LAST UPDATE | 2 Oct
WERE IT NOT for the fact that the focus has been firmly on Israel’s slaughter in Gaza and in recent days, Lebanon, the situation in the West Bank over the last year would have dominated global media headlines.
There, Israeli soldiers and settlers have killed over 700 Palestinians since October 2023 and the Israeli government has seized the largest amount of Palestinian land for illegal settlement expansion in decades.
Of course, what is happening in Gaza and the West Bank is directly linked – genocide, apartheid and ethnic cleansing being the inevitable by-products of settler-colonialism.
Incredibly, all of this continues without the imposition of a single economic sanction on Israel by Western governments. On the contrary, Israeli goods entering Ireland and the EU continue to enjoy preferential trade status. Indeed, we even still allow imports from the illegal settlements in the occupied West Bank.
Not only is this morally unconscionable, it is also clearly illegal. This was confirmed by the International Court of Justice (ICJ) in an ‘Advisory Opinion’ it delivered in July of this year, which declared Israel’s 57-year occupation of Palestinian territory illegal under international law.
The ICJ further held that, as a result, all States must:
— “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
— “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”.
To the Irish government’s credit, this is what it argued international law requires in its submission to the ICJ in this case.
It therefore defies belief that the same government continues to oppose the Occupied Territories Bill (OTB), which would ban trade with illegal Israeli settlements in Palestine, giving effect precisely to this international obligation.
Sponsored by Independent Senator Frances Black and passed by the Seanad in 2018, this groundbreaking Bill was then introduced to the Dáil the following year by Fianna Fáil, where it passed two votes by a resounding majority (Fianna Fáil then reversed its support for the Bill on entering government a year later).
The main reason given for the government’s opposition to the Bill is that the Attorney General (AG) has concluded that under EU law, only the EU itself can ban trade with the illegal settlements. However, a series of opinions by eminent lawyers conclude unequivocally that EU law permits member states to adopt such a ban unilaterally, precisely because of the settlements’ illegality under international law.
One such opinion was written on the OTB in 2018 by Professor Takis Tridimas, a leading EU law specialist whose work is frequently cited by Irish courts, including the Supreme Court. But the government simply dismissed his opinion out of hand.
In light of the recent ICJ Advisory Opinion, an updated opinion was sought by the recently relaunched Campaign to Pass the Occupied Territories Bill from Professor Tridimas and a second EU law expert, Professor Panos Koutrakos, who has specific expertise on the role of international law within EU law.
In their joint opinion, they emphasise that Professor Tridimas’ 2018 conclusion was reached without the need to establish that international law actually obliges States to prohibit trade with the settlements; that the ICJ has now confirmed that there is such an obligation; and that it is well established that EU law must be interpreted so as to avoid a situation where it would be impossible for Member States to comply with their international law obligations.
They also gave their view on the opinion of the former Attorney General (AG), Séamus Woulfe (now a Supreme Court judge), which concluded that the OTB is contrary to EU law and was leaked in 2020. In their forensic assessment of this opinion, Professors Tridimas and Koutrakos outline a series of major omissions and other flaws in the AG’s reasoning.
For example, they state that “it is striking that the AG Opinion should have ignored the judgments in [two cases] where the ECJ [European Court of Justice] expressly held that Member States may deviate from EU law, including the fundamental freedoms of movement, on public policy grounds in order to protect fundamental rights.”
They also note that this is not the only point on which the former AG “ignore[d] settled case law” and describe his interpretation of a key ECJ case concerning trade with the Israeli settlements as “erroneous”.
They therefore conclude: “[W]e find the analysis and conclusion in the AG Opinion that the OTB is inconsistent with EU law not only unconvincing but also at odds with settled ECJ case law”.
In August, the Taoiseach indicated that the government had sought updated advice from the current AG on the question of trade with Israel and the illegal settlements. In relation to trade with the settlements, the position could not be clearer: far from it being illegal for Ireland to ban settlement goods, as the government has claimed to date, the ICJ ruling makes clear that it would be illegal not to ban them.
Strong words of condemnation and symbolic gestures, though important, are far from enough. This government must comply with its international obligations and urgently enact the OTB.
Gerry Liston and Éamonn Meehan are spokespersons for the Campaign to Pass the Occupied Territories Bill.
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