Letters to the Canadian government, April, June and August 2024: Illegal West Bank settlements are war crimes
The following three letters were sent to Prime Minister Justin Trudeau and Ministers Virani, Joly, Miller, Bibeau, Ng and Leblanc on August 6, 2024, June 21, 2024 and April 12, 2024. The letters were endorsed by over 70 legal experts from across Canada, urging Canada to explicitly recognize that illegal Israeli settlements in the Occupied Palestinian Territories constitute war crimes under both international law and Canadian law, with a number of recommendations for consequent action to be taken by the Canadian government. The letters were accompanied by this brief providing further legal analysis.
The Right Honourable Justin Trudeau
Prime Minister of Canada
The Honourable Arif Virani
Minister of Justice and Attorney General
The Honourable Mélanie Joly
Minister of Foreign Affairs
The Honourable Marc Miller
Minister of Immigration, Refugees and Citizenship
The Honourable Marie-Claude Bibeau
Minister of National Revenue
The Honourable Mary Ng
Minister of International Trade
The Honourable Dominic Leblanc
Minister of Public Safety
August 6, 2024
Dear Prime Minister Trudeau and Ministers Virani, Joly, Ng, Bibeau, Leblanc and Miller,
We write in follow up to our two earlier letters and accompanying legal brief dealing with Canada’s policy and position with respect to Israeli settlements in Occupied Palestinian Territory, the urgency and relevance of which has grown exponentially following the International Court of Justice’s advisory opinion in the Legal Consequences of Israeli Practices case.
On behalf of more than 70 legal experts across Canada we initially wrote to Minister Virani on April 12th. Our letter, and accompanying legal brief, provided a comprehensive analysis of the indisputable legal conclusion that Israeli settlements in Occupied Palestinian Territory constitute war crimes under Canadian and international law. We specified that Canada has ensuing legal obligations that flow from that reality, and provided seven recommendations for action by your government, to ensure compliance with those obligations. Those recommendations are as follows:
Withdrawing from or renegotiating the Canada Israel Free Trade Agreement for its failure to exclude the preferential entry into the Canadian market of goods and services from the Israeli settlements and industrial parks in the OPT.
Enacting legislation which would prohibit the entry into the Canadian market of any goods and services from illegal civilian settlements in occupied territory anywhere in the world, including in the OPT, Western Sahara, Ukraine and other instances.
Explicitly ending all charitable, private, institutional and other donations, funding and support for the illegal Israeli settlements and for any Israeli political, military or economic activity in the OPT.
Bringing to an end in Canada the sale or leasing of any properties or enterprises in the illegal Israeli settlements or in Israeli industrial zones in the OPT.
Sanctioning all Israeli political, military and administrative leaders whose official roles and decision-making contribute to the establishment, maintenance and/or expansion of the illegal Israeli settlements.
Demonstrating full support for investigations by the Prosecutor of the International Criminal Court into allegations of war crimes associated with the illegal Israeli settlements.
Requesting that the Royal Canadian Mounted Police pursue investigations into any credible allegations that Canadians have aided, abetted or been legally complicit in the commission of war crimes associated with the illegal settlements.
Since sending that initial letter we have had exchanges with officials in Minister Virani’s office and on May 30th, joined by our colleagues Professor Audrey Macklin and Dania Majid, we met directly with the Minister and members of his staff. In addition to the seven specific recommendations detailed in our letter, we urged the Minister to take the lead in enunciating Canada’s legal position with respect to the settlements, including clear recognition that they constitute war crimes.
Given that many of the points raised and recommendations made in our letter fall within the responsibility of other ministers, we forwarded the original letter and legal brief, accompanied by a covering letter, directly to Ministers Joly, Ng, Bibeau, Leblanc and Miller on June 21st. Unfortunately, we have had no confirmation of receipt of that letter from any of those ministers, let alone any substantial engagement with the points we have raised.
We write again at this time because of the recent Advisory Opinion issued by the International Court of Justice on July 19th, in the Legal Consequences of Israeli Practices case. This enormously important advisory opinion provides a clear analysis, grounded in international law, of the unlawful character and significant legal consequences of Israel’s 57-year-old occupation of the occupied Palestinian Territory. It serves to amplify and make even more urgent the recommendations we offered in our April 12th letter. As this is a crucial matter of international law which touches on a range of ministries across your government we are looking to you, Prime Minister, to ensure that Canada responds constructively and meaningfully, in line with its international legal obligations, to the conclusions the ICJ has reached.
