A recent ICJ ruling requires countries to end all support for Israeli occupation — but not according to the EU’s internal legal advice
So what do you get when you put a German fascist and a Spanish facist in charge in an institution? The European Union
Arthur Neslen writes about the environment for The Guardian. He has previously worked as a correspondent for Thomson Reuters, Politico, Al-Jazeera and others
Cross-posted from The Intercept
The chief legal officer of the European Union’s foreign service advised the department’s top official that a new opinion by judges in The Hague does not require EU states to ban goods imported from Israeli settlements, according to a leaked analysis.
Legal experts said that the analysis contradicts the International Court of Justice, or ICJ, ruling that states should end all support for the Israeli occupation of Palestine, including the West Bank and Gaza Strip.
In a seven-page memo, Frank Hoffmeister, the director of the EU foreign service’s legal department, argued that while European law required the labeling of settlement products, a ban on their import and sale was still up for debate.
“EU law requires labelling indicating that foodstuffs originate in the West Bank and settlements,” Hoffmeister’s analysis says. “It is a matter of further political appreciation whether to revisit the EU’s policy vis-à-vis the import of goods from the settlements.”
The legal advice, which is reproduced below in full, was sent to EU foreign policy chief Josep Borrell on July 22, three days after the ICJ decided that states must not “render aid or assistance in maintaining” Israel’s illegal occupation.
Francesca Albanese, the United Nations special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, told The Intercept that the EU’s attitude to the ICJ opinion was “legally flawed, politically damaging, and morally compromised.”
“The EU is neglecting its responsibility to uphold international law,” she said. “This bending of rules for political convenience erodes the credibility of EU foreign policy and betrays the trust of people beyond Palestine.”
“The EU’s approach also sets a dangerous precedent by treating its obligations under the ICJ advisory opinion as optional, especially amid ongoing atrocities,” Albanese said. “This implies that compliance with international law is discretionary and undermines trust in the international legal system.”
Daniel Levy, a former Israeli peace negotiator and president of the U.S./Middle East Project, echoed the criticism, describing Hoffmeister’s advice as “a very spurious and easily rebutted interpretation.”
Pete Stano, the lead spokesperson for foreign affairs and security police at the European Commission, said in a statement to The Intercept, “As a general rule we do not comment on leaks of alleged internal documents.”
Scholars of international law told The Intercept that Hoffmeister’s analysis was incorrect: For products originating in Israel’s illegal settlements, specific labeling did not meet the ICJ’s requirement not to recognize Israel’s occupation.
“The ICJ has made clear that ‘all aid and assistance’ of any kind by all states to the settlement project must cease. It is my assessment that this requires the EU to revise its policy to end any and all trade, funding or other assistance that in any way supports the Israeli occupation,” said Susan Akram, the director of Boston University School of Law’s International Human Rights Clinic. “Current policy is non-compliant with the ICJ opinion, and that is not a matter, as the EU opinion states, ‘of further political appreciation whether to revisit EU policy.’”
Akram said that the analysis wrongly equated the ICJ’s requirement for nonrecognition of the occupation with the EU’s policy of working “with international partners towards reviving a political process” for a 2-state solution.
“This is not what the court has required,” she said. “It has stated that the entire occupation is illegal and must be terminated as rapidly as possible. This is not contingent on negotiations, whether for a two-state solution or otherwise.”
Hoffmeister’s analysis also warned the EU to expect “further litigation before national courts in relation to arms sales or other form of assistance to Israel.”
Billions in European Investments
The ICJ is the world’s highest legal body for hearing disputes between states and its opinions, while not binding, carry “great legal weight and moral authority,” and are considered the gold standard in international law. In September, the United Nations General Assembly responded to the ICJ ruling by saying Israel should end its 57-year occupation within 12 months.
Hoffmeister, the EU legal note’s author, is also the Brussels-based director for the foreign and security policy working group of Germany’s liberal Free Democratic Party, which is a strong supporter of Israel’s war in Gaza. The FDP, for which Hoffmeister previously served as Brussels vice chair, has called for a freeze on EU and German payments to Palestinian institutions and programs until a special audit has ensured that no cash goes “to finance Islamist terror.”
