Last week, the European Court of Justice (ECJ) released an anti-Semitic bombshell. It decreed that all European Union member states must affix special labels to Jewish-made Israeli “foodstuffs” produced beyond the Green Line and exported to E.U. member states. The ruling was made in response to a lawsuit brought before a French court by Psagot winery, located north of Jerusalem.
Psagot manager Yaakov Berg was represented by a consortium of attorneys led by Brooke Goldstein, the founder and executive director of the Lawfare Project in New York. The focus of the Lawfare Project’s work is defending Israel and Jews against discrimination.
Israeli political leaders and American Jewish leaders roundly and rightly condemned the court ruling as anti-Israel, biased and anti-Semitic.
Psagot brought suit before a French administrative court to appeal a 2016 French regulation requiring the special labeling of Jewish-made Israeli foods produced beyond the Green Line. Psagot and its attorneys argued before the French court that the French regulation contradicted European law by imposing illegal trade barriers.
The French court referred the issue to the ECJ in the form of two questions: Does E.U. law require the bloc’s member-states to impose discriminatory labeling requirements on Jewish-made products from the disputed territories, and, if it doesn’t, does E.U. law still permit member states to adopt such labeling requirements on their own.
In the background of the case was a 2015 “interpretive notice” issued by the European Commission that had instructed all E.U. member states to apply the special discriminatory labels to all Jewish-made Israeli goods produced beyond the Green Line. Senior jurists in and out of government explain that the interpretive notice was a blow to Israel, but it did not legally require E.U. states to do anything. The notice could only have become legally binding if it had been unanimously adopted by E.U. states in the European Council.
Israeli lawyers noted at the time that the European demand for discriminatory labels violated international trade law, but this made no impression on European decision makers.
The French court’s referral to the ECJ was a big deal. It created a means for anti-Israel forces in the E.U. to render the interpretive notice from 2015 legally binding on all E.U. states without obtaining unanimous consent. ECJ judgments bind all E.U. states.
Once the matter was moved to the ECJ for a determination, senior international jurists and Israeli government officials began requesting that Psagot and the Lawfare Project pull their lawsuit. Former Justice Minister Ayelet Shaked (Yamina), who dealt with the issue during her tenure, revealed on Tuesday that she and a senior Justice Ministry official had repeatedly “begged” Psagot and its attorneys to withdraw their lawsuit. Speaking to the media Tuesday, Foreign Minister Israel Katz said that Foreign Ministry officials submitted similar requests that Psagot withdraws its lawsuit.
In late June of this year, the urgency of the entreaties grew.
According to ECJ procedure, before the judges render their verdict, the court’s advocate general publishes his recommended verdict. It is rare for the court to rule in a manner that contradicts its advocate general’s recommendation. In late June, the advocate general recommended answering that it is obligatory for E.U. member states to affix discriminatory labels to Israeli Jewish imports from Israeli territory beyond the Green Line.
Once his recommendation was published, any residual hope the ECJ would act in accordance with international trade law and reject the proposed discriminatory labeling policy was extinguished.
But then, with or without the advocate general’s recommendation, Israel and Psagot never stood a chance of getting justice at the ECJ. Before it is a judicial body, the ECJ is a political arm of the E.U. whose job it is to uphold E.U. policies and strengthen E.U. institutions.
The E.U.’s policy towards Israel has been clear for a very long time.
For decades, the E.U. has been waging a hostile campaign against Israel. The goals of the campaign are to call Israel’s right to exist into question, weaken Israel economically and politically and strengthen Israel’s enemies at Israel’s expense. The E.U. wages its campaign through political, diplomatic and economic warfare.
Non-governmental organizations registered in Israel and financed and directed by the E.U. and its member states are strategic weapons in this campaign. These European-financed and directed, Israeli-registered and staffed NGOs routinely submit petitions to Israel’s High Court of Justice whose purpose is to stymie the government’s ability to implement duly promulgated policies and undermine the Israeli military’s ability to defend the country.
At the United Nations, E.U. member states vote against Israel and for its enemies as a general practice. They support U.N. bodies including the U.N. Human Rights Committee, UNRWA and UNESCO that routinely and maliciously target Israel.
The E.U. leverages its trade and scientific cooperation with Israel to normalize boycotts of Israeli companies, institutions and Jewish citizens who operate beyond the Green Line.
As for Europe’s support for Israel’s enemies, led by Germany, the E.U. refuses to walk away from the nuclear deal with Iran, or reinstate economic sanctions against Iran in light of its open material breaches of the limitations the nuclear deal placed on its nuclear activities.
So too, led by Germany, the E.U. refuses to designate all arms of Hezbollah as a terror group. This pro-Hezbollah policy has the deadly result of enabling the Iranian-controlled terrorist group to operate and raise money openly in Europe.
