After the International Court of Justice: Business as Usual? Al-Haq and Others versus the Netherlands: District Court The Hague 13 December 2024

[Dion Kramer is Assistant Professor of European Law at Vrije Universiteit, Amsterdam.

Keri van Douwen is a PhD Candidate in Public International Law at Vrije Universiteit, Amsterdam.]

It has now been half a year after the International Court of Justice delivered its Advisory Opinion on the Occupied Palestinian Territories. In it, the ICJ not only unequivocally condemned Israel for its continuing and illegal occupation but also spelled out the erga omnes obligation on third States not to facilitate the Israeli occupation of the Palestinian territories in terms of political, diplomatic and economic relations. Given political inertia amongst Israel’s allies and despite a Resolution by the UN General Assembly, it is unsurprising that civil society currently engages in domestic litigation to enforce the Opinion at the national level and have national judges interpret the legal content of and limits to third State obligations arising from Israel’s illegal occupation. 

A judgment by the District Court of The Hague of 13 December 2024 in preliminary relief proceedings initiated by a coalition of ten Dutch and Palestinian NGOs offers an insightful example of such litigation. As we will show in this post, the ruling of the District Court of The Hague barely touches upon the Opinion and is based on a very narrow interpretation of the State’s relevant international legal obligations. As a result, the State of the Netherlands is not obliged to halt its arms trade and military cooperation with Israel. Nor is the State obliged to take measures to halt and prevent Dutch companies from trading with, or investing in, companies active in the Occupied Palestinian Territories. Despite this lack of success for the applicants, the case offers important insights into the different pathways and arguments for domestic litigation. 

The Case

While the case was initiated by a broad coalition of ten organizations, varying from the Palestina-based Al Haq foundation to Dutch action group ‘A Different Jewish Voice’, only five of them were declared admissible under Article 3:305a Civil Code, the often-used Dutch provision for public interest litigation on the basis of international law. 

The case pertains to two rather wide-ranging sets of orders. With respect to military exports and cooperation, the applicants order the Dutch State to reconsider its export policy and ban the export of weapons and dual-use goods to Israel. On top of this, they order the State to cease all military cooperation and to prosecute any individual who is, or has been, contributing to violations of international humanitarian law or the Genocide Convention in Gaza. With respect to trade, the organizations essentially order a ban on any Dutch trade with, or investment in, companies active in Israeli settlements as well as those that are in any way involved in the Israeli operations in the Occupied Palestinian Territories.  

Crucial for understanding the proceedings and its outcome is its character of ‘interim relief’, which has grown into a popular alternative for regular proceedings. These type of cases offer applicants the opportunity to request provisional orders in a timely manner as rather informal procedures result in judgments within only a couple of weeks. Such interim relief procedures are often less about legal merits and more about informal pragmatism towards the interests involved. The ruling of the District Court itself explicates that, in the view of the judge, the case does not pertain to the question of whether the State’s current policy violates its international legal obligations but instead whether, and if so to what extent, the preliminary relief judge is allowed to assess the State’s foreign and defense policies (para. 4.9). In general, the government is presumed to enjoy wide discretion to shape its policy (beleidsvrijheid) in the areas of foreign policy and defense ‘where strongly political choices have to be made’. This explains why the ruling is largely void of legal analysis. 

Arms Exports and Military Cooperation

The applicants argue that Dutch arms export to Israel must be banned because it is impossible to rule out that weapons or parts thereof will not be used in hostilities against the Palestinian people. Although the State explicitly agrees that Israel’s occupation of the Palestinian territories violates international law (para. 2.1), it defends its policy solely in relation to the present or current ‘context’, being post-7 October 2023. Thus, while admitting that there is a ‘clear risk that weapons in the current context will contribute to serious violations of international humanitarian law’, the State argues that it abides by its international legal obligations as it assesses each application thoroughly. By offering examples of applications it has rejected since October 2023 – including export of helmets and ammunitions – the State convinces the presiding judge that there is no reason for a full embargo. Unfortunately, the State was not pressed to offer clarity on the type of goods it does approve for export to Israel, as Follow the Money had just revealed that the Netherlands exported 2.5 million euros worth of military goods -including components of military robots and naval vessels- to Israel between 7 October 2023 and October 2024. 