For more than 100 years, European countries have played a central role in supporting Jewish settlement in lands between the Mediterranean Sea and the Jordan River. Since the creation of Israel in 1948 and its seizure of the occupied territories in 1967, their trade and political support have buttressed Israeli control of the area.
Between 2020 and August 2023, European investors put up an estimated $164.2 billion of loans and guarantees for businesses “actively involved” in Israeli settlements — and held $144.7 billion of shares and bonds in the same firms, according to an estimate from a coalition of groups opposing European investment in settlements.
Most of the world considers civilian Israeli settlements in the occupied territories to be illegal under international law. But today, the settlement project appears to be accelerating, with new outposts being built in the West Bank and planned in the Gaza Strip.
The dissonance of these moves against a backdrop of what some call “the first livestreamed genocide” has led countries like Ireland to revive a proposed law banning trade with Israeli settlements that had been mothballed over fears that it breached EU rules.
In a letter released Tuesday on progress moving the law forward, Ireland’s deputy prime minister warned that if the EU failed to act, independent nations might move to bar trade in accordance with the ICJ.
“Trade is an exclusive EU competence and so the Government’s focus has been on achieving action at the EU level,” wrote Tánaiste Micheál Martin, who is also Ireland’s minister of foreign affairs. “I have consistently called for the EU to comprehensively review the EU-Israel relationship in light of the Advisory Opinion. The Attorney General has clarified that if this is not possible, there are grounds in EU law allowing States to take action at a national level.”
Norway’s government also advised its companies on October 17 to avoid trade that bolsters Israel’s presence in occupied territory.
On the same day, a cross-party group of 30 members of European Parliament put a written question to the European Commission asking if it would now “comply with its obligations under international law and urgently ban all trade with the illegal Israeli settlements,” following the ICJ ruling.
Hoffmeister himself last year called for states to comply with ICJ decisions and deplored Russia’s failure to do so in Ukraine.
Where Gaza and the West Bank were concerned though, his counsel was that the bloc was already “in conformity” with its duties not to recognize the occupation’s lawfulness, leaving the issue of Israeli settlements to the two-state peace process.
According to Akram, the Boston University law professor, this is also out of step with the ICJ’s requirement that all settlers be removed from occupied territory immediately. “It does not give discretion to states to allow this issue to be subject to any negotiations,” she said.
Albanese, the U.N. special rapporteur, said that the EU’s self-image as a mediator on Palestine had been tarnished by its reluctance to speak out over Israeli violations of international law.
“By resorting to escamotages and bending universal rules to preserve trade with these settlements and Israel as a whole, at a time of unspeakable atrocities, the EU risks becoming liable for aiding and assisting an apartheid regime and its heinous crimes,” she said, “suggesting that Palestinian rights are secondary to European economic interests, which would further damage the EU already compromised credibility among Palestinians and other peoples in the global south.”
The Intercept is publishing a reproduction of the legal analysis memo below, with some of the administrative notations removed.
EUROPEAN EXTERNAL ACTION SERVICE
The Director
SG. LD
Legal Department
Brussels, 22 July 2024
NOTE FOR THE ATTENTION OF JOSEP BORRELL FONTELLES HIGH REPRESENTATIVE
Subject: The ICJ Advisory Opinion of 19 July 2024 in respect of the Occupied Palestinian Territory
I. Introduction
On 19 July 2024, the International Court of Justice (“the
Court”) delivered its Advisory Opinion in respect of the “Legal
Consequences arising from the Policies and Practices of Israel in the
Occupied Palestinian Territory, including East Jerusalem”. It replied to
two questions, which the General Assembly had submitted to it on 30
December 2022:
(a) “What are the legal consequences arising from the ongoing
violation by Israel of the right of the Palestinian people to
self-determination, from its prolonged occupation, settlement and
annexation of the Palestinian territory occupied since 1967, including
measures aimed at altering the demographic composition, character and
status of the Holy City of Jerusalem, and from its adoption of related
discriminatory legislation and measures?
(b) How do the policies and practices of Israel […] affect the
legal status of the occupation, and what are the legal consequences that
arise for all States and the United Nations from this status?”
