Irish government ‘cannot push through unconstitutional Israeli settlement law’

The Irish government cannot ‘ram through’ a bill banning imports from illegal Israeli settlements on Palestinian territory if it is unconstitutional, Ireland’s Deputy Prime Minister has said.

There is disagreement between the Irish government and opposition parties over how quickly the Occupied Territories Act can be amended and passed ahead of the general election.

The Dail Parliament is expected to be dissolved at the end of this week and election day will be at the end of this month.

Ireland’s Deputy Prime Minister Michael Martin said the Occupied Territories Act needs to be substantially amended to make it legally robust, and that it will not be ready by the end of the week.

He said the amendments would be ready for the next government.

Opposition politicians have accused the government of delaying passage of the bill after years of delays.

Independent Senator Frances Black’s bill, introduced in 2018, has been frozen in the legislative process for years due to concerns that it would conflict with EU law.

But the Irish government has said that an opinion from the International Court of Justice (ICJ) in the summer, which declared the Israeli occupation of Palestinian territories illegal under international law and that countries should not aid or assist illegal settlements, has changed the context . .

The opposition has urged the government to pass the bill before elections are held. Sinn Fein and the Social Democrats offered time for this in the Dail this week.

Speaking on Tuesday, Tanaiste and the Foreign Secretary, Mr Martin, said it was an “extraordinary position” to ask for “a bill to be rammed through that, as currently written, is unconstitutional”.

In an appearance before the Oireachtas Foreign Affairs Committee, Mr Martin told TDs and senators that while the ICJ opinion “changed the legal context for the bill”, it did not make it legally airtight or “a slam dunk”.

“I can’t ram through a bill that’s unconstitutional,” he said.

“This will be challenged, this could go straight to the European courts, and the least we can do is put forward a bill that would be robust enough to navigate such a potential journey.”

He said the attorney general’s advice several years ago was that if the EU does not take measures to restrict or prevent trade with illegal Israeli settlements, there are “exceptional” grounds in EU law that would allow countries able to take action.

He said they had been told that the provision in EU law could only be compromised on exceptional public policy grounds, but that it would be unusual to use that argument to comply with international law.

Mr Martin said: “What has not changed is the European Union’s exclusive competence in trade matters for all its Member States, including Ireland. It is against this background that the Taoiseach has asked the Attorney General to provide updated advice on this Bill.

“However, it is important to understand that these lands have never before been used by a Member State in similar circumstances. So there remains a legal risk if we take domestic measures ourselves.”

The bill’s author, Frances Black, also addressed the committee, telling members that the bill’s passage “should not have taken this long.”

“If (the ICJ ruling) can finally open things up, then I really welcome that.

“We shouldn’t waste any more time, we should focus on getting this legislation passed as quickly as possible.

“After decades of theft, dispossession and displacement, and in the context of an ongoing genocide in Gaza, this bill is the absolute least we can do.”

Conor O’Neill, head of policy and advocacy at Christian Aid Ireland, told the committee that many of the amendments discussed were “not hugely challenging”.

He said that when the Bill was initially drafted, it applied to occupied territory anywhere in the world, if there was support for it within the Oireachtas and clarity from international courts on the issue.

But as the bill is being redrafted to reflect the opinion of the International Court of Justice, it will now focus on the Palestinian territories.

“If that were to happen, the key constitutional arguments that have also been put forward would no longer apply by default.”

He also said that any distinction between banning physical goods and not services would be “arbitrary, both politically and legally.”

Sinn Fein foreign affairs spokesman Matt Carty accused the government of trying to “delay and frustrate” the passage of the bill.

“You have told us that substantive changes need to be made to most, if not all, of the provisions of the bill.

“In fact, you have already directly contradicted Senator Frances Black, who says the requirements are technical changes.”

Committee chairman and former justice minister Charlie Flanagan asked Mr Martin for correspondence from Attorney General Rossa Fanning to explain the rationale for the amendments to the bill.

Mr Martin responded that because Mr Fanning’s advice “points out possible lines of attack from people who might want to undermine the bill”, it should not be shared.

“So if you get more than 10 people or whatever and it ends up in the hands of those who could bring a case against it, that would collectively weaken our position as a nation in defending such a bill.”

He added: “Passing this bill will unfortunately not stop Israel’s behavior.”