The judge’s conclusions that there is also no legal basis for a full embargo is only reached because the wider context (the illegal occupation) is entirely left out of consideration. Both the Opinion and the Arms Trade Treaty (not mentioned in the ruling, but Article 7 prohibits arms export if there is an overriding risk of facilitating a serious violation of international humanitarian or human rights law) offer such a legal basis. There is no doubt an overriding risk that all arms export facilitates Israel’s continuing occupation of the Palestinian Territories, which is illegal – a fact not denied by the State. The case-by-case assessment would thus have to include the question whether the military goods can be used by Israel to continue its presence in the Occupied Palestinian Territories, and since the Israeli occupation is inextricably linked to the state and its military, this question will be answered affirmatively each time. Yet the Dutch court rules that the applicants are at fault by ignoring that Israel cannot be denied the right to self-defense (of its own territory within the Green Line) for which it supposedly needs Dutch defensive weapons. Under international law, however, no distinction is made between offensive and defensive weapons, as all weapons are used to increase military advantage. In light of the Opinion, rather than pointing at the fact that Israel has the right to defend its territory, the more accurate question for the judge to consider is to what extent the assumed defensive arms and dual-use goods exported by the Netherlands facilitate the ongoing and illegal presence of Israel on the Palestinian Territories. It is the answer to this question that determines whether the State of the Netherlands acts in accordance with its international legal obligations. 

In similar fashion, the judge explains in a few short paragraphs that it follows the State in concluding that there is no reason nor legal basis to ban Dutch-Israeli military cooperation from taking place. The judge does not want to consider the legality of a status of forces agreement concluded between the Netherlands and Israel in October 2021 because of the separation of powers. While understandable, there is a serious possibility that in ratifying the agreement- which clearly states that it only applies to the European part of the Netherlands, but lacks a similar provision relating to the territorial application for Israel (see here) and thus fails to clearly distinguish between the internationally recognized territory of Israel and the OPT- the State implicitly recognizes Israel’s presence in the OPT as lawful and thereby facilitates its continuation (Opinion, para. 279). 

It is also unfortunate that the ruling does not consider the import of arms as military cooperation. While the State emphasizes that it attaches strict conditions to military cooperation (without providing any clarity what such conditions entail other than limiting it to take place within the internationally recognized borders, except this is not clarified in an agreement which will likely soon be ratified), NRC has shown that the Dutch MoD has increased its import of Israeli weapons since 7 October 2023 and has reached almost 1 billion euros worth of military goods. It is difficult to understand how this increase in arms import fits with the ‘strict conditions to military cooperation.’ In fact, an important question to ask is if this military trade, or any kind of trade relationship, could not facilitate or strengthen the Israeli presence in the Occupied Palestinian Territories. 

Economic Trade with Israel and Settlements

While the relevant paragraphs of the ICJ Opinion on trade and investment relations (paragraphs 278-279) leave some room for interpretation, they seem to require, at a minimum, a suspension of trade in goods and services originating from Israeli settlements in the OPT. However, in awarding the State wide discretion to shape its policy (beleidsvrijheid), the District Court The Hague does not find itself in the position to order the Netherlands to undertake more or alternative measures than it is already undertaking in relation to trade with Israeli settlements (para. 4.35). This is unfortunate, as the Dutch measures seem quite limited in light of the erga omnes obligations found by the ICJ. The ‘official discouragement policy’ pursued by the Netherlands consists of not assisting companies with respect to activities that ‘directly’ support or facilitate the construction and maintenance of settlements and informing companies upon request about the ‘risks’ of trading with Israeli settlements. The State also points at the various measures at EU level, including the labelling of goods originating from the illegal settlements. Complemented with the promise of the State to keep monitoring the situation and evaluating its policy framework, this convinces the judge that the State has an eye for the ‘difficult situation of Palestinians in the occupied territories’ and does not act manifestly unlawful (para. 4.34).

