Israeli annexation, Canadian confusion

BY DAVID KATTENBURG

Will he or won’t he? Will Israeli Prime Minister Benjamin Netanyahu make good on his vow to annex the Jordan Valley and West Bank settlements, some thirty percent of the Palestinian territories Israel occupies, starting in early July, or will he heed the warnings of world leaders and stick to the status quo, which they support: creeping, de facto annexation?

Ambassadors to Israel from the European Union (EU) and a dozen member states have warned that annexation would spell an end to the ‘Two-State Solution’, something they insist is not dead, and that’s essential to regional “peace and security.” So have EU heavyweights Angela Merkel and Boris Johnson, who even invoked the ‘A-Word’. “What we are saying is that you have to have a two-state solution or else you have a kind of apartheid system,” Johnson warned, in a 2017 conversation with the Jerusalem Post.

In contrast, Canada’s Justin Trudeau – avowed champion of the “rules-based international order” in other situations (e.g. Russia’s annexation of Crimea) — has been slow off the mark. Fifty former Canadian diplomats and Foreign Affairs ministers, leading church groups and Canadian Friends of Peace Now urged him to do so. Finally, on June 2, in the midst of a media conference on Covid-19 and American unrest, someone popped the question.

“We are firm in our commitment to a two-state solution as a country,” Trudeau replied. “I have highlighted both publicly and directly to Prime Minister Netanyahu and alternate Prime Minister Benny Gantz the importance of staying away from measures that are unilateral, and our deep concerns and disagreements with their proposed policy of annexation.”

Canada is “very concerned that Israel moving forward with unilateral annexation would be damaging to peace negotiations and contrary to international law,” a Foreign Affairs spokesperson told CBC.

Really? Canada’s long-standing, avowedly ironclad trade and economic relationship with Jewish settlements in the occupied/colonized Palestinian territories tells a different story. Before going into the details, the legal gravity of Israel’s actions is worth emphasizing.

The legality of annexation

Rooted in the 1648 Peace of Westphalia, the prohibition against acquiring territory by force is older than the injunctions against slavery and genocide. Echoing this, Article 2(4) of the 1945 UN Charter states:

“All Members shall refrain … from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations [emphasis added]. Among the UN purposes listed in Article 1: “justice and international law,” “equal rights and self-determination of peoples,” and “respect for human rights and for fundamental freedoms for all without distinction as to race ….”

The illegality of territorial annexation is reiterated in the four Geneva Conventions of 1949, embodying the laws of war. In one of its most seminal statements on the matter, UN General Assembly Resolution 2625 (October 1970) declared that “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The UN Security Council has declared the same on eight occasions since Israel’s June 1967 conquest of the West Bank, most recently in UNSC 2334, in December 2016, and the International Court of Justice – the world’s highest judicial body – confirmed the prohibition in its 2004 decision on Israel’s Separation Barrier.

So have a host of UN officials and eminent jurists. Turning permanent military occupation into a sovereign claim would be a “forbidden colonial enterprise,” writes Michael Lynk, Canadian law professor and UN Special Rapporteur on Human Rights in the Occupied Palestinian territories. Lynk cites Lassa Oppenheim, German jurist and father of modern international law: “There is not an atom of sovereignty in the authority of the occupying power,” Lassa wrote, at the turn of the 20th century.

Israeli annexation of the Jordan Valley and its West Bank colonies would actually breach three fundamental norms of international law, all jus cogens in status (i.e. universally applicable, customary, no excuses, no exemptions): 1) the prohibition against forcible territorial acquisition, 2) the obligation to respect people’s right to self-determination, and 3) prohibitions against alien subjugation, domination, exploitation, racial discrimination and apartheid.

Given the huge gravity of what Benjamin Netanyahu is vowing to launch into in July, the mere threat should send chills up the spine of leaders claiming to uphold the rules-based, Westphalian legal order. Mr. Trudeau seems sanguine. His government has no qualms calling for Israel not to annex, all the while doing business with what it openly admits is illegal –an approach it will almost certainly continue to follow, even if annexation goes forward.

