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.
“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 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.
Israel’s establishment in 1948 and its acquisition of the occupied territories in 1967 have been supported by trade and political backing, with European investors providing significant financial support. Despite widespread international condemnation of Israeli settlements in the occupied territories, the construction of new settlements continues in both the West Bank and Gaza Strip.
In response to these actions, Ireland has proposed a law banning trade with Israeli settlements, and Norway has advised its companies to avoid supporting Israel’s presence in occupied territory. Additionally, a group of European Parliament members has called on the European Commission to comply with international law and prohibit all trade with illegal Israeli settlements.
The European Union’s response to the International Court of Justice’s ruling on the occupied Palestinian territory has been criticized for not fully aligning with the court’s requirements to remove all settlers immediately. This reluctance to take a firm stance against Israeli violations of international law has tarnished the EU’s reputation as a mediator in the Israel-Palestine conflict.
The EU faces accusations of aiding an apartheid regime and committing heinous crimes by prioritizing economic interests over Palestinian rights. The lack of action on settlements and violations of international law has damaged the EU’s credibility among Palestinians and other global communities.
A legal analysis memo from the European External Action Service highlights the ICJ’s Advisory Opinion on the occupied Palestinian territory, emphasizing Israel’s obligations as an occupying power and the temporary nature of occupation. The memo also notes the EU’s limited engagement in the ICJ process and the importance of upholding international humanitarian and human rights law in evaluating Israeli policies and practices. The Court has determined that Israeli settlements are intended to be permanent, citing various indicators to support this claim. It emphasizes the duty not to annex territory, the prohibition of discriminatory legislation, and the right to self-determination for the Palestinian people. The Court also finds that Israel’s actions as an occupying Power, including legislation and measures taken, violate Article 3 of the UN Convention on the Elimination of Racial Discrimination, which prohibits racial segregation and apartheid.
In its analysis, the Court concludes that Israel’s sustained abuse of its position as an occupying Power through annexation, permanent control over the Occupied Palestinian Territory, and denial of the right to self-determination for Palestinians violates fundamental principles of international law. As a result, the Court makes several operational conclusions, including declaring Israel’s presence in the Occupied Palestinian Territory as unlawful, requiring Israel to end its presence there as soon as possible, and ceasing all new settlement activities while evacuating all settlers from the area.
Furthermore, the Court states that all States are obligated not to recognize the situation resulting from Israel’s unlawful presence in the Occupied Palestinian Territory and should not provide any aid or assistance to maintain that situation. International organizations, including the United Nations, also have a duty not to recognize the legality of Israel’s presence in the territory. The Court calls for action from the United Nations, particularly the General Assembly and the Security Council, to address and end Israel’s unlawful presence in the Occupied Palestinian Territory.
While advisory opinions of the International Court of Justice are not legally binding, they hold significant legal authority in interpreting international law principles. Despite Israel’s non-participation in the proceedings, the Court rejected arguments against rendering the Advisory Opinion, clarifying obligations under international law for Israel, other States, and international organizations concerning the Occupied Palestinian Territory.
The Advisory Opinion’s operative parts highlight the illegality of prolonged occupation and the obligation to end it. The Court’s decision, adopted by a majority vote, underscores the excessive nature of Israeli settlement activities and sends a clear message against the annexation of territory by force. The Opinion aligns with the demands of Palestinian authorities and Arab organizations, emphasizing the rights of displaced Palestinians to return to their original places of residence and addressing issues of racial discrimination and apartheid in Israel’s legislation and measures. President Salam and Judge Tladi characterized Israeli practices as “tantamount to apartheid” or having the “character of apartheid,” while Judges Iwasawa and Nolte argued that the Court did not make such a finding.
b) The Israeli obligation to evacuate settlers and provide reparation (OP 5 and OP 6)
The most significant conclusion pertains to Israel's duty to "cease immediately all new settlement activities" and to "evacuate all settlers from the Occupied Palestinian Territory" (OP 5). This duty involves a large number of residents in the West Bank and East Jerusalem. The timing of implementation varies, with new settlements needing to cease immediately and the evacuation of settlers to be done "as rapidly as possible" (OP 4). The establishment of an International Claims Commission may be necessary to address the reparation for damage caused (OP 6).
c) The obligation of non-recognition of States and international organizations (OP 7 and OP 8)
The Court emphasizes the obligation "not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory" (OP 7 and OP 8). The European Union has maintained a policy of not recognizing any changes to the 1967 lines and is committed to a two-state solution.
The EU's recent actions align with the obligations outlined in the Court's opinion. Trade relations with the occupied territories must be distinguished from dealings with Israel's own territory. Further legal consequences may include increased litigation and boycotts related to trade with products from Israeli settlements.
IV. Conclusion
In light of the above elements, the Legal Department asserts that:
1. The Advisory Opinion clarifies international obligations for Israel as the occupying power in the Occupied Palestinian Territory, regardless of its advisory nature.
2.
The prolonged occupation of the Occupied Palestinian Territory by Israel is inherently illegal, marking a new aspect in the legal evaluation of the situation.
3. Any future peace efforts must consider the obligation to cease settlement activities and remove a significant number of settlers.
4. The European Union's consistent stance on the illegality of settlements beyond the Green Line aligns with the responsibility of international bodies to not legitimize the unlawful presence of Israel in the Occupied Palestinian Territory. Whether to reevaluate the EU's policy on goods from settlements is a subject for further political consideration.
5. The Advisory Opinion's final article (9) emphasizes the importance of the UN General Assembly and Security Council in determining the specific measures to end the illegal occupation. Any future initiatives by the EU should take these conclusions into consideration.
e-signed
Frank Hoffmeister