A rather critical point of legal contention during the oral proceedings concerned the very ability of the Netherlands, as a Member of the EU, to unilaterally enact the types of trade restrictions ordered by the organizations. The State argued that the competence to adopt import bans lies exclusively with the EU under its Common Commercial Policy (3(1)(e) TFEU), blocking it from unilaterally adopting important bans. Despite pressure from a group of Member States spearheaded by Belgium, the EU has so far not taken the step to ban imports from Israeli settlements. As it stands, EU trade policy on the Israeli occupation merely excludes products from Israeli settlements from the preferential trade benefits under the Association Agreement and requires such products to be labelled in order not to mislead European consumers as regards their origin, a development spurred by an intervention of the European Court of Justice in 2019. Despite growing criticism of legal scholars that this policy is far from sufficient to comply with the ICJ opinion, a (leaked) legal note of the European External Action Service claims that this is a matter of ‘political appreciation’. 

From the perspective of international law, it is a worrying development that the division of competences between the EU and its Member States can serve as a shield to obstruct the necessary steps towards compliance, rather than serving as a commitment to the international legal order – one of the key EU objectives under article 3(5) TEU). Referring to the recent Confédération paysanne judgment by the European Court of Justice on products originating from the Western Sahara (para. 48), the State argued that the Netherlands was no longer competent to ban the imports of certain categories of goods originating in a third territory into the Union. The organizations, however, pointed at the Advocate-General’s opinion in the same case to emphasize the difference between the importation and marketing stages in the lifecycle of products on the EU market (para. 44). Indeed, while Member States might not be able to introduce an import ban as this would undermine the uniformity of the Union’s customs rules, it would be legally different to ban the actual sale (that is, the marketing) of products originating from settlements. Without doubt, bans on sales qualify as intra-EU trade restrictions under article 34 TFEU, but could very well be justified on grounds of public interests such as public policy, as the European Commission has also admitted in response to parliamentary questions. This is the course of action Irish lawmakers seem to be taking after the government expressed its intention to dust off its Occupied Territories Bill after the ‘game-changing’ ICJ opinion.

Concluding Remarks

While largely unsuccessful, the Al Haq and others judgment by the District Court The Hague offered the applicants at least one victory. In contrast to last year, when the State of the Netherlands argued in the F-35 case that the situation in Gaza was ‘too complex’ to assess Israeli violations of international (humanitarian) law (para. 4.24)), the State now agreed in court that Israel’s occupation of Palestinian territories violates international law (para. 2.1) and admitted that there is a ‘clear risk that weapons [supplied to Israel that could contribute to Israel’s activities in Gaza or the West Bank] in the present context contribute to serious violations of international humanitarian law’ (para. 4.14, emphasis added).

Despite this legal premise, the judgment only marginally interacts with the ICJ Opinion and very narrowly interprets the State’s obligations arising from the illegal occupation of the Palestinian territories, before reaching the conclusion that the State enjoys wide policy discretion. The idea that a national judge can only marginally assess whether the State’s foreign and defense policies violate international law seems to be a judge unworthy but is partly explained by the characteristics of preliminary relief proceedings. The court relies on the recent F-35 case (for analysis see here, here and here), to argue that ‘only in case the State violates concrete international legal obligations, may a preliminary relief judge under certain circumstances intervene’ (para. 4.25). However, to know whether the State violates concrete international legal obligations, the judge would first have to be willing to analyze and interpret relevant rules of international law. 

Consistent legal effort is therefore needed to ensure that the Opinion indeed proves to be game-changing, that ‘business as usual’ cannot continue and that ‘the present context’ will actually include the decade-long illegal occupation of the Palestinian territories.