Belgian courts refer case on the transit of dual‑use goods to Israel to the EU Court of Justice

Brussels – Can European Union member states derogate from EU law in order to comply with international law? The Brussels Court of Appeal has ruled that it is unable to provide an answer and has referred the question directly to the Court of Justice of the European Union. This concerns the interim appeal ruling in the proceedings, brought in July 2025 by the Droit pour Gaza collective, the Belgian-Palestinian Association, the National Coordination for Action for Peace and Democracy (CNAPD), and two Palestinian applicants, to demand, among other things, the closure of Belgian airspace to the transport of arms and military equipment, including dual-use goods, destined for Israel. The reasoning? Simple: as early as January 2024, the International Criminal Court found that there was a serious risk of genocide being committed, crimes against humanity, and serious violations of the Geneva Conventions in the Gaza Strip, and it reminded countries, including Belgium, of their obligation to take measures against Tel Aviv.

 In January 2026, Belgium adopted a decree “prohibiting aircraft carrying military equipment from Belgium to Israel and the Occupied Palestinian Territories from flying over its national airspace or making stopovers.” This was a step forward, but it still excluded dual-use goods. The country clarified that it had not included them because an EU Regulation (Regulation 2021/821, which establishes a Union regime for the control of exports, brokering, technical assistance, transit, and transfer of dual-use items) provides for a ban on their transit only when they are intended for the proliferation of chemical, biological, or nuclear weapons, or to a country subject to an arms embargo. It does not apply to violations of the Geneva Conventions or genocide. This is a point of uncertainty which the judges in Brussels were unable to clarify and which they have referred to their colleagues at the Court of Justice of the European Union, asking them to apply the accelerated procedure given that these are “urgent measures” against genocide in Gaza and “in view of the dramatic situation of the Palestinians in the Strip.”

More specifically, Brussels is referring two questions to the Court of Justice of the European Union: whether the EU regulation limiting the cases in which transit bans on dual-use goods may be imposed is compatible with Article 3 of the Treaty on European Union – which states that “the EU shall aim to promote peace, its values and the well-being of its peoples” – and with the Geneva Conventions and the Genocide Convention; whether it is possible to derogate from EU law in order to comply with obligations under international law. 

The appellants have had their case upheld. The ruling “reinforces our determination to compel Belgium and, consequently, the other EU Member States to fulfil their obligations under international law and to finally do everything possible to prevent and stop Israel’s systematic, flagrant and repeated crimes.” The outcome will have repercussions across the entire EU, and therein lies the strength of this ruling. If Luxembourg were to rule in favour of the primacy of international law over EU law, “Member States would no longer be able to shirk their responsibilities by invoking those of the EU” and “they could – and should – impose trade sanctions against Israel and refuse to implement the Association Agreement with Israel.” 

Starting with the transport of dual-use goods, the ripple effects would spread to everything else. And this could be a story of genocide, of European complicity being forced into the open, and of grassroots mobilisations capable of changing the course of events.