The groundbreaking Advisory Opinion of 19 July 2024 on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem by the International Court of Justice (Court or ICJ) has serious implications for third countries. The Court dedicated a full section of its Opinion to international obligations for third countries flowing from Israel’s internationally wrongful acts in Palestine. The EU High Representative for Foreign Affairs, Joseph Borrell, sought to assuage concerns about a possible conflict between EU policy and international law by stating that the conclusions of the Advisory Opinion are “largely consistent with EU positions.” In the same statement, however, Borrell added that he will need to analyze the Opinion more thoroughly, “including in view of its implications for EU policy.” This is in line with recent developments at the level of EU foreign policy, where several EU Member States have called for sanctions against Israel and for revising the Association Agreement between the EU and Israel. This resulted, in June, in the EU Foreign Ministers calling for a meeting of the EU-Israel Association Council (a body composed of the foreign ministers of EU Member States and Israel) to discuss Israel’s compliance with its human rights obligations under the Association Agreement. However, this request to meet was rejected by Israel, which, as per Foreign Minister Katz, wanted to negotiate the agenda for the meeting and preferred to wait for the upcoming (now commenced) Hungarian presidency of the EU. Borrell recently reiterated that the Hungarian EU presidency will not change things and cautioned that this meeting “cannot be an Association Council business as usual.” With the Advisory Opinion of the ICJ, EU Member States now also have the conclusions of the highest international judicial body to consider.
Third country obligations according to the ICJ
In its section on the legal consequences for third countries, the Court reiterates the erga omnes character of the obligations that Israel has breached, that is, obligations that by their very nature are “the concern of all States” and to which all States can be held to have a legal interest in their protection (para. 274 of the Opinion). The Court finds that “among” the obligations erga omnes violated by Israel are: the obligation to respect the right to self-determination, the obligation arising from the prohibition of the acquisition of territory by force, and certain of its obligations under international humanitarian law and international human rights law. As Binaifer Nowrojee noted, the obligations laid out in the Advisory Opinion draw on the UN Charter, the decisions of the Security Council, international human rights law, international humanitarian law, and the law of State responsibility. The obligations laid out in these bodies of law, including the ICCPR, ICESCR, CERD, and the Fourth Geneva Convention, are binding on all EU Member States based on these agreements and as a matter of customary international law.
It is perhaps worth noting a difference of opinion among the judges on the link between obligations erga omnes and the legal consequences for third countries. Judge Tladi argues in his Declaration that the Court’s language wrongly suggests that the obligations for third countries flow from the erga omnes character of the obligations breached rather than from their peremptory status. Judge Tladi views this as a miscomprehension of the erga omnes concept which pertains to jurisdictional locus standi rather than substantive obligations for States (a view already expressed by Judge Higgins in her separate opinion in the Wall Opinion). Further support for this reading is found in the fact that Article 41 of the Articles on State Responsibility on the obligation for third countries not to recognize as lawful nor render aid or assistance in maintaining an illegal situation, specifically relates to peremptory norms. In a somewhat similar vein, Judge Gómez Robledo states that although the Court did not expressly characterize the right to self-determination as jus cogens in the past (until it did so in the current Opinion), that characterization could be inferred from the legal consequences the Court repeatedly identified, for example in the Wall and Chagos Opinions, such as the obligation not to recognize or render aid or assistance in maintaining the illegal situation and to co-operate to bring it to an end. He nonetheless finds it “regrettable” that the Court did not directly establish a link between the finding that the right to self-determination has the status of a peremptory norm and the consequences of its violation. On the other hand, Judge Cleveland sees no issue and, albeit without too much elaboration, finds the Court’s focus on the erga omnes character in para. 274 to be correct and consistent with prior case law, and that it was not necessary for the Court to pronounce that self-determination constitutes a peremptory norm for its analysis, but that it nonetheless did so “because it believed it to be legally correct.”
The Court subsequently identifies for each of the violations the implications for third countries. With regard to the right of the Palestinian people to self-determination, the Court notes that “all States must co-operate with the United Nations to put those modalities [required by the General Assembly and the Security Council to ensure an end to Israel’s presence in OPT and realization of Palestinian self-determination] into effect” (para. 275). One can see how the duty to co-operate with the UN puts countries that only a few months ago unilaterally and abruptly suspended funding to UNRWA on notice. UNRWA is the key UN agency in Palestine, and with the Advisory Opinion, the Court has cemented the obligation of all countries to ensure cooperation with UNRWA, despite and in the face of the recent bill passed by Israel designating the entire agency as a terrorist organization.
