A Piece of Advice

In this blog post, we discuss two pieces of advice about the legal and political consequences for “third States” – including the Netherlands – arising from the policies and practices of Israel in the Occupied Palestinian Territories. These are the International Court of Justice (ICJ)’s Advisory Opinion of 19 July 2024, which is addressed to all States; and the Advisory Letter from the Advisory Council on International Affairs (AIV) of 23 October 2024, which is addressed to the Netherlands’ Government. Both pieces of advice provide a series of concrete recommendations, many of which, in our view, require fundamental changes in the current Dutch policy regarding the Israeli-Palestinian conflict. Given the Dutch constitutional system and its constitutional obligation to promote the development of the international legal order, the Dutch Government is obliged to provide a meaningful response to both these pieces of advice. So far, however, it has failed to do so.

Advisory Opinion of the International Court of Justice

According to the ICJ’s Advisory Opinion of 19 July 2024, Israel violates the prohibition on the acquisition of territory by force as well as the Palestinian people’s right to self-determination. The ICJ concluded that Israel’s presence in the Palestinian territories is illegal, and that it must end. This Advisory Opinion, requested by the United Nations General Assembly, was welcomed by means of a resolution on 18 September 2024 with the assignment of a deadline: Israel must end the occupation by 18 September 2025. This resolution was adopted with 124 votes in favour, 14 against, and 43 abstentions. The Netherlands abstained. The Advisory Opinion is topic of much attention and debate, as the nineteen contributions to the recent Verfassungsblog debate show.

Advisory Letter of the Advisory Council on International Affairs

The second advice we consider is the unsolicited Advisory Letter from the Advisory Council on International Affairs of 23 October 2024, entitled “Towards a New Direction for the Netherlands in the Israeli-Palestinian Conflict” and addressed to the Netherlands Minister of Foreign Affairs, Caspar Veldkamp. The AIV is the advisory body for the Dutch Government and Parliament on foreign policy, giving advice both on request and unsolicited, the latter being quite rare. In this Advisory Letter, the AIV urged the Netherlands to comply with the ICJ’s Advisory Opinion, and to ensure that the Netherlands, as a “third State”, does not act in such a way as to perpetuate the unlawful situation, and that it should commit influence and resources to end international law violations and help establish accountability. The AIV also suggested that the Netherlands should avoid double standards in its application of international law and adjust its voting behaviour in the UN accordingly. This is needed to uphold the Netherlands’ unique role and responsibility for promoting international law, given its position as host State of the ICJ and the International Criminal Court, and its constitutional duty to promote the development of the international legal order.

Dutch Advisory Culture

Both are pieces of advice. What does that mean exactly? The Dutch media constantly emphasizes that advisory opinions of the ICJ are not legally binding, suggesting that they carry little to no legal consequences for the Netherlands. On this point, the AIV commented in its own advice that ICJ’s opinions are generally recognised by the international community as constituting the most authoritative interpretation and application of international law, and as having the same legal weight and authority as ICJ’s rulings in contentious proceedings.

This understanding of the legal significance of the advisory opinions is unsurprising and aligns with the Dutch Government’s own traditional stance. The Netherlands has historically taken the ICJ’s advisory opinions seriously, following the Dutch international legal tradition, and fulfilling its constitutional duty under Article 90 of the Constitution, which stipulates that “the Government must promote the development of the international legal order”. This provision was included in the Dutch Constitution in 1953. It cannot now be suggested, therefore, that the ICJ Advisory Opinion of 19 July 2024 has no legal implications whatsoever.

In Dutch domestic constitutional tradition, advice also plays a significant role. This is tied to the Dutch political culture of constantly trying to reach consensus through consultation and persuasion (in short: our polder model). The Netherlands has a well-developed advisory system: there are dozens of advisory bodies, rooted in the Constitution and in ordinary law. Emblematic is the Council of State, a constitutional body that has a highly relevant advisory role for the Government and Parliament on the constitutionality of its legislative proposals, what is often mentioned in discussions about the prohibition of constitutional judicial review. The main advisory bodies in the fields of international law and geopolitics are the Advisory Committee on Public International Law (CAVV) and the AIV, which recently issued the Advisory Letter mentioned above. The AIV was given a legal basis in Article 79 of the Constitution together with the Framework Act on Advisory Committees (Kaderwet adviescolleges), and the Advisory Council on International Affairs Act (Wet op de Adviesraad internationale vraagstukken). For the CAVV, we can refer specifically to the Act on the Advisory Committee on Public International Law (Wet op de Commissie van advies inzake volkenrechtelijke vraagstukken).

Illustrative of the Dutch Government’s longstanding commitment to its own advisory culture were the remarks by Pieter Kooijmans, then Minister of Foreign Affairs, at a meeting marking the 40th anniversary of the CAVV in 1993. Kooijmans had previously been a member of this committee and later became a judge at the ICJ. He told the members of the CAVV that “you can rest assured that this Ministry [i.e. the Netherlands’ Minister of Foreign Affairs] recognizes the importance of the role and advice of the Advisory Committee”, and that “the department will continue to make use of your Advisory Committee’s services in the future.” Specifically on policy-relevant advice, of which the AIV’s Advisory Letter clearly is an example, Kooijmans stated that its importance for the Dutch Government is “beyond question”, and that “in many such cases, relevant conclusions and recommendations as formulated by the Advisory Committee have demonstrably been used.”

This Dutch advisory system has a legal basis in the Constitution and in ordinary law, as referred above. It also has an institutional organization and has always been provided with the necessary time and (financial) resources. Therefore, we can conclude that the products of these advisory bodies – mostly advisory letters and reports – should (continue to) be taken seriously by the Government and Parliament.

