Legal counsel appointed by the attorney general approved an opposition bill banning the state investing in companies operating in illegal Israeli settlements – but government has blocked the legislation since 2023.
Attorney general Rossa Fanning – in private correspondence to Simon Harris, Micheál Martin and Roderic O’Gorman – referred to independent advice he commissioned that advised the state could likely defend Sinn Féin TD John Brady’s divestment bill if passed.
Government didn’t publish this advice.
According to the advice the state could rely on human rights and international law arguments defending the legislation. “On balance, the state could successfully invoke a justification grounded on public policy,” wrote the attorney general.
The proposed legislation would compel the National Treasury Management Agency to withdraw investments from the Ireland Strategic Investment Fund in companies included in the UN's database of businesses operating in illegal Israeli settlements.
Though Fanning's advice said the state would have a strong case were it to defend the bill, the attorney general did note, "As the case law makes clear however it is by no means certain" Ireland would succeed.
Yesterday The Ditch reported that the attorney general told government it could defend the Occupied Territories Bill on public policy grounds and replacing it would be a “political choice” – contradicting previous claims made by taoiseach Micheál Martin that "virtually every section" of the bill needed to be amended.
The state could likely defend the bill if passed
In attorney general Rossa Fanning’s advice, sent last October, he referred to independent legal advice he’d commissioned concerning Sinn Féin’s John Brady’s legislation.
Government has delayed the Illegal Israeli Settlements Divestment Bill, which first was introduced in March 2023.
The following May, government secured a nine-month pause on the bill "to allow for further consideration" on the legislation. Speaking at the time, Jennifer Carroll MacNeill, then minister of state in the Department of Finance, said “A question as to whether it is legally possible to link an investment or divestment strategy” to the UN database of businesses operating in illegal settlements.
Government moved to block the bill's progress through the business committee in March 2024, despite the finance committee approving to waive pre-legislative scrutiny. The legislation remained stalled when the Dáil was dissolved in November.
The advice government received in October however says the bill has a strong legal defence.
The attorney general told Simon Harris, Micheál Martin and Roderic O’Gorman the counsel he commissioned advised the state could likely defend the bill if passed.
Fanning said counsel advised, "In light of the clear position of the EU, the UN and Ireland that the settlements in the Occupied Palestinian Territories were unlawful and a breach of international humanitarian law, and in light of the escalation of hostilities in the Gaza Strip since 7 October 2023, on balance, the state could successfully invoke a justification grounded on public policy.”
The lawyers said Ireland's stance could be defended by the necessity to uphold international law and safeguard the rights of Palestinians impacted by illegal Israeli settlements.
In the legal advice received by government the attorney general's nominated counsel acknowledged that while "conditions for invoking a public policy justification are very strict," Ireland could make a strong case for the legislation in the European Union.
The advice said while the European Court of Justice has "previously not had to consider" this issue, Ireland's position would be strengthened by EU statements that "Israeli settlements in the Occupied Palestinian Territories hinder a peaceful resolution of the conflict" and "constitute a very serious ongoing breach of international law."
Counsel said that any challenge to the bill would face difficulties as the legislation would be "manifestly consistent" with EU policy on Israeli settlements and "fully consistent with international law." However they cautioned that success was "by no means certain" given the "extremely strict interpretation" courts give to exceptions under EU treaties.
While Fanning’s advice said that the divestment bill was "radically different in scope and effect" to the Occupied Territories Bill, he advised that both pieces of legislation could be justified on similar public policy grounds.
The advice also said that both bills could be defended considering both the International Court of Justice’s advisory opinion on South Africa’s case against Israel and Ireland’s submissions to the court.
Sinn Féin TD John Brady, who introduced the bill, told The Ditch that Ireland "cannot cherry pick when it comes to international law" and state investment.
"Rhetorically we are saying that the settlements are wrong, which they are," he said. "But then the other arm of the state with regard to the finances through the ISIF is actively encouraging them – and we are benefiting from these settlements and the enterprises that allow them to succeed. It's absolutely lunacy – and blood on our hands – that we are willing to turn a blind eye to it for a financial return."
A recent written response by minister for finance Paschal Donohoe said that as of December 2023, the Ireland Strategic Investment Fund held investments totalling €13.6 million in companies on the UN settlements database. This comprises €4.2 million directly in 11 companies and €9.4 million indirectly in eight companies. As of April 2024 the state divested €2.95 million from six of them.
Donohoe also claimed in another February written response that "with regard to the Advisory Opinion of the International Court of Justice with respect to Israeli control over the Occupied Palestinian Territories, there is a question as to whether the opinion extends into the specific direct or indirect ownership of companies with activities in the Occupied Palestinian Territories by a state-owned fund. This would require further analysis."
A Department of Finance spokesperson said, "It would be inappropriate to comment in respect of any legal advices provided to the government."
The spokesperson wouldn't say if the state will fully divest from companies listed in the UN database.
The Department of an Taoiseach and Department of Foreign Affairs have been contacted for comment.