With regard to the prohibition of the acquisition of territory by force, the Court holds that all States are under an obligation “to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967” (para. 278). This obligation encompasses a number of different sub-obligations:
“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”;
“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”;
“to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian 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.”
These obligations have major implications for future trade and investment relations with Israel. Below, I will discuss the consequences concerning the economic relations between the EU and Israel.
Finally, the Court mentions several other important third State obligations in relation to the rights and obligations involved (para. 279):
“not to recognize as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory”;
“not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory”;
“to ensure that any impediment resulting from the illegal presence of Israel in the Occupied Palestinian Territory to the exercise of the Palestinian people of its right to self-determination is brought to an end”;
“all the States parties to the Fourth Geneva Convention have the obligation (…) to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”
The EU Association Agreement with Israel
Economic relations between the European Union and Israel are governed by a free trade area as part of the EU-Israel Association Agreement, which entered into force in 2000. It forms the basis for relations between the EU and Israel, governing the trade and investment relationships and establishing a framework for participation in EU programmes such as Horizon Europe. Article 2 of the Agreement, also called the human rights clause or essential element clause, establishes respect for human rights as an essential element of the Agreement and the relations between the EU and Israel. Article 2 provides:
“Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guides their internal and international policy and constitutes an essential element of this Agreement.”
This provision is to be read alongside the preamble, which refers expressly to the observance of the UN Charter:
“Considering the importance which the Parties attach to the principle of economic freedom and to the principles of the United Nations Charter, particularly the observance of human rights and democracy, which form the very basis of the Association;”
It is EU policy to include human rights clauses in bilateral political framework agreements and free trade agreements. The human rights clause was initially intended as a mechanism allowing the EU to suspend its obligations under international agreements in situations of egregious violations of human rights. Human rights concerns may also constitute grounds for the EU to postpone the adoption of a free trade agreement; recent such cases include Burundi and Vietnam. The EU also adopted measures against Liberia, among others, for its assistance to a rebel group in Sierra Leone, which was accused of committing gross human rights violations in Sierra Leone. It is argued that the EU thus seems to have accepted that human rights clauses cover policies with effects in other countries, independently of any extraterritorial conduct.
In principle, if the EU and its Member States formed a view that there is a serious and persistent violation of the requirement to respect human rights as an essential element of the Agreement, they could seek to rely on the non-execution clause of Article 79 of the Agreement to take appropriate measures against Israel and, ultimately, suspend the Agreement in whole or in part. Article 79, paragraph 2, provides the applicable procedural rules for this process: First, before taking measures, the parties are required to supply the Association Council with relevant information with a view to finding a solution acceptable to both parties. This rule does not apply in cases of special urgency. Second, measures which least disturb the functioning of the Agreement must be prioritized. Third, measures must be notified to the Association Council. Fourth, measures will be subject to consultations within the Association Council if the other party so requests. In February, Ireland and Spain sent a joint letter to the President of the European Commission, requesting a review of the EU-Israel Association Agreement in light of Israel’s war crimes in Gaza. On May 27, EU Foreign Ministers decided to convene a meeting of the EU-Israel Association Council. Ireland’s Foreign Minister Micheál Martin said, “For the first time at an EU meeting, in a real way I’ve seen significant discussion on sanctions.”
However, as Ireland and Spain await the outcome of the yet-to-be scheduled and negotiated meeting with Israel, one certainty is that human rights clauses in trade agreements are infamously rhetorical. Jurisdictional hurdles make serious legal challenges by individuals to violations of the clause difficult. Theoretically, member states, including Ireland and Spain, could bring a legal suit as ‘privileged applicants’ under Article 263 TFEU. But the impact of human rights clauses lie mostly in their diplomatic sway. Human rights clauses are rather aspirational, offering the EU a negotiation tool with other States. It is in this light that Ireland and Spain’s request to revise the trade agreement should be seen as applying pressure on Israel to change its behaviour ‘through dialogue’. The European Court of Justice seems to support such an interpretation, having ruled in the Mugraby case that the EU has a right to adopt appropriate measures, but not an obligation to do so. Arguably, such a casual approach by the EU is no longer legally sustainable in relation to Israel. Taking measures that eliminate, alleviate and rectify the illegal occupation of Palestine have been set out unambiguously in the new ICJ Opinion and demand a much stronger and more serious engagement by EU Member States with their legal obligations.
