The EU's indictment of Israel in Gaza: the hard work begins

RTÉ News​

4 hours ago

The review into whether Israel is in violation of its obligations under its trade relations with the European Union, due to its conduct of the war in Gaza, was shrouded in secrecy and hobbled by last minute timing.
National capitals only got the assessment late on Friday afternoon - foreign ministers are supposed to give a detailed response at a meeting in Brussels on Monday.
Diplomats complained about having little time to assess the review's contents. The less time they have, the more potential for a divisive debate at the Monday meeting.
The paper was circulated not long before EU ambassadors were scheduled to meet to discuss it at 6.30pm Brussels time on last night.
"Until a few days ago, we had no idea if it would be just an oral presentation," an EU diplomat said yesterday morning.
"Now we have confirmation it will be a written report, which for us is extremely important. The value of a written report is greater."
The review was ordered by the EU's Foreign Policy Chief Kaja Kallas after a majority of EU foreign ministers supported a Dutch proposal last month to assess whether Israel was in breach of the human rights and international humanitarian law obligations enshrined in Article 2 of the EU-Israel Association Agreement.
The review was carried out by the EU's Special Representative for Human Rights. It essentially collated existing findings produced by a plethora of UN bodies.
Yet, over seven pages it was a searing indictment of Israel's alleged failure to abide by human rights law, and the rules governing the protection of civilians during war, both in Gaza and the West Bank.
It focused on Israel's complete blockade of any food, medicine and fuel entering Gaza for 11 weeks from 2 March, before Israel eventually permitted a "militarised" food distribution service which was accompanied by "deadly" shootings of Palestinians.
Since the Hamas 7 October attacks, discrimination, oppression, and violence against Palestinians had increased in the West Bank, with a "significant increase in Palestinian fatalities" and attacks by Israeli settlers, accompanied by "sustained settlement expansion".
There were road closures, checkpoints, and barriers that "permanently or intermittently restrict the movement of Palestinians across the West Bank."
These increasingly undermined Palestinians' access to livelihoods, healthcare, education and other essential services.
The "unprecedented level of killing and injury of civilians" in Gaza was "a direct consequence of the Israeli Defense Forces' (IDF) failure to comply with fundamental principles of [International Humanitarian Law]".
The report said of the verified Palestinian deaths caused by attacks on residential buildings in Gaza, 44% were children - "mainly young children and babies."
The fact that these deaths did not reflect the demographic of Hamas combatants "points to indiscriminate attacks."
The use of heavy weapons, including airstrikes, on civilian shelters (including tent encampments and schools) "raise concerns about Israel's compliance with the principles of precautions in attack, and proportionality".
Attacks on hospitals and medical centres in Gaza included "direct strikes, sieges, the use of snipers, raids, and the apparent arbitrary detention and ill-treatment of medical staff, patients and their companions, and internally displaced persons (IDPs) sheltering at hospitals", and the killing of many emergency medical workers.
Israel had failed to comply with binding International Court of Justice (ICJ) rulings in early 2024 to provide humanitarian aid in Rafah "with a view to prevent the commission of acts within the scope of the Genocide Convention."
And on the review goes…
Needless to say, the report found that Israel's obligations under human rights and international law to protect civilians were in breach, as were its obligations under Article 2 of its agreement with the EU.
Ireland and Spain first highlighted concerns last year that Israel was in breach of Article 2.
The trenchant support for Israel by Germany, Austria, Hungary, the Czech Republic and others meant there was no consensus for a review to take place.
That changed after the Israel-Hamas ceasefire collapsed in March and the IDF intensified its assault on Gaza, including the prolonged humanitarian blockade.
Dutch foreign minister Caspar Veldkamp revived the Irish-Spanish initiative in April, and at a meeting of his counterparts in May, the pendulum swung in favour of action.
17 member states - including Ireland - supported a review of Article 2 compliance (two countries joined the list afterwards); sentiment at EU level was clearly shifting.
Yet, the divisions remain.
Despite last night's report, we are in for a protracted period of step-by-step diplomacy.
Ms Kallas will canvas the views of 27 foreign ministers on Monday, and then brief EU leaders during their summit in Brussels next Thursday.
Yesterday, diplomats were emphasising the need for unity. So sensitive is the Israel-Gaza issue, that a menu of options against Israel will be kept off the table for now.
"There are those among the 17 (member states) who wanted the review but who don't actually want any measures against Israel to be taken," says a senior EU official. "They want to use this as a way of applying pressure to Israel. There are those who definitely want measures to be taken, and there are those who didn't even want the review in the first place."
A senior EU diplomat, from a country in favour of the review, said: "It's clear what needs to happen: first of all, we want as broad agreement as possible on the outcome of the review. We know it will not be unanimous, it will not be consensual, but we hope that a big group of member states can subscribe to the conclusion of the review."
That would, in theory, allow Ms Kallas to take the findings to the Israelis and use the threat of punitive measures to encourage Israel to massively increase humanitarian support and to move towards a ceasefire.
Preserving unity next week will be challenging.
When EU ambassadors had their first meeting on the forthcoming review on Wednesday, the divisions were already clear.
"You could see the different positions of member states reflected in the more procedural interventions," says one diplomat.
"The Irish, Belgians, Spanish and Slovenians were pushing for an immediate discussion among ministers about next steps and consequences, whereas others were fiercely pushing back on that: the Hungarians, the Czechs, the Germans and - to a lesser extent - the Italians."
It is understood the Irish government initially wanted Ms Kallas to lean towards some kind of list of options the EU could take against Israel, now that it had been found in violation of Article 2.
