Dutch Appeals Court Blocks Deliveries of F-35 Parts to Israel: Overview, Analysis and Initial Reflections

[Johanna Trittenbach is a PhD Candidate at the Grotius Centre for International Legal Studies at Leiden University.  Jessica Dorsey is an Assistant Professor of International Law at Utrecht University and Otto Spijkers is a Lecturer of International Law at Amsterdam and Leiden University College (AUC and LUC).]

Introduction

On 12 February 2024, the Court of Appeal in The Hague ordered the Netherlands to cease all export and transit of F-35 fighter jet parts to Israel within 7 days (unofficial English translation here). This is a “turbo-speed” appeal ruling in the summary proceedings initiated in November 2023 by Oxfam Novib, PAX, and The Rights Forum, three Dutch NGOs who petitioned the Court to review the legality of a Dutch arms transfer licence for weapons deliveries to Israel. While the State prevailed on all issues in the first instance in December (see posts here and here for more analysis), the Appeals Court has come to the conclusion, among others, that transfers of F-35 fighter jet parts to Israel are no longer permitted given the clear risk of violations of international humanitarian law by Israel. Some reflections about the case have already been made in the blogosphere (e.g., here and here); with this post we aim to add to the discussion. 

We proceed by providing a brief overview of the case history and offer an analysis of the Court’s findings on four main points in the ruling: limitations on open-ended arms transfer licences, risk assessment requirements for arms transfers, the Court’s analysis on the approach to sources substantiating clear risks of International Humanitarian Law (IHL) violations, and the issue of direct effect of international law into domestic systems before we offer some concluding remarks and developments to watch. 

Positions of the Parties

Oxfam, PAX and The Rights Forum (Claimants)

Claimants have challenged the legality of the Netherlands exporting F-35 parts to Israel and argue the Dutch State has a duty to prevent any further transfer from the F-35 Regional Warehouse in Woensdrecht, the Netherlands. This is based on the Claimant’s position that Israel is violating, or at the very least there is a clear risk that it is violating, IHL and other international legal obligations in attacking targets in Gaza (they specifically point to evidence about disproportionate civilian harm and a “reliable indication of a serious risk of impending genocide”). Therefore, the Claimants argue, based on Dutch domestic legal obligations interpreted in the light of Council of the European Union’s Common Position 2008/944/CFSP of 8 December 2008 Defining Common Rules Governing Control of Exports of Military Technology and Equipment (Article 2(2) in particular; hereinafter the EU Common Position), the Arms Trade Treaty (Article 7, hereinafter ATT), and the Geneva Conventions (specifically Common Article 1)., the Netherlands must prevent any further transit or export of F-35 parts to Israel (para 3.19).

The Netherlands

The State refuted the position of the claimants. First, by arguing that the case is inadmissible, because the ability to challenge the State in court is not outlined in the articles of association of the Claimants’ organisations, and therefore they lack standing. The State further argued that neither the EU Common Position nor the ATT oblige a state to reassess an arms export licence once it has been issued, based on circumstances that may later arise. Rather, the State argued, there is only encouragement to do so. Further, the ability to reassess as a matter of policy falls to the Ministry of Foreign Trade and Development Cooperation, which has broad discretion in the areas of (national) security and foreign policy and may consider other interests, such as the importance of political relationships with Israel and the US. The State further disputes that it was a matter of fact that the F-35 fighter planes are involved in violations of IHL as there is insufficient information available about the precise role of the F-35s and about the circumstances and considerations regarding concrete combat operations. Finally, the State argued a risk of genocide had not been demonstrated (para 3.20).

