The U.S. Congress, known primarily in the Middle East for its knee-jerk support of Israel, seems unaware of the slow but steady moves by European countries to apply international law to the Israeli-occupied territories. The news from Europe is overshadowed by the escalating bloodshed in the West Bank and Gaza. But Congress should take note of what its closest allies across the Atlantic are doing because it may one day find itself obliged to follow suit.
Last week, 12 European countries warned their citizens against engaging in financial activity or investments in the Israeli settlements in the West Bank, East Jerusalem or the Golan Heights, which they described, in no uncertain terms, as "illegal under international law." This brings the total number of European countries that have issued such warnings to 17 and more are expected to follow in the coming days.
But at least European countries have finally begun to move. They began with baby steps. For example, in 2009, Britain issued guidance to supermarkets regarding correctly labeling products made in Israeli settlements so that consumers could know what they were buying.
By 2013, the 28 member states of the European Union (EU) had passed guidelines preventing EU bodies from giving grants and loans to Israeli institutions working in the settlements, provoking a furious Israeli reaction. Israel was particularly upset by the fact that applications to receive EU funding had to include a clause affirming that settlements were excluded because they were not part of the state of Israel.
Later in the year, the EU did somewhat water down the guidelines' impact by, for example, negotiating language that "nuanced" the issue in order to approve a scientific funding deal with Israel.
Clearly, Europeans countries are less than ecstatic about having to take measures against Israel's settlement enterprise even though they know these are illegal. So what is pushing them to take these measures?
There are three main factors which – Congress take note – apply just as much to the U.S. as to Europe.
First factor: The advisory opinion by the International Court of Justice. On July 9, 2004 — 10 years ago this week — the court found that the separation wall Israel has been constructing since 2002 contravened international law. Among other things, the court said that Israel was obliged to dismantle the wall within the West Bank (most of the structure) and make reparations for the damage caused by its construction.
Of course, Israel ignored the court's opinion, expanded the wall and built more settlements. However, other countries did not feel they could brush the court's opinion away so lightly. The court said with crystal clarity that all states "are under an obligation not to recognize the illegal situation resulting from construction of the wall in the Occupied Palestinian Territory" and "not to render aid or assistance in maintaining the situation."
The court focused on the wall because that was the question put to it. But its conclusions apply to the rest of Israel's actions, particularly as it affirmed the applicability of the Fourth Geneva Convention throughout the occupied territories. In effect, the advisory opinion forced countries that care about international law to face up to the fact that they had to do something about Israel's occupation beyond issuing toothless statements.
Second factor: The Palestinian civil society Call for BDS (Boycott, divestment and sanctions) against Israel until it upholds international law. The call was issued on July 9, 2005, the first anniversary of the court's advisory opinion. Civil society groups across the world have since taken up the call with increasing effectiveness. For example, this past week, Britain's biggest trade union committed itself to BDS.
In the past few years, a growing number of pension funds in Europe – including state pension funds such as Norway's – have divested from Israeli companies that support the occupation. In the U.S. last month, the Presbyterian Church USA divested from three U.S. companies found complicit in the Israeli occupation, as did the United Methodist Church.
Much of this is due to citizen activism over the past decade, which has also been propelled by the heavy and heartbreaking human toll from the wars on Lebanon in 2006 and on Gaza in 2008-9, and all the violence in between leading up to the past weeks' dreadful attacks on children in the West Bank and the air strikes on Gaza. Many more people now understand that calling on "both sides" to end the violence is not the answer: Only one side is occupying the other. They see ending the Israeli occupation as an essential first step toward peace and justice.
Third factor: Europe's instinct for self-preservation. It is not too long ago that European countries were torn apart by two world wars, the scale of which makes what is going on in the Middle East now – horrific as it is – pale in comparison. The Europeans understand better than anyone else that the body of international law that has been developed over the past century is the best wall between humankind and the abyss.
As the representative of a European country put it at a recent gathering convened by The Elders, it is important to make Israel see that settlements are wrong not only because they violate Palestinian rights, but also because their illegality undermines the Europeans' own efforts to build an international system of law that is respected.
U.S. governments have been less attached to international law than the Europeans. The George W. Bush administration's decision to invade Iraq in 2003 is just one example of a clear violation, although few officials admitted it at the time – former United Nations Secretary General Kofi Annan only said so a year later.
But the same forces that are driving the Europeans to finally challenge Israel's illegal settlement enterprise are at work on this side of the pond. The U.S. government can wake up to the new realities and take action on its own. Or it can wait to be pushed.
Hijab is co-founder and director of Al-Shabaka: The Palestinian Policy Network.