The Conversation | 29 May 2019
Canada’s updated trade agreement with Israel violates international law
by Michael Lynk, Associate Professor, Faculty of Law, Western University, and Alex Neve, Secretary General of Amnesty International Canada
Beyond Israel’s internationally recognized border is the Palestinian territory — the West Bank, including East Jerusalem and the Gaza strip — which it has occupied since the 1967 war.
While Israel rejects that it’s the occupying power, there is a virtual wall-to-wall consensus among the international community — including the United Nations, the European Union, the International Court of Justice, the International Committee of the Red Cross and Canada — that the laws of occupation, including the Fourth Geneva Convention of 1949, apply in full to the Palestinian territory.
I am a Special Rapporteur for the United Nations Human Rights Council on the situation in the Palestinian territory, and my co-author is the secretary general of Amnesty International Canada. So we know that the laws of occupation are strict.
Among the most important prohibitions in the Fourth Geneva Convention is the absolute rule, in Article 49(6), against the transfer by the occupying power of any of its civilian population into the occupied territory.
The purpose of the prohibition is to eliminate any temptation by the occupying power to establish supportive civilian communities as a prelude to an unlawful claim for annexation and sovereignty.
Yet during its 52-year rule over the Palestinian territory, Israel has built 240 Jewish settlements in the West Bank and East Jerusalem that now house more than 630,000 Israeli settlers.
Barrier to peace
The United Nations has said, on a number of occasions, that the settlements are illegal and must be removed. Most recently, in December 2016, the United Nations Security Council, in Resolution 2334, stated that the Israeli settlements are “a flagrant violation under international law and a major obstacle to the achievement of a two-state solution and a just, lasting and comprehensive peace.”
The settlements are not just a legal question. As the United Nations, Amnesty International and many other organizations have documented, the Israeli settlements have had a systematic and devastating impact on Palestinian human rights.
At the core of the thickening Israeli settlement enterprise is a discriminatory two-tier system of laws governing political rights, zoning laws, roads, water and natural resources, property, public services and access to courts — all based entirely on ethnicity.
This March 2019 photo shows houses in the Israeli settlement of Ariel, in the central West Bank. Israel’s government reportedly went on a spending binge in its West Bank settlements following the election of U.S. President Donald Trump. (The Yomiuri Shimbun via AP)
Ultimately, the settlements are the engine of the Israeli occupation. They serve as the irreducible “facts on the ground” to assert Israeli sovereignty and to forestall Palestinian self-determination.
The problems with Bill C-85
On May 9, the Canadian Senate passed Bill C-85 — the Canada-Israel Free Trade Agreement Implementation Act. Bill C-85 amends and updates the original 1997 free-trade agreement between Canada and Israel. On May 27, it received royal assent.
What is glaringly missing from the revised free-trade agreement are two fundamental provisions.
First, the new agreement lacks a human rights provision, which would commit both parties to uphold international human rights and humanitarian law.
Secondly, the agreement allows goods and services produced in the Israeli settlements to enter Canada on the same tariff-free terms as goods and services originating in Israel. Enabling the benefits of the agreement to extend to Israel’s illegal settlements in the Palestinian territory is not only contrary to Canada’s general duty to uphold international law, it expressly violates both international and Canadian law, as well as the direction of the UN Security Council.
Canadian foreign policy, as well as our own legislation, has long recognized the Israeli settlements as illegal under the Fourth Geneva Convention.
The 1957 Geneva Conventions Act commits Canada to respect the strict obligations of the convention, including the prohibition against civilian settlements in occupied territory. And the 2000 Crimes Against Humanity and War Crimes Act designates civilian settlements in occupied territory as a war crime.
The UN Human Rights Council, in 2016, urged all states to ensure that:
“They are not taking actions that either recognize or assist the expansion of (Israeli) settlements … in the Occupied Palestinian Territory, including East Jerusalem, including with regard to the issue of trading with settlements, consistent with their obligations under international law.”
Yet this is exactly what the free-trade pact does. It makes no distinction between Israel and its illegal settlements in the Palestinian territory, and it provides encouragement to the economic growth of the settlements by allowing their goods and services to enter Canada tariff-free.
Treating the Israeli settlements as part of Israel, and extending the benefits of our open market to settlements’ goods and services, entangles Canada in the serious violations of both international human rights and humanitarian law that are part and parcel of the Israeli occupation.
With its eyes wide open, the Canadian government is extending economic benefits and political cover to an illegal enterprise at a time when these settlements are undermining the chances for peace and generating systematic human rights violations.