The present note briefly presents the Advisory Opinion (“the
Opinion”) (II), provides a few observations on its possible legal
implications (III) and suggests a conclusion (IV). The detailed
reasoning of the Court is summarised in Annex 1. Annex 2 contains a
summary of EU positions which were shared with Member States when
preparing their national submissions to the Court.
II. The Opinion
In the proceedings, over fifty States and three international
organisations submitted observations. From the EU, only a third of
Member States engaged in the process.
After having affirmed its jurisdiction and underlined there is
no compelling reason why it should not answer the questions posed by the
UNGA, the Court clarifies that Israel has duties as an occupying power
in the West Bank and East Jerusalem. Such duties also exist vis-à-vis
Gaza, even after the withdrawal of its military presence, commensurate
to the remaining ability of Israel to exercise effective control there
(control of airspace, access by land, delivery of certain basic
services).
Importantly, the Court then stresses that occupation is
temporary in nature. Even prolonged occupation does not give title to
sovereignty over the occupied territory. Applying the applicable
standards of international humanitarian law, as complemented by human
rights obligations that apply also for Israeli conduct beyond its
national borders, the Court then scrutinizes Israeli policies and
practices. The Court is convinced that Israeli settlements are meant to
be permanent and quotes numerous indicators in that direction. It also
stresses the duty not to annex territory, the prohibition to apply
discriminatory legislation and the right to self-determination of the
Palestinian people. Significantly, the Court considers that a broad
array of legislation adopted and measures taken by Israel in its
capacity as an occupying Power constitutes a breach of Article 3 of the
UN Convention on the Elimination of Racial Discrimination (CERD), which
prohibits racial segregation and apartheid.
In the most important part of the opinion, the Court analyses
the “effects” of the Israeli policies on the legality of the occupation
and on the obligations of other States and international organisation.
In the view of the Court, the sustained abuse by Israel of its position
as an occupying Power, through annexation and an assertion of permanent
control over the Occupied Palestinian Territory and continued
frustration of the right of the Palestinian people to
self-determination, violates fundamental principles of international
law. On this basis, the Court comes to the following substantive
operational conclusions:
(3) The State of Israel’s continued presence in the Occupied Palestinian Territory is unlawful;
(4) The State of Israel is under an obligation to bring to an
end its unlawful presence in the Occupied Palestinian Territory as
rapidly as possible;
(5) The State of Israel is under an obligation to cease
immediately all new settlement activities, and to evacuate all settlers
from the Occupied Palestinian Territory;
(6) The State of Israel has the obligation to make reparation
for the damage caused to all the natural or legal persons concerned in
the Occupied Palestinian Territory;
(7) All States are under an obligation not to recognise as
legal the situation arising from the unlawful presence of the State of
Israel in the Occupied Palestinian Territory and not to render aid or
assistance in maintaining the situation created by the continued
presence of the State of Israel in the Occupied Palestinian Territory;
(8) International organisations, including the United Nations,
are under an obligation not to recognize as legal the situation arising
from the unlawful presence of the State of Israel in the Occupied
Palestinian Territory;
(9) The United Nations, and especially the General Assembly,
which requested this opinion, and the Security Council, should consider
the precise modalities and further action required to bring to an end as
rapidly as possible the unlawful presence of the State of Israel in the
Occupied Palestinian Territory.
III. Legal significance and implications
1. The legal status of advisory opinions
Advisory Opinions of the International Court of Justice are not
legally binding. Nevertheless, they carry great significance and legal
authority, because the Court interprets binding principles of
international law, such as the right to self-determination and the
duties of occupying States. Therefore, even if formally non-binding, the
Advisory Opinion clarifies Israel’s obligations under international law
as regards the Occupied Palestinian Territory and the related
obligations of other States and international organisations, including
the EU.
Israel did not participate in the proceedings. It only
submitted a brief written statement arguing that it has not given
consent to judicial settlement of its dispute with Palestine, and that
the Opinion would force such a settlement without Israel’s consent. The
Court, however, rejected this argument when examining potential reasons
why it should render an Advisory Opinion. It found that Advisory
Opinions do not constitute a judicial settlement of bilateral disputes,
but rather clarify international law principles beyond the question of
Israel and Palestine, in particular the duty of non-recognition for
States and international organizations.
