To: Rob Davies, Minister of Trade & Industry

Dear Minister

The proposed labeling of goods originating beyond Israel’s Green Line (no more than an old cease-fire line), is cause for grave concern.

The proposed labeling:

a)   Would express not only a political viewpoint, but one that’s in conflict with a history indelibly written into articles of international law.

b)   Would identify products from a territory for which no legal identity exists.

A label claiming, or implying, that Palestinian territory is occupied would mislead the consumer. That situation simply does not exist. No international law provides for Palestinian territory. And territory occupied, if it belongs to any member of the United Nations, belongs to Israel.

Governments, diplomats, political and civil activists might take offence, but that is the position according to international law. There simply is no Palestinian territory for Israel to occupy. If the South African government wants to identify products from outside of Israel proper, it will have to word the label carefully, or end up misleading, not protecting the consumer.

The following labels would mislead the consumer:

‘Made in Occupied PalestinianTerritories’

‘Made in the ‘West Bank’

‘Made beyond the Green Line’

None of those names have a legal identity. All wait upon a political settlement between two sides –Israel and the Palestinians.  Each label would misinform the consumer, contrary to the letter, and spirit, of the Consumer Protection Act.

The label we propose would avoid such problems, while helping consumers buy with correct knowledge:

Made in Judea and Samaria, by Jewish and Palestinian Arab workers.

Judea and Samaria is a real geographic territory that does wait upon a political settlement. A label so worded would accurately inform the consumer.

We now explain why the labeling proposed by the Minister of Trade and Industry is a political statement, and would therefore conflict with the spirit, and letter, of the Consumer Protection Act.

Occupation

No term has dominated discourse on the Palestinian-Israeli conflict more than ‘occupation.’ Hardly a day passes without the claim that Israel illegitimately occupies Palestinian territory. The supposed illegal occupation is invoked to explain the origins and persistence of the conflict; to complain of Israel’s alleged repressive and illegal acts (e.g. settlement-building); and to justify discriminatory treatment, the latest instance being the proposed labeling of products from ‘occupied’ territory.

In short, occupation has become a catchphrase, and like any catchphrase it means different things to different people. Some like to call the territories ‘OPT’ (Occupied Palestinian Territories); others refer to the ‘West Bank;’ yet others call them ‘disputed territories;’ while so-called Israeli settlers claim they live in ‘Judea and Samaria,’ the territory’s historic name from biblical times up until Jordan annexed the territories (illegally) in 1950.

Contemporary history

Certain contemporary facts are not in dispute. In the 1948 War Egypt captured the Gaza Strip, and Jordan took Judea and Samaria. Egypt did not claim sovereignty in Gaza, but in 1950 Jordan annexed Judea and Samaria, subsequently known as ‘The West Bank.’  The annexation was not recognized by international law, and even the Arab nations objected to it. In 1967, after the Six Day War, these territories, meant for the Jewish people’s national home, under international law, returned to Israeli control.

International law

The San Remo Resolution, 1920 and Mandate for Palestine, 1922

The San Remo Resolution, adopted by the Supreme Council of the Principal Allied Powers on April 25, 1920, is a document of binding and irreversible international law.  The Resolution was later incorporated into the Preamble of the Mandate for Palestine, approved by all 52 members of the League in 1922, (predecessor of the UN) and separately by the United States. The San Remo Resolution is the founding document not only for the State of Israel under international law, but also for that of Iraq and Syria.

The Mandate for Palestine laid down the Jewish right to settle anywhere between the Jordan River and the Mediterranean Sea.

The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency…close settlement by Jews, on the land…

No Palestinian Arabs in there; merely “other sections of the population.”  It means that all of Palestine is Jewish land, not Arab land. This continues in legal force today, and no action taken by the United Nations can nullify this binding act of international law. If it were otherwise, the states of Israel, Syria and Iraq would have no legal right to exist under international law, and the Ottoman Empire would not have been disbanded.

The 1967 War and Israel’s occupation

When Israel captured the West Bank and Gaza in the 1967 War it never acquired title to those territories by virtue of an act of war. Israel is therefore under no obligation to withdraw from the regions which San Remo and the Mandate for Palestine gave to the Jewish People.

The opinion of Professor Judge Stephen M Schwebel cannot be clearer on this matter.  He was elected to the International Court of Justice in January 1981, and subsequently re-elected twice, serving as president of the court from 1997–2000.

Judge Stephen Schwebel, Pres of ICJ

A state [Israel] acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense. Where the prior holder of territory had seized that territory unlawfully [Jordan], the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, a better title. As between Israel, acting defensively in 1948 and 1967, on the one hand, and her Arab neighbors, acting aggressively, in 1948 and 1967, on the other, Israel has the better title in the territory… including the whole of Jerusalem, than do Jordan and Egypt.

So Israel has more right than Jordan to be occupying the West Bank, and more right than Egypt to be occupying Gaza (it no longer does, of course, occupy Gaza). Note that Israel took the territories, not from Palestinians, but from Egypt and Jordan.