What Should the Dutch Government Do with the Advice?

The basis for answering this question seems simple. If there are institutions whose raison d’être is to provide advice, then the Government has to respond meaningfully to the advice. This does not mean that the Government is obliged to always follow such advice. But when the Government decides not to follow advice, it must provide rational and sufficient reasons for this. From the constitutional and legal provisions regarding this advisory system follows that advice is an important piece of the domestic democratic decision-making process, and a valuable part of our culture of constant consultation and debate (“poldering”).

How Has the Netherlands Responded So Far?

In a letter dated 10 September 2024, the Netherlands’ Minister of Foreign Affairs, Caspar Veldkamp, gave an initial response to the ICJ’s Advisory Opinion. He mentioned the EU sanctions against settlers in the West Bank who commit violence against Palestinian civilians. The minister also referenced the Dutch Government’s policy since 2006 to discourage Dutch companies from engaging in activities within Israeli settlements in occupied Palestinian territory. But it is up to these companies themselves to recognize and act on their social responsibilities. Veldkamp concluded in his letter that the Government will further analyse in the coming period whether there are reasons to adjust the current policy framework based on the ICJ’s Advisory Opinion. However, this more extensive response has been “forthcoming” for months now. Responses to requests for a detailed reply from Members of Parliament (request from 22 July 2024; written questions from 4 September 2024) have yet to be provided. In other words, Dutch policy has not changed since the ICJ’s Advisory Opinion was issued, neither has there been rational and sufficient reason provided for not complying with the advice.

It is noteworthy that the Dutch Government Agreement, which was published 13 September 2024, does not include any measures that the Netherlands plans to take to end Israel’s ongoing and unlawful presence in the Palestinian territories. On the contrary, relocating the Dutch embassy to Jerusalem is still on the agenda. According to the ICJ’s Advisory Opinion, all States must refrain from implicitly recognizing Israel’s unlawful presence in the Palestinian territories, including East Jerusalem, when determining the location of their diplomatic missions in Israel. A case is currently pending before the ICJ, brought by Palestine against the United States, regarding the relocation of the U.S. embassy to Jerusalem.

Regarding a substantive response to the AIV’s Advisory Letter, there is also cause for concern. There has been no reaction from the Government so far. In Parliament, Eric van der Burg, member of a political party (VVD) which is part of the Government coalition, indicated that the AIV Advisory Letter, in his view, would not lead to significant changes in the Netherlands policy regarding the Israeli-Palestinian Conflict: “It is not a foundational document that will determine policy,’ he said. ‘It is too theoretical and too long-term for that.”

The way in which Geert Wilders, the leader of the biggest political party (PVV) in Parliament and in Government, expresses himself through frequent tweets on the conflict, also gives reason for concern. Commenting on Israel’s belligerent behaviour, he said it was: “very wise that Israel ignores unjust and unwise international advice and attacks the poisonous terror of Hezbollah.”

Both pieces of advice – from the ICJ and the AIV – provide concrete recommendations concerning the Israeli-Palestinian conflict. The Government has not yet provided substantive response or policy adjustment in regard to either advice. It is legally obliged, at least, to respond to the latter advice, and it must do so within three months of receipt. So, the response is due early next year. Much is at stake here. First, it is about taking the content of the advice seriously. Second, it concerns preserving the international and constitutional systems themselves. If advice by competent organs is simply ignored, or if “double standards” are applied, these very systems could have their normative and political force diminished.

Double Standards?

Let us end by saying a few additional words about this double standards issue. The Netherlands is continually active at the ICJ. The Netherlands filed a case against Syria accusing it of torture – yet certain parts of Syria may soon be deemed “safe” in the new asylum policy, allowing asylum seekers from those areas to be returned. Additionally, the Netherlands plans to hold Afghanistan accountable at the ICJ for violations of the Convention on the Elimination of All Forms of Discrimination against Women – while at the same time, the Government decided not to grant residence rights to a group of Afghan security guards and their families, who were essential to the Dutch mission in Afghanistan for twenty years. These individuals currently face persecution by the Taliban due to their association with the Dutch mission, which was concerned inter alia with promoting women’s rights in Afghanistan.

From these concrete examples, combined with the reluctance to give a meaningful response to the ICJ’s Advisory Opinion of 19 July 2024, there seems to follow a selective application of international law by the Netherlands, raising concerns about “double standards”, as pointed out in the AIV’s advice:

“The AIV would underscore the risks associated with applying double standards in promoting respect for human rights and compliance with international law in general. The inconsistent invocation and application of rules of international law contribute significantly to the undermining and politicisation of that body of law, and undercut the overarching idea that international law applies, and is applied equally, to all States. Over the past year, inconsistency in the invocation and application of international law by Europe and European States has been repeatedly raised in the international political arena, including by UN Secretary-General António Guterres. The efforts that the Netherlands and Europe have made to create accountability mechanisms in the war in Ukraine, for example, find no equivalent when it comes to the Israeli-Palestinian conflict. Unbalanced enforcement fuels anti-Europeanism and anti-Americanism in many countries of the Global South.”

When it comes to promoting the development of the international legal order – which is one of the Dutch Government’s constitutional duties – a consistent application of international law is essential. This certainly entails taking the advice of competent bodies seriously. The Netherlands should thus consistently interpret and comply with its own obligations under international law. One cannot sometimes promote the international legal order, with the ICJ as its principal body, and sometimes not. Even the appearance of “double standards” must be avoided at all times. It undermines the very idea of international as well as constitutional law and thus contributes to the erosion of the rules-based order – the consequences of which we are already witnessing.