Canada must comply with ICJ advisory opinion on Israel’s occupation

Dear Right Honourable Justin Trudeau,

I am writing on behalf of Canadians for Justice and Peace in the Middle East (CJPME) to request that the Canadian government immediately take steps to align its policy with the Advisory Opinion of the International Court of Justice (ICJ), titled the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.¹Issued by the court on July 19, 2024, the Advisory Opinion is the most significant legal determination on the issue of Israel’s occupation of Palestine to date, and it presents several important implications for the Canadian government.

While Advisory Opinions of the ICJ are non-binding, they nonetheless “reflect the ICJ’s views as to rights and obligations of states under international law,” and “in that sense they are not different from binding judgments and generate expectations of implementation of the Court’s determinations.”² Given Canada’s expressed support for the “critical role” of the ICJ in resolving disputes and “upholding the international rules-based order,”³there is significant expectation that Canada will set an example by complying with the obligations that the ICJ has set out for it. If Canada wants to obtain a seat on the UN Human Rights Council, or otherwise wield greater moral authority in international affairs, it should be seen to go above and beyond in aligning itself with the ICJ, rather than defying its advice.

As you are aware, the ICJ determined that “the State of Israel’s continued presence in the Occupied Palestinian Territory [including the West Bank, East Jerusalem, and Gaza] is unlawful,” and that Israel “is under an obligation to bring to an end its unlawful presence in the [OPT] as rapidly as possible.” Further, the ICJ determined that:

Israel’s policies and practices amount to annexation of large parts of the OPT, and therefore Israel has violated the prohibition on the acquisition of territory by force, per Article 2(4) of the Charter of the United Nations.
Israel’s broad array of discriminatory policies against Palestinians in the OPT constitutes racial segregation and apartheid, in breach of Article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination.
Israel’s unlawful policies and practices over decades have profoundly violated the right of the Palestinian people to self-determination, which is inalienable and “cannot be subject to conditions on the part of the occupying Power.”
Israel is obliged to “provide full reparation for the damage caused by its internationally wrongful acts,” including through the return of land and property, the evacuation of all settlers, and allowing displaced Palestinians to return to their homes.
All states, including Canada, are obliged “not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel” in the OPT, including through trade and treaties, and must “take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel” in the OPT.

These are significant conclusions that ought to have profound implications for Canadian policy. The Canadian government must take the following steps to ensure that it aligns its foreign policy with international law as outlined in the ICJ advisory opinion.

Canada must support efforts by the UN to end Israel’s illegal presence in the OPT

In its Advisory Opinion, the ICJ mandated the General Assembly and the Security Council to “consider what further action is required to put an end to the illegal presence of Israel” in the OPT, and called on all states to cooperate with the UN to achieve this goal.

Canada is therefore obliged to assist the UN in bringing an end to Israel’s unlawful presence in the OPT. Given that this issue is certain to arise at future meetings of the UNGA and other UN bodies, Canada must be prepared to support all initiatives that affirm the ICJ opinion and seek Israel’s compliance, which may involve (at a minimum) co-sponsoring and voting in support of resolutions. Canada must also urge the United States not to veto any resolutions that may come before the Security Council on this matter.

Unfortunately, Canada has not supported the UN’s efforts to date, but voted against the initial UNGA resolution⁴ and tried to dissuade the court from rendering a decision.⁵ As you know, the ICJ easily rejected the arguments submitted by Canada to the court, concluding that there were no compelling reasons for it to decline to render an opinion. We also remind you that earlier this year, you personally voted for a resolution in Parliament to “support the work of the International Court of Justice” in the context of Israel’s war on Gaza.⁶ Following the clear legal conclusions of the ICJ, we expect to see Canada finally drop its obstructionist role, and join efforts to hold Israel accountable for these grave breaches of the rules-based international order.

Canada must impose sanctions on Israel in response to its breach of the UN Charter

In its Advisory Opinion, the ICJ found that Israel’s actions “amount to annexation of large parts” of the OPT. The ICJ notes that this violates Article 2, paragraph 4, of the Charter of the United Nations and 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.” This represents a major breach of a fundamental principle of international law.