As you will be aware, the Court addresses the international community’s obligation to respond to the illegality of Israel’s occupation, noting that states, “are under an obligation not to recognize as legal the situation arising from the unlawful presence of the State of Israel in the Occupied Palestinian Territory and not to render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory.” (Emphasis added.)
Notably the ICJ concludes that the Israeli government’s practices “amount to annexation of large parts of the Occupied Palestinian Territory. It is the view of the Court 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.”
The Court further notes that, “…Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities. For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of [the Convention on the Elimination of All Forms of Racial Discrimination].” Under Article 3, ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.’ The Court also concludes 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.”
Very significantly, the Court concludes that, “the sustained abuse by Israel of its position as an occupying Power, through annexation and an assertion of permanent control over the Occupied Palestinian Territory and continued frustration of the right of the Palestinian people to self-determination, violates fundamental principles of international law and renders Israel’s presence in the Occupied Palestinian Territory unlawful.” (Emphasis added.)
Prime Minister, we have been deeply disappointed by your government’s reaction to this seminal ruling. Given Canada’s well-established support for international law, for the international rules-based order and for the ICJ in particular, a forceful and unequivocal response, laying out a clear course of action for the Canadian government is what we expect and is what is required.
There was a brief initial comment, attributed to an unnamed Global Affairs official, indicating that the government had “taken note” of the advisory opinion. That was followed, on July 26th, with your joint statement with the Prime Ministers of Australia and New Zealand, generically calling on the Israeli government to “respond substantively to the ICJ’s advisory opinion.” There have been no specifics offered as to what that substantive response should entail and no recognition of the steps that Canada itself should take immediately to meet its own obligation to comply with the advisory opinion’s exhortation that states cannot “render aid or assistance in maintaining the situation created by the continued presence of the State of Israel in the Occupied Palestinian Territory.”
Over the coming weeks we anticipate that your government will hear from many experts, underscoring how consequential the ICJ’s advisory opinion is and that it requires Canada to fundamentally reorient its policy with respect to Israel/Palestine towards clear recognition that Israel’s occupation of Palestine is illegal under international law and must end. We are certainly of that view and would welcome the opportunity to meet with you, your Ministers and your officials - as would many of those who endorsed the April 12th letter to Minister Virani – to discuss our original recommendations as well as the profound, wider ramifications of the advisory opinion.
This is a crucial moment for Canada, offering both an opportunity and obligation to ensure that firm and robust respect for international law guides all aspects of Canadian policy and action regarding Israel and Palestine. We have provided seven steps that could and should be taken up immediately. We look forward to hearing further about the action your government takes towards that vital goal, including acting on the recommendations we have provided.
Sincerely,
Professor Ardi Imseis Professor Emeritus Michael Lynk Professor Alex Neve, OC
Faculty of Law Faculty of Law Faculty of Law
Queen’s University* Western University University of Ottawa
12 April 2024 (updated 21 June 2024)
The Honourable Arif Virani
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario K1A 0H8
Re: Legal Status of Israeli Settlements under Canadian Law
To the Honourable Arif Virani:
We are writing to you regarding Canada’s binding obligations, under both Canadian and international law, with respect to the Israeli settlements in the occupied Palestinian territory (OPT).
As Canadian legal academics, lawyers and law professors, we are deeply concerned that, while both Canadian and international law clearly establishes that the Israeli settlements are illegal and a war crime, no Canadian government has ever acted on its fundamental legal obligation to end all official and private Canadian support for, and economic relations with, the settlements. Nor has any Canadian government ever sanctioned Israeli political, military or administrative leaders whose official duties include the establishment, maintenance and expansion of the illegal settlements in the OPT.
In the accompanying annex to this letter, we are providing you with the legal basis for our position that the Israeli settlements are not only illegal, but also a war crime under Canadian and international law. The annex also confirms Canada’s responsibilities to do everything reasonably within its power to end all Canadian official and private support for, and economic relations with, the settlements.
The Canadian statutory authority which designates the establishment by an occupying power of civilian settlements in occupied territory as a war crime is firmly established in the Crimes Against Humanity and War Crimes Act, 2000[1] and the Geneva Conventions Act.[2] This would clearly include the Israeli settlements in the OPT.
Canada’s responsibilities under international law are found in the Fourth Geneva Convention of 1949,[3] the 1998 Rome Statute of the International Criminal Court,[4] United Nations Security Council resolutions,[5] the 2001 Articles of Responsibility of States for Internationally Wrongful Acts[6] and customary international law.