Selected Points of Analysis

Limitations on Open-Ended Arms Transfer Licenses

Briefly put, the case relates to parts for the Lockheed Martin F-35 Lightning II fighter jets distributed from the Regional Warehouse in Woensdrecht, to several countries, including Israel. These parts are considered military goods, which means that a permit is required for export from, or transit through, the Netherlands. That permit was granted in 2016 in the form of a ministerial regulation based on the Netherlands’ Strategic Goods Decree. This general export licence NL009 includes a general transit permit (for US exports to third states which transit through the Netherlands), a general export permit (for F-35 parts and components that are manufactured in and exported by the Netherlands), and general transfer permit (for exports to other European states and equivalent states, not including Israel (of limited relevance here)). On the basis of this permit, F-35 parts can be delivered from the Woensdrecht depot to Israel, without the need for a separate permit for each individual delivery. This general licence has no end date, and is therefore in principle valid as long as the F-35 project is ongoing. However, Article 8 of the applicable permit regulation reserves the right for the Minister of Foreign Trade and Development Cooperation to revoke the export licence in case foreign policy or security considerations preclude further exports of F-35 fighter jets to any of the licensed recipients. The Dutch general licence for the F-35 programme therefore expressly provides for the review and possible interception of pending exports that have already been licensed, in the case that the situation on the ground changes to an extent that any further arms exports would be unacceptable or unlawful. 

The claimants did not only seek the immediate cessation of all (actual) exports and transit of F-35 parts (which the Court granted), but also requested the Court to order a reform of the general licence NL009, specially put in place for the F-35 programme, and to bring the licensing procedure for exports and transits of F-35 parts in compliance with international legal obligations. While the Court rejected the latter claim, it ruled that the Minister was under an obligation to re-assess the export and transit of F-35 parts to Israel since 7 October 2023 (which she did), but that this assessment should have concluded that further export and transit were no longer permitted. The State argued that neither the EU Common Position nor the ATT contain a binding obligation to re-assess already granted export licences. On this argument, the Court reasoned that accepting the State’s arguments would essentially undercut the object and purpose of the EU Common Position and the ATT, and that arms transfer permits issued for an indefinite period without reassessment once circumstances drastically change would completely undermine arms transfer controls in place. 

Risk Assessment Required for Arms Transfers

When transferring weapons, states are obliged to assess the risk of IHL violations by the recipient. This obligation of conduct is founded in Common Article 1 to the Geneva Conventions and the obligation to ensure respect for IHL. The Court acknowledges an external dimension of the duty to ensure respect, and argues that, in compliance with this obligation, arms transfer licences may be revoked in light of reports of serious violations of IHL conducted by the recipient (paras. 3.12, 5.25). 

The Court interprets the Netherlands’ obligations under the EU Common Position and ATT in accordance with positive obligations encompassed by to Common Article 1. Both legal instruments require the state party that transfers weapons to consider past and expected future conduct of the recipient, specifically whether there exists a risk that the arms export may be used to commit or facilitate, among others, violations of IHL. The Court equates the threshold for this risk assessment under the EU Common Position (which stipulates in its article 2(2) a ‘clear risk that the military equipment or technology to be exported will be used in the commission of serious violations of international humanitarian law’) and the ATT and its assessment under article 7 (which calls for refusal of export if there exists an ‘overriding risk’ that the transfer ‘could be used to […] commit or facilitate a serious violation of international humanitarian law’).

Although the Court notes that Israel’s alleged violations of IHL are yet to be ascertained in a judicial decision, it acknowledges that no definite judgement needs to exist to observe a ‘clear risk’ of violations of IHL. The Court found that the Minister mistakenly focused the assessment on whether there was an established violation of IHL by Israel rather than just a clear risk of such a violation. Furthermore, the Court determined, understanding that such a clear risk exists legally obliges the Minister to prevent the export of F-35 parts to Israel under the EU Common Position regardless of other foreign policy considerations (e.g., relationships with the US or Israel.) (paras. 5.31 et seq.) Considering the extent of the destruction unleashed on Gaza, together with statements made by Israeli soldiers and in light of reports by UN agencies and officials, the Court finds it implausible that victims and damage in Gaza constitute exclusively legitimate collateral damage (para. 5.17). It determines that a clear risk for ‘serious’ violations of IHL exists, as preconditioned by the EU Common Position and the ATT for the refusal of arms transfers. While the ruling indicates that the involvement of F-35 fighter jets in violations of IHL seem ‘sufficiently plausible’, the Court also points out that a direct link between the weapons transfers in question and the alleged violations of the law is not required by international law, as article 7 ATT requires states to desist from arms transfers if they would be used to commit or to facilitate serious IHL violations (para. 5.18). Again, the Court equates the threshold applicable for the ATT and the EU Common Position, however, this interpretation of the applicable threshold for an arms transfer risk assessment is in line with Common Article 1 to the Geneva Conventions and states’ duty to employ the means available to them to ensure respect for IHL by others.