Both of these policies, which pave Iran’s way to a nuclear arsenal and empower its foreign legion, are hostile acts towards Israel.
Then there is the E.U.’s adulation of the Palestinians. E.U. institutions do not merely legitimize Palestinian terrorist groups, including Hamas and the PFLP, they enthusiastically embrace them. For instance, the European Parliament has repeatedly hosted senior Palestinian terrorists. It has given standing ovations to senior Palestinian officials, including Palestinian Authority leader Mahmoud Abbas, as they revived medieval anti-Semitic blood libels. Abbas, for instance, accused Israeli Jews of deliberately poisoning wells.
In the face of the E.U.’s implacable, long-standing and steadily expanding efforts to harm Israel, the notion Israel can reasonably expect to ever receive a fair hearing from any E.U. body is ridiculous.
Stunningly, even after their defeat at the ECJ the Psagot winery and its legal team refuse to accept this truth. In an interview on Tuesday with JNS, Goldstein said that Europe itself is the verdict’s biggest loser.
In her words, “The ruling opens the floodgates where consumers in any E.U. country will be able to insist that any consideration important to them before they purchase a product—whether social, political, environmental or other—will have to be included on the labeling of any product being imported. Not just from Israel.”
This is untrue. The verdict—like the E.U.’s legally unsupported claim that Israeli “settlements” built beyond the Green Line are illegal—is not general. It is very specific. It applies only to Israel. The ECJ’s ruling will not be applied on behalf of vegans and Tibetans. Everyone knows it was directed against Israel and its Jewish citizens alone. The verdict was political, not legal.
For all that, Justice Ministry and Foreign Ministry officials are wrong to attack the Psagot winery and its attorneys for their willful blindness. They themselves are afflicted by the same impairment.
In their contacts with the E.U., its agencies and aligned organizations, government officials act on the basis of the mistaken belief that it is possible to convince the Europeans to abandon their hostile positions against Israel through reasoning and evidence. Perhaps the best example of this misguided Israeli practice is the respect Israel accords the prosecutors at the International Criminal Court (ICC).
ICC investigators are currently preparing charges against Israelis for so-called war crimes on the basis of false accusations submitted by the Palestinians. The Palestinian complaints relate both to Israel’s military activities and to settlement activities carried out by the Israeli government and Israeli citizens.
According to government officials, the reason Prime Minister Benjamin Netanyahu is preventing the evacuation of the illegal Palestinian outpost Khan al-Ahmar despite the fact that the High Court of Justice ordered its dismantlement over a year ago is fear that implementing the court decision will subject Israel to war crimes charges at the ICC.
In September 2018, the Trump administration announced that it was ending all cooperation with the ICC due to its political nature and its institutional hostility towards the United States and Israel.
Following this announcement, the United States denied a visa to an ICC prosecutor scheduled to visit the country to investigate complaints submitted to the ICC against U.S. soldiers for actions they allegedly perpetrated in Afghanistan.
Shortly after the policy was presented, the State Department announced it was ordering the closure of the PLO representative office in Washington, D.C., due to the PLO’s refusal to withdraw the complaints it submitted to the ICC against Israel.
Unlike the Americans, Israel continues its dialogue with the ICC prosecutor and permits the prosecutor’s representatives to enter Israel in the hopes of convincing the ICC of Israel’s innocence. But the fact that the ICC is even giving a hearing to, let alone proceeding with its investigations of false accusations against Israel is proof that it is a hostile body. It will never give a fair hearing to Israel.
Just as permitting the inherently hostile ECJ to adjudicate issues related to Israeli Jewish exports from Israeli-controlled territory was a mistake that harmed Israel, so Israel’s legitimization of the ICC will come back to haunt it.
Berg, Goldstein and their associates insist that they were compelled to act because the Israeli government refused to lift a finger against the E.U. Their allegation of government inaction is valid. The government has an obligation to aggressively respond to Europe’s hostile behavior.
To this end, the time has come to end the tax-exempt status of hostile European-funded and directed NGOs.
It is also time for Israel to act in the legal arena in jurisdictions that are not inherently hostile to the Jewish state. For instance, Israel should seek justice against the E.U.’s hostile and unfair trade practices at the World Trade Organization’s arbitration bodies and in U.S. courts.
But before Israel can do any of these things, government officials have to abandon their delusion that Europe is Israel’s enlightened ally with whom Israel can reason.
Europe is not enlightened and it is not Israel’s ally. It is not susceptible to reason and evidence.
It is a hostile post-national governing structure that is conducting political, diplomatic and economic warfare against Israel to harm the Jewish state and assist its enemies.
So long as our leaders and our officials refuse to accept this basic truth, we will continue to experience defeat and discrimination as individuals and collectively at the hands of our European “friends.”
This article first appeared in Israel Hayom.