Dutch Supreme Court Orders Executive Branch to Reassess Export of F-35 Parts to Israel in Light of International Obligations

[Annick Pijnenburg is Assistant Professor of international and European law at Radboud University Nijmegen.

Michiel Tjepkema is Professor of administrative law at Radboud University and Professor of state liability at the Open University.

Casper Smeulders is a PhD candidate at the Department of Jurisprudence, Radboud University.]

The ongoing hostilities in Gaza since 7 October 2023, which have increasingly been characterised as constituting genocide (see for instance here, here and here), have not only raised the question as to the responsibility of Israel and individual leaders but also of other states that support Israel. Nicaragua thus brought a case against Germany to the ICJ and in multiple jurisdictions advocates have turned to the courts in an attempt to suspend arms transfers to Israel (see for instance here, here and here). In February 2024, the Hague Court of Appeal made international headlines when it ordered the Dutch government to stop supplying Israel with F-35 fighter jet parts because there was a clear risk that serious violations of international humanitarian law (IHL) would be committed with the aircraft in Gaza. Last week the Dutch Supreme Court overturned this judgment, instead ordering the state to reassess the authorization to export F-35 parts to Israel. In this post we first briefly recall the background of the judgment, before discussing the main points of the Supreme Court’s ruling. 

Background and Procedural History

The case concerns the supply of parts for F-35 fighter jets to Israel. The Netherlands is a partner in the F-35 Lightning II programme, which manufactures F-35 fighter aircraft in the United States, and includes hubs across the world where US-supplied parts are stored for onward supply to countries that have the F-35. The hub that is located in the Netherlands delivers F-35 parts to Israel, among other countries.

As these parts are considered military goods, they fall under the Strategic Equipment Decree (SED), which requires a licence for the transit, export and transfer of military equipment. In 2016, the Minister for Foreign Trade and Development Aid issued General License NL009 (GL009), a general license for the export, transit, and transfer of strategic goods in the context of the F-35 programme. This general licence has been granted for an indefinite period and allows F-35 parts to be delivered from the Dutch hub to Israel without a separate licence being required for each delivery. 

Pursuant to Article 8 GL009, integrated foreign policy or security considerations can preclude the continued use of the licence. In light of Israel’s military response to the Hamas attacks of 7 October 2023, the minister investigated whether integrated foreign policy or security considerations precluded the continued use of GL009, and concluded that this was not the case. 

In November 2023, three NGOs – Oxfam Novib, Pax and The Rights Forum – requested the Preliminary Relief Court of the District Court of The Hague to order the state to cease the export and transfer of F-35 parts to Israel. In December 2023 the Preliminary Relief Court dismissed their claims (discussed here and here). In February 2024, the Court of Appeal set aside the judgment of the Preliminary Relief Court and ordered the State to cease all export and transfer of F-35 parts to Israel (discussed here, here, here and here). In implementation of the Court of Appeal’s judgment, the minister amended GL009, to the effect that the transfer and export of equipment within the framework of the F-35 programme is no longer allowed if the final destination is Israel. In November 2024, the Procurator General to the Supreme Court of the Netherlands concluded that the state’s appeal against this judgment must be rejected. The Supreme Court, however, overturned the Court of Appeal’s judgment, ordering the state to reassess the authorisation to export F-35 parts to Israel. In examining the state’s complaints, the Supreme Court answered four questions, which we discuss in turn below.

The Dutch Supreme Court’s Judgment

The Dutch Supreme Court first addresses the question whether the minister must reassess a weapons export permit that has been granted when new circumstances arise. In this regard, Articles 5(4) and 11(3) SED provide that a licence will not be granted in so far as this is pursuant to international obligations. These include the Arms Trade Treaty (ATT) and the EU’s common position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment (EUCP). The SED thus incorporates the obligations under the ATT and EUCP into the Dutch legal order. The Dutch Supreme Court recalls that the ATT must be interpreted in accordance with the criteria set out in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, while the interpretation of the EUCP is governed by EU legal interpretation criteria.

Article 1(1a) EUCP stipulates that ‘[w]here new relevant information becomes available, each Member State is encouraged to reassess export licences for items on the EU Common Military List after they have been granted.’ This provision was added to the EUCP in connection with the entry into force and implementation of the ATT, whose Article 7(7) provides that ‘[i]f, 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.’ Applying the interpretation criteria mentioned above, the Supreme Court finds that Article 1(1a) EUCP and Article 7(7) ATT do not oblige the Netherlands to reassess export licences when new information becomes available indicating that there is a clear risk that the goods to be exported could be used to commit or facilitate serious violations of IHL; they only contain an encouragement to do so. Interestingly, the Procurator General (the independent and authoritative legal advisor to the Supreme Court) concluded, to the contrary, that the ATT, EUCP and Common Article 1 of the Geneva Conventions and the First Additional Protocol require the state to reassess GL009 if new, relevant information comes to light that there is a clear risk that the F35 parts will be used by Israel for severe violations of IHL.

