina volop. Maar helpt labeling wel? Of is het vooral een bliksemafleider voor maatregelen die wél helpen – en die krachtens het recht allang genomen hadden moeten worden? In dit belangwekkende (Engelstalige) artikel worden de juridische argumenten op een rij gezet die leidend behoren te zijn in deze afweging.

Products From the Colonies: Labelling or Prohibition?

By Christophe Perrin

The Netherlands are about to ask Dutch commercial distributors to implement labelling
measures for the identification of products from Israeli colonies. England and Denmark
have already taken similar measures. Like those two countries, the Dutch authorities do
not intend to institute any sanctions to compel distribution networks to observe these
“recommendations”. Announcing these measures, it made this important point: “the
import of products from the colonies is not illegal.”

These measures to label products from the colonies have stirred up a debate. For some,
they are a step in the right direction. They tend to show that European institutions and
governments, considering the Israeli colonies to be illegal and an obstacle to peace, have
finally taken the decision to act by implementing the law. This is seen as a first step.

Others see labelling products from the colonies as a red herring. Such measures are a
diversion the consequences of which would be disastrous for the Palestinians. They are
primarily aimed at providing a cheap fix for European public opinion, which is concerned
about Palestinian rights, and which largely condemns the violations of law committed by
Israel. In this matter of labelling, its advocates are not seeking the observance of
international and EU law. On the contrary, these “soft” legal measures aim to deconstruct
and delegitimise the status of that law, as an essential primary source of reference for a
just settlement of the question.

In order to form an opinion, it is certainly necessary to listen to the primary interested
party: the Palestinians. It is they who are confronted with the colonial businesses, the
production and marketing of whose products represents major harm. It is noteworthy
that the Palestinians, their civil society resistance networks no less than the farmers and
their unions, are not demanding the labelling of these products in Europe, but that their
marketing be prohibited. This explicit demand was reaffirmed on 4 February 2013, in the
appeal “Farming Injustice: End all Trade with Israeli Agricultural Companies” on the
occasion of a worldwide day of action against the Israeli agri-food industry. All the
Palestinian farmers’ organisations signed that appeal within the framework of the BDS
(Boycott, Disinvestment, Sanctions) campaign.

We should also examine the legal situation on the question of products from the
colonies. This examination will enable consideration and assessment, from a legal point
of view, of how well-grounded are the Palestinian demand for prohibition and the
labelling measures proposed by certain European governments.

Contents
I – Products from the colonies: what does international law say?
II – What does EU law say about products of the colonies?
Conclusion
Notes

I – Products from the colonies: what does international law say?

From the legal point of view, the situation of the Palestinian Territories is extremely clear.
Since the war launched by Israel in 1967, and during the occupation that continues to
this day, the Palestinian Territories are occupied territories governed by international
humanitarian law. The 4th Geneva convention of 1949 and the 1907 Hague Convention
are the two fundamental, applicable texts, supplemented since 1995 by the Treaty of
Rome which instituted the International criminal Court. The fallacious arguments set out
by the Supreme Court of the State of Israel, seeking to deny the legal reality of occupied
territories and, consequently, asserting the non-applicability of international
humanitarian law, were swept aside by the International Court of Justice1, as well as by
the Conference of States Parties to the 4th Geneva Convention (1999)2. The reminders, by
the UN General Assembly and by the Security Council, of the Convention’s applicability to
the case of Palestine also remain unchanged3.

1) Hague Regulations
The 1907 Hague Regulations set out the definition of an occupied territory4, they specify
the occupier’s duties5, what it may and may not do. Requisitions in kind are allowed, but
only for the needs of the army of occupation6. On the other hand, private property must
be respected and may not be confiscated7. The occupier is only an administrator and
usufructuary, of public buildings, real estate, forests and agricultural estates8.
With regard to the Hague Regulations, the establishment of colonies, whether
agricultural, industrial or residential, does not stem from any military requirement9;
indeed, it involves the destruction of real property and public buildings as well as major
violations of private property.

2) Fourth Geneva Convention
This Geneva Convention regulates the treatment of civilian populations in the event of
armed conflict and occupation. It expressly prohibits forced transfers, whether collective
or individual, as well as deportations from the occupied territory. Similarly, the
Convention prohibits the occupying power from either transferring part of its own civil
population into the territory that it occupies10, or destroying property and real estate
belonging collectively or individually to private persons or public bodies11.

