In its attempts to stymie the BDS campaign against Israel, the UK government has fundamentally misunderstood the legal necessity underpinning measures directed at Israeli settlements.
There is undoubtedly much that will please Israel and its supporters in the British government’s new procurement guidance banning publically funded bodies in the UK from engaging in boycotts. But once the dust has settled, these new measures may actually prove to be a pyrrhic victory.
The unveiling of the guidance last week, 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 Netanyahu continuing to undermine any prospects for a two state solution to the Israeli-Palestinian conflict, one of the main goals of this guidance, since it was first announced, has been to curry favour with Israel.
Accompanying ministerial comments have made it clear that the main target of this guidance is the Boycott, Divestment, and Sanctions Campaign (BDS) against Israel’s occupation. By publishing this guidance the UK has joined an international campaign orchestrated by Israel to combat the movement worldwide. Such efforts have already led France to ban calls to boycott Israeli products, efforts by US States to enact a raft of anti-boycott legislation, along with a particularly alarmist congressional hearing that described the BDS movement as a national security threat…to the US.
Although the guidance doesn’t directly affect private citizens or businesses, it does target the “municipal militancy” that apparently threatens the UK’s economic and national security, allegedly sowing discord within British communities through the use of “politically-motivated boycott and divestment campaigns conducted against UK defence companies and Israel”. The guidance has potentially set a number of worrying precedents, not least steamrolling over town councils by seeking to remove their ability to make ethical purchasing decisions. In doing so, David Cameron appears to have thrown his pledge to devolve greater decision making powers to local authorities under the bus, in what has already been compared to shoving “a pillow to the face of UK local democracy”. All of this may have ultimately bought the government very little beside more 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 Israel and its settlements, the UK has gone against its own long-standing view on the illegality of Israeli settlements and its support for a Palestinian state based on Israel’s 1967 borders.
Statements by Conservative party officials in defence of Israeli settlements also contradict the UK’s Overseas Business Risk report 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 with/investing in entities with operations in Israeli controlled settlements. 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 its settlements are tantamount to boycotts and delegitimisation of Israel, the government seems not only to murkied its own position towards the conflict, but also fundamentally misunderstood the logic underpinning many of the measures it has already directed at Israeli settlements. The result is that the UK has attempted to legislate what it cannot attack, and attack what it cannot legislate.
BDS, after all, is predominantly a grassroots movement driven by consumer choices, civil society action, and private political conscious, none of which will be affected by this guidance. Conversely, the actions of publically 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.
Despite all the political spin emanating from party offices, the government has been unable to bend international law to meet its political agenda. Instead, the actual language of the new guidance is firmly grounded in the legal norms – both domestic and international – that regulate the EU and its member states in 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. Curiously, it even provides flexibility for authorities to take account of wider matters in the procurement process, such as social and environmental factors, potentially still leaving the door ajar for ethical investment decisions.
While attempts to incorporate these political considerations in domestic law are good news for Israel, they do little 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 on respect for 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 unlawful acts in the occupied territories, the government’s new procurement guidance may have ended up giving a subtle stamp of approval to measures based on legal necessity against Israeli settlements.
A version of this article was first published on Middle East Eye, here.