Phon van den Biesen and Adri Nieuwhof, The Electronic Intifada, 10 March 2010

On 25 February, the European Court of Justice ruled that imports manufactured in Israeli settlements in the occupied West Bank shouldn’t benefit from a trade agreement between Israel and the European Union. The ruling follows protests of Israel’s export of products from the illegal settlements in the Occupied Palestinian Territories (OPT) to the EU and Switzerland labeled as “Made in Israel.” Products labeled as such benefit from favorable import taxes under the EU-Israel Association Agreement of 2000.

European parliamentarians, nongovernmental organizations and consumers in France, the UK, the Netherlands and Switzerland have continuously protested the labeling of products from Israeli settlements ranging from agricultural produce to Ahava cosmetics as “Made in Israel.”

Israel’s settlements in the OPT and the occupied Golan Heights violate the Fourth Geneva Convention, which prohibits the Occupying Power from deporting or transferring parts of its civilian population into the territory it occupies. In its 2004 Advisory Opinion on Israel’s wall in the occupied West Bank, the International Court of Justice (ICJ) confirmed that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

In January 2005, the Official Journal of the European Union informed importers that the preferential treatment provided by the EU-Israel Association Agreement will be refused to goods whose origin is in the OPT. A precedent was set in 2004 when German customs authorities excluded products from the Israeli company Soda-Club, Ltd., which manufactures in the Mishor Adumin settlement in the occupied West Bank.

However, Brita, the German importer of Soda-Club supplies, contested the decision. The EU’s Court of Justice was asked by the German court dealing with this issue if the goods manufactured in the OPT are covered by the EU-Israel Agreement as the Israeli customs authority claims.

In response the EU Court of Justice declared last month “that products originating in the West Bank do not fall within the territorial scope of that agreement and do not therefore qualify for preferential treatment under that agreement.” In other words, the court confirmed the obvious and ruled that the occupied territories cannot legally be considered to be part of the State of Israel.

According to the court, goods certified by the Israeli authorities as originating in Israel can receive preferential treatment only if they have been manufactured in Israel proper. Under the EU-Israel Agreement, the court added, Israeli authorities are obliged to provide sufficient information to enable the member states to determine the real origin of its exported products.

The Court of Justice’s decision vindicates the call of the UK Department for Environment, Food and Rural Affairs for more transparent labeling of produce grown in the OPT. The UK authority stated on 10 December 2009 that EU law requires such labeling and recommended that products labeled as “Produce from the West Bank” should indicate whether it is “Israeli settlement produce” or “Palestinian produce.”

The UK agency and the EU court decisions are indicative of the fast-growing international boycott, divestment and sanctions movement — more consumers are choosing not to buy products from the Israeli settlements. Consumers want to be informed of the true origin of goods and this right is enshrined in EU law. Directive 2005/29/EC on unfair business-to-consumer practices in the internal European market clearly states that such practices are prohibited, including misleading consumers about a product’s origin.

The EU court’s ruling is a welcome contribution to holding Israel accountable to international law. However, EU member states must enforce this ruling and similar stipulations in their national laws — such as the Netherlands’ provisions for the labeling of food products (article 5 g and article 20 of the Warenwet Commodities Act) and provisions in Dutch Civil Code. Consumers in the EU and Switzerland have sufficient laws and protections to enable them to hold companies accountable for importing products from the illegal Israeli settlements in the OPT and the occupied Golan Heights under the false label “Made in Israel.”

Phon van den Biesen is Attorney at Law in Amsterdam, the Netherlands.

Adri Nieuwhof is an independent consultant and human rights advocate based in Switzerland.