These “serious violations” of the 4th Geneva Convention are the very basis of Israel’s
colonisation and occupation policies that European governments constantly and
repeatedly condemn without, however, attempting to put an end to them. Nonetheless,
these same States have undertaken12 “… to respect and to ensure respect for the present
Convention in all circumstances”.

This undertaking, set out in the Article 1 of the 4th Geneva Convention, as in all the
Geneva conventions is not just a figure of speech. The purpose of the Convention is so
much loftier, it is so universally recognised as a necessity for civilisation, that we feel the
need to proclaim it as much, if not more so, for the sake of the respect it commands as
for that we can expect the opposing side to afford it. The lack of will on the part of the
European states to respect this undertaking by applying measures that could put an end
to the colonisation of the Palestinian territories by Israel, in itself constitutes a violation
of the 4th Geneva Convention.

3) Statute of the International Criminal Court
The latest advances with regard to international law render this European apathy the
more surprising. Indeed, the statute of the International Criminal Court that came into
force in 2002 reclassified certain requirements of international humanitarian law. Thus,
forced transfers of populations and deportations, destruction of goods and the transfer
of its own population by the occupying power, defined by the 4th Geneva Convention as
“serious violations” of the laws of war, have been reclassified and designated as “war
crimes” by the Statute of the International Criminal Court13.

4) Products of the colonies
Products of the colonies and, consequently, their labelling, are not questions explicitly
dealt with by international humanitarian law or international criminal law. However, these
define and proscribe the actions and processes that make them possible. These products
from the colonies are the direct consequence of these illegal acts and processes. The
general legal principle Fraus omnia corrumpit” (fraud corrupts everything) applied to this
particular case elicits an unequivocal response: the illegality of the colonisation renders
fraudulent or null and void all activities and claims based upon it, in particular the
production and marketing of merchandise arising from it. Labelling seems, at the very
least, a problematic response. How can one use a marketing arrangement to respond to a
war crime?

5) Complicity
Furthermore, the question of facilitating or contributing to the crime is another factor,
introduced 1into international criminal law by the Statute of the ICC, which must be taken
into account. Indeed, production of merchandise in the colonies constitutes a war crime
and this raises the question of the criminal liability of those who fail to oppose its
production and marketing14. It is justifiable to consider labelling that does not prohibit
the crime but that accommodates it, as falling within this concept of complicity.

From the point of view of international humanitarian law, it is clear that the products of
the colonies are illegal and, on this point of legal scrutiny, it is unchallengeable that the
Palestinians’ demand, that marketing of these products be prohibited, appears to be well-
grounded.

However, before drawing a definitive conclusion, it is as well to look at EU law. This might
contradict international humanitarian law.

II – What does EU law say about products of the colonies?

1) General context
The Treaty of Lisbon holds that: “The Union is founded on the values of respect for human
dignity, freedom, democracy, equality, the rule of law and respect for human rights,
including the rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail.” (Article 1 a)

The CFSP (EU Common Foreign and Security Policy) reaffirms these values and principles
in the context of external action. This rests upon “respect for the principles of the United
Nations Charter and international law”15.

Even if this is obvious, we note that Israeli colonial actions (forced movements of
population, deportations, theft of land and water, settling its own population in the
occupied territories, unlawful exploitation) do not meet the norms and values that the EU
member states have established for themselves.

2) Association agreement
In 1995, within the framework of the Barcelona Process16, the EU committed itself to the
development of partnerships with other countries in the Mediterranean basin (Algeria,
Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Syria, Tunisia, Turkey and the
Palestinian Authority).

The EU-Israel Association Agreement, which was concluded in November 199517 and
which came into effect in June 2000, exempted imports and exports between the EU and
Israel from customs duties. Only products entirely sourced in Israel, or of different
provenance but having been sufficiently transformed in Israel, are covered by the
Agreement. The latter applies only in the context of Israel’s internationally recognised
borders, those of 1949. Products originating in colonies in the Occupied Territories
administered by Israel should not benefit from the preferential customs treatment. A
similar agreement was signed by the EU with the PLO (Palestine Liberation Organisation)
acting for the Palestinian Authority18. The West Bank and the Gaza Strip are the sole
territories where this Agreement applies.

