Some EU governments have long prevented the EU from taking measures to address the Israeli government’s grave abuses against Palestinians in Gaza and in the West Bank. A slew of recent rulings by the International Court of Justice (ICJ) make this inaction no longer tenable, and will test the EU’s and its member states’ commitment to international law.
In July, the ICJ issued a groundbreaking advisory opinion on the legal consequences of Israel’s policies and practices in the Occupied Palestinian Territory (OPT). The Court found Israel responsible for racial segregation and apartheid against the Palestinians, and laid out a long list of abuses and violations of international law by Israeli authorities. It found that Israel’s occupation is illegal, and set out clear standards for Israel to provide reparations to Palestinians.
Since January, in a case brought by South Africa, the ICJ has issued three binding rulings listing urgent measures that Israeli authorities should take to prevent the risk of genocide in their military operations in Gaza. Israeli authorities have largely flouted those rulings, and continue to use starvation as a weapon of war, and to impose arbitrary and onerous restrictions on entry and distribution of desperately needed humanitarian aid throughout Gaza.
The ICJ rulings are consistent with evidence of very serious crimes by Israeli authorities provided by the UN secretary general, a UN Commission of Inquiry, UN experts, and numerous nongovernmental groups, including Human Rights Watch. They are also consistent with the International Criminal Court’s prosecutor’s request for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. The prosecutor also requested arrest warrants for Hamas leaders Mohammed Diab Ibrahim al-Masri (Mohammed Deif), Yahya Sinwar and Ismail Haniyeh (the last two meanwhile killed in Israeli attacks), for various counts of war crimes and crimes against humanity committed on and since October 7.
But while the EU has unanimously and rightly denounced and taken action against the Hamas-led atrocity crimes and toward the release of Hamas-held hostages, some EU member states continue to prevent the bloc from even acknowledging, let alone condemning and addressing, the Israeli government’s war crimes and other international law violations in Gaza, and from taking more decisive action against worsening abuses in the West Bank.
Longstanding efforts in that direction by the EU’s foreign policy chief, Josep Borrell, and by some EU governments, especially Ireland, Spain, Belgium and Slovenia, have been frustrated by countries like Hungary, the Czech Republic, Germany, Austria and Italy. These governments have often opposed or vetoed any action beyond sanctioning a handful of violent Israeli settlers in the West Bank, and have reacted poorly to the ICC prosecutor’s request for arrest warrants.
Furthermore, on September 18, only 13 EU member states voted in favor of a UN General Assembly resolution largely reflecting the ICJ advisory opinion findings and requests, with 12 EU states abstaining and Hungary and the Czech Republic even voting against. Those spoilers are also among several countries that temporarily suspended financial assistance to the United Nations Relief and Works Agency (UNRWA), the UN agency most able to provide lifesaving aid to people in Gaza, despite a lack of credible evidence by Israeli authorities to support their allegations against the agency.
This attitude stands in stark contrast with the EU’s laudable efforts to ensure accountability for atrocity crimes elsewhere, such as in Ukraine, Myanmar, and Syria, and has led to well-grounded accusations of double standards. The ICJ rulings make EU inaction no longer tenable, not only on moral but also on legal grounds.
Discussions on lists of options on how the EU should react to the hostilities in Gaza and, more recently, to the ICJ opinion, have been floating around Brussels and in European capitals. Clearly, though, what has been lacking is not options; it’s political will.
The July ICJ advisory opinion set out clear obligations for UN states. These include distinguishing between Israel and the Occupied Palestinian Territory; not supporting Israel’s unlawful acts and the unlawful situation it has created in the OPT; and ensuring Israel’s compliance with international humanitarian law (IHL), or the laws of war.
The EU has consistently stressed that settlements are illegal under international law. It also differentiates between products originating from Israel proper and those from settlements, granting preferential trade access only to the former.
But differentiation is not enough.
The ICJ ruling says that states have an obligation to 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” and “to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the [OPT].”
Trading with settlements helps to legitimize, sustain, and make them profitable, and entrenches the serious human rights abuses underpinning the settlement enterprise, such as land confiscation, natural resource exploitation, displacement, violence and discrimination against the local population.
Contrary to an analysis attributed to the EU foreign policy chief legal officer, compliance with the Court’s obligations requires replacing the current EU policy of differentiation with a blanket ban on trade with the illegal settlements – as requested by a citizen-led initiative endorsed by dozens of human rights groups, including Human Rights Watch, and by a cross-party group of 30 Members of the European Parliament. Pending a move at the EU level, the Irish government is considering doing that unilaterally.
EU states should also reflect on how their decades-long reluctance to call out and meaningfully address the very serious abuses by Israeli authorities and settlers has helped sustain those abuses, and failed to fulfill the obligations to ensure Israel’s compliance with international law as set out by the Court. The advisory opinion makes explicit reference to the Fourth Geneva Convention, which concerns the protection of civilians, and to which Israel and all EU states are party. The Court has meticulously outlined how Israeli policies and treatment of Palestinians seriously violate those obligations.
The EU has at least six tools to put considerable pressure on Israeli authorities to comply with IHL, and it should use them.
First, the EU should ban trade with illegal settlements. In doing so, the EU and its member states should also support and utilize the UN database of businesses involved in the occupied Palestinian territories, which could be a vital tool to assist states in upholding their obligations to end business complicity in the rights violations that are inextricable from Israeli settlements.
Second, the EU should review the bilateral Association Agreement with Israel – as requested by the governments of Spain and Ireland – with a view to possibly suspending it in whole or in part. The ICJ’s findings authoritatively prove that successive Israeli governments have seriously breached their human rights obligations, which constitute an “essential element” of the agreement.
Third, EU governments should suspend arms transfers to Israel given the real risk that the weapons will be used to commit serious abuses, and in compliance with their common position on arms transfers.
Fourth, the EU should adopt targeted sanctions against Israeli officials responsible for ongoing war crimes and serious IHL and human rights violations in Gaza and in the West Bank. Considering the persistent, strong reluctance by some member states, it is remarkable that the bloc reached the unanimity required to adopt sanctions against some violent settlers.
Yet, those designations fail to include Israeli officials, and they only concern abuses in the West Bank. In fact, the EU27 have yet to even acknowledge the Israeli authorities’ war crimes and other IHL violations in Gaza, as well as apartheid against the Palestinians in the occupied territories.
Fifth, as parties to the Rome Statute of the International Criminal Court (ICC), EU member states should refrain from attacking or questioning the court’s independence, and should instead protect the ICC in the face of threats and intimidations from the Israeli and US governments. As ICC members, all EU governments have clear obligations, including to cooperate with the court to execute arrest warrants and to avoid “non-essential contacts” with individuals who are fugitives from the ICC.
Finally, the EU should also act on the ICJ’s clear statements on the reparations Israel owes to the Palestinians for decades of IHL violations against them. The EU and member states should support, and help establish, an international mechanism for reparations and the international register of damage that the UN General Assembly resolution called for.
Human Rights Watch is among the many organizations that have urged the EU to adopt these or other measures, so far in vain.
The unanimity requirement remains a considerable obstacle for EU foreign policy, but the trade pillar of the Association Agreement can be suspended by a qualified majority, and individual member states can unilaterally decide on their own arms exports, their vote at the UN and their support for the ICC.
Decades of weak statements by the EU27 have not stopped the intensification of serious abuses against the Palestinians and the expansion of illegal Israeli settlements, nor have they prevented the risk of atrocity crimes as the conflict escalates in the region. The international rulings now make it imperative for the bloc and its member states to move beyond words, take action to comply with international law and preserve their own credibility.
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