May 23, 2019
On May 21 and 22, 2019, Canada’s Federal Court in Toronto heard arguments as to the illegality of Israel’s settlements in the West Bank.
The context for the debate about Israel’s settlements was a legal challenge by Jewish-Canadian human rights activist Dr. David Kattenburg to fraudulent “Product of Israel” labels affixed to bottles of West Bank settlement wines sold in Canada.
As I have previously reported here, I act for Dr. Kattenburg in his judicial review application.
Prior to the hearing of Dr. Kattenburg’s application this week, a prothonotary of the Federal Court granted intervenor status in the case to Independent Jewish Voices Canada, but denied intervener status to B’nai Brith Canada, which describes itself as a “staunch defender” of Israel.
Shortly prior to this week’s hearing, however, B’nai Brith appealed the decision of the prothonotary and was ultimately allowed to intervene on the narrow question of whether Israel’s settlements are illegal under international law.
Despite an overwhelming body of international legal authority declaring the settlements to be a “flagrant” and “grave” violation of international law, B’nai Brith argued in Court that the settlements are legal.
B’nai Brith’s 9-page legal brief can be read here:
In essence, B’nai Brith advanced a legal theory that originated with Israeli law professor Yehuda Blum and Israeli Supreme Court Justice Meir Shamgar
As we explained in our brief responding to B’nai Brith, the Blum-Shamgar theory has been thoroughly discredited by a unanimous advisory opinion of a 15-judge panel of the International Court of Justice, as well as the opinions and declarations of other international bodies, leading human rights organizations and distinguished international jurists.
One of those distinguished jurists is Theodor Meron. In 1967, before becoming President of the International Criminal Tribunal for the former Yugoslavia, Judge Meron was a legal advisor to Israel’s Foreign Ministry. In that year – the year in which Israel’s occupation of the West Bank began – he opined that Israel’s settlements violated international law, but his opinion was not made public until 2006, when it was discovered by a historian. In 2017, on the eve of the 50-year anniversary of the occupation, Judge Meron authored an article affirming his opinion as to the illegality of Israel’s settlements. In it, he meticulously dismantled the Blum-Shamgar theory relied upon by B’nai Brith.
All of this is explained in our ten-page brief responding to B’nai Brith’s arguments. Our responding brief can be read here:
Despite the near-universal rejection of the Blum-Shamgar theory, Western corporate media continue to lend credence to that theory in their reporting on Israel’s settlements.
In Dr. Kattemburg’s judicial review application, the Attorney-General of Canada (“AGC”) responded to B’nai Brith’s written submissions in a brief letter to the Court. In that letter, the AGC stated:
Importantly, Independent Jewish Voices (“IJV”) argued in its brief to the Court that the decision of the Canadian Food Inspection Agency to allow “Product of Israel” labels to be affixed to settlement wines engaged Canadians’ constitutional right to free expression, because a decision of conscience not to buy products from Israel’s illegal settlements is itself a form of expression.
IJV’s seven-page brief can be read here:
The AGC’s response to IJV can be read here:
At the end of this week’s hearing of Dr. Kattenburg’s application, the presiding judge thanked the parties and their counsel for an engaging and interesting debate and advised them that she would endeavour to deliver her decision in the weeks ahead.
News of her decision will be posted on this website as soon it has been released.