EU options paper on Israel settler imports is ‘misleading’ and designed to ‘justify inaction’, legal scholars say

The European Commission is facing fresh legal scrutiny after a group of leading scholars questioned its options paper on restricting imports from illegal Israeli settlements, before EU foreign ministers revisit the issue in September.

In a letter to the EU Commission president, Ursula von der Leyen, dated 31 July, the scholars argue that the options paper contains “manifestly incorrect and misleading claims” that risk undermining the EU’s obligations under international law.

“We cannot avoid the impression that the analysis was shaped to justify inaction, rather than providing an objective assessment,” said the signatories.

Legal scholars criticised the commission’s assumption that the EU’s existing differentiation regime between Israeli exports and settler goods “is in line with the 2024 International Court of Justice (ICJ) Advisory Opinion” as being “factually untenable.” 

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The ICJ found that all states are under the obligation “to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory.” 

“Allowing trade with settlements on most-favoured Nation terms cannot reasonably be characterised as taking steps to prevent such trade as required by the ICJ,” the scholars said in the letter, mentioning particularly Israel’s reimbursement scheme for settlement exports.

The scholars also questioned the commission's reasoning that a trade restriction would primarily pursue foreign policy objectives by seeking “to promote a change of conduct of the Israeli government.” 

This “mischaracterises” the aim of the proposed measure, they said, arguing that trade restrictions seek “to ensure … consistency of the EU's own Common Commercial Policy with international law” and to prevent EU trade from contributing to the economic viability of illegal settlements. 

Consequently, they argue that Article 207 of the EU treaty provides the appropriate legal basis for the move, which would open the door for a potential agreement that does not require EU27 unanimity, which has proven impossible to achieve in the past. 

“This is not a sanction against Israel because it applies exclusively to trade with settlers in the occupied territories,” Ignacio García Bercero, former director of the commission trade department until 2024 and current researcher at the think–tank Bruegel, told EUobserver earlier this month.

EU's credibility at stake

The legal experts also said the commission's argument that the “comparatively small volume of trade” demonstrates that a settlement trade ban would be primarily political rather than economic is “self-contradictory.”