George Orwell and EU law on products from Judea and Samaria

George Orwell’s classic 1984 is about a totalitarian state deliberately using language to condition its citizens’ minds. Through a continually-diminishing vocabulary, complete thoughts are reduced to simple terms of simplistic meaning. This meaning becomes the new truth.

In his 1946 essay “Politics and the English Language”, Orwell wrote: “In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness.”

For five decades, the European elite has been using language to condition ordinary Europeans to believe that all of the land outside the Green Line – including the Old City of Jerusalem, and many other areas of great historical and religious significance to the Jewish people – is “Palestinian” and that Jews have no connection with the land. This is being enforced at the national level. Repeated often enough, people believe it. And then those who challenge this Doublespeak are branded as liars.

Now Big Brother in Brussels is using law to impose its Newspeak. European importers are not allowed to call Judea and Samaria “Judea and Samaria”, and are being compelled to brand Israelis carrying on productive activities as “illegal”.

A good example is what is happening in the Netherlands at the moment. The Israel Products Centre (IPC) imports and sells many products, including wines produced outside the Green Line. Judea and Samaria (‘West Bank’) are outside the Green Line. In April 2019, the Dutch Food and Consumer Product Safety Authority (NVWA) inspected IPC’s shop in Nijkerk, responding to complaints that IPC sells these wines with a “made in Israel” label.

The NVWA is responsible for implementation of Dutch consumer protection legislation, including legislation implementing EU Regulation 1169/2011. This Regulation requires European importers of food products to ensure that consumers can make “informed choices”, that they are not “deceived” or “misled”, and that they can make “make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.”

Article 26 of the Regulation requires importers to specify the country of origin or place of provenance, where failure to do so “would otherwise imply that the food has a different country of origin or place of provenance”.

Earlier this year, IPC, seeking to comply with the law, amended its labels on wines produced outside the Green Line. The labels now state: “afkomstig uit een Israëlisch dorp in Judea & Samaria” (made in an Israeli village in Judea and Samaria).

Dutch BDS activists launched a fresh campaign, urging the NVWA to re-open its investigation into IPC’s labels. In July NVWA inspectors again visited IPC and announced their view that even the new labels are misleading and in breach of the legislation.

Last week two Dutch Ministers suddenly announced in Parliament that IPC’s labels are “deceptive” and “misleading consumers”.

Neither the NVWA nor the Ministers have explained why (in their view) the words “Israeli village in Judea and Samaria” are deceptive. They simply say the language is demanded by Brussels. Some MP’s have raised questions about this, the Ministers are yet to respond.

Essentially, the Dutch Ministers are saying that all Europeans should comply with the world-view of bureaucrats in Brussels – a world-view in which the Palestinians should be able to set up their judenrein state, and Jews have no historical or religious connection with the Old City of Jerusalem, or the mountains of Judea and Samaria.

EU Interpretative Notice

In 2015, the European Commission (at the request of 16 EU member states) published its infamous “Interpretative Notice on indication of origin of goods from the territories occupied by Israel since June 1967” (2015/C 375/05). As stated in the Preamble, the Notice confirms that “[t]he European Union, in line with international law, does not recognise Israel’s sovereignty over the territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the West Bank, including East Jerusa­lem, and does not consider them to be part of Israel’s territory, irrespective of their legal status under domestic Israeli law. The Union has made it clear that it will not recognise any changes to pre-1967 borders, other than those agreed by the parties to the Middle East Peace Process (MEPP).”

In the Psagot judgment in late 2019 the ECJ confirmed the reasoning of the Interpretative Notice. In light of Psagot, the Dutch government considers itself bound to implement the policy articulated in the Notice.

The Commission says goods imported into the EU from outside the Green Line may not have a label “made in Israel”, but must indicate they are from outside Israel. And if they originate from a “settlement”, they need to refer to that fact because, in the Commission’s view – as confirmed by the European Court of Justice in the Psagot Winery Case in 2019 – settlements are the result of Israel’s “illegal” settlement policies.

Saying that these territories are not part of Israel is one thing, but the Commission gets very muddled when it tries to define how these territories should be described. It promotes the use of the term ‘West Bank’ – even though that term is short for “West Bank of the Hashemite Kingdom of Jordan” and was introduced by Jordan after it had illegally attacked, occupied and subsequently annexed the area west of the Jordan River known to the Jewish people as Judea and Samaria – a deliberate attempt to erase the Jewish history of the area.

The Commission also says the label on a product made in any part of the ‘West Bank’ can read “made in Palestine” – even though this could suggest that Palestine is a State, and the Commission admits that most EU member states don’t recognize the existence of a “State of Palestine”.

And, most troubling, the Commission requires importers to stigmatize products made by Israeli nationals outside the Green Line as illegal – even though it has never been established (and, as explained below, cannot be established) that all such nationals, and their economic activities, are necessarily illegal.