Canada and the settlements

Canada welcomes the importation of settlement products, extends preferential tariff treatment to them under the terms of the Canada-Israel Free Trade Agreement (CIFTA) and defends Israel’s right to label settlement products as Israeli in origin. The Trudeau government knows full well why Israel insists on labeling settlement products as Israeli, and it isn’t for tariff favors. In response to a complaint of mine [full disclosure: read more here], Ottawa went to Federal Court to defend Israel’s right to stake sovereign claim to its colonies on Canadian stores shelves. It lost its case. ‘Product of Israel’ labels on settlement wines are “false, misleading and deceptive,” Justice Anne Mactavish ruled in July 2019. Undeterred, Canada’s Attorney General is now appealing Justice Mactavish’s decision – going to the wall in support of Israel’s annexationist ambitions.

Meanwhile, the Canada Revenue Agency lets Canadian Zionists write settlement contributions off their taxes. The Jewish National Fund of Canada, Canadian Friends of Ariel University (in Ariel, the largest settlement in the northern West Bank) and Canadian Friends of Yeshivat Har Etzion (in the Gush Etzion settlement block) are all registered charities, in spite of their declared commitment to colonization and de facto (if not de jure) annexation of Palestinian land. Among Yeshivat Har Etzion’s publicly stated goals: To foster a “lifelong commitment” to “Am Yisrael and Eretz Israel.”  

Astonishingly, Canadian government support for settlement expansion is accompanied by acknowledgement that settlements are absolutely illegal, under both the Fourth Geneva Convention (FGC) and Canada’s own Geneva Conventions Act (GCA). Global Affairs Canada does not publicly admit (though its lawyers know) that settlements constitute one of a handful of “grave breaches” under the 1977 Protocol Additional to the FGC and GCA, and is therefore a presumptive “war crime” under the Rome Statue of the International Criminal Court and Canada’s Crimes Against Humanity and War Crimes Act.

Canadian government double-speak can be breathtaking. In a December 2017 letter to my attorney in the wine labeling case, government counsel conveyed the Canadian Attorney General’s view that the West Bank does indeed lie beyond Israel’s internationally recognized borders, that Israel is the occupying power there, and that settlements therefore breach Article 49 of the FGC – but that these matters were “irrelevant” to the labeling issue. In other words, Canada’s top lawyer has no problem defending Israel’s right to traffic its settlement products in Canada, tariff-free and labeled ‘Israeli’, all the while acknowledging that settlements are a presumptive war crime under international and Canadian law.

At April 2019 hearings on modernizing CIFTA, Canadian Foreign Affairs official Troy Lulashnyk confirmed to Senators that his government deemed settlements to be “illegal and contrary to UN Security Council resolutions,” but that it was pleased to extend preferential tariff treatment to settlement products (even though Global Affairs Canada trade specialists have advised that settlements are not part of the CIFTA deal) .

A seat on the security council?

Canada’s two-faced stance on Palestine/Israel and the rule of law comes at a cost. This coming June 17 – two weeks before A-Day – Canada will face off against Norway and Ireland for one of two revolving seats opening up on the UN Security Council. Norway is a shoe-in. Who will prevail for the second seat? Mr. Trudeau is crossing his fingers, but realizes Canada’s position on Palestine is a major liability. Chrystia Freeland, former Foreign Minister and now Deputy Prime Minister, is actually on record vowing to be Israel’s “asset” on the UNSC, should it win a seat.

In preparation for the vote, some 2000 Canadians, Americans and Europeans have called on UN ambassadors to consider Canada’s overall human rights record, and to vote Ireland. A second petition focuses on Canada’s position on Palestine/Israel. [Full disclosure: I helped launch the first of these two petitions, and am one of the original hundred signatories].

Horse race enthusiasts should watch for a huge June Surprise: an Irish ban on settlement products. Fianna Fáil and the Irish Greens support such a ban, Fine Gael does not. Banning settlement products would violate EU trade policy, says Foreign Minister Simon Coveney (Fine Gael). If Coveney is smart – if he wants to sweep the pro-Palestinian vote in the UN General Assembly and win that coveted UNSC seat – he’ll change his mind.

If Ireland does beat out Canada, Justin Trudeau will have the opportunity to recalculate the wages of hypocrisy — on matters most UN Member States hold dear — whether Israel moves forward on annexation or not.