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Cameron huffs and puffs but Israeli settlements remain illegal

In its attempts to stymie the BDS campaign, the UK government has fundamentally misunderstood the logic underpinning measures directed at Israeli settlements

Reviewing the British government’s procurement guidance banning publicly funded bodies from engaging in boycotts, there is undoubtedly much that will please Israel and its supporters. But once the dust has settled, these new measures may actually prove to be a pyrrhic victory.

Its unveiling during a trade visit to Israel by Cabinet Office Minister Matthew Hancock achieved a quick and easy political win for Downing Street, and elicited ‎praise from an ebullient Israeli prime minister.

Despite the latter’s continued undermining of the basis for a two-state solution to the Israeli-Palestinian conflict, currying favour with Israel was always one of the main goals of this guidance, ever since it was first announced on the margins of the Conservative Party conference in October. Another goal of course being the opportunity to lay into the “hard left” policies of the Labour Party.

As has been made clear from the accompanying ministerial comments, the main target is the Boycott, Divestment, and Sanction campaign (BDS) against Israel’s occupation. In doing so, the UK has joined an international campaign orchestrated by Israel to roll back the movement worldwide. Such efforts have already led France to ban calls to boycott Israeli products, a raft of anti-boycott legislation at the US state level, as well as a particularly alarmist Congressional hearing that described BDS as a national security threat…to the US.

Although not directly affecting private citizens or businesses, the government’s move targets the “municipal militancy” that apparently threatens the country’s economic and national security, allegedly sowing divisiveness within British communities through the use of “politically motivated boycott and divestment campaigns conducted against UK defence companies and Israel”.

Political headache

This has potentially set a number of worrying precedents, not least steamrolling over town councils and throwing Prime Minister Cameron’s pledge to devolve powers to local authorities under the bus, in what has already been compared to shoving “a pillow to the face of UK local democracy”. But all of this may ultimately have bought the government very little besides a number of political headaches.

In attempting to square its political ambition with pre-existing UK policy positions towards the conflict, the government has at times sounded rather schizophrenic. Many of the examples cited as apparent attacks on Israel actually concern Israeli settlements, which are built on occupied Palestinian land and not recognised as a legitimate part of its territory. In conflating together Israel and its settlements it has gone against its own longstanding view on the illegal of Israeli settlements and its support for a Palestinian state based on Israel’s 1967 borders.

Statements by officials in defence of Israeli settlements also contradict the UK’s business advisory which warns of “clear risks related to economic and financial activities in the settlements”. This is further echoed in the Scottish government’s own procurement policy note published in August 2014 which discourages businesses from trading/investing in settlements entities. Such language reflects the provisions of international law that require third parties to ensure that their relations with an occupying state do not give legal effect to the occupying power’s unlawful acts or facilitate human rights violations.

By adopting Israel's claim that actions against Israeli settlements are tantamount to boycotts and delegitimisation of Israel, the government seems to have not only muddied its own position towards the conflict, but also fundamentally misunderstood the logic underpinning measures directed at Israeli settlements. The result has been that the UK has attempted to legislate what it cannot attack, and attack what it cannot legislate.

Grassroots action

BDS is after all a predominantly grassroots movement driven by consumer choices, civil society action, and private political conscience, none of which will be affected by this guidance.

Conversely, the actions of publicly funded bodies – as well as of many European companies, financial institutions and pension funds – to exclude Israeli settlements from their operations have been driven by a legal necessity to ensure compulsory compliance with domestic law and a desire to minimise the financial and legal risks of certain types of investments.

This remains intact under the new guidance. The alternative would see pension funds having their hands tied, potentially leaving them with stranded assets. This legal necessity is also what has compelled the EU and its member states – including the UK – to differentiate between Israel and its settlements within their bilateral relations.

And despite all the political spin emanating from party offices, the government was ultimately unable to bend international law to meet its political agenda. Instead, the actual language of the new guidance is firmly grounded in the domestic and international law norms that regulate the external relations of the EU and its member states with situations of belligerent occupation/annexation.

To this effect, it warns that “the European Commission can bring legal proceedings against the UK government for alleged breaches of EU law by a UK contracting authority, leading to formal action being required to rectify the breach, and substantial fines against the government”.

The guidance also places a strong emphasis on the EU’s procurement directives and the World Trade Organisation (WTO) regulations, and, curiously, even provides flexibility for authorities to take account of wider matters in the procurement process, such as social and environmental factors, potentially leaving the door ajar for ethical investment decisions.

Illegal settlements

While the attempts to incorporate these political considerations in domestic law are good news for Israel, they do nothing to protect its settlements given that the international community has been unequivocal in its non-recognition of Israeli sovereignty over the occupied territories. Quite simply, neither the UK nor the EU considers the settlements to be part of Israel.

Moreover, settlement-linked entities are not targeted because they are Israeli or Jewish, but because their establishment and maintenance entails the exercise of Israeli sovereign authority in the occupied territory, which has had catastrophic effects in respect of Palestinian rights.

In seeking to exclude settlements from their dealings with Israel, third parties are doing nothing more than adhering to their self-defined obligations under international law, and their legal necessity to guarantee the consistent implementation of domestic law.

Far from a knock-out blow against efforts to hold Israel accountable for its internationally unlawful acts in the occupied territories, the government’s new procurement guidance may therefore have ended up given a subtle stamp of approval to measures based on legal necessity against Israeli settlements.

- Hugh Lovatt is the Israel/Palestine coordinator for the Middle East and North Africa Programme of the European Council on Foreign Relations (ECFR). You can follow him on Twitter @h_lovatt

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: British Prime Minister David Cameron makes a statement to the media outside 10 Downing Street in London on 20 February, 2016 (AFP).