The European Court of Justice's antisemitic ruling

There is an odd hope out there in the world about how the human mind works. And so we tend to associate the act of banning something – be it through law or social norms – with the act of curing it. This is never more obvious than with racism, where the silencing of certain bigotries makes everyone instinctively feel that those bigotries have disappeared, that the hatred has turned to love, and the discrimination to acceptance.

The ruling of the European Court of Justice this past week has exposed just how flawed and naïve this type of thinking is. Following in the steps of poorly intentioned street activism – the Boycott, Divestment and Sanctions movement (BDS) – the Court ruled that all products made in Israeli settlements must be labelled as such, and cannot be sold as ‘products of Israel’.

On the face of it, this might not seem like anything to be concerned about, but in the details of it are the unmistakable – and now legitimatised – returning shadows of a long bottled-up anti-Semitism.

From the Court’s own language, this was not a pro-Palestinian outcome; it was only, and explicitly, an anti-Israeli one. The new labelling requirements apply to the occupied territories, so Syria and the Golan Heights are pulled into the fringes of this as well. And with it, anyone trying to justify this ruling in terms of encouraging the peace process, creating a two-state solution, or by the rights of the Palestinian people, are championing something that just isn’t there.

Still – based on what the Golan Heights are today – the Court’s decision is targeted at Israel alone, mentioning (to the exclusion of all other countries) that anything Israel produces in any territory that it didn’t control prior to 1967, be marked as coming from “Israeli Settlements”. Syria might have been dragged into this (in part), but only Israel was on trial here.

Which is where all of this gets so pernicious. Any impartial law, or Court ruling, no matter what it is, needs to satisfy a fundamental criteria – it needs to be universal. It must apply only to crimes, and not to people. Anything short of this is not only discrimination, but selective persecution. An infamous, but telling example of this has been American President, Donald Trump’s, attempted ‘Muslim travel ban’. This was shot down as unconstitutional because the Trump administration was labelling Muslims as security risks, rather than first defining what constitutes a ‘universal’ security risk, and only then applying it to individual Muslim’s if, and when, they fit the category… along with everyone else.

The European Court of Justice turned this around. If their ruling had come with, or as a result of, a universal standard that read something like, ‘any products made within any occupied territory must be labelled’, then there would be no argument here. But China is not required to label its exports as ‘Made in Tibet’, nor Morocco as ‘Made in Western Sahara’, Armenia as ‘Made in Azerbaijan’, Turkey as ‘Made in Cyprus’ and ‘Made in Syria’, nor Russia as ‘Made in Ukraine’, ‘Made in Georgia’, and ‘Made in Moldova’.

Instead the European Union has passed a law that applies to only one possible defendant.

The Court has shown no intention to broaden this out for other countries, and so is now signalling to Europe – and the world – that it is okay to legislate through double standards, just so long as you are targeting the Jewish state.

This is not just an unhappy accident, nor an aberration of some kind.  The precedent was already there, carved deep into our most fundamental institutions.

From 2006 to 2016 – a period that witnessed the Arab Spring and its suppression, multiple Russian invasions, and China’s crack down on Xinjiang, amongst others – the United Nations Human Rights Council during its first decade in operation passed 68 condemning resolutions against Israel… and only 67 against the rest of the world combined. The countries with zero condemnations in this period included China, Russia, Somalia, Yemen, Zimbabwe, Pakistan, Iraq, and Cuba. 

The United Nations General Assembly, from 2012 to 2015, adopted 97 resolutions explicitly criticizing member states, 83 of which were targeted at Israel alone. 

With the exception of Syria during the height of the violence in 2013, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has never issued a country-specific resolution… apart from when it comes to Israel, for whom they have averaged 10 each year.

The World Health Organization (WHO) only adopts resolutions for global health issues, and no individual country is ever singled out for condemnation… no other country besides Israel that is, who have had an entire annual resolution created just for them: “Health conditions in the occupied Palestinian territory, including east Jerusalem, and in the occupied Syrian Golan”.

Even the International Labour Organization (ILO) – charged with improving labour conditions, increasing wages, fighting unemployment, and protecting workers’ rights around the world – have decided that the only country-specific report that they will produce is one targeting Israel.

As this washes over you, it is important to remember that, in their region of the world, Israel is the only liberal democracy, the only country that operates under the rule of law, that has a real separation of powers with an independent judiciary, has free and open elections, a free press along with freedom of speech, and legally protects the fundamental human rights of minority groups (women, religious, and sexual).

The European Court of Justice is simply the latest in a long list of institutions and countries that have decided to single Israel out, not for its behaviour, but simply because it is Israel.

It comes back to the question of what people do when their deeply-held bigotries are suddenly denied to them. Pushed underground, yet with their minds unchanged, these feelings are unlikely to just disappear. Instead they re-emerge with new faces, and subtler forms of expression, that skirt those new legal and normative barricades.

It’s an unhappy accusation, but what could possibly explain this pattern of behaviour – or these types of laws – other than anti-Semitism. Sure it’s less direct, but it is no less obvious – when the expression of Jew hatred becomes unacceptable, try your hand at the hatred of Israel instead. When you can’t get away with persecuting Jews, why not just transfer that anger over to persecuting the Jewish state.

This is what the start of a pogrom feels like – each small step legitimates the next. And so what is happening here should make everyone feel uncomfortable. The European Union has violated its own official standards, the rulings of multiple courts, as well as its own obligations under the World Trade Organization, so that it can once again pin a yellow star on the collars of every Jew, and on the doors of every Jewish business.