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SACC Statement on Scottish Government advice against trade with Israeli settlements

SACC welcomes the announcement by the Scottish Government that it "strongly discourages trade with companies active in Israeli settlements which are recognised as illegal under international law" and that such companies could be excluded from public contracts in Scotland. But we think that further urgent steps need to be taken to isolate Israeli internationally and protect the people of Palestine.

The announcement by the Scottish Government reverses a statement made earlier this year by External Affairs Minister Humza Yousaf, when he told a meeting at Giffnock Synagogue that the Scottish Government did not support a boycott of any Israeli goods, even goods from illegal settlements.

In the procurement policy note (Scottish Procurement Policy Note SPPN 4/2014) accompanying the announcement, the Scottish Government states as background: "Recent events in Israel and the Gaza Strip have led to calls for companies active in illegal settlements to be excluded from competition for public contracts."

This is a clear acknowledgement that protest and democracy have an effect. But the concerns expressed by SACC and others over the economic exploitation of Israeli settlements pre-date the current offensive against Gaza and have no direct connection with it. The Scottish Government's action, though welcome, does not come close to meeting the desperate and urgent need to bring pressure upon Israel to halt its offensive.

SACC supports the call by Palestine civil society organisations for boycott, divestment and sanctions (BDS) against Israel until it complies with international law and universal principles of human rights. Accordingly, SACC would like the UK Government and, in the event of a Yes vote in the independence referendum, the Scottish Government to move towards a policy of BDS against Israel.

In a statement issued in June we urged the Scottish Government, pending a commitment to move towards BDS, to take steps to ensure that it is not complicit in the economic exploitation by Israel of the Occupied Territories, that it does not encourage Scottish businesses to participate in illegal exploitation, and that it does not give public contracts to businesses involved in human rights abuses.

The new move by the Scottish Government goes some way towards meeting these interim demands, but leaves important issues unresolved. It is particularly disappointing that the Scottish Government has so far taken no steps to exclude from public contracts companies that are involved in other human rights abuses besides the illegal economic exploitation of occupied territory – for example by facilitating the abuse of prisoners or by facilitating illegal military action. Companies linked to this sort of abuse include security firm G4S as well as various defence contractors.

In its procurement policy note, the Scottish government says: "Exploitation of assets in illegal settlements by a company (irrespective of where that company is registered) is likely to be regarded as constituting 'grave professional misconduct' for the purposes of procurement law" and that public purchasers "may be able to exclude the company from a public tendering exercise." It adds that decisions would need to be proportionate and would have to be taken on a case by case basis.

Under the Public Contracts (Scotland) Regulations 2012, which implements EU procurement directives, a public authority is required to exclude a company from the tendering process if the company has committed any of a limited range of specific offences. A public authority is also, optionally, permitted to exclude a company on a number of other grounds, including "grave professional misconduct." Neither the Scottish regulations nor the EU directives they are based on provide a definition of "grave professional misconduct."

Perhaps because of the uncertain legal position, public authorities have generally been reluctant to invoke this provision of procurement law. Disastrously, this led to the General Register Office of Scotland giving a key contract for the 2011 Scottish census to CACI, a company involved in human rights abuses at Abu Ghraib prison in Iraq. SACC campaigned unsuccessfully for the contact to be cancelled, and many people refused to complete their census forms in protest against CACI's involvement.

So it is good news that the Scottish Government has made it clear that the economic exploitation of illegal Israeli settlements is likely to constitute "grave professional misconduct." But the Scottish Government should also make it clear that the provision of goods or services to facilitate arbitrary detention and other forms of prisoner abuse also amounts to "grave professional misconduct", as does the supply of military equipment likely to be used in ways that violate the requirement to protect civilian lives set out in the Geneva Conventions. 

EU procurement law allows the Scottish Government to go further than it has yet gone in dissociating Scotland from Israeli crimes. EU rules are nevertheless an obstacle to a wider boycott of Israel. The obstacle could be overcome very quickly and easily if European governments wished to do so. The extreme haste with which sanctions were imposed on Russia show just how easily this can be done.

The sanctions against Russia were based on unproven allegations and tend to undermine world peace. It should not be hard to invoke sanctions against Israel on the basis of its undisputed massacre of civilians – including around 500 children – in Gaza. Such sanctions could only assist world peace.

We hope that the UK Government and, in the event of a Yes vote in the independence referendum, the Scottish Government, will press internationally for that to happen. Unfortunately, the UK Government seems at the moment to be a long way from wishing to do anything of the kind.