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Itay Epshtain

@EpshtainItay

May 21

The @EUCouncil's 'qualified majority' decision to review #Israel's adherence to Article 2 of the Association Agreement raises an unresolved EU procedural law matter. A thread for those interested in the more technical aspects (which could have major legal and political implications):

1/3 Article 218 of the Treaty on the Functioning of the European Union (TFEU, the founding treaty of the EU, signed in 1957 and revised in 2007) regulates agreements between the Union and third countries, such as Israel. There are three stages to it:
- The @EUCouncil authorises the opening of negotiations and adopts negotiating directives
- The @EU_Commission and the @eu_eeas HR/VP submit recommendations to the Council
- After consulting the European Parliament @Europarl_EN, the Council must reach unanimity of member states to adopt a decision concluding the association agreement

2/3 Article 218(9) then provides that on recommendation from the HR/VP @kajakallas - pending said review - the Council may decide, again, unanimously, to suspend the EU-Israel Association Agreement. Therein lies the problem. The review will likely confirm that #Israel's actions in occupied #Palestinian territory amount to a grave breach of peremptory norms of international law (jus cogens), including, inter alia, the prohibition of aggression, the prohibition of genocide, the prohibition of crimes against humanity, the basic rules of international humanitarian law (and corollary war crimes), and the suppression of the right to self-determination.

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Itay Epshtain

@EpshtainItay

May 21

Ensuring respect for peremptory norms of international law, including the basic rules of IHL, is a legal duty under Common Article 1 of the Geneva Conventions and the rules on State Responsibility for Internationally Wrongful Acts. I'm encouraged by @FCDOGovUK @UKintlaw's recognition of that core legal tenet.

In 2020, the @ICRC Commentary on the Geneva Conventions confirmed the possible measures, some of which the UK has instituted, while others should be immediately considered in response to atrocity crimes:
– exerting diplomatic pressure by means of confidential protests or public denunciations
– applying measures of retorsion, such as the halting of ongoing negotiations or refusing to ratify agreements already signed, the non-renewal of trade privileges, and the reduction or suspension of voluntary public aid
– adopting lawful countermeasures such as arms embargoes, trade and financial restrictions, flight bans, and the reduction or suspension of aid and cooperation agreements
– resorting to penal measures to repress violations of humanitarian law and supporting international efforts, including by the @IntlCrimCourt, to bring suspected perpetrators of serious violations of IHL to justice

Yesterday, the @EUCouncil - led by @eucopresident and @eu_eeas Chief @kajakallast - decided to review #Israel's compliance with the EU Association Agreement, 'based on respect for human rights and democratic principles, which guides their internal and international policy.' What might that look like:

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Itay Epshtain

@EpshtainItay

May 12

ALERT: Yesterday, #Israel's War Cabinet approved the wholesale 'title registration' of West Bank land, completing its annexation, and entrenching Israel's unlawful presence. This unprecedented decision will deny millions of #Palestinians their housing, land, and property rights.

A two-prong legal analysis applies to this decision: 1/2 Up until July 2024, it was in breach of the rules of usufruct—under Article 43 and 55 of the Hague Regulations—according to which Israel, as the Occupying Power, is only a temporary administrator of occupied territory.

2/2 From July 2024, the @CIJ_ICJ advisory opinion maintains that Israel's presence in the occupied Palestinian territory is unlawful, and this "entails that the Occupying Power bears the duty to administer public property for the benefit of the local population or, exceptionally, to meet the needs of the army of occupation. In the present case, however, the public property confiscated or requisitioned for the development of Israeli settlements benefits the civilian population of settlers, to the detriment of the local Palestinian population." The Court concludes that to "seek to acquire sovereignty over an occupied territory, as shown by the policies and practices adopted by Israel in East Jerusalem and the West Bank, is contrary to the prohibition of the use of force in international
relations and its corollary principle of the non-acquisition of territory by force."

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Itay Epshtain

@EpshtainItay

May 6

BREAKING: Israel’s New INGO Registration Measures Are a Grave Threat to Humanitarian Operations and International Law, Say 55 Organizations.

55 organisations operating in #Israel and the occupied #Palestinian territory (oPt) call for urgent action from the international community against new Israeli registration rules for international NGOs.

"Based on vague, broad, politicised, and open-ended criteria, these rules appear designed to assert control over independent humanitarian, development, and peacebuilding operations, silence advocacy grounded in international humanitarian and human rights law, and
further entrench Israeli control and annexation of the occupied Palestinian territory."

Under the new provisions, INGOs already registered in Israel may face de-registration, while new applicants risk rejection based on arbitrary, politicised allegations, such as “delegitimising Israel” or expressing support for accountability for Israeli violations of international law.

"By framing humanitarian and human rights advocacy as a threat to the state, Israeli authorities can shut out organisations merely for speaking out about conditions they witness on the ground, forcing INGOs to choose between delivering aid and promoting respect for the protections owed to affected people."

INGOs are further required to submit complete staff lists and other sensitive information about staff and their families to Israel when applying for registration. "In a context where humanitarian and healthcare workers are routinely subject to harassment, detention, and direct attacks, this raises serious protection concerns."

