On February 12, 2024, the Dutch Court of Appeals in Den Haag (Gerechtshof Den Haag) held that the government must stop the export of F-35 fighter jet parts from the Netherlands to Israel within seven days. In the opinion of the court, the exports violate the Dutch obligations under international law, in particular the European Union (EU) Council Common Position 2008/944/CFSP Defining Common Rules Governing Control of Exports of Military Technology and Equipment (Council Common Position) and the Arms Trade Treaty. It agreed with the plaintiffs that there is a clear risk that the military equipment is being used to commit serious violations of international humanitarian law.
Facts of the Case
The Netherlands participates as a partner in the F-35 Lightning II program for the production and maintenance of the F-35 fighter aircraft produced in the United States. It hosts a regional warehouse in Woensdrecht, where F-35 fighter jet parts supplied by the U.S. are stored for delivery to other countries that have the F-35, including Israel. (Decision, paras. 3.1, 3.2.)
F-35 parts are military goods. The Dutch Strategic Goods Decision (Besluit strategische goederen, Bsg) prohibits the transit or export of military goods unless an export license has been granted. (Besluit strategische goederen, art. 5, para. 1; art. 11, para. 1.) An export license must not be granted when the export would violate international law obligations, in particular the Council Common Position and the Arms Trade Treaty. (Bsg, art. 11, para. 3.) In 2016, the Dutch minister of foreign affairs adopted the General Permit Regulation NL009 (Regeling Algemene Vergunning NL009), which allows the delivery of F-35 parts to countries affiliated with the F-35 program, including Israel, without a separate permit being required for each delivery. (Decision, paras. 3.3, 3.4.)
The Council Common Position states that European Union member states must refuse an export license if, among other criteria, there is 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.” (Council Common Position, art. 2, para. 2.) Likewise, the Arms Trade Treaty provides that state parties must not authorize the export if they determine that there is an overriding risk of committing or facilitating a serious violation of international humanitarian law. (Arms Trade Treaty, art. 7.) The court considers these obligations as identical. (Decision, para. 3.10.)
On October 7, 2023, Hamas launched attacks on Israel from the Gaza Strip, deliberately killing about 1,200 people, mainly civilians, including young children, and taking about 240 people hostage, many of whom have still not been released. It is undisputed that Hamas has thus committed war crimes. Israel reacted by launching attacks on targets in the Gaza Strip, resulting in the death of at least 19,000 people, including 7,700 children. More than 52,000 people have been injured. (Decision, paras. 3.13, 3.14.)
In light of these developments, the minister reviewed the general export license granted in 2016 but determined that it did not have to be revoked. Among other things, the minister took into account general foreign policy interests, such as Israel’s right to defend itself, its interest in preventing the conflict from spreading to the region, and the wish of the Netherlands not to undermine its relationship with the United States and Israel.
Three nongovernmental organizations committed to reaching a peaceful solution to the conflict filed summary proceedings against the Dutch government demanding that the court order the exports of the F-35 parts to be stopped. The plaintiffs argued that the F-35 fighter jets are used by Israel to commit international humanitarian law violations because, in their opinion, Israel does not take sufficient account of the consequences of its attacks on the civilian population by launching indiscriminate attacks. (Paras. 3.16–3.19.)
Decision
The court held in favor of the plaintiffs and ordered the minister to stop the export of F-35 fighter jet parts within seven days.
The court recalled that international humanitarian law is the law that applies in armed conflicts. It requires parties to the conflict to differentiate between military and civilian objects. Only military objects are legitimate targets. Indiscriminate attacks, meaning attacks that do not distinguish between military and civilian targets, are prohibited. Parties must assess whether an attack will cause collateral damage to civilian targets and whether such damage would be excessive in light of the military advantage gained. (Paras. 5.6.–5.9.)
The court stated that, on the basis of the facts provided by the plaintiffs, agencies of the United Nations, and international human rights organizations, it assumes that the F-35 is actively deployed by Israel in the conflict in Gaza, not only in providing support to ground troops but also in carrying out bombings. With regard to the “clear risk” of humanitarian law violations, the court held that “[t]he facts show that the attacks have caused a large number of civilian casualties, including thousands of children, that thousands of homes have been destroyed, that ‘dumb bombs’ are being used, that every residential area is attacked if there is even the slightest indication of terrorist activity taking place” and that “[i]t is not plausible that this destruction was inflicted exclusively on military targets or constituted legitimate ‘collateral damage’.” It concluded that there is a clear risk that F-35 parts exported to Israel will be used to commit serious violations of international humanitarian law. (Paras. 5.15–5.19.)
Finally, the court ruled that, due to the clear risk of international humanitarian law violations, the minister would have been obligated to reassess the general export license NL009 against the mandatory criteria of the Council Common Position and discontinue its use for exports to Israel. The court stated that the minister took only general foreign policy interests into account and either did not carry out the “clear risk” test required by article 2 of the Council Common Position or carried it out incorrectly. The court concluded that the government acted unlawfully by not preventing the export to Israel. (Paras. 5.20–5.24; 5.29; 5.35–5.38; 5.48.)
Jenny Gesley, Foreign Law Specialist
February 16, 2024
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