Summary Proceedings About the Delivery from the Netherlands of Parts for F-35 Fighter Planes to Israel (Part II)

[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.]

You can find Part I of this post here.

In this post, I explain why the Netherlands fails to comply with its “duty to prevent” under Article 1 of the Genocide Convention. In an earlier post, I have already tried to explain why I believe the Netherlands acts in breach of other international obligations – common article 1 of all the Geneva Conventions, human rights law, the Arms Trade Treaty. Here, I want to focus on the Genocide Convention.

As said in the previous 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 here, this presupposes a degree of factual certainty that does not have to be met for the obligation to prevent genocide to be triggered.

Within the Netherlands itself, there is less and less support for the Government’s official position, i.e., that the supply of weapon parts to Israel can continue under current circumstances. Mention must be made of the “silent protests” by Government officials from several ministries, including from the Ministry for Foreign Affairs. They protested the policy of their own political boss – i.e., the outgoing cabinet – on the war between Israel and Hamas. The officials are concerned, among other things, that the Netherlands is not calling for a permanent ceasefire in Gaza, and that it continues to supply arms to Israel.

Obligation Not to Supply Weapons Based on Article 1 of the Genocide Convention

With regard to the content of the obligation to prevent genocide, the decision of the International Court of Justice (ICJ) in the case between Bosnia-Herzegovina and Serbia-Montenegro of 26 February 2007, is without any doubt the most authoritative. From this ruling follows that all States are obliged to take all measures within their power to prevent genocide. The Court stressed therein that to trigger the obligation to prevent, it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide are (about to) be committed. In the same judgment, the ICJ noted that this duty to prevent genocide is triggered before any actual genocide happens, but a breach of this obligation to prevent genocide can only be legally established if genocide did in fact occur. (see esp. para 430-432). In the summary proceedings currently before the Dutch court, the plaintiffs ask the court to order the State to immediately cease all export and transit of F-35 parts with final destination Israel, at least until the Court has ruled on the merits in the substantive proceedings. In short, the main difference between substantive proceedings and summary proceedings – like the present one – is that substantive proceedings are used to definitively settle a legal dispute, while summary proceedings are used for urgent matters that require immediate action in the form of an interim measure. In a way, they can be compared with provisional measures at the International Court of Justice.

On the required knowledge at the current stage, a frequently cited article is that of David Scheffer:

“Governments, as opposed to prosecutors and courts, need to understand and apply the term ”genocide” largely in a preventive rather than a criminal context. It has become folly of the most profound character to insist that a government, or the UN Security Council, must first take the time and effort to determine, under international criminal law, that the crime of genocide has been committed before taking military action or, if it can work quickly enough, diplomatic or economic measures to stop what might be, but may turn out not to be, genocide. [States must] respond on the basis of political, not legal, judgments about what is actually occurring in the field.”

This is necessary also because, as Louise Arbor noted,

“perpetrators always seek to obfuscate reality, to discredit both the information that points to their culpability and those who provide it, routinely demanding further proof. They question the bona fide credentials of those who accuse them, as well as the veracity of their sources. They stall or deflect action and will continue to have every incentive to rely on such tactics in the future. Buying time and spreading misinformation is, after all, in the perpetrators’ own self-interest.”

The Netherlands is now obliged to take all measures within its power to prevent genocide. Since 7 October 2023, the Netherlands has not taken any measures to stop Israel’s military campaign in which large numbers of Palestinian civilians have been killed. Instead, the Netherlands has consistently and repeatedly expressed full support for these Israeli attacks. Additionally, the Netherlands has systematically rejected all calls for a ceasefire in the UN General Assembly, and is now one of the few countries in the world (still) doing so. Most importantly, the Netherlands continues to provide military support to Israel. Even as the death toll continues to rise and the population in Gaza increasingly suffers from a lack of food, water, fuel, and electricity – including for medical supplies – the Netherlands still refuses to use its considerable influence over Israel to call for an end to the bombings and to halt arms deliveries.

