Adding to the List

International support for Israel has been declining in light of the duration and scale of its military offensive in Gaza. Recent events have contributed to this trend, culminating in the ICJ’s decision on provisional measures, the latest advisory opinion, as well as the ICC prosecutor’s (OTP) application for arrest warrants against Israel’s Prime Minister Netanyahu and Minister of Defence Galant. Yet, Israel’s reactions indicate a reluctance to fully comply with the ICJ’s decision on provisional measures, a rejection of the World Court’s findings in the advisory opinion, and a low likelihood of extraditing politicians if warrants are issued.

Against this backdrop, European Union (EU; Union) sanctions might be a useful tool to address at a minimum the conduct of certain political figures. While both trade and individual sanctions require a unanimous decision by the Council of the EU (Council), this post will argue that individual sanctions present a more viable route to address non-compliance by leading Israeli politicians and could enhance the EU’s international reputation.

Sanctions against Israel – Still Unimaginable?

Sanctions are not unheard of in Israel: one of the most comprehensive sanctions regimes was imposed by the League of Arab States following the first Arab-Israeli war in 1948. Thus, Israel has faced sanctions since its inception as a State, particularly from Middle Eastern states. With the current military operation in Gaza, Israel found itself at the receiving end of sanctions also by Western or ‘allied’ States. Since March 2024, certain Israeli nationals have faced EU and US sanctions for misconduct in the occupied West Bank and blocking aid deliveries to Gaza. Additionally, the US is considering sanctioning an entire IDF battalion for human rights abuses. Concurrently, the UN Special Rapporteur for Palestine has urged the EU to impose sanctions on the State of Israel. Most recently, reports indicated that EU foreign ministers are debating such action. While Josep Borrell remarked that there is ‘no unanimous appetite to consider sanctioning Israel’, he also mentioned that this could change. If that were the case, how sanctions could be designed remains open.

A Trade Sanctions Regime against Israel?

EU sanctions are a tool of the Union’s common foreign and security policy (CFSP), with numerous sanctions regimes already in place. Trade restrictions are among the most common mechanisms. Therefore, a sanctions regime against Israel could include suspending the Association Agreement, given that the EU is Israel’s most important trading partner.

However, such sanctions would need to follow a two-step procedure. This involves a unanimous Council decision within the CFSP framework (Articles 29, 31 TEU) and a regulation based on Article 215 TFEU, which allows for the interruption or reduction of economic and financial relations with third countries and for individual sanctions. To the present day, as Josep Borrell’s statement above indicates, the imposition of sanctions against the State of Israel is highly unlikely, despite some Member States with long-standing support for Israel start to pull back.

A Different Path: Targeted Sanctions

Since December 2020, the EU’s Global Human Rights Instrument (GHRI) has addressed human rights violations globally, similar to the US’s 2016 Magnitsky Act. The initial activation of the GHRI followed the outlined process: a unanimous CFSP decision (Article 29 TEU) and a regulation (Article 215 TFEU). The GHRI covers serious violations such as genocide and crimes against humanity, along with other abuses such as human trafficking and gender-based violence, with the list of violations being non-exhaustive (Article 1(1)). The annex to the GHRI lists individuals and entities responsible for these acts, whose assets are to be frozen.

Targeted sanctions could thus be useful in addressing individual violations of human rights. However, despite von der Leyen’s 2020 call to abandon the unanimous voting in the context of sanctions and the GHRI’s emphasis on flexibility and universality, expanding the list still requires a unanimous Council decision.

Yet, while there is an obvious reluctance to directly sanction the State of Israel, the GHRI’s targeted sanctions are not country-specific and can avoid the negative connotations of state sanctions. Therefore, if sanctions were to be imposed at all, we can expect them to be targeted measures. Indeed, the recent sanctions under the GHRI against violent settlers demonstrate Member States’ willingness to hold Israeli individuals accountable for human rights violations. While some might argue that targeted sanctions against high-ranking politicians can in their magnitude hardly be distinguished from state sanctions, the Council Regulation’s language makes no exemptions for senior politicians, nor is the EU’s practice restrained in this regard (see the list of sanctioned entities).

