Can National Courts Push the EU to Act on Gaza?

The war in Gaza has placed the European Union in a difficult position. Since October 2023, Israel’s military operations have resulted in tens of thousands of Palestinian deaths. The International Court of Justice (ICJ) has indicated that Israel may be violating the Genocide Convention. Human Rights Watch has gone further, asserting that Israel is committing genocide.

This is not a distant issue for the EU. Israel is an important trading partner, with bilateral trade in goods reaching €42.6 billion in 2024. Services added another €25.6 billion. Israel also participates in Horizon Europe, the EU’s flagship research programme, receiving over €1.1 billion in funding between 2021 and 2024.

The question is straightforward: What happens when a close trading partner is plausibly accused of genocide? More specifically, can national courts compel EU member states to act when EU institutions hesitate?

Human Rights as a Treaty Obligation

The EU-Israel Association Agreement, concluded in 2000, governs much of the relationship between the two. It is not merely a trade agreement—it is also a political commitment to uphold human rights. Article 2 of the agreement states that respect for human rights and democratic principles is an “essential element” of the treaty.

This clause is not symbolic. Under the Vienna Convention on the Law of Treaties, a material breach of an essential provision allows the other party to suspend or terminate the agreement. If Israel is indeed violating human rights on a significant scale—as the ICJ suggests—then the EU has both the legal right and arguably the obligation to act.

Yet, the EU has not suspended the agreement. In May 2025, a “strong majority” of member states requested that the European Commission investigate whether suspension is warranted. The Commission agreed to initiate an inquiry, but no timeline has been provided, and there is no guarantee that action will follow.

The Role of National Courts

In the absence of decisive EU-level action, national courts may become key players. Can member state judges enforce international obligations when EU political institutions remain passive?

There are two primary legal avenues:

1. Challenging Government Inaction

Non-governmental organisations or individuals could bring legal action against their national governments, arguing that continued trade with Israel—or the failure to restrict arms exports—constitutes a violation of the state’s obligation to prevent or stop violations of jus cogens norms such as the prohibition of genocide or the right to self-determination.

This is not without precedent. Courts in the Netherlands and Belgium have held governments accountable for failing to meet international climate obligations. A similar legal strategy could be applied in the context of Gaza.

2. Defending National Measures Against EU Law Challenges

Suppose a member state enacts a ban on imports from Israel —possibly following a court injuction. An importer challenges the measure, claiming it violates EU law. The national court must then determine whether the state’s international obligations justify the restriction.

This could lead to a preliminary reference to the Court of Justice of the European Union (CJEU), asking whether such a measure is permissible under EU law. The CJEU has previously ruled that goods from Israeli settlements are not eligible for preferential treatment under the Association Agreement. However, a broader import ban would raise more complex legal questions, requiring the CJEU to assess the proportionality of a wholesale ban on imports.

The WTO Dimension

Even if a national court upholds a trade restriction, the matter may not end there. Israel could challenge the measure at the World Trade Organization (WTO). However, WTO law permits exceptions for measures taken to protect public morals or public order.

Moreover, the WTO’s dispute resolution system is currently dysfunctional. The Appellate Body has not been operational since 2019, meaning that any legal challenge could remain unresolved for an extended period.

The Case of the Occupied Territories

There is a stronger legal basis for banning goods from Israeli settlements in the West Bank and East Jerusalem. These territories are considered illegally occupied under international law. The ICJ has stated in a 2024 advisory opinion that third states must avoid trade or investment that sustains this occupation.

Some EU member states are already moving in this direction. Ireland, for example, has committed to passing an “Occupied Territories Bill” that would criminalise imports from settlements. Other EU Member States could adopt similar legislation.

Such a ban would not violate WTO rules. Goods from settlements do not originate from the territory of Israel, so Israel cannot claim WTO protection for them.

Can Courts Compel Legislative Action?

Suppose a government refuses to enact a settlement import ban. Could a court intervene?

Potentially, yes. In member states that facilitate public interest litigation such as Belgium or the Netherlands, an NGO could argue that the government is violating its international obligations. The court would not draft legislation, but it could rule that the government must take action to end the violation. This approach mirrors recent climate litigation, where courts have ordered governments to reduce emissions without prescribing specific policies.

A similar legal rationale could apply here. A court could determine that continued trade with settlements constitutes a breach of international law and that the government must rectify the situation.

Conclusion: A Legal Path Forward

The situation in Gaza presents a serious challenge to the EU’s commitment to human rights and international law. While political institutions may be slow to act, national courts offer a potential avenue for accountability.

By invoking international legal obligations and interpreting EU law in light of those obligations, national courts can play an important role. They cannot set foreign policy, but they can ensure that governments do not ignore their legal responsibilities.

In a context where political will is often lacking, the judiciary may prove to be one of the most effective tools for upholding the rule of law.

Comments welcome on t.e.verellen@uu.nl.