Lawyers file case against EU Commission and Council for 'failure to act' on Gaza genocide

While we are all holding our breath for the possible initiatives against Israel that Kaja Kallas, the European High Representative for Foreign Affairs, could present on Tuesday (15 July) to the foreign affairs council, the lawyers of the JURDI Association (lawyers for the respect of international law), are taking action.

On Thursday, they will file an “action for failure to act” with the EU Court of Justice in Luxembourg against the EU Commission and Council for their failure to act on the crimes committed by the Netanyahu government in Gaza.

This is a first: never before have two European institutions been brought before a court, in this case the European Court of Justice, for failure to act in the face of violations of international law.

The Franco-Belgian lawyers, including advisers to the International Criminal Court and university professors, are now trying to do just that.

And they are determined not to stop. They sent a letter of formal notice to the two institutions on 12 May and now, two months after that first warning, they are calling for proceedings to be opened.

The novelty is that the legal battle will take place 'in-house' — without the need to involve international conventions or courts.

The 90-page appeal is based on Article 265 of the EU Treaty, which aims to sanction a European institution for culpable inaction.

Double standard

In this case, the document states, “for failing to suspend, for 21 months (since October 2023), the EU-Israel Association Agreement, for failing to propose any sanctions or economic restrictions on the Netanyahu government, and for failing to take a public position on the risks of genocide and documented crimes”.

“Alongside the 18 packages of sanctions against Russia, proposed by the commission and approved (except for the 18th) by the council, there is a double standard with regard to Israel that has now become intolerable,” explains Alfonso Dorado, French criminal lawyer, advisor to the International Criminal Court, and one of the authors of the appeal.

The European Treaty provides for respect for international law, human dignity and fundamental rights, and gives the possibility to request sanctions if a third party does not respect EU principles.

Syria, Belarus, Myanmar, Russia...not Israel

This has been done with Syria, Belarus, Myanmar and, above all, with Russia. But nothing has been done with Israel. On the contrary, time continues to be wasted.

Following the request on 20 May by 17 European countries to open a review of Article 2 of the Association Agreement with Israel, the European Commission's diplomatic service published a report on violations of international humanitarian law by the Israeli government.

Six pages full of countless cases of violations, crimes and abuses against the Palestinian population, both in Gaza and in the Occupied Territories, in prisons and hospitals. 

A belated document, arriving 20 months after the start of the bombing of Gaza, but unequivocal.

Except that it has so far had no consequences.

On the same day the report was presented to European foreign ministers on 23 June, EU foreign affairs chief Kallas did not propose any compensatory measures.

On the contrary, in the council press room, Kallas repeated three times that the “Commission does not want to punish the Israeli government” and that it would open a door for "dialogue to unblock the humanitarian situation on the ground."

Finally, last week, a spokesperson for Kallas announced an agreement with Israeli foreign minister Sa'ar to allow trucks carrying food and medicine to enter both the north and south of Gaza.

"This agreement is legally insufficient to remedy or neutralise the alleged failure, does not constitute a structural measure, a sanction or a response to the obligation to prevent genocide. On the contrary, it confirms the continuing failure, as it reveals that the EU continues to cooperate actively with Israel, while avoiding the application of its own conditionality mechanisms", responded Dorado. 

JURDI lawyers are now asking the judges in Luxembourg for an urgent procedure to compel the commission and the council to sever all trade and political relations with Israel and to issue a political statement on the risk of genocide in Gaza.

Of course, the political situation in the council is very complicated.

Suspending the EU-Israel Association Agreement requires unanimity among governments, and here there remains a wall of opposition from Germany, Poland, Hungary, Greece and Italy against any sanctions.

But even for those trade sanctions, which only require a majority, the same countries are blocking them. With their populations, they constitute a so-called 'blocking minority' and do not allow any decision to pass, even if they are in the minority of EU countries.

“However, there are sanctions that the commission can apply as the executor of the European budget, without the need for governments,” explains Dorado.

The suspension of Horizon Europe research funds is one such measure.

According to a recent investigation by Follow The Money and other European media, these amount to more than €1bn in grants to Israeli universities, companies and ministries. 

In addition, as revealed by the consortia Investigate Europe and Reporters United, there are 15 projects underway for the development of weapons with the Israeli company Intracom Defense, based in Athens and owned by the public company Israel Aerospace Industries (IAI).

All projects are funded with European money from the European Defence Fund.

According to many experts interviewed by investigative journalists, these projects are in clear violation of the ethical principles of the Defence Fund and should be suspended as soon as possible.

This is not being considered by the upper echelons of the Berlyamont building, for the time being.

These investigations are part of the evidence included by JURDI in the appeal that is about to reach the European courts.

In addition to the European Treaty, international case law also supports JURDI. According to the judgment of the International Court of Justice of 2007 (Bosnia vs Serbia), which came as an answer to 1995 Srebrenica massacre, all international actors with the means to do so are called upon to do everything possible to prevent genocide, including European institutions, even if they are not signatories to the 1948 Convention on the Prevention of Genocide (ratified by 153 countries, including the United States and Israel). 

In addition to the suspension of trade agreements and research and development projects (including weapons), JURDI is calling for the suspension of financial transactions with the Belgian Swift system, sanctions against certain members of the Netanyahu government, sanctions against the most violent settlers already identified by the International Criminal Court.

In the meantime, we must wait and see how the appeal to the Court of Justice will be received and, above all, whether its urgent nature will be recognised.

But this is only the first step, and JURDI's lawyers do not intend to stop there.

"The high representatives of the European Union must be careful, because one day they could be tried by the International Criminal Court for complicity in genocide. I can assure you that we will not stop; we have embarked on a long journey", said Dorado. 

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