UN Resolution 242, 1967

After the Six-day War, UN Security Council Resolution 242 contained proposals of the Security Council to resolve the “Arab-Israeli conflict.”  Note the word ‘Arab.’ Nowhere in the UN resolution will you find a party to the conflict called the Palestinians. The resolution was adopted to end the state of belligerency then existing between the “States concerned” i.e.  Israel, Egypt, JordanSyria and Lebanon.

The UN took it for granted that territories evacuated by Israel would be returned to their pre-1967 Arab occupiers: Egypt and Jordan. UN Resolution 242 spoke of the need “for achieving a just settlement of the refugee problem” – not the Palestinian problem, mind. Who were the problem refugees? The Palestinian Arabs certainly, but also the larger group of 850 000 Jews expelled from Arab states during and after the 1948 war.

The entire international community saw it the UN’s way. Western democracies rejected the idea of Palestinian nationhood; so did the Arab-supporting Soviets; and even the Arab world recoiled at the idea of nationhood.  The King of Jordan viewed an independent Palestinian state as a mortal threat to his kingdom, while the Saudis saw it as a potential source of extremism and instability. Pan-Arab nationalists were as adamantly opposed, having their own designs on the region. In 1974, Syrian President Hafez al Assad openly referred to Palestine as “not only a part of the Arab homeland but a basic part of southern Syria.” 

 The Palestinian People

What of the Palestinian Arabs themselves?  If no one else saw them that way, perhaps  they were convinced of their distinctive identity? Far from it.

When he annexed the West Bank in April 1950, King Abdallah of Jordan moved quickly to erase all traces of Palestinian identity.  He made West Bank residents Jordanian citizens, and integrated them into the kingdom’s economic, social and political structures. The residents were comfortable with these arrangements in that they never demanded a state of their own. And leaders consented to the status quo when they enacted Article 24 of the National Covenant of the Palestine Liberation Organization, May 28, 1964.

This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, in the Gaza Strip or the Himmah area.

So from 1948 to 1967 (19 years) Palestinian Arabs accepted that Judea, Samaria, the eastern part ofJerusalem, and Gaza belonged to Jordan and Egypt.

A decade later, notwithstanding a new and unprecedented demand for a state of their own, Palestinians continued to identify with a broader pan-Arabism.  Zahir Muhsein, head of the PLO Military Department and member of the PLO Executive Committee explained why.

The Palestinian people do not exist. The creation of a Palestinian state is only a means for continuing our struggle against the State of Israel for our Arab unity. In reality, today, there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism. For tactical reasons, Jordan– which is a sovereign state with defined borders – cannot raise claims to Haifa and Jaffa. While, as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beersheba and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan. (Amsterdam newspaper, Dagblad de Verdieping Trouw, March 31, 1977)

Palestinian territory

But going forward, perhaps the Palestinians developed a taste, and a rightful claim, to a state of their own, in a territory called OPT. Professor Talia Einhorn, from the T.M.C. Asser Institute for international law in The Hague, followed by Alan Baker, will clear that up.

Professor Talia Einhorn

There is nothing in international law that requires a Palestinian state between the Jordan River and the Mediterranean, not even the UN Partition Resolution of November 29, 1947…it is merely a recommendation and nothing more…. The fact that the Arab states did not accept the Partition Plan voids the recommendation of any legal basis.

Alan Baker was legal counsel for Israel in the drafting of the Oslo Accords. Perhaps the agreements now in force, the Oslo Accords, give the Palestinians some kind of right to the occupied territories.

Signing Oslo Accords

He starts with the 1947 Partition Plan, to explain why today the Palestinians have no land to call their own.

 

Had the Arabs accepted the Plan of Partition, passed by the UN in 1947, they too would have had a state, and that would have been the end to Jewish rights of settlement in Judea and Samaria (the West Bank). But the Arabs did not accept the Plan. Hence those Jewish rights to settle the ‘West Bank’ did not end. Jewish settlements are not illegal.

 

In 1993 Rabin and Arafat signed the declaration of principles on the White House lawn. This aimed to: “Establish a Palestinian Interim Self-Government Authority, the elected Council for the Palestinian people…for a transitional period not exceeding five years, leading to a permanent settlement.”

The Declaration made no mention of a Palestinian state as the goal; nor did it call for a cessation of Jewish settlement activity.

 

Then, in 1995, Israel and the Palestinian Authority (PA) entered into an interim agreement. Again there was no mention of a Palestinian state as the final goal.  It provided only for an unspecified “outcome:”

Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of …negotiations. Neither party shall be deemed… to have renounced or waived any of its existing rights, claims or positions.  

 

In short, when Israel signed the 1995 interim agreement, in force to this day, it did not renounce any of its rights or claims to the occupied territories.

Conclusion & Recommendation

As much as the Minister of Trade would like the West Bank to belong to the Palestinians, international law is against it. There simply is no Palestinian territory for Israel to occupy. That piece of real estate exists only in the minds of those who pressed, and who advised the minister.     A label that conveys anything to the contrary would be putting over a political viewpoint, and mislead consumers.

We of the Judeo-Christian faith recommend an accurate, honest and informative label in compliance with the letter, and the spirit, of the Consumer Protection Act:

Made in Judea and Samaria, by Jewish and Palestinian Arab workers