2. The legal implications of the operative parts
a) The illegality of prolonged occupation and the duty to end it (OP 3 and OP 4)
The Opinion was adopted with a large majority, with operative
articles on settlements and reparations adopted by 14 to 1 votes, while
the operative articles stating that occupation is unlawful and must be
brought to an end were adopted by a majority of 11 to 4 votes. Next to
Vice-President Sebutinde (who generally thought that the Court should
not have expressed itself on the questions), Judges Abraham, Tomka and
Aurescu voted against this point.
This divide in the bench (and the absence of a common EU
position on this point) shows that this proposition was not clear-cut.
However, for the majority, the key point was that Israeli settlement
activity went beyond the rights of an occupying power to temporarily
govern the territory under its effective control. It sends a strong
signal against annexation of territory by force, even if “sliced” over
time, and even if practiced by “private” settlers who received ex-post
authorisation and support by the State for their illegal activities.
The position adopted by the Court is broadly in line with the
key demands expressed by the State of Palestine, the League of Arab
States and the Organisation of Islamic Conference, with the notable
exception of the “right of return” of all Palestinian refugees to their
original places of residence.2 The Opinion requires that “all
Palestinians displaced during the occupation” be able to return to their
original place of residence”, with the preceding sentence mandating the
return of seized land “since [Israel’s] occupation started in 1967” (§
270). The Advisory Opinion thus appears to endorse the “two-State”
approach as regards residence rights, with the “Green line” as the
demarcating border between them. It does not analyse the situation and
potential rights of Palestinians who became refugees before 1967.
Another contentious issue relates to the Court’s treatment of
Article 3 of the Convention on the Elimination of Racial Discrimination
(CERD) on the prohibition racial segregation and apartheid. While the
Court was unanimous that “Israel’s legislation and measures constitute a
breach of Article 3 CERD” (§ 229), it did not specify on the basis of
which of the two elements contained in this provision (racial
segregation or apartheid) it comes to this conclusion. While President
Salam (§§ 14-32) and Judge Tladi (§ 36) qualified Israeli practices as
“tantamount to apartheid” or having the “character of apartheid” in
their respective individual declarations, Judges Iwasawa (§ 13) and
Nolte (§ 8) argue that the Court did not make such a finding.
b) The Israeli duty to evacuate the settlers and make reparation (OP 5 and OP 6)
Probably the most far-reaching conclusion relates to the
obligation of Israel “to cease immediately all new settlement
activities” and to “evacuate all settlers from the Occupied Palestinian
Territory” (OP 5). The duty to evacuate concerns 465,000 residents of
the West Bank and some 230,000 residents of East Jerusalem. At the same
time, the opinion contains a nuance on the timing. While the
implementation of the most urgent requirement, i.e. ceasing new
construction of settlements, must be done “immediately”, “bringing to an
end” of the “unlawful presence” must only be brought about “as rapidly
as possible” (OP 4). This could be read together with OP 9, according to
which the UNGA and the UNSG should consider “precise modalities and
further action” to bring an end to the unlawful presence of the State of
Israel in the Occupied Palestinian Territory. In the Chagos case (where
the UK was requested, in an Advisory Opinion, to respect that the
Chagos Islands are part of Mauritius), the UNGA adopted, only three
months later, Resolution 73/295, in which it interpreted the wording “as
rapidly as possible” as “no more than six months from the adoption of
the present resolution”.
As regards the duty of reparation for the damage caused to all
persons concerned (OP 6), the question will arise how to organize the
claims and their satisfaction (establishment of an International Claims
Commission?). Due to the inherent complexity of this point, it would be
wise to include this point in the “precise modalities” to be agreed by
the UNGA and the UNSC under OP 9.
c) The obligation of non-recognition of States and international organisations (OP 7 and OP 8)
In OP 7 and OP 8 the Court stresses the obligation “not to
recognise as legal the situation arising from the unlawful presence of
the State of Israel in the Occupied Palestinian Territory”. This
obligation of non-recognition is bearing on both States and
international organisations, which include the European Union.