Direct Effect of EU Common Position and ATT

The State contested that the obligations under the EU Common Position and the ATT have direct effect, i.e., whether these instruments can be relied on by the Claimants and thus whether the Court can evaluate the State’s actions or omissions against these obligations. The Court’s two-fold assessment of this question considers that, on the one hand, irrespective of the direct effect of international obligations under domestic law, the Court is obliged to interpret national provisions in accordance with the EU Common Position and ATT, given that the State is bound by these instruments’ provisions vis-à-vis other states nd that the Court is mandated to interpret whether international commitments are being upheld (para. 5.32).

On the other hand, the Court establishes that the Dutch export control system gives direct effect to relevant international legal provisions (para. 5.31). In the Dutch moderated monistic legal system, international legal obligations that the State accepted have, in principle, a direct effect on the national legal order, given that these obligations entail rights and obligations for all persons and that the obligations have been made known to the public (article 93 Dutch Constitution). Imposing direct effect of international obligations under domestic law is usually up to the discretion of States, given that international law only exceptionally, for example for human rights treaties, explicitly requires states to impose direct effect in domestic jurisdictions. States may nevertheless give international provisions direct effect for various reasons, including to act in accordance with principles of good faith and pacta sunt servanda, to foster enforcement of a norm, and to uphold separation of powers.

The Dutch Supreme Court takes a contextual approach to giving international treaty provisions direct effect (paras. 3.5.1 – 3.5.3). The content of the provision is decisive whether its direct effect applies in a certain context, given that the following two circumstances are met. First, an international treaty provision cannot be conditional, but must be in line with Article 93 of the Constitution which requires that rights and obligations apply to all persons. Second, the provision needs to be sufficiently precise to be directly applicable. This does not preclude that the government is afforded a certain margin of appreciation in exercising its powers that fall under a treaty provision that has direct effect (as is the case in decisions on arms transfers). However, if the provision can function as an objective law in the context in which it is invoked, the provision can bear direct effect.  

 The Appeals Court in this case determined that the applicable domestic law for arms transfer controls entails an explicit link to international law, including the EU Common Position and ATT. The amendment of the Strategic Goods Decree after the entry into force of the ATT precludes the export or transit of military items that are contrary to international obligations (Articles 11(3) and 5(4)). Given that this provision is unconditional and, when read in conjunction with the standards of the EU Common Position and the ATT, precise in its scope, its direct effect could be argued. The Court reasoned that the direct and codified link between the Dutch legal order and international legal obligations, in this case stemming from the EU Common Position and ATT, imply that standards from these instruments have been implemented into the domestic legal order and it found that the question of direct effect is therefore not relevant.

Approach to Sources Substantiating Clear Risks of IHL Violations

From the beginning of the case, the State argued the impossibility of knowing exactly what was happening on the ground in Gaza and called into question certain information sources, such as reports from Amnesty International, UN Special Rapporteurs and other experts. The Court rejected the State’s arguments on these points, finding that these kinds of sources must be taken ‘extremely seriously’ (para. 5.12) especially around questions regarding violations of IHL in conflict areas (a perspective Foreign Affairs Minister Hanke Bruins Slot shared in a letter she sent to the Dutch Parliament on 18 November 2023). The Court further states that NGOs have a role to play in implementation of obligations under the ATT (as outlined in its preamble) and reports from NGOs are specifically mentioned in the User Guide as a way to understand interpretations under Criterion 2 of the EU Common Position. While the Court conceded that it was impossible to derive a definitive legal conclusion as to whether Israel had in fact violated IHL, the question before the Court was only to assess whether there was a ‘clear risk’ of IHL violations (paras. 5.12-13), which the Court assessed and sided with the Claimants. This clear risk existed. 