Under European law, the question whether words “mislead” or “deceive” the consumer requires looking at “the presumed expectations which it evokes in an average consumer who is reasonably well-informed and reasonably observant and circumspect” (Case C-320/96 Gut Springenheide). This is problematic, because it is a relative, not absolute, test: it assumes that a person who is “well-informed” knows the truth about a given matter. But, as Orwell prophesied, that can no longer be assumed. In this modern world, where the secular media is far from objective, it is no longer self-evident that a “well-informed” person understands the truth.

In the case of Judea and Samaria, generations of Europeans have been fed the lie that this is the “West Bank”.

The root of the problem

The root of all of this is the EU’s policy since the early 1970’s that the whole of Judea and Samaria cannot be part of the sovereign territory of Israel. The EU justifies its formal position by arguing that the occupied territories (including “East Jerusalem”) are “Palestinian”, and that an occupying power cannot have sovereignty over occupied territory.

This policy started when Europe entered into the Euro-Arab Dialogue after the 1973 Yom Kippur war. It was formally adopted in the 1980 Venice Declaration. As Hans-Dietrich Genscher, then minister of Foreign Affairs of the German Federal Republic, declared at the Euro-Arab Dialogue Symposium in 1983, the Venice Declaration was issued in order to soothe Arab anger at Israel’s control of “Arab” land, and to comply with their demands that a Palestinian state be established.

So while Europe pays lip service to international law, its policy was neither developed in order to comply with international law, nor is it consistent with international law.

Rather, the EU twists the language of international law to fit its own political agenda.

Judea and Samaria under International law

The fact is that the status of ‘East Jerusalem’ and the ‘West Bank’ is contested, and that Israel has claims that are just as strong if not stronger than those of the Palestinian people, represented by the PLO. As the Israeli Attorney General stated to the International Criminal Court last December, Israel asserts that control of these territories is not only necessary from a security perspective, Israel has valid sovereignty claims based on a pre-existing line of legally-binding international instruments, beginning with the San Remo resolution of the Principal Allied Powers in 1920, the Mandate for Palestine endorsed by all 51 member States of the League of Nations in 1922, and the preservation of the Jewish people’s rights under both documents by virtue of Article 80 of the UN Charter.

Denying that any part of Judea and Samaria can (without Palestinian consent) ever be part of the Jewish State of Israel is a fundamental breach of these binding instruments in which Europe and the world community after WWI recognized that the Jewish people have a legal right to reconstitute their homeland “in Palestine”, based on their historical connection with the land.

While territory may not be obtained by means of occupation, international law does not uncontrovertibly establish that an occupying power cannot have sovereignty based on pre-existing instruments.

Nor does international law establish that the Green Line is a border, or that all of the territory outside the Green Line belongs to “the Palestinians”, or that Israel has no valid claim to sovereignty over any of that territory.

The EU’s blanket stigmatization of “settlements” as illegal is also a gross over-simplification of the law.  The international law of occupation forbids occupying powers from deporting or transferring their populations into occupied territories (art. 49(6) Fourth Geneva Convention). This prohibition applies to states; it does not characterize individual Israeli persons (or their economic activities) located in occupied territory as illegal. And, as leading academics such as Crawford and Dinstein have argued, not all Israeli’s living and working in these territories do so as a result of Israel’s settlement policies. It would need to be determined on a case-by-case basis whether a particular Israeli citizen living or carrying out economic activities outside the Green Line is doing so as a result of Israel’s policies.

The sovereign status of Judea and Samaria is currently the subject of dispute. In the proceedings before the International Criminal Court in “the Situation in Palestine”, the Court invited several international lawyers to advise it on the status of these territories. The group in which I participated argued (see here) that Israel has valid claims to these territories, and that the status of the ‘West Bank’ has never been decided and cannot be determined by external parties:

“… Neither the laws of occupation nor the principle of self-determination equate to the conferral of territorial sovereignty or fixing of territorial boundaries. Thus, in the Wall advisory opinion [the International Court of Justice Advisory Opinion in 2004], even though the ICJ affirmed the Palestinians’ right to self-determination and analysed issues through the lens of occupation, it did not decide the territorial boundaries of Palestine.”

By referring to Judea and Samaria as “West Bank” and “occupied territories”, European leaders are doing the same as Emperor Hadrian did in 135AD when he renamed Jerusalem “Aelia Capitolina”, and Judea “Palaestina”. By consistently stating that they are not part of Israel but of “Palestine”, and by branding all Israeli’s who live or carry on business there as criminals, the EU and its member states (such as the Netherlands) use language to impose on their citizens a one-sided and politically-motivated interpretation of history and the law.

Tragically, most Europeans no longer have any idea that these territories were called “Judea and Samaria” for centuries, that Jews have always been living there (in larger or smaller numbers, depending on how anti-Semitic their oppressors were), and that many Jews (even today) live there not because they are forced to do so, but because they feel a special connection with the land.

Worse still, those who challenge this “Newspeak” are themselves branded as deceivers.

George Orwell saw it coming.

About the Author
Andrew Tucker is an Australian-Dutch international lawyer. He is Director of The Hague Initiative for International Cooperation (thinc.) - a collective of international lawyers based in The Hague. See
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