As a consequence of the above, we submit that this gives rise to a range of legal obligations which bind the Canadian government. These obligations include:
Withdrawing from or renegotiating the Canada Israel Free Trade Agreement for its failure to exclude the preferential entry into the Canadian market of goods and services from the Israeli settlements and industrial parks in the OPT;
Enacting legislation which would prohibit the entry into the Canadian market of any goods and services from illegal civilian settlements in occupied territory anywhere in the world, including in the OPT, Western Sahara, Ukraine and other instances;
Explicitly ending all charitable, private, institutional and other donations, funding and support for the illegal Israeli settlements and for any Israeli political, military or economic activity in the OPT;
Bringing to an end in Canada the sale or leasing of any properties or enterprises in the illegal Israeli settlements or in Israeli industrial zones in the OPT;
Sanctioning all Israeli political, military and administrative leaders whose official roles and decision-making contribute to the establishment, maintenance and/or expansion of the illegal Israeli settlements;
Demonstrating full support for investigations by the Prosecutor of the International Criminal Court into allegations of war crimes associated with the illegal Israeli settlements; and
Requesting that the Royal Canadian Mounted Police pursue investigations into any credible allegations that Canadians have aided, abetted or been legally complicit in the commission of war crimes associated with the illegal settlements.
We would welcome a meeting with you in Toronto or Ottawa with a representative number of the signatories to this letter to explain our position and to engage in a productive exchange about the steps that Canada is obligated to take in order to fulfil its legal responsibilities to end all support for the Israeli settlements.
We look forward to hearing from you at your early convenience.
Prof. Ardi Imseis
Faculty of Law
Queen’s University
Prof. Emeritus Michael Lynk
Faculty of Law
Western University
Prof. Alex Neve, OC
Faculty of Law
University of Ottawa
ENDORSED BY:
Nusaiba Al-Azem, Human Rights Lawyer, London, Ontario
Zachary Al-Khatib, Defence Lawyer, Edmonton
Sibel Ataogul, Past President, Canadian Association of Labour Lawyers, Montreal
Dr. Kjell Anderson, Director, Master of Human Rights and Assistant Professor of Law, University of Manitoba
Rémi Bachand, Professeur de droit international, Département des sciences juridiques, Université du Québec à Montréal,
Sarah Beamish, Human Rights Lawyer, Toronto
Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University)
Brenna Bhandar, Associate Professor, Allard Law Faculty, University of British Columbia
Michael Byers, Professor & Canada Research Chair in Global Politics and International Law, University of British Columbia
Paul Champ, Human Rights Lawyer, Ottawa
François Crépeau, Professor of Public International Law, Faculty of Law, McGill University
Gail Davidson, Lawyers’ Rights Watch Canada Director, Vancouver
Dr Nathan Derejko, Mauro Chair in Human Rights and Social Justice, Assistant Professor of Law, University of Manitoba
Dr Anver M Emon, Professor and Canada Research Chair, Faculty of Law, University of Toronto
Mohammad Fadel, Professor of Law, University of Toronto Faculty of Law
Omar Farahat, Associate Professor, Faculty of Law, McGill University
Leilani Farha, Human Rights Lawyer, Former UN Special Rapporteur on the right to housing
Paul Fauteux, lawyer and accredited mediator and arbitrator, recipient of the Diploma of The Hague Academy of International Law and former Canadian diplomat
Amanda Ghahremani, International Lawyer and Research Fellow at the Human Rights Center, UC Berkeley
Brenda Gunn, Professor, Robson Hall Faculty of Law, University of Manitoba
Priya Gupta, Associate Professor, Faculty of Law, McGill University
Yavar Hameed, Human Rights Lawyer, Ottawa
James C. Hathaway, FRSC, Degan Professor Emeritus of Law, University of Michigan
Shin Imai, Professor Emeritus, Osgoode Hall Law School, York University
Barb Jackman, CM, Human Rights Lawyer, Toronto
Sébastien Jodoin, Associate Professor and Canada Research Chair in Human Rights, Health, and the Environment, Faculty of Law, McGill University
