We have a moral and legal obligation to pass the Occupied Territories Bill

By Pearce Clancy.

Four months on from the General Election, talks between Fine Gael, Fianna Fáil, and the Green Party are coming to a head and likely to result in a Programme for Government. Although originally expected to be finalised over the weekend, at the time of writing the final issues are yet to be hammered out by leaders; amongst these is the Control of Economic Activity (Occupied Territories) Bill.

Although we do not know the details of negotiations, the battle lines, assuming all parties have maintained their previous positions, see Fianna Fáil and the Green Party in support of the Bill, and Fine Gael opposed.

Initially introduced in the Seanad by independent Senator Frances Black, the Occupied Territories Bill’s proposal is straightforward: products and services that originate from illegal settlements in occupied territories should not be available for purchase on Irish shelves.

The Bill’s application is not limited to the occupied Palestinian territory and the occupied Syrian Golan, but it has clearly been inspired by the large-scale production and export of goods such as fruit, cosmetics, and construction equipment from illegal Israeli settlements in the Golan and the occupied West Bank, including East Jerusalem.

Despite this, it could easily be applied to territories such as the Western Sahara, occupied by Morocco, and South Ossetia and Abkhazia, both occupied by Russia. If a future government were feeling ambitious, a case could even be made for its application to Tibet.

Profiting from occupation

Yet, as the primary focus in the discussion, Palestine is worth considering. At the time of writing, the Israeli government has pledged to annex its illegal settlements in the West Bank starting 1 July, mirroring the previous and ongoing annexation of East Jerusalem and the occupied Syrian Golan.

The Prosecutor of the International Criminal Court, responsible for trying individuals suspected of war crimes, crimes against humanity, the crime of genocide, and the crime of aggression, is also gearing up to launch a criminal investigation into the situation in Palestine. This is on top of the long history of human rights violations, including killings, displacement, and the oppression of Palestinians, both in Palestine and abroad.

In other words, things in Palestine are bad, and are likely to get worse. Nonetheless, Ireland still allows the importation and selling of products from Israeli settlements, thereby benefiting from the steadily deteriorating human rights situation.

Fine Gael, through its opposition to the Bill, is attempting to maintain this status quo, and our collective complicity in the commission of human rights violations and international crimes.

Make no mistake: the situation in Palestine would not have reached this point without global free trade with settlements. Through cheap rent, labour, and tax benefits, multinational corporations have been enticed into operating with or out of settlement.

Airbnb advertises rentals in so-called “Judea and Samaria”, Coca-Cola produces its products in an industrial settlement where the Palestinian villages of Bit Hanina, Al-Ram and Dahiyat al Bareed were demolished, and so on.

Multinational and Israeli corporations have done this for decades, displacing and dispossessing Palestinians to make room for illegal settlements, including factories, mines, and warehouses. These corporations help to propagate the myth that commercial settlements contribute to a corporate coexistence, where Palestinians work side-by-side with settlers, as opposed to being underpaid, denied basic labour rights, and having their own economy held captive in a purgatorial state of de-development.

Ireland is complicit in oppression of Palestinians

Whether this creates a moral obligation to pass the Bill is up to you: that it creates a legal obligation is fact. Under international law, states are under a responsibility not to recognise unlawful situations, and to refrain from assisting in the maintenance of the illegal situation.

That annexation and the construction and maintenance of Israeli settlements are unlawful is clear and has been reaffirmed by the United Nations Security Council, and the International Court of Justice in The Hague.

Ireland has not recognised the occupation of Palestine as legitimate, but it has certainly contributed to maintaining it through normalising the international commercial relationship with Israel’s illegal settlement enterprise. We can rectify this by enacting the Occupied Territories Bill.

Fine Gael’s opposition was ostensibly based on a legal opinion provided by the Attorney-General. The opinion was leaked to Palestinian rights group Sadaka last week and is reported to be insubstantial in its legal assessment and analysis. It is now clear that Fine Gael’s position is based purely on political posturing.

The opinion has not been made public and has not been seen by the writer; however, according to Sadaka, it argues that the Bill is incompatible with EU law and, according to reports from the Irish Independent, may be unconstitutional on the grounds of being too “vague”.

In truth, the Bill is anything but vague, and international legal experts such as Professor of EU at King’s College London, Takis Tridimas, and Professor James Crawford, now a Judge of the International Court of Justice, have made it clear that there is no bar under EU law to prohibiting the sale of goods from illegal Israeli settlements.

In fact, it is telling that incompatibility with the trade rules of the then-European Economic Community was the exact, and entirely unfounded, excuse given by Fine Gael and a previous Attorney-General, Peter Sutherland, for not prohibiting trade with apartheid South Africa.

Nonetheless, Sutherland’s successor John Rogers provided an opposing opinion. In 1987 trade with South Africa was prohibited, and Nelson Mandela extended his thanks during his visit to Ireland in 1990.

US applies political pressure

Rather, a number of political factors appear to be influencing Fine Gael’s contrarian position. The most public of these is outside political pressure, in particular from the United States. The Bill has been followed closely by American politicians and observers interested in protecting Israel from any repercussions for its continued contempt for international law.

Early last year, a letter from members of the US Congress was sent to the Irish government, threatening the economic ties between the two states, including the presence of American multinationals in Ireland.

On 17 June elections will be held for membership to the United Nations Security Council, with Ireland on the ballot for a 2021-2022 term. It is possible that the Fine Gael leadership see the Bill as a threat to Ireland’s chances of winning a seat, and its working relationship with its would-be colleagues, particularly the United States and United Kingdom.

Programme for Government

Ultimately the final decision is not for the leaders to make. Any Programme for Government must be accepted by the wider parties, through their respective internal mechanisms. Fine Gael’s is the most complex, with separate portions of the vote going to the general membership, the executive council, and the parliamentary leadership, the latter of which enjoys a 50 per cent stake.

Fianna Fáil’s voting procedure is a standard vote across the entire membership, and requires a simple majority. The Green Party’s system, which also includes the entire membership, needs a two-thirds majority.

If the Bill is absent from the Programme, Fine Gael will undoubtedly be able to keep its internal electorate in line, but the same is not immediately clear for Fianna Fáil, and particularly not for the Greens. Both parties included a prohibition on trade with illegal Israeli settlements in their manifestos and would need to explain any betrayals on this point, and any others which emerge, to their respective memberships. 

In a sense, that no other State in the world has banned the sale of settlement goods seems strange, since it is the responsibility of all states to do so. The settlements themselves are illegal and amount to war crimes and crimes against humanity. They are to be annexed in a few weeks in another war crime.

The fact that we are buying fruit, cosmetics, and construction supplies from these settlements suggests we’ve collectively and implicitly decided, on a global scale, that it’s okay and that, really, we don’t care. It has nothing to do with us and is far, far away.

And yet to millions in Palestine, it does matter. Passing the Occupied Territories Bill won’t affect us individually, and won’t have much impact, if at all, on the Irish economy, but could be the first step towards ending the commercial settlements in the occupied Palestinian territory, and addressing the root causes of Palestinian dispossession, and their domination and oppression.

Come what may in the Programme for Government, members of Fine Gael, Fianna Fáil, and the Green Party should keep this in mind as they cast their vote.

Pearce Clancy is a Legal Researcher with Al-Haq, a Palestinian human rights organisation based in the occupied Palestinian territory. Follow Pearce on Twitter @pearceclancy and follow Al-Haq @alhaq_org.