05 Jan Summary Proceedings About the Delivery from the Netherlands of Parts for F-35 Fighter Planes to Israel (Part I)
[Otto Spijkers is Assistant Professor in the field of constitutional and administrative law at Erasmus School of Law, and lecturer of international and European law at Leiden University College, Faculty of Governance and Global Affairs of Leiden University.]
The State of the Netherlands is not obliged to stop the supply of F35 fighter plane parts to Israel. This follows from a ruling by the District Court of The Hague of 15 December 2023 in summary proceedings initiated by three public interest groups, Oxfam Novib, PAX and The Rights Forum. The organizations have appealed. It was announced on 2 January that the oral hearings of the appeal are scheduled for 22 January 2024.
“For anyone who sees the images of this armed conflict, reads the news reports about it, and hears the statements made by Israeli ministers about the Israeli response to the terrorist acts of Hamas of 7 October, it seems obvious that this response does involve violations of humanitarian law”, says the judge. The same judge also considers it “understandable that, if this is not subsequently taken as a starting point by the State, that might give rise to the feeling of a State being wilfully blind.” But then the same judge nevertheless follows the State’s argument that the current war situation in Gaza is very complex, that much is still unclear, and that it has not been established that Israel commits specific violations of international law (the key paragraphs are 4.13-14. Unfortunately the ruling has not been translated into English).
The State of the Netherlands believes that it has already met its obligation to prevent international crimes by the diplomatic efforts that it has made to ensure Israel’s respect for international law. The Netherlands has repeatedly reminded Israel to exercise its right to self-defence within the limits of international law – a right that, according to most experts, Israel cannot rely on in this case, but that is another discussion (previously discussed, for example, here, here and here ). On 23 October, Prime Minister Rutte, in a “robust conversation” urged the Israeli Prime Minister to exercise demonstrable restraint in the use of military force. Clearly that did not help much. At the same time, the decision to supply F35 fighter plane parts was never reconsidered. As I will argue in this post, this means the Netherlands fails to comply with its “duty to prevent” under Article 1 of the Geneva Conventions, human rights law, and it has misread the relevant provisions in the Arms Trade Treaty – especially Articles 6 and 7. The Netherlands also acts in breach of its obligation to prevent genocide under the Genocide Convention, but it is aforementioned obligations I wish to focus on in this post.
The Netherlands repeatedly makes the argument that it is still very complex to form an opinion on whether Israel complies with its international obligations, and that “thorough and independent research will be necessary to uncover the relevant facts”. As I shall argue, this presupposes a degree of factual certainty that does not have to be met for the above-mentioned obligations to apply.
Similar Cases Elsewhere
The Dutch court case, which is currently on appeal, is not unique. A similar case has been filed in the United Kingdom. An almost identical legal dispute as the one in the Netherlands arose in Denmark. “We can confirm that the F-35s have been operating in the Gaza Strip throughout this operation, i.e., the war against Hamas that started on October 7,” a representative of the Israel Defence Forces (IDF) is quoted. By the way, the Danish company that is producing the weapon parts has a Dutch connection, because part of this Danish company is based in Leiden. There were protests there. There is also a case in the USA. Palestinian human rights organizations, together with Palestinian individuals residing in Gaza and in the United States, have filed a lawsuit in a US federal court against President Joe Biden, US Secretary of State Blinken, and US Secretary of Defence Austin, alleging their inability – and therefore of the US – to prevent the Israeli government’s genocide. The indictment also alleges that they are complicit in this genocide, a genocide that targets the complainants, their families and the 2.2 million Palestinians in Gaza. The lawfulness of the continuous supply of weapons by the US to Israel is also disputed therein. The complaint is online, as is the defendants’ response – which focuses more on procedural aspects than on content. And there might be more cases coming. A similar discussion is taking place in Italy. Any ruling from the Dutch court will have a rippling effect, because judges all over the world do listen to each other.
Arms Trade Treaty
The problematic provision is Article 6(3) Arms Trade Treaty, which states that “a State Party shall not authorize any transfer of conventional arms […] if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949”.
Article 7 Arms Trade Treaty, which applies to export of arms not prohibited under Article 6, has a provision 7(7), which says that “If, after an authorization has been granted, an exporting State Party becomes aware of new relevant information, it is encouraged to reassess the authorization after consultations, if appropriate, with the importing State.” The question then is why there is no obligation in Article 6 – in case of Article 6, a mere “encouragement” would be inappropriate – to reassess the authorization of any transfer of conventional arms if knowledge of international crimes becomes known after the time of granting the authorization. There is support in the literature for the view that such an obligation can be derived from the “object and purpose” of the Arms Trade Treaty which is to reducing human suffering, and that the lack of an explicit obligation to reassess authorizations in light of new circumstances in Article 6 merely constitutes a “drafting oversight”, and that we should not infer from this that States have no obligation to deauthorize in the event of serious risks of genocide, war crimes, etc. arising after the authorization has already been granted.