Second, the Supreme Court answers the question whether the mandatory criteria of the EUCP apply to a non-mandatory reassessment of a licence that has been granted. Its starting point is the Court of Appeal’s finding that the minister complied with the call for reassessment contained in Article 1(1a) EUCP by reassessing GL009 and applying the criteria of the EUCP. Furthermore, the Court of Appeal ruled that Article 2(2)(c) EUCP contained a mandatory ground for refusal: an export licence must be denied ‘if there is a clear risk that the military technology or equipment to be exported might be used to commit or facilitate serious violations of international humanitarian law’. This was uncontested by the parties. According to the Supreme Court, Article 1(1a) EUCP requires the minister, if they proceed with a reassessment, to adhere to the mandatory criteria of Article 2(2)(c) EUCP. In other words, if upon reassessment, the minister determines that there is a clear risk that the F-35 parts will be used in the commission of serious violations of IHL, they must revoke or suspend the licence. In that case the minister has no discretion to grant the license on other grounds or to allow it to continue to be used. 

The third question concerns the ability of Oxfam Novib, Pax and The Rights Forum to invoke the SED and GL009. According to the Supreme Court, these regulations also grant claims to those who run the risk of serious violations of IHL as a result of the (continued) authorisation of arms exports. The Court of Appeal has established that the plaintiffs brought this case for the protection of the (civilian) population in Gaza against the risk that the F-35 parts to be exported will be used in the commission of serious violations of IHL. The SED and GL009 are intended, among other things, to prevent individual citizens from becoming victims of the use of weapons in violation of IHL. As the plaintiffs are defending that interest in this case, they can invoke those norms.

Finally, the Supreme Court examined whether the Court of Appeal failed to recognise the state’s discretion and to exercise judicial restraint when it determined itself that there was a clear risk of serious violations of IHL. In this regard the Supreme Court’s starting point is that civil courts, certainly in preliminary relief proceedings, must exercise great restraint in reviewing state actions in the field of foreign policy and (national and international) security. The state’s policy in these areas depends to a large extent on political and other policy considerations relating to the circumstances of the case. Therefore, it is not for the court to make these considerations and it must exercise restraint when assessing the considerations made by the state. Decisions in this area may be based (in part) on secret or confidential information, and the State cannot be expected to always provide the courts with accurate insight into that information. Here also, it is interesting to note that the Procurator General, unlike the Supreme Court, found that the intensity of review is determined by the framework for review rather than the subject of foreign policy and defence itself: in his view, it is possible that legislation contains standards on a specific matter that limit or even exclude the state’s discretion and that provide the courts with sufficiently specific and useful legal standards to review government action without restraint.

In this case, according to the Supreme Court, the considerable restraint to be exercised by civil courts in matters of (national and international) security and foreign policy means that the court does not itself assess whether there is a clear risk of serious violations of IHL, but that it gives the minister the opportunity to carry out a new (re)assessment of a licence and to take a new decision, the outcome of which may again be submitted to the civil court. Accordingly, the Supreme Court ordered the minister to reassess GL009 within six weeks, taking into account the considerations set out in its ruling. 

Conclusion

At first sight, this case is a blow for the claimants and a win for the state, as it overturns the Court of Appeal’s judgment ordering the state to cease the export and transfer of F-35 parts to Israel. Instead, the Supreme Court throws the ball back to the government, which must reassess the F-35 export licence to Israel. Yet a closer look reveals that the Supreme Court also confirmed that, if upon reassessment, the minister determines that there is a clear risk that the F-35 parts will be used in the commission of serious violations of IHL, they must suspend or revoke the license. Although the judgment does not specify that this reassessment must be based on the facts as they are now, there is no indication that the Supreme Court considers that the assessment that was not properly carried out almost two years ago should still be carried out in light of the facts and circumstances at that time. Rather, it has ordered the minister to carry out a new reassessment, taking into account the considerations set out in its ruling. In light of Israel’s current policy in Gaza, it is highly unlikely that the minister would not find that there is a clear risk that the F-35 parts will be used in the commission of serious violations of IHL by Israel. In other words, it is highly unlikely that the minister will come to a different conclusion than the Court of Appeal did. Therefore, we do not expect this judgment to affect the export ban in practice. Of course, this could change in the future, for instance if a ceasefire were to put an end to the conflict.