In other contexts, Canada claims to uphold this principle with the utmost seriousness. After Russia’s invasion of Ukraine in 2022, your office issued a statement saying that Russia’s actions were “in violation of Russia’s obligations under international law and the Charter of the United Nations.”⁷Canada then co-sponsored a UNGA resolution which “deplore[d] in the strongest terms the Russian Federation’s aggression against Ukraine in violation of Article 2, paragraph 4 of the United Nations Charter,” and demanded immediate withdrawal from Ukrainian territory.⁸Earlier this month, you joined the NATO-Ukraine Council in naming Russia’s war as “a blatant violation of international law including the UN Charter, for which it must be held fully accountable.”⁹

Canada accompanied these political statements in defence of the UN Charter with the swift imposition of a comprehensive set of sanctions targeting the Russian state and economy under the Special Economic Measures Act. Since 2022, Canada has amended its sanctions against Russia at least 46 times, targeting government and military officials, but also expanding restrictions on military trade, financial and energy sectors, the oil and gas industry, prohibitions on ships from docking or entering Canadian waters, the trade in luxury goods, and much more.¹⁰Canada has separately imposed sanctions on individuals and entities related to Russia’s illegal occupation of Ukrainian territory.¹¹

Canada has set a certain standard in its response to Russian violations of the UN Charter, and this standard must be applied to Israel. Canada must impose sanctions on Israel under the Special Economic Measures Act, targeting government and military officials as well as individuals and entities tied to Israel’s illegal presence in the OPT. Sanctions should be commensurate with Israel’s breaches of international law, and no less significant than Canadian sanctions targeting Russia. Anything less would reveal an extraordinary double standard in Canada’s application of international law.

Canada must cancel the Canada-Israel Free Trade Agreement and ban trade with Israeli settlements

In its Advisory Opinion, the ICJ concluded that states including Canada are under an obligation to structure their economic relations with Israel so that they do not contribute to its illegal presence in the OPT. Specifically, the ICJ found that states are obliged to:

“distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967”;
“abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the [OPT] or a part thereof on matters concerning the [OPT] or a part of its territory”;
“abstain from entering into economic or trade dealings with Israel concerning the [OPT] or parts thereof which may entrench its unlawful presence in the territory”;
“take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the [OPT]”; and
“not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the [OPT].”

Per the above, Canada is already violating these obligations through the Canada-Israel Free Trade Agreement (CIFTA). CIFTA extends free trade benefits to the entire territory under Israeli control, including settlements in the OPT, and fails to distinguish between Israel and the OPT. As such, CIFTA operates as if the OPT was formally annexed by Israel.¹²In the past, Canada has attempted to justify CIFTA’s jurisdiction over the OPT based on the Paris Protocols (economic agreements between Israel and the PLO associated with the Oslo peace process).¹³ However, the ICJ’s Advisory Opinion explicitly noted that the Oslo Accords “cannot be understood to detract from Israel’s obligations under the pertinent rules of international law applicable in the [OPT],” and that “Israel may not rely on the Oslo Accords to exercise its jurisdiction in the [OPT] in a manner that is at variance with its obligations under the law of occupation.” Neither can Canada continue to point to Oslo, or the Paris Protocols, to justify an economic agreement that materially benefits Israel’s illegal presence in the OPT.

To comply with its obligations as outlined by the ICJ, Canada must therefore cancel CIFTA due to its application to territory unlawfully occupied by Israel. Canada must also prohibit all trade in goods and services with Israel’s settlement enterprise, and prohibit trade with any other Israeli sectors that help maintain Israel’s illegal presence in the OPT.

Canada must comprehensively address the issue of Israeli settlements

The ICJ Advisory Opinion “reaffirms that the Israeli settlements in the West Bank and East Jerusalem, and the régime associated with them, have been established and are being maintained in violation of international law.” This includes the illegal transfer of settlers into occupied territory, the exploitation of natural resources, the forcible transfer of Palestinians from their homes, and “Israel’s systematic failure to prevent or to punish attacks by settlers.” The ICJ concluded that Israel is obliged to provide restitution, including the immediate “evacuation of all settlers from existing settlements” in the OPT.