Obligation Not to Supply Weapons Based on Article 1 of the Geneva Convention
Weapons cannot be provided (anymore) when there is a serious risk these weapons might be used to commit war crimes. The obligation not to supply weapons to States possibly guilty of war crimes is an obligation directly based on common Article 1 of the Geneva Conventions. This Article reads: “The High Contracting Parties undertake to respect this Treaty and to cause it to be respected in all circumstances ”. From this follows an obligation not to supply weapons to States possibly guilty of war crimes. According to Maya Brehm,
“considering the importance, and even the peremptory character of some of the norms at stake [more on the “peremptory” status of the obligations concerned follows below], a state would not only be entitled to deny an export license and ban arms transfers to or from a particular state, it would also be justified—and in some circumstances may be required—to suspend military cooperation agreements. […] At least if serious and widespread violations of humanitarian law are already being committed in an ongoing armed conflict, supplied weapons will likely be misused, and they should hence not be transferred.”
This interpretation of Article 1 of the Geneva Conventions is further supported by the ICRC’s Arms Transfer Decisions: Applying International Humanitarian Law and International Human Rights Law Criteria ‒ a Practical Guide of 2016:
“States that transfer weapons can be considered particularly influential in “ensuring respect” for IHL due to their ability to provide or withhold the means by which violations may be committed. [This obligation] would require a State to assess whether the recipient is likely to use the weapons to commit IHL violations and, if there is a substantial or clear risk of this happening, to refrain from transferring the weapons.”
This is also explored in a recent post by Mais Qandeel, in which she applies this reasoning to the Gaza conflict.
Shortly after the Dutch judge issued his ruling, the State attorney noted that it is difficult to “judge from a distance” whether Israel is going too far in its response to Hamas’s attack. “It has not been established that the laws of war are being deliberately violated with the F-35 ,” he added. However, a violation of Article 1 Geneva Conventions does not require that the Netherlands wilfully cooperated in a violation, nor is it necessary that this violation was committed with the F35 fighter planes containing parts produced in the Netherlands. More importantly, the existence of a violation does not have to be established to trigger the obligation to prevent war crimes. The ICRC’s authoritative commentary on Article 1 of the Geneva Conventions states that “Common Article 1 requires High Contracting Parties to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.” Needless to say that evidence that Israel was and is guilty of war crimes is piling up.
There is a difference between the obligation not to contribute to (“aid or assist”, Article 16 ILC Articles on State Responsibility) violations of the Geneva Conventions, and the obligation to prevent such violations. I have focused on the latter. Under both sets of obligations, providing weapons is unlawful. Supplying weapon parts to Israel makes the Netherlands “complicit”. When there is a “clear risk” of war crimes, supplying weapons already results in a violation of the obligation to prevent such crimes. In other words, not supplying weapons can be seen both as a suitable measure to prevent war crimes from being committed; and as a case of “complicity”. In the latter, not discussed here, the burden of proof is higher, but not insurmountable under the present circumstances.
According to Article 1 of the European Convention on Human Rights (ECHR), the Netherlands must ensure the rights and freedoms of this treaty for everyone within its jurisdiction. One of those rights is the right to life (Article 2). Similarly, according to Article 2 of the International Covenant on Civil and Political Rights (ICCPR), the Netherlands must respect the rights recognized in that treaty and guarantee them to everyone residing within its territory and subject to its jurisdiction. This also includes Article 6 ICCPR, the right to life. The victims of the current conflict are in Gaza and not in the Netherlands. The question then arises whether the Netherlands nevertheless has obligations under the ECHR and ICCPR vis-a-vis the people in Gaza.
There are two arguments that can be made. The Netherlands’ supply of F35 parts to Israel has enabled Israel’s use of lethal force and unjustified killings of civilians in Gaza. The Netherlands, the State that issues such export permits, has thereby exposed the Gazan civilian population to a serious risk of treatment in violation of Article 2 ECHR/6 ICCPR. The issuance of this export permit, which took place in the Netherlands, has direct, significant, and foreseeable consequences for the human rights of the civilian population in Gaza. Granting such an arms export license for lethal weapons at the time of issuance is a violation of Article 2 ECHR/6 ICCPR regarding persons residing in Gaza.