These new rules are part of a broader, long-term crackdown on humanitarian and civic space, marked by heightened surveillance and attacks, and a series of actions that restrict humanitarian access, compromise staff safety, and undermine core principles of humanitarian action.

Under international humanitarian law, occupying powers are obligated to facilitate impartial humanitarian assistance and ensure the welfare of the protected population.

"Any attempt to condition humanitarian access on political alignment or penalise organisations for fulfilling their mandate risks breaching this framework. The International Court of Justice (@CIJ_ICJ ) ordered Israel to allow unimpeded delivery of humanitarian aid to Gaza in three legally binding provisional measures orders in 2024. Yet, these new rules expand and institutionalise existing barriers to aid."

These 55 undersigned organisations remain committed to the delivery of humanitarian aid, along with development and peacebuilding services and activities that are "independent, impartial, and based on need, in full accordance with international law and the humanitarian principles derived from it."

INGOS call on donor States to:

● Use all possible means to protect humanitarian operations from measures that compromise neutrality, independence, and access – including staff list requirements, political vetting, and vague revocation clauses.
● Take concrete political and diplomatic action, beyond statements of concern, to ensure unhindered humanitarian access and prevent the erosion of principled aid delivery.
● Support INGOs and Palestinian and Israeli civil society organisations through legal assistance, diplomatic support, and flexible funding to help mitigate legal, financial, and reputational risks.

Donors must defend principled humanitarian and human rights work!

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Itay Epshtain

@EpshtainItay

May 5

Last night, #Israel's War Cabinet approved a plan for partisan and militarized aid distribution in #Gaza, led by US-based private military security companies and the opaque 'Gaza Humanitarian Foundation.' Let's dig into the facts and law that underpin this facade of humanitarianism:

1/5 The 'Gaza Humanitarian Foundation' was registered in Switzerland earlier this year and is led by David Papazian (Former CEO of Armenian National Interests Fund), Samuel Marcel Henderson, and David Kohler (CEO of Kohler Co.). None have any apparent links to, or experience with, humanitarian relief.

2/5 Israel's obligations as an occupying power follow, inter alia, from Art. 43 and Art. 48 of the Hague Regulations, and Art. 59 of the Fourth Geneva Convention. It must restore and ensure public life and order in occupied #Palestinian territory, "to the same extent as the legitimate Government was so bound." If the whole or part of the population of an occupied territory (e.g., #Gaza) is inadequately supplied, it must agree to relief schemes, on behalf of and in the interest of the Palestinian population - not in its own interest - and must facilitate them by all the means at its disposal.

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Itay Epshtain

@EpshtainItay

Apr 29

A few observations on yesterday's intervention by @UN Counsel, the formidable Elinor Hammarskjöld @Elinorjbh, at the @CIJ_ICJ:
1/3 At the outset, the relevance of the Courts' 2024 Advisory Opinion on the unlawfulness of Israel's continued presence in the occupied #Palestinian territory was invoked. "#Israel's assertion of sovereignty over and its annexation of certain parts of the oPt constitute a violation of the prohibition of the acquisition of territory by force." This cornerstone finding is relevant to the current proceeding, argued Hammarskjöld, because Israel must respect the "decisions of the representative of the Palestinian people to receive basic goods and services from the United Nations entities [and other impartial humanitarian organizations - IE] in order to fully enjoy their right to self-determination. Israel is bound to respect the decision of the Palestinian people on the manner in which the dependence of the West Bank, including East Jerusalem, and Gaza on Israel for the provision of basic goods and services should be reduced."

2/3 Second, Hammarskjöld laid out the continuum of humanitarian relief and development assistance in situations of prolonged belligerent occupation: "The content of relief schemes depends on the needs of the population of an occupied territory. The legal obligation covers those needs that have to be addressed immediately [e.g., food, water, shelter, and hygiene facilities]. The definition should also be understood to cover needs which may be more long-term, in particular in cases of prolonged occupation. For example, relief schemes to address long-term needs may include items that are essential for the construction and repair of certain infrastructures, including medical and sanitation facilities, and items and services to eradicate poverty." From that, it follows that relief schemes need to be adapted to the evolving needs. "The occupying Power must agree to such relief schemes, as adapted, and facilitate them."

3/3 Lastly, on the limited control rights of an occupant over bonafide relief schemes, she argued that "any measures taken by the occupying Power to ensure its security must be exercised in a manner that would not deny impartial humanitarian organizations such as the United Nations the ability to carry out relief schemes, while part of the population of an occupied territory continues to be inadequately supplied." Importantly, and relevant to Israeli measures that aim to limit the independence and impartiality of humanitarian organizations [e.g., the recent registration guidelines for INGOs], "in instances where the occupying Power has concerns with the impartiality of a humanitarian organization, the occupying Power may not unilaterally declare that such humanitarian organization is not impartial, and deny its relief schemes. Such concerns must be addressed in consultation with the humanitarian organization concerned."

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