The EU has a long standing policy of not recognising any
changes to 1967 lines between Israel and the West Bank. It has also
committed to work within the UN toward an equitable two-State solution
to the conflict, implying the establishment of a Palestinian State and
therefore the end of Israeli occupation of the Occupied Palestinian
Territory. The precise position of the EU on recognition (July 2014) was
as follows:
“An agreement on the borders of the two states, based on 4 June
1967 lines with equivalent land swaps as may be agreed between the
parties. The EU will recognize changes to the pre-1967 borders,
including with regard to Jerusalem, only when agreed by the parties.”
In its most recent conclusions of 27 June 2024, the European
Council invited the Council to take work forward on further restrictive
measures against extremist settlers in the West Bank and condemned the
Israeli government’s decisions to further expand illegal settlements
across the occupied West Bank and urged Israel to reverse these
decisions. It reiterated its unwavering commitment to “lasting and
sustainable peace in accordance with the relevant resolutions of the UN
Security Council, on the basis of the two-state solution, with the State
of Israel and an independent, democratic, contiguous, sovereign and
viable State of Palestine living side-by-side in peace, security and
mutual recognition”. It also committed the EU to “continue to work with
international partners towards reviving a political process to this end”
and noted “that a credible pathway to Palestinian statehood is a
crucial component of that political process”.
Agreed EU policy is therefore in line with the obligations
under international law as interpreted by the Court as regards other
States and international organisations in points (7) and (8) of the
operative parts of the Opinion. The envisaged measures against extremist
settlers will further align EU policy with the Opinion.
Another question concerns trade relations with the occupied
territories. Here the Court emphasises the duty of distinguishing
dealings with Israel between its own territory and the Occupied
Palestinian Territory (§ 278). For the Court it encompasses the
obligation to abstain from treaty relations with Israel in all cases in
which it purports to act on behalf of the Occupied Palestinian Territory
or a part thereof on matters concerning the Occupied Palestinian
Territory or a part of its territory. This view is already followed by
the EU, as the Court of Justice of the European Union has delineated the
territorial scope of application of the EU-Israel and the EU-PLO
Agreements in line with this principle. More difficult to discern is the
duty to “to abstain from entering into economic or trade dealings with
Israel concerning the Occupied Palestinian Territory or parts thereof
which may entrench its unlawful presence in the territory” and to “take
steps to prevent trade or investment relations that assist in the
maintenance of the illegal situation created by Israel in the Occupied
Palestinian Territory” (§ 278). In this respect, EU law requires
labelling indicating that foodstuffs originate in the West Bank and
settlements. It is a matter of political appreciation of whether further
measures are needed in this respect.
Among other legal consequences, the Opinion might encourage
further litigation before national courts in relation to arms sales or
other form of assistance to Israel, based on the argument that this is
used to maintain the situation created by the continued presence of the
State of Israel in the Occupied Palestinian Territories. The Opinion
might also exacerbate the already existing boycotts and citizens
petitions for a total ban on trade with products originating in the
settlements.
IV. Conclusion
In view of the elements above, the Legal Department considers that
1. The Advisory Opinion clarifies international obligations
binding on Israel as occupying power of the Occupied Palestinian
Territory; the fact that the opinion itself is advisory in nature does
not change the nature of Israel’s legal obligations.
2. The illegality per se of the prolonged occupation
constitutes a new element in the legal analysis of Israel’s presence in
the Occupied Palestinian Territory.
3. The duty to end settlement activities and to evacuate a
significant number of settlers needs to be taken into account in any
future peace initiative.
4. The long-standing position of the European Union on the
illegality of settlements beyond the Green Line is in conformity with
the duty of international organizations not to recognize as legal the
situation arising from the unlawful presence of the State of Israel in
the Occupied Palestinian Territory. It is matter of further political
appreciation whether to revisit the EU’s policy vis-à-vis the import of
goods from the settlements.
5. Given that the final operative article (9) of the Advisory
Opinion stresses a particular role of both the UN General Assembly and
the UN Security Council in defining the precise modalities how to bring
an end to the illegal occupation, any future EU initiatives should take
their findings into account.
e-signed
Frank Hoffmeister
Be the first to comment