The duration of these Association Agreements is subject to compliance with the EU’s
founding and governing values and principles.

. The European Parliament voted the suspension of these Association Agreements in
April 2002 on the basis of Israel’s non-compliance with these values. The Commission and
the Council failed to act on this, on the pretext that the Parliament’s vote was not
binding.

19

3) A continuing fraud
Since the entry into force of the Association Agreement, the State of Israel has not
complied with its terms and has made fraudulent declarations of origin, exporting
products originating from the Occupied Palestinian Territories (both colonies and
Palestinian), under Israeli certificates.

On a number of occasions, the European authorities have communicated their doubts
over the validity of certificates issued by Israel, in particular in 1997, 1998 and 2001. In
the face of the massive and repeated nature of these frauds, the Commission
promulgated a technical arrangement (Notice No. 2005/C 20/02)20. This Notice required
that, from 1 February 2005, all product transport certificates should bear “the name of
the town, village or industrial area, or the place of production conferring originating
status”. In spite of this new regulation, the fraud continued to be systematic, due to the
lack of joint, on-site inspection of certificates of origin issued by Israel.

4) Labelling to avoid imposing sanctions
In the 2008, the British Government conducted an enquiry into agricultural products
exported by Israel to the United Kingdom. Customs inspections revealed the
ineffectiveness of the 2005 technical arrangement. The enquiry report concluded that it
was impossible to guarantee that the products really came from the area shown on the
certificate of origin. The investigators noted numerous false declarations21. One might
have expected that the British government would punish these frauds according to EU
law. However, it did nothing but, in the name of the protection of consumers’ rights, in
December 2009 it published a non-binding code of conduct asking distributors to
differentiate the labelling of products from Israeli colonies23.

Four years after its publication, it is noteworthy that the main result of this measure has
been the intensification of Israeli fraudulent practices. Products from the colonies are
now exported under cover of places of origin located within Israel. The fraud is not
difficult to commit. In the absence of any joint, on-site inspection, it is sufficient for Israel
not to apply the 2005 technical notice; a simple amendment of entries on packaging and
certification documents is all that is needed. Dawood Hammoudeh, Executive Manager of
the Palestinian Farmers Union, UAWC, quite rightly declared, at the beginning of 2013,
“Accurate labelling of products from settlements becomes almost impossible in the
context of outright deception by Israeli suppliers, especially when it is Israeli companies
themselves managing the import of products from the colonies …24 .»

5) The BRITA Ruling
This 201025 ruling by the European Court of Justice caused much commotion. For the first
time, the highest legal authority of the EU made a legal ruling on the question of
products from the colonies.

The affair goes back to 2002. The German company Brita was importing drinks makers
and syrups made, by Soda-Club, in Mishor Adumim, the industrial park of the West Bank
colony of Ma’ale Adumim. The German customs service refused to apply the preferential
customs duty demanded by Brita because of the geographic location of Soda-Club.
Questioned by German customs on the precise origin of the merchandise, the Israeli
authorities replied that they originated from an “area subject to Israeli customs
authority”. Taking issue with the vagueness of this reply, the German customs upheld
their original decision. Brita challenged this before the Hamburg Finance Court, which
asked the European Court of Justice to issue an interlocutory ruling on a specific
question:

– Whether goods manufactured in the Occupied Palestinian Territories could benefit from
preferential treatment under the EU-Israel Agreement.

– In the event that the response to this question was negative, could the State of Israel
use the EU-PLO Agreement to certify products manufactured in the Occupied Palestinian
Territories?

– Are certificates issued by Israel for those products that originate in the Occupied
Territories enforceable against EU countries?

The European Court of Justice replied in the negative to these three questions. However,
the BRITA Ruling has further repercussions, as the legal arguments used by the judge in
response to the questions posed are, legally, as important as the actual conclusions.
What did the judge say with regard to the Notice?

First, the EU concluded two distinct association agreements, one with Israel and the other
with the PLO acting on behalf of the Palestinian Authority.

Second, each of those Association Agreements applied to a particular territorial area. The
UE-Israel Association Agreement provides that it applies to the “territory of the State of
Israel” (Article 83). The EU-PLO Association Agreement states that it applies to the
“territory of the West Bank and the Gaza Strip” (Article 73).

Finally, Israel and the PLO each have exclusive authority to issue certificates of origin for
merchandise or to grant approval to exporters located within the territory under their
administration.