However, Dublin had apparently accepted the prevailing view that unity was vital and that the threat of further action could convince Israel to change its policy towards humanitarian aid, and towards a ceasefire.
In this scenario, we would have to wait for a meeting of EU foreign ministers in July before Ms Kallas presents a range of options Europe could take.
In a statement, Tánaiste Simon Harris welcomed the findings of the review.
"Ireland has always been clear that any such review can only reach one conclusion – there is clear evidence that Israel is in breach of its obligations under Article 2 of the Agreement. We now expect the EU and its Member States to take concrete actions in follow up to the review."
External events could also derail any consensus building.
Diplomats stressed the need to keep the Article 2 issue separate from the Israel-Iran war raging in the background.
"It's part of Israel's strategy to divert attention from what is happening in Gaza and in Palestine," says one diplomat.
"That's precisely what we don't want. The situation in Gaza and Palestine is absolutely critical, and we need to keep a very strong focus on it."
"On the Iran-Israel issue," says another diplomat, "some foreign ministers will make the point that given what's happening, perhaps we should hold off on the review, hold off on making this an issue in our conversation with Israel. I think we can walk and chew gum at the same time."
There is also growing frustration - shared in Dublin - at those EU capitals which have emphasised quiet diplomacy with Israel. One source suggested that "whispering to the Israelis" had yet to deliver any meaningful response in 18 months of the Gaza war.
Pressure is building elsewhere.
This week, Belgian Foreign Minister Maxime Prevot spearheaded a joint letter - co-signed by Tánaiste Simon Harris, as well as the foreign ministers of Finland, Luxembourg, Poland, Portugal, Slovenia, Spain, and Sweden - calling on Ms Kallas to ensure that the EU is compliant with last summer's ruling by the International Court of Justice (ICJ) on Israel's occupation of Palestinian territories.
The advisory opinion held that Israel's occupation was illegal, and that countries were obliged to ensure they did not support the occupation through trade.
The Belgian initiative chimes with the Irish government's view that the ICJ ruling is binding on EU member states and that a ban on products from illegal settlements is effectively a legal obligation (ie, the legal impetus for the Occupied Territories Bill).
Belgium expects other countries to join the call. A senior diplomat from one member state said his government was in favour of the Belgian initiative, but preferred not to sign the letter given that its recommendation - banning settlement products - was one of the "options" that could put pressure on fragile EU unity.
The private view within the European Commission is that the EU is broadly in line with the ICJ ruling. However, the Commission has sent a number of legal opinions to the member state working group on international judicial affairs (COJUR).
"The issue has been back and forth without any consensus," says a senior EU official. "It's never reached the political level, but it's been discussed by diplomats."
The Belgian letter essentially calls for Ms Kallas - who represents both the Commission and member states - to speed the process up.
It urges the Commission to bring forward measures to ensure that member states are in compliance, given that the "European Union is founded on the values as stated in the UN Charter, such as the respect for human dignity, freedom, democracy, equality, the rule of law and human rights…[and that] all EU Member States are parties to the Statute of the International Court of Justice."
Whether the Commission will introduce new legislation to reflect the growing clamour - as reflected in the Occupied Territories Bill - for a ban on goods coming from illegal Israeli settlements remains to be seen.
One source suggests that the Commission could provide for individual member states to make their own national arrangements.
The fact that the review of Israel's conduct, for so long a disregarded Irish-Spanish gambit, has finally happened and does not pull any punches is, relative to the EU's tortuous policy on Gaza, an achievement.
However, the length of time it has taken to hold Israel to account, and the fact that even now a punitive response could take several months, will further call into question the EU's moral backbone, with the death toll in Gaza standing at over 56,000, according to Palestinian authorities.
The fact that the EU's role in foreign policy necessarily gives each member states a veto (foreign policy is normally a fundamental expression of national sovereignty) is of meagre comfort to those who believe Europe should have done more and done it quicker.
Diplomats are increasingly frustrated that in the generational challenges of our time - Russia's invasion of Ukraine, and Israel's response to the Hamas October 7 attacks - the EU's voice has been blunted by division and national vetoes.
In the event that Ms Kallas does provide a menu of responses to foreign ministers in July, it is by no means clear what happens next. The EU has never taken action against a trade partner for such a breach of a trade agreement.
A full suspension of the Association Agreement would require unanimity, with a Hungarian, German and Czech veto almost certain.
There has been speculation that suspending elements of EU Israel trade would only require a so-called Qualified Majority Vote (QMV). On the basis of the 19 countries which supported a review, that qualified majority could be reached.
However, one EU official questioned whether even this would be possible.
"Even suspending some trade could be seen as a sanctions measure, and that would therefore require unanimity," said the official. "We've also discussed a complete ban on trade with Israel, and that would be against our WTO obligations - so that is a non starter."
For any measure to be taken it would require a proposal from the European Commission, meaning the issue runs - once again - straight into national divisions.
On only two occasions in the history of the EU has an issue gone to a vote among the College of 27 commissioners (each from a member state) since the body strives for consensus.
There is no doubt that attitudes to Israel have hardened, even among its traditional allies.
Last month, the German Chancellor Friedrich Merz said in a TV interview: "What the Israeli army is doing in the Gaza Strip, I no longer understand the goal. To harm the civilian population in such a way … can no longer be justified as a fight against terrorism."
Whether this pressure, which should be amplified by the publication of the review, makes any difference to Israel's conduct remains an open question.