Faisal Joseph, Human Rights Lawyer, London, Ontario
Dr Charis Kamphuis, Associate Professor, Faculty of Law, Thompson Rivers University
Azeezah Kanji, Legal Academic, Toronto
Lisa M. Kelly, Associate Professor, Faculty of Law, Queen’s University
Mark Kersten, Assistant Professor, University of the Fraser Valley
Dr Asad Kiyani, Associate Professor, Faculty of Law, University of Victoria
Faisal Kutty, Affiliate Faculty Member, Rutgers University Center for Security, Race and Rights and Associate Professor of Law Emeritus, Valparaiso University School of Law
Fannie Lafontaine, Full Professor, Université Laval, Canada Research Chair on International Criminal Justice and Human Rights
Nicolas Lamp, Associate Professor, Faculty of Law, Queen’s University
Professor Yves Le Bouthillier, Faculty of Law, University of Ottawa
Anne Levesque, Associate Professor, Faculty of Law, University of Ottawa
Professor Jamie Chai Yun Liew, Faculty of Law, University of Ottawa
Constance MacIntosh, Professor of Law, Schulich School of Law, Dalhousie University
Audrey Macklin, Professor of Law and Chair in Human Rights, University of Toronto
Kathleen Mahoney FRSC, KC, Emeritus Professor of Law, University of Calgary
Dania Majid, President, Arab Canadian Lawyers Association, Toronto
Amissi Melchiade Manirabona, Professeur titulaire, Faculté de droit, Université de Montréal
Heidi Matthews, Assistant Professor, Osgoode Hall Law School, York University
Rosemary McCarney, Former Canadian Ambassador to the United Nations in Geneva
Frédéric Mégret, Professor, Faculty of Law, McGill University
Naiomi Metallic, Associate Professor and Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University
Catherine Morris, Independent Legal Scholar, (Past) Executive Director, Lawyers’ Rights Watch Canada, Victoria
Dr Shannonbrooke Murphy, Endowed Chair in Human Rights and Assistant Professor, Human Rights Department, St Thomas University
Ambassador (ret.) Sabine Nölke, LL.B., LL.M., LL.D. (hc), Ottawa
Professor Obiora Okafor, Osgoode Hall Law School, York University
John Packer, Associate Professor, Faculty of Law, and Director of the Human Rights Research and Education Centre, University of Ottawa
Dr Pamela Palmater, Chair in Indigenous Governance, Toronto Metropolitan University
The Honorable Kim Pate, CM, Independent Senator for Ontario and Adjunct Professor of Law, University of Ottawa
John Philpot, International Lawyer, Montreal
Sarah Riley Case, Assistant Professor, Faculty of Law, McGill University
Professor Bruce Ryder, Osgoode Hall Law School, York University
Craig Scott, Professor of Law, Osgoode Hall Law School, York University
Joshua Sealy-Harrington, Assistant Professor, Lincoln Alexander School of Law, Toronto Metropolitan University and Counsel at Power Law
Penelope Simons, Professor, Faculty of Law, and Gordon F. Henderson Chair in Human Rights, University of Ottawa
Anna Su, Associate Professor, University of Toronto Faculty of Law
Nawaz Tahir, Civil Litigator, London, Ontario
Mary Anne Vallianatos, Assistant Professor, Faculty of Law, University of Windsor
Dr Ashwini Vasanthakumar, Associate Professor, Faculty of Law, Queen's University
Vasanthi Venkatesh, Associate Professor, Faculty of Law, University of Windsor
Christopher Waters, Professor, Faculty of Law, University of Windsor
Professor David Wiseman, Faculty of Law, University of Ottawa
Vincent Wong, Assistant Professor, Faculty of Law, University of Windsor
Sujith Xavier, Associate Professor, Faculty of Law, University of Windsor
[1] SC 2000, c. 24, as amended.
[2] RSC, 1985, c. G-3, as amended.
[3] International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287 (12 August 1949).
[4] Rome Statute of the International Criminal Court (last amended 2010), 2187 UNTS 90 (17 July 1998), Article 8(2)(b)(viii).
[5] UNSC Resolution 465 (1 March 1980); UNSC Resolution 2334 (23 December 2016)
[6] UNGA Res. 56/83. Responsibility of States for Internationally Wrongful Acts (2001) (un.org)
*All affiliations are listed for identifications purposes only.
Photo Credit, Euro News, April 19, 2024: “Smoke fills the sky after Israeli settlers set fire to the properties of Palestinian villagers in the West Bank village of al-Mughayyir, Saturday, April 13, 2024. - Copyright Nasser Nasser/Copyright 2024 The AP. All rights reserved.”