Therefore: only the Palestinian Authority is qualified to issue a certification document for
merchandise originating in the West Bank and Gaza and this is the case whoever the
producer may be, whether Palestinian, Israeli colonist or national of any other state. This
certifying power is exclusive. The state of Israel has no power to certify for the West Bank
or the Gaza Strip and, therefore, certification documents that it issues for the products of
West Bank Israeli colonies are worthless and are null and void. The regulation states that
merchandise without a certification document is prohibited from entering the territory of
the European Union.

In fact, the BRITA Ruling gives a definitive answer to the question of labelling. That
question is irrelevant and cannot be posed, as one cannot label merchandise that is
prohibited from entering the territory of the EU because it lacks the necessary
certification documents. Merely applying the decision of the European Court of Justice
should, purely and simply, entail the prohibiting of entry of products from the colonies.

6) Labelling as a means of not applying the Brita Ruling
One can easily understand the reluctance of European leaders to acknowledge the BRITA
Ruling when they talk about the problem of products from the colonies, because this
decision clearly shows them how it should be legally resolved: prohibition of entry to EU
territory.

Just recently, the reply by Laurent Fabius, Minister of Foreign Affairs, to the written
question from Patrice Carvalho,26 Deputy for Oise, perfectly illustrates this refusal to
apply the ruling of the European Court of Justice which would entail sanctions against
Israel.

Presenting the most recent Israeli violations of Palestinian rights, the Deputy for Oise
recalled that these should incur the suspension of the Association Agreement. While
waiting for such a measure to be taken by the EU, he asked Laurent Fabius whether
France ” … could not prohibit the entry of products coming from the colonies, since it
does not recognise the legitimacy of these colonies in the light of the 4th Geneva
Convention?”

In his response, the Minister of Foreign Affairs, completely stonewalling on the BRITA
Ruling, indicated that “France complies with the C-20 Notice to importers, of 25 January
2005, published in the official Journal of the European Union.” As we saw previously, this
2005 technical notice has shown itself to be ineffective because there is no joint
inspection of Israeli certification practices. But, more seriously, this just refers to a
technical notice, which has no legal standing compared to the BRITA Ruling of the
European Court of Justice. Why should Laurent Fabius commit such an omission? The rest
of his reply sheds light on this: “France is currently investigating, together with several of
its European partners, the possibility of promulgating a code of conduct on distinctive
labelling of products from the colonies, such as currently exists in the United Kingdom
and Denmark.” This project contradicts the BRITA Ruling.

Conclusion

Both international and EU law are inclined to support the position of the Palestinians who,
justly, demand that the products of the colonies be prohibited from being marketed in
Europe. The refusal of the European authorities to apply the law and to impose sanctions
in response to the violations committed by Israel, allows the injustice to continue with
complete impunity. Laurent Fabius’ concern and that of his peers is that public opinion,
which supports the Palestinians, should not see them as being the promoters and sworn
protectors of that impunity. Thus, they have to continually renew the argument and
invent stratagems that have the trappings of legality, but that carefully avoid
implementing the law, labelling products from the colonies being the latest manifestation
of this

We have seen that these labelling measures are not about applying the law but about
denying it. They negate international humanitarian and EU law.

Moreover, regardless of the opinion that one might have on the two-state option
supported by the EU states, it is clear that these labelling measures totally destroy the
credibility of the political position of the EU Member States with regard to Palestine. Can
the leaders of these European states seriously pretend to support the establishment of a
viable Palestinian state, when they trample on the tiny amount of sovereignty they have
granted it up until now? For, in the context of the EU-PLO Agreement, the Europeans
accorded to the Palestinians the exclusive right to certify merchandise produced on their
territory. Yet, implementing labelling of products from the Palestinian territory, but which
has been certified by another state negates that right. This is certainly a negation of
Palestinian sovereignty.

About the author
Christophe Perrin is a member of BDS France. He also organises the Legal Coalition, an
offshoot of the Coalition against Agrexco. He is a specialist at the Cimade [French
organisation for the defence of migrants’ rights], on questions of xenophobia, racism and
discrimination.