It is also politically more plausible to sanction individuals suspected by the ICC of having committed war crimes and crimes against humanity and found responsible by the Council under the GHRI. The infamous German Staatsräson, intended to protect the State of Israel, does not necessarily extend to its politicians or other individuals. In fact, the German government is seemingly prepared to execute potential arrest warrants against Netanyahu and Galant. Additionally, Germany’s Foreign Office appears to affirm this view and expressly stated that GHRI sanctions target serious human rights violations regardless of location.

Thus, unlike trade sanctions, targeted sanctions towards Israeli individuals are far more likely to reach a consensus on the intergovernmental EU level.

Making Use of the Instrument

Given this context, it is feasible to add Israeli politicians to the list due to their involvement in violating the Palestinian people’s right to self-determination. According to Article 1(1)(d), the instrument applies to human rights violations or abuses if they are ‘widespread, systematic, or of serious concern regarding the objectives of the [CFSP] set out in Article 21 TEU.’ Article 1(2) of the GHRI explicitly references the ICCPR and the ICESCR, both of which enshrine the right to self-determination in their first Article. Based on this, individuals actively involved in depriving Palestinians of their right to self-determination can be added to the GHRI list, including senior politicians openly rejecting this right (see some statements from 2023 and 2024). In this regard, the ICJ’s Wall Opinion has firmly established that Israeli policy in the West Bank violates the Palestinian right to self-determination, among other human rights (paras. 115 et seq.; para. 134) and this was unequivocally upheld in the most recent Advisory Opinion (paras. 230 et seq.). The European Court of Justice reaffirmed this finding (para. 35), establishing it in the Union’s legal order. This aligns with Article 21 TEU, which prioritizes human rights in defining the EU’s foreign policy goals. Consequently, every individual actively engaged in the deprivation of the Palestinian people’s right to self-determination can be added to the list – including senior politicians.

Another path could rely on the application for arrest warrants issued by the OTP for Prime Minister Netanyahu and Defense Minister Galant. Article 1(2) of the GHRI refers to the Rome Statute, extending its scope to crimes against humanity (Article 1(1)(b)). Although the assumption of innocence seems to counteract sanctions at this stage (as warrants only require ‘reasonable grounds’ per Article 58(1)(a) of the Rome Statute), the GHRI operates on a different rationale. GHRI sanctions aim to “bring about a change in the policy or conduct of those targeted”. Pressuring individuals to stop ongoing human rights violations thus differs inherently from punitive international criminal law. GHRI sanctions have to be independent of external judicial proceedings.

Accordingly, if arrest warrants for Netanyahu and Galant are issued, the Council should consider that all Member States, as parties to the Rome Statute, must execute the warrants. The GHRI expressly references the Rome Statute. Thus, assessing the case of Netanyahu and Galant, the Council can consider as a starting point the OTP’s statement or – should warrants be granted – the pre-trial chamber’s decision, along with the expert panel’s statement and reports of the UNHRC. Indeed, while the exact listing process is not known and lies with the Council’s political discretion, the listings often rely on reports as is shown throughout the ‘reasons for listing’.

Additionally, IDF military staff could be targeted. Allegations of torture are under UN scrutiny, and NGOs accuse Israel of enforced disappearances and arbitrary detentions. If the Council confirms these allegations, direct perpetrators (e.g. Annex No. 30) as well as their commanders (e.g. Annexes No. 21, No. 29, No. 31) could be sanctioned.

A More Nuanced Path Towards European Global Governance?

Targeting political figures responsible for human rights violations is not only feasible but would also enhance the EU’s international reputation by addressing accusations of double standards (see also pp. 7, 114 et seq.). The GHRI’s initial goal was to create a responsive global regime for human rights protection. An unbiased approach is thus mandatory for the sake of impartiality. This requires disregarding political ties with third States when assessing individual responsibility for human rights violations. Whether the EU is ready to adopt this global governance approach remains to be seen. However, regarding targeted sanctions, adding certain Israeli individuals – as well as Hamas leaders – to the list would align with the GHRI and promote a rule-based CFSP.