Implications for EU Member States
The unequivocal legal findings and consequences established by the ICJ create a renewed necessity and special urgency to review trade relations with Israel. EU Member States now have limited space for manoeuvring around the legal effects brought about by the illegality of the occupation. Especially pertinent are the obligations set out by the Court in relation to the prohibition of the acquisition of territory by force. Specifically, EU Member States are prohibited from entering into economic or trade dealings with Israel which may entrench its unlawful presence in Palestinian territory and must take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in Palestine. These obligations preclude several ongoing trade relations between Israel and EU Member States.
Economic and trade dealings that entrench unlawful presence in Palestinian territory: The most obvious legal consequence for EU Member States is banning economic and trade activities occurring in the occupied territories. Given the illegality of settlements and their contribution to human rights abuses, all countries should end business relationships with settlements, including the trade of goods to and from them. Though the labelling of settlement goods is formally EU policy, European businesses continue to trade goods and offer services in settlements. One example involves currently ongoing litigation against a European travel agency whose response to accusations of listing properties in illegal settlements is that “there are no applicable laws that prohibit listing properties in Israeli Settlements in the West Bank, but in fact, there are many US state laws that limit our ability to disengage from the region. For example, in 38 states across the United States, there are measures that discourage boycotts or divestment from Israel.” To put into effect the legal consequences set out by the ICJ, EU Member States must plainly prohibit and penalize economic activities in occupied territory. The measures on labelling under the current Association Agreement have not been enough to curb illegal trade. Revising the Agreement to include an appropriate tracking system and a punitive mechanism for violations is necessary to halt activities that entrench unlawful Israeli presence in Palestine. Moreover, Article 2 of the European Council Framework Decision 2005/212 provides the legal basis for the confiscation of settlement products entering the European common market, as they represent proceeds deriving from criminal offences.
Trade and investment relations that assist the maintenance of the illegal situation: Another aspect of the ICJ Opinion requiring action by EU Member States is preventing trade and investment relations that assist in maintaining the occupation. Separating legal trade relations with Israeli businesses from links to the illegal occupation is difficult, and sometimes impossible. Arms, drones and surveillance equipment developed by Israeli arms manufacturers are employed throughout Gaza, occupied Palestinian territories and East Jerusalem and sold as battle-tested to European countries. Such economic activity clearly assists in the maintenance of the illegal situation and is thus prohibited under the ICJ Opinion. This problem has proven persistent in economic relations with Israel, other such examples including cooperations with Israel’s national water company, which expropriates water from Palestinian springs in the West Bank, the country’s largest supermarket chain, which operates in illegal settlements, and an irrigation firm. There is a difficulty in separating trade and investment relations with businesses operating in Israel and those having ties to occupied Palestinian territories because Israel treats settlements as an integral part of its territory in accordance with its domestic law. With so many businesses tied up in internationally prohibited activities, it is indeed the question if untangling those enterprises from the illegal side of their activities is possible. Recent official documents obtained by a Dutch rights group through a freedom of information act request show Dutch Foreign Ministry officials expressing doubts that any trade with Israeli businesses can be entirely ‘settlement-free’: “Almost every Israeli business has a connection to settlements somewhere.” The legal consequences of the illegality of the Israeli occupation place before the EU Member States the task of making clear-cut rules about the origin of Israeli products and services, and prohibit economic relations where ‘settlement-free’ origin is not guaranteed or transparency cannot be achieved.
Conclusion
The European Union must construct and implement its external relations in accordance with the requirements of general international law, including the provisions of international law that contribute to the protection of human rights. In addition, Article 2 of the EU-Israel Association Agreement commits the EU and its Member States to base their relations, and the provisions of the agreements themselves, on respect for human rights. Moreover, in their dealings with states engaged in armed conflict or belligerent occupation, such as Israel, all EU Member States are bound by the duty established in Article 1 common to the Geneva Conventions to “respect and ensure respect for [those] Conventions in all circumstances.” Yet, what has generally characterized EU policy is “a pattern of deference, bordering on legal acquiescence, to Israel’s violations of its agreements with the EU.” The Advisory Opinion of the ICJ demands an end to European deference. For Borrell’s words that the EU’s next meeting with Israel “cannot be an Association Council business as usual” to have meaning, the EU must take a unified stance in denouncing Israel’s systematic human rights violations, IHL violations, and violations of CERD, as well as Israel’s persistent disregard for EU human rights concerns. Furthermore, the EU should undertake a comprehensive review of EU-Israel bilateral relations to ensure consistency with the EU’s obligations under international law and take measures to ensure the EU’s dealings are not contributing to facilitating the occupation, racial segregation and apartheid, and other violations of international law.
Source: EJIL: Talk!