By Simon Natas
16 August 2010
The acquittal this week of four London-based activists for Boycott, Divestment and Sanctions (BDS) raises profound issues for traders in products which originate from illegal Israeli settlements in the Occupied Palestinian Territories (OPT). The case also poses challenging questions for the UK authorities, who have failed to confront the legal and moral problems surrounding settlement trade.
In September and December last year, the activists entered a shop selling products from cosmetics company Ahava in Monmouth Street, Covent Garden in London, and locked themselves to oil drums filled with concrete. In both cases, the shop was forced to cease trading for several hours.
As a result, the activists were charged with offences under s.68 and s.69 of the Criminal Justice and Public Order Act 1994. The section 68 offence, known as aggravated trespass, is committed where the accused trespasses on land and does something intended to obstruct or disrupt any lawful activity.
An offence is committed under s.69 of the Act where the accused refuses to leave the land as soon as practicable having been ordered to do so by the senior police officer at the scene. The officer must have reasonable grounds to believe that the person subject to the order is committing, or about to commit an offence of aggravated trespass.
Even if it subsequently emerges that the activity which the accused intended to disrupt was unlawful, he or she will be guilty of the offence under s.69 as long as the police officer had good reason to believe otherwise.
The defendants certainly set out to prevent the shop from trading. The central issue was whether the shop was trading lawfully, defence contending that it was not.
The defendants adduced evidence that the products on sale in the shop were manufactured at a plant in Mitzpe Shalem, an illegal settlement in the OPT. It was argued that the trade in Ahava products encouraged the growth of the settlement, thereby assisting in the transfer of Israeli civilians into the OPT in violation of Article 49 of the Fourth Geneva convention.
But the origin of Ahava products had other, more immediate legal implications. Firstly, the goods on sale in the shop are labelled “Made by Dead Sea Laboratories Limited, Dead Sea, Israel.” This suggests that the goods are manufactured within Israel’s recognised borders.
A retailer may commit offences by presenting misleading information about the origin of a product. For example, the Consumer Protection from Unfair Trading Regulations 2008 makes it a criminal offence to mislead consumers as to the geographical or commercial origin of a product.
The UK government’s own guidance to retailers (“the DEFRA guidelines”), published in December 2009, state that “traders would be misleading consumers, and would therefore almost be certainly committing an offence, if they were to declare produce from the OPT (including from the West Bank) as ‘Produce of Israel’.” Relying on the government’s own legal advice, the defendants argued that by passing off settlement goods as produce of Israel, Ahava was committing criminal offences in domestic law.
On the first day of trial, the prosecution dropped the s.68 charge, which meant that they would not seek to prove that the Ahava shop was trading lawfully. The significance of this decision was obvious.
The prosecution pressed on with the s.69 charge but the Ahava employee on whose evidence the prosecution relied refused to attend court, even after a witness summons was issued. Had she attended and then been cross examined by defence lawyers, Ahava’s activities would have been subject to very public scrutiny.
The lessons for settlement traders are obvious. When BDS activists target companies that profit directly from the occupation and are prosecuted, the illegality of the settlements will become an issue. As the Ahava case shows, illegality in international law is likely to give rise to illegality in domestic law. Companies engaged in settlement trade will find that their activities are brought under the legal spotlight, something they are unlikely to enjoy.
But there are also problems for the authorities. How do they police direct action against companies whose activities may themselves be unlawful? For how long can police officers continue to plead ignorance about the legal issues surrounding settlement trade, especially when activists carefully explain why it is they feel compelled to act? The authorities have shown little willingness to deal with complaints against Ahava, but public pressure is growing. It is time that consumer protection rules were properly enforced.
The government should also press the EU to conduct a fundamental review of the EU-Israel trade agreement in light of evidence that it is being wrongly exploited by settlement traders and cannot be properly policed. Beyond this, the government should consider whether it should take steps to prevent the marketing of all settlement produce in the UK.
No one can seriously doubt that settlement trade drives settlement growth. Like all governments, the UK is under a duty to bring an end to serious breaches of peremptory norms of international law. The denial of Palestinian self-determination through settlement expansion surely comes within this definition.
Simon Natas acted for the defendants in the “Ahava Four” case. He is a partner and solicitor advocate at Irvine Thanvi Natas solicitors, specialising in criminal defence and human rights law.