On Monday, a Dutch appeals court ruled that the Dutch government must cease all deliveries of F-35 fighter jet parts to Israel within seven days. The Court noted that there is a “clear risk” that the F-35 parts are being used to commit grave violations of international humanitarian law (IHL) in Gaza. It was a comprehensive win for the plaintiff organizations, and big news in the Netherlands. The ruling may also impact decision-making in other countries, particularly members of the “F-35 Program” facing similar court challenges.
In November 2023, three human rights organizations brought a case against the Dutch government challenging the continued delivery of F-35 fighter jet parts from the Netherlands to Israel. The organizations argued, based on the Genocide Convention, the Geneva Conventions and their first Additional Protocol, customary international law, and applicable EU regulation, that the Dutch government is required to reevaluate the permit (originally granted in 2016) to export and transit F-35 parts to Israel. The Netherlands has been a member of the United States-led F-35 Program since its establishment in 2001. The U.S. Department of Defense selected the F-35 European Regional Warehouse in the Netherlands in 2019 to manage parts for over five hundred F-35 jets. In addition to European countries, Israel also uses the warehouse. The plaintiff organizations argued that the F-35 jets are contributing to the commission of serious violations of international law in Gaza.
On Dec. 15, the provisional-measures judge of the Regional Court of The Hague (a domestic Dutch court of first instance) agreed with the plaintiffs that the international commitments of the Netherlands compel the government to reevaluate the original permit in the light of the new circumstances and events of the war (paragraph 4.13 of the decision, in Dutch). The Minister of Foreign Trade had, in fact, conducted an – albeit brief – evaluation. The question, then, was whether this “broad assessment” conducted by the Minister satisfied the requirement. The Minister had considered, among other things, that a clear risk of violations of IHL could not be established with the currently available information, and that ceasing the delivery of military goods would weaken the relationship and influence of the Netherlands vis-à-vis its allies (paragraphs 4.19-26). Based on this broad assessment, the Dutch government decided to continue delivery of the parts. The provisional-measures judge ruled that the Minister could “within reason” have come to her conclusion. He therefore rejected the petition to order a halt on the delivery of the parts.
Ruling on Appeal
The appeals court reversed the lower court’s verdict and found that the Minister performed the reassessment of the permit inadequately. The court began by considering whether there is a “clear risk” of IHL violations (paragraphs 5.4-5.19 of the ruling). The court noted that, though at present there is no judicial confirmation that IHL violations have taken place, this is not necessary for determining a “clear risk” (as provided under Article 2 of the EU Common Position on Arms Exports and, similarly, Article 7 of the UN Arms Trade Treaty) of such violations; indeed such a condition would render the risk standard meaningless (paragraph 5.16). The User’s Guide to the EU Common Position explains that the finding of a clear risk requires a thorough assessment which “should include an inquiry into the recipient’s past and present record of respect for international humanitarian law, the recipient’s intentions as expressed through formal commitments and the recipient’s capacity to ensure that the equipment or technology transferred is used in a manner consistent with international humanitarian law” (p. 44, underlining in original). In finding that a clear risk applied, the court mentioned, among other things, statistics on civilian casualties by the U.N. Office for the Coordination of Humanitarian Affairs, the destruction of infrastructure, hospitals and water supplies reported by U.N. Special Rapporteurs, two investigations by Amnesty International into attacks on civilian targets that they concluded were indiscriminate, and a statement an IDF spokesperson stating that “these strikes are only the beginning when it comes to the city of Gaza.” The Dutch government, in support of its position, had expressed misgivings about reports on the situation in Gaza by Amnesty International and U.N. special rapporteurs due to alleged lack expertise and insight on the ground, a view that the court rejected.
The court then determined that the violations the clear risk pertains to are “grave,” in a suitably morose paragraph 5.17:
The facts reveal that large numbers of civilian casualties have been caused, including thousands of children, that thousands of residential homes have been destroyed, that “dumb bombs” are used, that every residential area is attacked if there is the slightest indication of terrorist activity, that previously applied limits regarding “collateral damage” have been expanded in the current conflict, that the policy of warning civilians before an attack has been abandoned, that drinking water supplies, bakeries and a grain mill have been destroyed, that a hospital (the Al-Indonesi hospital) has been bombed and that many of the hospitals in Gaza no longer function. That these devastations were inflicted exclusively on military targets or constitute legitimate “collateral damage” is not plausible, not only in light of their unprecedented scale, but also in light of statements made by Israeli military personnel themselves. Based on the foregoing, the court also concludes that the violations of international humanitarian law at clear risk are “grave.”
Despite similarities in tone and verdict, the court’s ruling makes no mention of the International Court of Justice (ICJ) Order in the case of South Africa against Israel. The most likely explanation for this is that the final hearing between the parties in the Dutch case was concluded on Jan. 22, a few days prior to the ICJ delivering its Order.
After finding a clear risk of grave IHL violations, the Dutch appeals court continued by reaffirming that the international commitments of the Netherlands create an obligation for the authorities to reassess the export permit after Oct. 7, 2023. First, the court found that although the EU Common Position and the U.N. Arms Trade Treaty do not contain a general obligation to review permits when new circumstances occur, it would go against the very purpose of these agreements if there was no such obligation under the present circumstances, where a clear risk of grave IHL violations exists (paragraph 5.24). A different interpretation, according to the court, would lead to the unacceptable outcome that States could issue arms permits for an indefinite period of time with no obligation to review again, even when the goods are used to commit grave violations of IHL. Second, the court found that such an understanding would also be at odds with Common Article 1 of the Geneva Conventions (as well as Additional Protocol I to the Geneva Conventions), which obliges States to ensure “in all circumstances” respect for IHL by another State (paragraph 5.25).
Finally, the court found that the review which the Minister of Foreign Trade had performed was inadequate. The court determined that the Minister erred in involving considerations of more general foreign affairs politics, such as Israel’s interest in preventing further escalation in the region or Dutch interest to maintain good relations with the U.S. and Israel (paragraph 5.36). In doing so, the Minister applied an “erroneous assessment framework” by “not giving priority to the mandatory norm [of the EU Common Position] over any other foreign policy consideration” (paragraph 5.37, my translation). The court reiterated that, when a clear risk of IHL violations exists, the Minister must halt arms exports regardless of other political considerations.
The Dutch government had also argued that the plaintiffs had no objective interest in the case because, in case of a cease order, the United States will continue delivering the parts directly to Israel (paragraph 5.45). In the F-35 program, the United States is the primary financier and customer of fighter jets, with several other companies contributing to development and distribution. The court rejected the argument. The government also argued that a cease order means breaching agreements with the United States and a closure of the factory location. Both do not outweigh the importance of observing international obligations, the court said.
The Dutch government has stated that it intends to implement the ruling while also lodging an appeal with the Dutch Supreme Court.
Other EU countries are also partners of the F-35 Program, including Italy, Norway and Denmark. As one scholar (in Dutch) points out, these countries do not merely transfer parts manufactured in the United States, but produce parts themselves too, and are a part of the supply chain for the F-35. They must now consider whether their position can be reconciled with the appeal court’s ruling and the mandatory norms of arms export regulation that bind them.