This interpretation finds support in, among others, the General Comment on the interpretation of Article 6 ICCPR by the Human Rights Committee. This says that States parties “must take appropriate legislative and other measures to ensure that all activities taking place in whole or in part within their territory […] but having a direct and reasonably foreseeable impact on the right to life of individuals outside their territory, including activities undertaken by corporate entities based in their territory or subject to their jurisdiction, are consistent with article 6 [ICCPR].” The Comment even mentions arms transfers explicitly, when it recommends that “States parties engaged in the deployment, use, sale or purchase of existing weapons […] must always consider their impact on the right to life.” There is additional support for this approach in an earlier view of the Human Rights Committee, and it is further elaborated in the literature.
Another way to approach this is to hold he Netherlands complicit in human rights violations committed by Israel. Support for this approach we find in a report of Amnesty International. It is further supported by the International Law Commission (ILC), in its commentary to Article 16 ILC Articles on State Responsibility:
“a State may incur responsibility if it […] provides material aid to a State that uses the aid to commit human rights violations. In this respect, the [UN] General Assembly has called on Member States in a number of cases to refrain from supplying arms and other military assistance to countries found to be committing serious human rights violations.”
Further support we find in a recent Human Rights Council resolution on Israel adopted prior to the current escalation, which states, among other things:
“[The Human Rights Council] urges all States to refrain from transferring arms when they assess, in accordance with applicable national procedures and international obligations and standards, that there is a clear risk that such arms might be used to commit or facilitate serious violations or abuses of international human rights law or serious violations of international humanitarian law.”
Maria Monnheimer noted that:
“Transferring arms could indeed amount to a violation of international law where the preconditions for complicity are fulfilled. This would be the case if arms are employed to commit human rights violations (or violations of humanitarian law) and the exporting state has (at least) positive knowledge of these consequences or even intended them to occur .”(see also here, here, and here)
Given the large number of children dying in Gaza, we need also to refer to Article 38 of the Convention on the Rights of the Child, which states that “the States Parties [to the Convention on the Rights of the Child] undertake to respect and ensure the observance of rules of international humanitarian law applicable to them during armed conflicts and relating to children”. And: “Consistent with their obligations under international humanitarian law to protect civilian populations in armed conflict, States Parties shall take all practicable measures to ensure the protection and care of children affected by armed conflict.”
UN Rapporteurs have already emphasized the importance of protecting girls and women in the current conflict:
“All parties must urgently use all means at their disposal to end the gross violations of women’s and girls’ rights in the occupied Palestinian territory, as the failure to do so will have a devastating lasting impact.”
Obligation to Prevent Violations of Human Right to Life and War Crimes Committed by Other States is an Obligation of jus cogens
According to the Inter-American Commission on Human Rights,
“the right to life, understood as a basic right of human beings enshrined in the American Declaration and in various international instruments of regional and universal scope, has the status of jus cogens.”
Support for this can also be found in Mark Eugen Villiger most recent edition of his authoritative Handbook on the European Convention on Human Rights (2023 edition):
“Article 2 § 1 [ECHR] guarantees the legal protection of the right to life. It is the most important of all the Convention guarantees and constitutes the core value in States governed by the rule of law. […] Indeed, it constitutes peremptory international law (jus cogens). ”
as well as Paul Gormley’s paper on ‘The Right to Life and the Rule of Non- Derogability: Peremptory Norms of Jus Cogens‘.
Why is this “jus cogens” qualification important? Because all States in the world are obliged to cooperate to put an end by lawful means to any serious breach of an obligation arising from a peremptory norm of general international law (see Articles 40 and 41 ILC Articles on State Responsibility). In other words, the Netherlands, like all other States in the world, has a peremptory and non-derogable obligation to prevent and stop serious human rights breaches and war crimes committed by Israel.
The Netherlands is prohibited from facilitating serious violations of the Geneva Conventions and human rights treaties by Israel, and is thus prohibited from supplying weapon parts. This is an obligation of result: the Netherlands must not provide such support, even if other interests require it. There is no room for a balancing of interests here. Because the obligation to prevent such breaches is an obligation of jus cogens, other international obligations, under the Arms Trade Treaty or arms trade agreements for example, must be interpreted in such a way that they do not conflict with these peremptory obligations. And if that is not possible, priority must be given to these peremptory obligations. Therefore, the Arms Trade Treaty cannot be interpreted in such a way that the Netherlands may refrain from reviewing the weapon export license even if there is a serious risk that the weapons parts will be used in the commission of serious breaches of the human right to life or war crimes.
You will find Part II of this post here.