Opinion: Critics doubt legal character of ECJ

European Court of Justice ruled that "settlements" are in breach of international law. Legal scholars disagree.

Yardena Cohen,

European Court of Justice
European Court of Justice

The European Court of Justice’s settlement-illegality ruling on 12 November, widely interpreted as being gravely problematic for Israel, requires produce of Israeli “settlements” to be labelled. The ECJ release urged consumers to “make informed choices” regarding “observance of international law”, insisting Israel’s settlements are in breach of international law.

Israel’s Deputy Foreign Minister Tzipi Hotovely, herself a legal scholar and former popular television commentator, disagreed. “The State of Israel regards Jewish settlement of Judea-Samaria as legal under international law,” the Deputy FM tweeted firmly Wednesday evening. That very night, wailing IDF sirens warning of another missile attack from Gaza sent Hotovely, her 3 very young children, and all the over 100,000 residents of her home town of Rehovot, into the recommended “safe rooms”.

The Hague Initiative for International Cooperation, a non-profit European legal research organization, also blasted the European Court, saying the newly issued ruling was “seriously flawed”, marred by “astounding” incompleteness and inaccuracy and “yet another example of how law has become politicized”. Andrew Tucker and Pieter Hoogendoorn, speaking for The Hague Initiative, said that as a matter of law, Jews have a right to live in “what is now known as East Jerusalem and the West Bank” since “Article 80 of the UN Charter expressly preserved the pre-existing rights of the Jewish people under the Mandate”.

The UN Charter is considered a binding instrument of international law.

The European Court of Justice (ECJ) is a group of judges from European member-states, tasked with interpreting EU law and with ensuring equal application of EU law across all EU member states. Tucker and Hoogendoorn said that the European court’s assertion, phrased as a legal conclusion, that all Israeli settlements infringe international law, while often heard, reflected “a fundamental misinterpretation of the law”. “It is simply not true that the Palestinian people have a “right” to self-determination in all of the territories captured by Israel in 1967. On the contrary,” said The Hague Initiative leaders. “Not only is the Court’s reasoning deficient, it simply has no jurisdiction to make a determination that these territories do not belong to Israel.”

Such pointed criticism of European Court legal decisions is in no way precedential. Famously, in 2011, a European Court of Justice ruling called cheaper car insurance for women, who are known to drive more safely than men, illegal. The ruling occurred, as in the current settlement product labelling case, pursuant to advice provided by the court's Advocate-General. The ruling unleashed a storm of criticism against the European Court of Justice in Great Britain. Martin Callanan, leader of Britain's Conservative MEPs, denounced “nonsense court rulings like this one”. Conservative MEP Sajjad Karim called the ruling “utter madness” and “a setback for common sense”. "Once again we have seen how an activist European Court can over-interpret European human rights legislation,” Karim added. UK Independence Party MEP Godfrey Bloom accused the European Court of "social engineering" and said the EU judges “did not understand” what he called “simple actuarial facts of life”.

In the British business sector, AA Insurance said it was “disappointed” with the ruling and moneysupermarket.com said the ruling meant “many more motorists” might “drive without any [insurance coverage] at all." Open Europe said the 2011 European Court of Justice ruling was “beyond the realms of all common sense” and lashed out at “unaccountable EU judges”. The Royal Society for Prevention of Accidents called the Court’s ruling "unfair”.

In Germany, Roman Herzog, who served as president from 1994-1999, warned at one time that the ECJ "deliberately and systematically ignores fundamental principles of Western interpretation of law”. European Court decisions were sometimes “based on sloppy argumentation” which “invents legal principles serving as grounds for later judgments," the former president of Germany said.

The President of the Constitutional Court of Belgium, Marc Bossuyt, once stated that the European Court of Justice “fabricated” rulings, which in important cases had “severe financial consequences”.

State Department legal opinion identified as precursor to European ruling

In a related development, a senior Israeli minister, Betzalel Smotrich, also an attorney by profession, suggested on 13 November that a US State Department legal opinion which, years ago, spawned an international precursor of the new European ruling, should finally be withdrawn or rescinded. The State Department opinion dates back to the 70’s. A continent away, the New York-based Jewish Voice media site seemed to be making the same proposal. “The Administration seems unaware of the ease” with which a stick used to hit Israel could be removed, the Jewish Voice editorialized. The Jewish news-site said that in 1978, an attorney named Herbert Hansell, at the specific request of the Carter Administration, authored a memorandum stating Israeli settlements violate international law. Jewish Voice termed the memorandum, which is still valid, “ammunition from Jimmy Carter’s State Department”, and urged the need “to put the U.S. State Department on the side of truth”. TheJewishvoice.com editorial said settlements are not illegal according to any international law and that illegality allegations were “only an opinion and not a fact”.

“That this opinion against the settlements has been allowed to stand is, in itself, morally wrong,” said the Jewish Voice, adding that a settlement illegality stance “allows Israel’s critics the advantage of controlling the discussion and grounding it in the terms they choose”. Rescinding the State Department opinion would “strike a blow against the siege machinery that Israel’s enemies utilize,” the Jewish Voice said, adding that “It’s time to remove this shame.”