Why Are Democrats Voting for Israeli Settlements?

AP Photo/Cliff Owen

U.S. Senator Ben Cardin raises his hand as he and Senator Lindsey Graham walk on-stage to address the American Israel Public Affairs Committee (AIPAC) Policy Conference in Washington, Sunday, March 1, 2015. 

Sometime very soon, the U.S. Senate will pass a bill that requires the government to treat the West Bank as part of Israel. Not only that, it will obligate the administration to pressure other countries to do the same. These provisions have provoked no serious opposition as the bill has worked its way through the congressional maze. Instead, Democratic lawmakers raise their hands to do the work of the GOP-Likud axis, in what may be a bizarre act of penance for their own courage in supporting the Iran deal last summer.

The bill's own language says it's aimed at fighting the boycott, divestment, and sanctions (BDS) campaign against Israel. In reality, it may actually encourage boycotts of Israel. The bill says it's meant to preserve the “sustainability of peace” between Israel and the Palestinians. In reality, it helps the efforts of Israeli Prime Minister Benjamin Netanyahu to make a two-state agreement impossible.

The bill is called the Trade Facilitation and Enforcement Act, and is known less formally as the Customs Bill. It deals with a long list of issues, but the part that matters for this discussion is Section 908. That portion makes it an American goal in trade negotiations to fight boycotts of “Israel or Israeli-controlled territory.” Pay attention to those last few words. They appear repeatedly in the bill. Effectively, they define Israeli settlements in the West Bank as having a status akin to that of Puerto Rico in the American realm: not part of Israeli proper, but under Israeli sovereignty. To call this deceptive would be too kind.

The bill doesn't actually do anything to strengthen the long-established American policy of seeking to protect Israel from boycotts. Rather, it extends that policy to opposing boycotts of products from Israeli settlements in occupied territory. It thereby equates opposition to settlements with opposition to the State of Israel. Ironically, it strikes a position quite like that of the BDS movement: It leaves no room for a political stance of supporting Israel while opposing settlement and occupation.

Put differently, the bill aligns America's policy with Netanyahu's. The prime minister is scared and angry about the European Union's gradual effort to put teeth into its lasting policy: coupling friendship with Israel and opposition to settlements. The European Union has had free-trade agreements with Israel since 1975 and is Israel's largest trading partner. In some respects, Israel enjoys near-membership in the EU. But exactly like the rest of the world—exactly like the United States, until now—European governments do not recognize Israeli claims to land beyond the June 4, 1967 boundaries.

couple of years ago, while renewing its generous research and development partnership with Israel, Brussels set rules barring any EU funding for Israeli activities “in the territories occupied ... since June 1967.” More recently, the European Commission issued a notice making clear that products from Israeli settlements must be labeled as such rather than as “made in Israel” because—well, they aren't made in Israel.

Netanyahu and his political camp have responded with a show of outraged astonishment. Netanyahu said that Europe was “labeling the side that is being attacked by terrorism.” Besides the tired reliance on the terror card, his statement conflated the settlements and Israel as a whole. Knesset Member Nissan Slomiansky of the right wing Jewish Home party said that “the day isn't far when Europe will return to the dark days of making Jews wear yellow stars.” In other words, if you oppose settlements, you are anti-Israel, anti-Semitic, and very nearly Nazi.

Before adopting Netanyahu's line, members of Congress would do well to pay more attention to a very pertinent legal development across the pond. Last month the General Court of the European Union annulled an EU trade agreement with Morocco because it didn't explicitly exclude the Moroccan-occupied Western Sahara. The suit was brought by the Polisario Front, which seeks independence for Western Sahara. As Professor Eyal Benvenisti of Tel Aviv University, an authority on international law, explained to me, the court said that before ratifying the accord, EU institutions should have assessed the potential impact on the population of the occupied territory and on their fundamental rights.

At the moment, if Palestinians file a similar suit against the European Union's free-trade accord with Israel, the bureaucrats in Brussels have a steel-clad defense: EU institutions have been quite clear that the agreement applies only to Israel and not to Israeli-occupied territories. On the other hand, if the Israeli government manages to convince the European Union to reverse that policy, the Western Sahara precedent will become very relevant, and could threaten trade arrangements essential to Israel's economy.

Let's be clear: The requirement to label products of Israeli settlements is not a boycott. True, it could make it easier for European consumers to boycott settlement products. But as an EU official told The Huffington Post's Jessica Shulberg last year, the labeling policy is a way to avoid boycotts of Israel as a whole. Otherwise, the official said, “Some European consumers and operators intending not to buy products from the settlements might be tempted not to buy Israeli products at all.” I think that's an accurate assessment, and points to a larger principle: Insisting that there's no difference between Israel and the settlements doesn't legitimize settlements; it delegitimizes Israel.

So how did Congress come to support Netanyahu's dangerous position? The process began last year when Senators Ben Cardin and Rob Portman and Representatives Juan Vargas and Peter Roskam successfully added amendments to an earlier piece of legislation, the Trade Promotion Authority bill. Their provisions required U.S. trade negotiators to “discourage” actions aimed at limiting commercial ties with “Israel or ... territories controlled by Israel.” AIPAC supported the amendment and celebrated congressional approval of the bill in June.

In response, the State Department issued a statement that the administration opposes BDS but would not “pursue policies … that would legitimize” settlements. The White House settled for a relatively low-key clarification because it understood the TPA as no more than “advisory,” says Lara Friedman, director of government relations at Americans for Peace Now. The administration simply said it wasn't taking the advice.

The Customs Bill, says Friedman, is stronger; it “makes it essentially U.S. policy that in all trade negotiations protecting settlements should be part of our goals.” That's a fundamental shift in the consistent American position toward settlements, but the provision seems to have slipped through Congress without a fuss. Framing the measure as anti-BDS was false advertising, but apparently quite effective. Democratic lawmakers, says Friedman, are eager to look “pro-Israel” after the fight over the Iran nuclear accord last summer. As usual, “pro-Israel” has very little to do with assessing the actual impact on Israel. Assessing the impact on Palestinians seems to concern lawmakers even less. And more measuresof the same sort are in the congressional pipeline, introduced by the same sponsors and other usual suspects, such as Representative Nita Lowey.

Before those measures move forward, let's think about the potential outcomes after the Senate approves the Customs Bill. Despite his dislike of signing statements, President Obama is likely to issue one explicitly rejecting a change in U.S. policy on settlements. In that case, passage of the law will have no impact—except handing the GOP another opportunity to bash Obama as “anti-Israel. ”

In the much less likely case that the administration tries to implement the problematic part of the law, it will spark an utterly unnecessary trade dispute with the European Union. And in the least likely case that Brussels drops its distinction between Israel and the settlements, the way will be open to a court challenge to the EU trade pact with Israel. In all these scenarios, Netanyahu gets a congressional boost for his campaign against domestic and foreign critics of settlement. In all of them, the chances for peace, for restoring Israeli democracy, and for Palestinian independence suffer.

I understand that Republicans are perfectly content with any of these outcomes. But for Israeli progressives, watching the behavior of a good many Democratic politicians is beyond painful. I'm talking to you, Senator Cardin, and you, Representatives Vargas and Lowey, and to your colleagues who support your maneuvers. If you won't listen, I'm talking to your constituents and your donors. By supporting settlements, you are destroying our future. Show responsibility, show some courage, and change direction.

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