LAST month, foreign ministers representing the European Union categorically dismissed proposals to halt the sale of arms to Israel, despite a rapidly growing body of evidence indicating the potential commission of war crimes – as well as what may amount to genocide – outlined in a confidential assessment procured and publicised by the US based The Intercept.
The undisclosed 35-page report, whose contents were not publicly known prior to The Intercept’s disclosure, might have extensive consequences for possible war crimes trials of European Union politicians over their alleged complicity in Israel’s offensive on Gaza, according to legal professionals, subject experts, and senior political figures.
This evaluation was put together by Olof Skoog, who serves as the EU’s special representative for human rights, and was sent to European Union ministers in advance of a council session on 18th November, as part of a motion from the head of the EU’s foreign policy to halt political dialogue with Israel.
That particular proposal ended up being rejected by the council of foreign ministers from the member states of the EU.
In his analysis, Skoog presented evidence compiled by United Nations bodies regarding war crimes committed by Hamas, Hezbollah, and Israel since 7th October 2023.
Figures provided by the United Nations suggest that about 45,000 individuals have lost their lives in Gaza since then, with more than half reportedly women and children.
Although the assessment did address Hamas and Hezbollah actions, it contained some of its most strongly worded observations against the Israel Defence Forces.
‘War has rules,’ the document emphasises.
‘Given the high level of civilian casualties and human suffering, allegations focus mainly on how duty bearers, including the Israeli Defence Forces (IDF), have seemingly failed to distinguish between civilians and combatants and to take all feasible precautions to protect civilians and civilian objects against the effects of the attacks, in violation of the fundamental principles of IHL’ – international humanitarian law.
The paper further references an uptick in ‘dehumanising language’ by Israeli political and military leadership, which Skoog argues may ‘contribute to evidence of intent’ to perpetrate genocide.
‘Incitement to discrimination, hostility or violence – such as that made in statements by Israeli officials – constitutes a serious violation of international human rights law and may amount to the international crime of incitement to genocide,’ the document declares.
According to Yanis Varoufakis, the former Greek finance minister and currently secretary-general of Democracy in Europe Movement 2025, the significance for high-level officials from EU countries supplying arms to Israel – notably Germany, Italy, and France – is abundantly clear.
If the International Criminal Court determines that Israeli personnel have committed war crimes, Varoufakis told the US Based The Intercept, the very fact that this report was circulated among European Union ministers means the EU leaders will not be able to deny knowledge of the circumstances.
‘They cannot plausibly deny that they were privy to the facts given the contents of the EU’s special representative’s report that they had a duty to take under consideration,’ Varoufakis said.
‘The world now knows that they knew they were in breach of international law because they were explicitly told so by the EU’s own special representative on human rights. History will judge them harshly. And perhaps so will the ICC.’
The origins of this EU document can be traced to a request in February by Spain and Ireland to review whether Israel’s conduct in Gaza breached the human rights clauses of the EU-Israel Association Agreement.
This agreement, amongst other provisions, facilitated commercial exchanges totalling about 46.8 billion euros in 2022.
Should the European Commission have judged there was indeed a violation, it would have forced the question of suspending that agreement onto the EU’s agenda.
Yet the Commission’s President, Ursula von der Leyen, who is known to be strongly supportive of Israel, chose not to proceed with such a move.
Accordingly, Skoog was tasked by the European External Action Service, which is the EU’s foreign service, to carry out this investigation.
He compiled an initial report over the summer, in July, before producing an updated version in November, which The Intercept was able to acquire.
Prior to this, the November update had not been reported on, and it was reviewed internally in conjunction with the European External Action Service’s proposal to halt ‘political dialogue’ with Israel.
This is one aspect of the EU-Israel relationship over which the foreign service holds authority, and Skoog’s report effectively supported suspending it.
However, the EU foreign ministers decided to turn down that plan, along with an implied move to prohibit arms exports to Israel.
According to the report, the casualty count in Gaza mirrors the demographic composition of the civilian population in that area, suggesting that the killings may have been ‘indiscriminate attacks’ that are prosecutable under war crimes statutes.
‘When committed as part of a widespread or systematic attack against a civilian population,’ the analysis clarifies, ‘they may also implicate crimes against humanity’.
Skoog advised that EU member states ‘deny an export licence’ – in reference to weapons – ‘if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.’
Following the release of the assessment, Tayab Ali – a partner at the UK law firm Bindmans, which recently initiated legal proceedings against the British government concerning arms sales to Israel – commented that certain European Union politicians may find themselves embroiled in war crimes complicity if Israel is determined to be guilty of such crimes.
‘Lawyers across Europe are watching this closely and likely to initiate domestic and international accountability mechanisms. Economic interests are not a defence to complicity in war crimes,’ Ali said.
‘It is astounding that, following the contents of this report, countries like France and Germany might even remotely consider raising issues of immunity to protect wanted war criminals like Netahyahu and Gallant’ – referring to Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant.
Diana Buttu, who previously worked as a legal adviser and negotiator on behalf of the Palestinian Authority, pointed out that the decision by member states to reject their own union’s analysis was shaped by political considerations.
‘Legally, we know where the dominoes should be falling,’ Buttu stated. ‘It was a question of whether the politics would match with the law, and unfortunately, they did not.’
Additionally, the report challenges a core Israeli counter-argument to war crimes allegations concerning strikes against health facilities in the Gaza Strip.
In Skoog’s view, ‘the intentional targeting of hospitals … may amount to war crimes’, whether or not Hamas was operating within those compounds.
He goes on to stress that international legal frameworks grant Israel ‘the right and indeed the duty to protect its population’, while simultaneously stating such actions can only be justified in relation to an armed or imminent threat and must adhere to the principle of proportionality.
As an occupying power, the analysis adds, Israel also has a legal obligation to guarantee the welfare and protection of the people living under its occupation.
According to Agnès Bertrand-Sanz, who serves as a humanitarian specialist at Oxfam, Skoog’s analysis ‘reinforces the case that EU governments have been acting in complicity with Israel’s crimes in Gaza’.
‘Even when their own services presented them with the facts, they refused to act,’ she noted.
‘Those that continued exporting arms to Israel in defiance of the report’s clear advice, are involved in a blatant case of criminal collusion.’