It is important, in our view, that the Court rejected this potentially dangerous and belittling argument by the State. The allegations the State made in this case are unfortunately not the first time the Netherlands has argued the impossibility of knowing what happened on the ground, only to later accept responsibility for allegations of harm presented by NGOs and the media – the same sources that are now presenting evidence of severe harm and possible IHL breaches in Gaza. The risks of such posturing by the State include undermining the role and credibility of UN experts and human rights/humanitarian NGOs, who ‘act to preserve the dignity of individual citizens when this is threatened by the power of the State.’ This is recognized in the way NGOs contest human rights and other violations through strategic litigation (demonstrated aptly in this case), documenting allegations of civilian harm including possible IHL violations in various fora, offering assistance to victims of rights violations, lobbying for changes in law to offer more protection to individuals and assisting in developing substance and interpretation of the relevant legal frameworks, and promoting knowledge of human rights and international law among the general population. 

The Dutch Ministry of Defence has taken concrete steps recently in recognising the importance of the role of NGOs in understanding allegations of civilian harm from its own military action, which represents a proverbial step forward on these issues. However, the State’s posturing regarding expert statements and NGO reports in this case unfortunately seems only to indicate the concomitant two steps back. In conclusion, calling into question the validity of findings from recognised experts and humanitarian organisations is unsound policy. Afterall, in the Netherlands’ own view, ‘a strong civil society is essential for a good functioning democracy and an inclusive society.’

Concluding Remarks and Developments to Monitor

Given the Appeals Court’s broad analysis of obligations under the ATT, it will be interesting to observe how (non-EU) states respond to these developments and interpret their own obligations under the applicable legal framework. In ceasing export and transit of F-35 parts to Israel, the Netherlands joins a growing number of countries including Italy, Japan, Belgium and Spain (though some reports question this) who have announced to halt arms transfers to Israel in light of the ongoing conflict. Additionally, there are efforts elsewhere, such as an ongoing legal challenge in the UK and questions raised by experts in Denmark and civil society and lawyers in Canada and Australia about the legality of continued arms transfers to Israel. The Foreign Minister of Norway has publicly criticized countries exporting to Israel for potential complicity in genocide. Just yesterday, the US Department of State announced a review of civilian harm claims in Gaza as a result of US-sourced weapons for compliance with its policy guidelines on protection of civilians. No matter the outcome of any of these initiatives, the question still looms large whether and what kind of tangible effect these measures might have for civilians suffering on the ground. 

The Netherlands is obliged to give this judgment full effect and to halt all transfers of F-35 parts from 19 February onwards. While the government requested to declare any order to be provisionally unenforceable, the Court rejected this claim given that the subject matter is of urgent interest. The Netherlands cannot circumvent the decision by transiting any arms exports through intermediary states, which then in turn deliver F-35 parts to Israel. Such conduct would be contrary to the State’s obligation under the EU Common Position to put in place effective end use controls for any arms exports. The State has argued in the present case that F-35 exports through the Netherlands should be permitted, otherwise the US-based manufacturer Lockheed Martin will deliver the parts to Israel through other routes. While this may be possible for the F-35 parts that are merely transited from the US through the Netherlands, the components of the F-35 supply chain that are manufactured in the Netherlands are precluded from reaching Israel from this judgement forward. The Appeals Court has made it clear that, at present, any risk assessment for arms transfers to Israel should arrive at a negative outcome. For this ruling, as for arms transfer controls more generally, implementation, monitoring and reporting are up to states’ discretion. Parliamentary oversight, together with civil society and media assuming a watchdog role, may safeguard the State’s compliance with the Court’s order.

One final issue to flag is the fact the Appeals Court did not engage with any of the claims related to allegations of genocide, despite the Genocide Convention forming part of the basis of the Claimants argumentation. We have chosen not to speculate in this post as to the reasons why the Court did not do so, but rather to mark it as an issue of interest and further observation as this case proceeds, given other international legal developments on allegations of genocide happening in parallel to these domestic proceedings. 

Though the Dutch government has agreed to abide by the Appeals Court’s judgement, it immediately announced it will appeal this decision in cassation. In examining an appeal in cassation (English here), the Dutch Supreme Court will not reassess facts or evidence but will consider whether to overturn the Appeals Court’s decision based on an assessment of the correctness of the application of the law, compliance with procedural rules and the legal rationale offered by the Appeals Court. A timeline for the proceedings at the Supreme Court is not yet known.