Translation Barbara Finch

Notes

1 ICJ 9/72004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

2 The States Parties to the 4th Geneva Convention adopted the application of the text to the Occupied
Territories, at their conference of 15 July 1999. In the final statement, they “reaffirmed the applicability of the 4th
Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem.” Then, on 5 December 2001, the
High Contracting Parties having regard, in particular, to Article 1 of the 4th Geneva Convention of 1949, reaffirmed
once more “the applicability of the Convention to the Occupied Palestinian Territory, including East Jerusalem”.
Furthermore, they recalled “the respective obligations under the Convention of all High Contracting Parties (para. 4-7),
of the parties to the conflict (para. 8-11) and of the State of Israel as the Occupying Power.”

3 General Assembly, Resolutions 56/60 of 10 December 2001 and 58/97 of 9 December 2003.
Security Council Resolution 237 (1967);
Security Council Resolution 271 (1969);
Security Council Resolution 446 (1979);
Security Council Resolution 681 (1990);
Security Council Resolutions 799 (1992) and 904 of 18 December 1992.

4 Article 42. “Territory is considered occupied when it is actually placed under the authority of the hostile army.
The occupation extends only to the territory where such authority has been established and can be exercised.”

5 Article 43 imposes upon the occupier the duty to “take all the measures in his power to restore, and ensure, as
far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

6 Article 52. “Requisitions in kind and services shall not be demanded from municipalities or inhabitants except
for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a
nature as not to involve the inhabitants in the obligation of taking part in military operations against their own
country.”

7 Article 46. “Family honour and rights, the lives of persons, and private property, as well as religious
convictions and practice, must be respected. Private property cannot be confiscated.”

8 Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real
estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must
safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

9 The International Court of Justice holds that the principle of distinction between military and civil property is
one of the “intransgressible principles of international customary law”.

10 GC IV Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from

occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are
prohibited, regardless of their motive. The Occupying Power shall not deport or transfer parts of its own civilian
population into the territory it occupies.

11 GC IV Art. 53. “Any destruction by the Occupying Power of real or personal property belonging

individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

12 GC IV Art. 1. – “The High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.”

13 ICC Statute, Art. 8. 2.a.iv. and Art. 8. 2.b.viii.

14 ICC Statute Art. 25. 3.c-d: “In accordance with this Statute, a person shall be criminally responsible and

liable for punishment for a crime within the jurisdiction of the Court if that person: …
c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means for its commission; d) In any other way contributes to the
commission or attempted commission of such a crime by a group of persons acting with a common purpose.

15 CFSP

“1. The Union’s action on the international scene is guided by the principles which have inspired its own creation,
development and enlargement, the principles it seeks to advance in the wider world: democracy the rule of law, the
universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of
equality and solidarity, and respect for the principles of the Charter of United Nations and international law.

“2. The Union shall seek to develop relations and build partnerships with third countries and with international
organizations, regional or global organizations which share the principles referred to in the first paragraph. It shall
promote multilateral solutions to common problems, in particular in the framework of the United Nations.”

“3. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in
all fields of international relations in order to: …

“c. to preserve peace, prevent conflicts and strengthen international security, in accordance with the principles of the
UN Charter and the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those
relating to external borders;”

16 Euro-Mediterranean Ministerial Conference, Barcelona, 27 and 28 November 1995.

17 Euro-Mediterranean Agreement establishing an association between the European Communities and their
Member States of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995
(OJ 2000, 147, p.3).

18 Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European
Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian
Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997, L
187, p. 3).

19 EU/Israel Agreement, Art. 2. “Relations between the Parties, as well as all the provisions of the Agreement

itself, shall be based on respect for human rights and democratic principles, which guides their internal and
international policy and constitutes an essential element of this Agreement”.

20 Notice to Importers, Imports from Israel into the Community (2005/C 20/02).

21 House of Commons debate, 27 January 2010, Column 313 WH EU-Israel Trade Agreement.

23 Technical advice: labelling of produce grown in the Occupied Palestinian Territories – Department for
Environment, Food and Rural Affairs 10/12/2009.

24 BDS: Farming Injustice – International trade with Israeli agricultural companies and the destruction of
Palestinian farming 9/2/2013.

25 Judgment of 25 February 2010, C-386/08 Brita GmbH / Hauptzollamt Hamburg-Hafen.

26 French 14th National Assembly, Question No. 15233 – published in the OJ of 08/01/2013, page 120. Reply
published in the OJ of 19/02/2013, page 1812.

Art. 21.

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