Although Canada has imposed targeted sanctions on some individuals and organizations associated with extremist settler violence, this approach has failed to address the fundamental responsibility of the Israeli state as outlined by the ICJ.¹⁴ My organization has previously written to you about the need to adopt a “Whole-of-Government Approach” to address Canadian complicity in the settlements, which are a war crime under Canadian law.¹⁵ We put forward a series of 19 recommendations across 7 ministerial portfolios, including imposing economic sanctions on the Israeli settlement economy under the Special Economic Measures Act, revoking the charitable status of organizations that transfer money to settlements, and prosecuting the promotion and sale of settlement properties.¹⁶ By enacting these recommendations, Canada could move significantly towards compliance with its obligations as outlined by the ICJ.

Canada must suspend all military trade and cooperation with Israel

In its Advisory Opinion, the ICJ says that states like Canada are obliged “not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the [OPT],” and must “take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the [OPT].”

There is no question that Canada’s military trade with Israel assists in the maintenance of Israel’s unlawful occupation. The export of weapons and military technology to Israel directly supports its military control over the OPT, while the import of Israeli weapons indirectly supports the occupation by sustaining the country’s defence industry and legitimizing its testing of new weaponry on Palestinians.

To ensure that it is not rendering aid or assistance to Israel’s illegal military occupation of the OPT, Canada must impose a comprehensive two-way arms embargo under the Special Economic Measures Act.¹⁷

Canada must terminate the Canada-Israel Strategic Partnership

As noted above, the ICJ in its Advisory Opinion asserted that states like Canada are obliged “not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the [OPT].”

Canada violates this obligation through the Canada-Israel Strategic Partnership, which was established through a Memorandum of Understanding (MOU) in 2014. The Strategic Partnership binds Canada to collaborate with many different branches of the Israeli state that are actively involved in maintaining its illegal occupation. For example, under the MOU, Canada is supposed to collaborate with the Israeli Ministry of Defence and the Israeli Ministry of National Security on issues including military-to-military relations, joint military operations, defence procurement, counter-terrorism, and cyber security.¹⁸

Given that Israel’s role as an illegal occupying power is premised on its military control over the OPT, there is no question that Canadian collaboration with these ministries renders aid and assistance in maintaining Israel’s illegal presence. This is especially pertinent given the ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which found that Israel cannot claim to exercise a right to self-defence in territories that it occupies.¹⁹ To comply with its obligations as outlined by the ICJ, Canada must immediately terminate the Canada-Israel Strategic Partnership by sending written notice to the Israeli government.

Canada must recognize the State of Palestine

In its Advisory Opinion, the ICJ found that “Israel’s unlawful policies and practices are in breach of Israel’s obligation to respect the right of the Palestinian people to self-determination.” It noted that Israel’s deprivation of this right has been prolonged for decades, which “undermines the exercise of this right in the future.” Critically, the ICJ expressed that “the existence of the Palestinian people’s right to self-determination cannot be subject to conditions on the part of the occupying Power, in view of its character as an inalienable right.”

In light of the ICJ’s findings, Canada must recognize the State of Palestine immediately. I note that Canada’s former opposition to Palestinian statehood has recently softened, with your statement that Canada is “prepared to recognize the State of Palestine at the time most conducive to lasting peace, not necessarily as the last step along that path.”²⁰ However, the Advisory Opinion is clear that self-determination cannot be left indefinitely in a state of “suspension and uncertainty” or be conditioned on the demands of the illegal occupier. The rights of the Palestinian people as outlined by the ICJ cannot be bargained or negotiated away. Canada must recognize Palestine now, and work to realize the right of self-determination by ending Israel’s illegal presence in the OPT.

I urge you to immediately take the above steps to ensure that Canada upholds international law and complies with the ICJ Advisory Opinion. I look forward to hearing from you regarding this urgent matter.

Sincerely,

Michael Bueckert, PhD
Vice President
Canadians for Justice and Peace in the Middle East

CJPME’s mission is to enable Canadians of all backgrounds to promote justice, development and peace in the Middle East, and here at home in Canada.