What makes things worse, is that the State of the Netherlands is well aware of its obligation to prevent genocide. This is evident, for example, from the joint declaration of intervention in the proceedings before the ICJ between Ukraine and Russia. Under the heading “Duty to Prevent”, the Netherlands clearly adopts the ICJ’s conclusions in the Bosnia Genocide case of 2007 that one must act to prevent even when there is still considerable uncertainty about the facts (para. 34-36). This is consistent with the Dutch policy over the last years, according to which

“the obligation to prevent genocide comes into effect when there is a reliable indication of a serious risk of genocide. Even in situations where it has not been established whether acts of violence can be regarded as genocide […], action must be taken, within the capabilities of the State in question, to prevent further atrocities. The Government is of the opinion that such preventive steps should not be dependent on a formal determination of genocide. Such a conditionality does not follow from the Genocide Convention. In this context, […] the focus should be on the measures that should be taken for (further) prevention, not on legalistic discussions.”

It would be most welcome if the Netherlands would now follow its own policy with regards to Gaza.

If the Netherlands is aware, or should normally have been aware, of the serious danger that acts of genocide are (about to) be committed, it must act to prevent it. The existence of a serious risk of genocide is not something that can be assumed. It must be argued. This was done in South Africa’s Application instituting proceedings against Israel before the ICJ. The section entitled “Expressions of Genocidal Intent against the Palestinian People by Israeli State Officials and Others” begins as follows:

“Evidence of Israeli State officials’ specific intent (dolus specialis) to commit and persist in committing genocidal acts or to fail to prevent them has been significant and overt since October 2023. Those statements of intent — when combined with the level of killing, maiming, displacement, and destruction on the ground, together with the siege — evidence an unfolding and continuing genocide. They include statements by the following individuals in the positions of the highest responsibility […]”

Following thereafter is an impressive list of statements from senior Israeli officials, including the Prime Minister of Israel, the President of Israel, the Israeli Minister of Defence, and so on. It is not useful to quote the same statements here in this post. These statements, combined with the facts on the ground, show that there exists a serious danger that acts of genocide are (about to be) committed.

Additionally, Francesca Albanese, Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territory since 1967, her warnings about genocide have been endorsed by an unprecedentedly large group of UN Rapporteurs (see here and here). Francesca Albanese even referred to the Netherlands’ delivery of F-35 fighter planes parts to Israel. She gave a series of lectures in the Netherlands – including a lecture on 8 December at Leiden University that was very well attended and earned her a standing ovation. During her visit to my country, she was interviewed by several Dutch newspapers. In these interviews she said

“States must immediately stop supplying military supplies to Israel. By that I mean the US, yes, but also the Netherlands (the Netherlands supplies spare parts for Israeli F-35s, ed.). I find it unimaginable that you support Israel so much.”

Obligation to Prevent Genocide is an Obligation of Jus Cogens

There is enough support for the qualification of genocide as jus cogens, inter alia by an individual ICJ judge, scholars, in an ICJ ruling, and by the International Law Commission. What is important for the present discussion, is that this also applies to the obligation to (help) prevent genocide committed by others (see here, here, and here). Why is this 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. In other words, the Netherlands, like all other States in the world, has a peremptory legal obligation to prevent and stop genocide committed by Israel. At the very least, this means the Netherlands must immediately stop supplying weapons for which there is a substantial risk that they will be used to commit these violations of jus cogens.

Conclusion

The Netherlands is prohibited from facilitating violations of the Genocide Convention by Israel, and is thus prohibited from supplying weapon parts to it. 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 genocide 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 genocide.

There is a difference between the obligation not to contribute to (“aid or assist” in the language of Article 16 ILC Articles on State Responsibility) violations of the Genocide Convention, 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 genocide, supplying weapons already results in a violation of the obligation to prevent genocide. In other words, not supplying weapons can be seen both as a “suitable measure to prevent genocide from being committed”; and as a case of “complicity”. In the latter case, not discussed here, the burden of proof is higher, but not insurmountable under the present circumstances.