European Union foreign ministers rejected a call to end arms sales to Israel last month, despite mounting evidence of war crimes — and possibly genocide — presented to them in an internal assessment obtained by The Intercept.

The contents of the previously unknown 35-page assessment could influence future war crimes trials of EU politicians accused of complicity in Israel's assault on Gaza, according to lawyers, experts and political leaders.

The assessment was written by the EU’s Special Representative for Human Rights, Olof Skoog, who sent it to EU ministers ahead of the Council meeting on 18 November, as part of a proposal by the EU’s foreign policy chief to suspend political dialogue with Israel. The proposal was rejected by the Council of Foreign Ministers of the EU member states.

Skoog’s analysis lays out evidence from UN sources of war crimes committed by Israel, Hamas and Hezbollah since October 7, 2023, when some 1,200 people were killed in a Hamas-led offensive that prompted Israel to invade the Gaza Strip. The UN estimates that some 45,000 people have been killed in Gaza since then, more than half of them women and children.

Although the assessment directed strong evidence at both Hamas and Hezbollah, much of its strongest language was reserved for the Israel Defense Forces.

“War has rules,” the report says. “Given the high level of civilian casualties and human suffering, the allegations focus primarily on how officials, including the IDF, apparently failed to distinguish between civilians and combatants and to take all feasible precautions to protect civilians and civilian objects from the effects of attacks, in violation of fundamental principles of international humanitarian law.”

Skoog points to the increasing use of “dehumanizing language” by Israeli political and military leaders, which may “contribute to evidence of intent” to commit genocide.

"Incitement to discrimination, hostility or violence - such as that expressed 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 paper says.

Yanis Varoufakis, the former Greek finance minister and secretary general of the Democracy in Europe 2025 movement, did not overlook the consequences for senior officials from countries that export arms to Israel – such as Germany, Italy and France.

Varoufakis told The Intercept that if the ICC finds Israeli officials guilty of war crimes, distributing the report to EU ministers is of great importance because the Europeans will not be able to plead ignorance.

“They cannot plausibly deny that they were aware of the facts given the contents of the EU Special Representative’s report, which they had a duty to take into account,” Varoufakis said. “Now the world knows that they knew they were violating international law because the EU Special Representative for Human Rights explicitly told them so. History will judge them harshly. The ICC may do the same.”

The paper stems from a request made by Spain and Ireland in February to assess whether Israel's war in Gaza violates human rights provisions in the EU-Israel Association Agreement, which, among other things, enabled €46.8 billion in trade in 2022.

Had the European Commission identified a breach, it would have put the suspension of the agreement on the agenda. However, pro-Israel Commission President Ursula von der Leyen has refused to act.

As a result, Skoog was commissioned by the European Union’s foreign service, the European External Action Service, to investigate. He submitted a preliminary assessment in July. The Intercept obtained a copy of the assessment, which was updated last November.

The document, which has not been previously reported, was discussed internally as part of a proposal by the EU foreign service to suspend “political dialogue” with Israel, the only aspect of the relationship over which the bloc’s foreign service has authority; Skoog’s paper effectively backed the plan to freeze it. But EU ministers rejected the proposal, along with a de facto recommendation to ban arms exports to Israel. The report concluded that the death toll in Gaza was consistent with the demographic breakdown of the civilian population in the area, and that the pattern of killings suggested “indiscriminate attacks” that could constitute war crimes. “When committed as part of a widespread or systematic attack against a civilian population, they may also constitute crimes against humanity,” the assessment added. Skoog called on EU states to “deny export licences” – for arms – “if there is a clear risk that the military technology or equipment to be exported will be used to commit serious violations of international humanitarian law.” In the wake of the assessment, some EU politicians would be at risk of complicity if Israel were found to have committed war crimes, Tayeb Ali, a partner at British law firm Bindmans, which recently sued the British government over its arms exports to Israel, told The Intercept.

“Lawyers across Europe are watching this closely and are likely to initiate domestic and international accountability mechanisms,” Tayeb Ali told The Intercept. “Economic interests are no defense for complicity in war crimes,” Ali told The Intercept. “It is surprising that after the contents of this report, countries like France and Germany would even remotely consider raising immunity issues to protect wanted war criminals like Netanyahu and Galant,” he added, referring to Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Galant.

Diana Buttu, a former legal adviser and negotiator for the Palestinian Authority, pointed out that the member states' rejection of the EU's own analysis was political.

“Legally, we know where the dominoes should fall,” Bhutto said. “The question was whether the policy would meet the law, and unfortunately, it didn’t.”

The Skoog report did not hesitate to address the atrocities committed by Hamas on October 7, describing the hostage-taking, for example, as “a violation of international humanitarian law and a war crime.”

Rocket attacks by Hamas and Hezbollah were “indiscriminate in nature… and may constitute a war crime,” the report says.

The investigation also describes the use of tunnels in civilian areas as tantamount to using human shields, which also constitutes a war crime. However, the IDF has not provided “substantial evidence” to support this claim, which even if proven, would not justify indiscriminate or disproportionate attacks on civilian areas.

The report refutes a key Israeli defense against war crimes allegations regarding the targeting of hospitals in the Gaza Strip. Skoog’s assessment is that “the deliberate targeting of hospitals… may amount to war crimes,” regardless of any Hamas activity there.

Skoog’s assessment says that international law allows Israel “the right and duty to protect its population,” but this can only be exercised in response to an armed attack or an imminent attack and must be proportionate. The assessment says that Israel, as an occupying power, also had an obligation to ensure the safety and health of those living under occupation.

The assessment “reinforces the case that EU governments have been acting in complicity with Israel’s crimes in Gaza,” Agnes Bertrand-Sanz, Oxfam’s humanitarian expert, told the website.

“Even when presented with the facts, they refused to act,” she said. “Those who have continued to export arms to Israel in defiance of the report’s clear advice are engaged in a blatant case of criminal complicity.”