Sun 27 Oct 2024
Jewish Voice for Labour introduction
The UK may have left the European Union, but it remains an important international organisation with influence on the world stage. It seems, however, to be tying itself in knots over Israel and Palestine. In doing so it is failing to fulfil its legal duties – which is also what the UK and US are doing.
The EU’s Chief Legal Officer advised that a decision in the Hague did not mean that EU states should ban the import of goods from Israeli settlements. Other legal experts cite the International Court of Justice ruling that states should end al support for Israel’s occupation of Palestine.
Francesca Albanese (United Nations Special Rapporteur for Palestine) said that the EU’s to the ICJ opinion was “legally flawed, politically damaging, and morally compromised.” Furthermore, “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.”
This article was originally published by The Intercept on Wed 23 Oct 2024
EU “bending” rules to allow trade with Israeli settlements, leaked analysis shows
A recent ICJ ruling requires countries to end all support for Israeli occupation — but not according to the EU’s internal legal advice.
by Arthur Neslen, 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 labelling 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 22 July, three days after the ICJ decided that states must not “render aid or assistance in maintaining” Israel’s illegal occupation.
“The EU is neglecting its responsibility to uphold international law.”
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 said Hoffmeister’s analysis was incorrect: For products originating in Israel’s illegal settlements, specific labelling 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 programmes 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 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 17 Oct to avoid trade that bolsters Israel’s presence in occupied territory.
‘ EU risks liability for aiding an apartheid regime
On the same day, a cross-party group of 30 members of the 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. “The EU risks becoming liable for aiding and assisting an apartheid regime and its heinous crimes.”
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 recognise 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.”