14 February 2024

Dutch Court Halts F-35 Aircraft Deliveries for Israel

A “clear risk” of abuse

In a landmark decision, the Hague Court of Appeal ordered the Dutch government on 12 February 2024 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. In their unanimous decision, the three judges relied on the European Union (EU) Common Position on Arms Exports and the Arms Trade Treaty as they apply to Dutch law, which outline criteria against which military exports must be assessed to determine the risk of abuse. The judgment made important findings on the nature of these risk assessments, which may have significant implications in future litigation.

The Dutch government has said it would comply with the judgment and stop transferring F-35 components to Israel within seven days, as requested by the court. Yet, officials have already stated their intention to appeal to the Supreme Court.

Citing the decision, top EU diplomat Josep Borrel alluded to the unchecked provision of arms to Israel as having a role in the civilian death toll in the Gaza Strip. Since the judgment was handed down, the F-35 program has also prompted parliamentary questions in Australia, where parts of the aircraft are manufactured. The Israeli Defense Ministry and the Pentagon have thus far declined to comment on the ruling. This post provides background to the decision before outlining its rationale and implications.

Context and procedural history

Dutch arms exports to Israel are sizeable. According to the latest available data submitted by EU member states on a self-reporting basis, the Netherlands was the fifth-largest EU exporter of military equipment to Israel in 2022, with the total value of these transfers amounting to €12.5 million. This record distinguishes between actual arms exports and the issuance of export licenses, which are government permits allowing registered companies and individuals to sell and ship military equipment abroad. In 2022, the Netherlands issued over €10 million in export licenses for arms sales to Israel.

The F-35 complaint, brought by Oxfam Novib, PAX and the Rights Forum Foundation, comes amid growing international concern over arms exports to Israel in the context of its military campaign on the Gaza Strip. Spain, for instance, has suspended all arms sales and exports to Israel since 7 October 2023. For their part, Italian officials confirmed that their government has halted the issuance of new export licenses for weapons sales to Israel. The Belgian regional government of Wallonia announced it had suspended licenses to send munitions to Israel since the International Court of Justice issued its order on provisional measures in South Africa v. Israel on January 26. However, these assertions should be taken with a grain of salt since shipments might still be ongoing under legacy export licenses and authorizations issued before 7 October 2023.

This week’s judgment overturns an earlier decision issued in December by the District Court of the Hague, which dismissed the complaint brought by the three interest groups. In that decision, the District Court found in favour of the government by invoking the broad discretionary power of the executive branch to decide on matters relating to foreign policy and security.

A key argument raised by the plaintiffs in these earlier proceedings was that, following the despicable events of 7 October and their repercussions, the government was under the obligation to conduct a new risk assessment for its F-35 program on the basis of relevant legal standards. The District Court disagreed and highlighted that a risk assessment had already been made in 2016, when the general transfer, transit and the export license was issued for the F-35 program, and that the government was under no obligation to conduct a fresh appraisal.

The case before the Hague Court of Appeal

On appeal, the plaintiffs maintained that the number of civilian casualties in Gaza is disproportionate, that Israel’s targeting strategy fails to account for this collateral damage, and that there is a “serious risk of impending genocide”. They requested that the state immediately cease all actual export and transit of F-35 parts to Israel and conduct a new risk assessment.

In response, the government argued that neither the Arms Trade Treaty nor the EU Common Position oblige states to reassess export licenses once issued, even if circumstances change. Furthermore, according to the state, the scope of judicial review in foreign policy and security matters is limited, and ministers enjoy wide discretion. In this regard, the strategic relationship between the United States and Israel must be considered. The court quickly dismissed this policy argument, noting that the interest in complying with the Geneva Conventions and the Arms Trade Treaty carried more weight.

“Clear risk” as a rationale for the decision

The Court of Appeal found against the government because it determined that there was a risk that the F-35 would contribute to IHL violations. In doing so, it assumed that Israel deploys the F-35 in Gaza to support ground troops and carry out bombings based on evidence and interviews supplied during the proceedings.

To reach this conclusion, the court also recalled Israel’s use of unguided ‘dumb bombs’, the razing of housing units in Gaza, the systematic destruction of civilian infrastructure as described by United Nations experts, and indiscriminate attacks reported by independent NGOs. These facts showed that “there are many indications that Israel has violated the humanitarian law of war in a not insignificant number of cases.” Although a definite judgement on this would warrant a “careful factual investigation”, such a finding is not required to determine the existence of a “clear risk” that the equipment exported might be used in the commission of serious violations of IHL, as laid down in Article 7 of the Arms Trade Treaty and Article 2(2)(c) of the EU Common Position. The court therefore concluded that this risk was present in relation to the F-35 parts which the government intended to export to Israel.

Even assuming that the F-35 only provided support for ground troops and was not being deployed for bombing missions, “this does not change the conclusion”. In that scenario, the court found that Israel’s conduct would “facilitate” a serious violation of IHL within the meaning of Article 7(1)(ii) of the Arms Trade Treaty.

The government further argued that it was impossible to determine whether Israel had committed IHL violations by using the F-35. This prompted the court to find that the minister had “misjudged” the situation: the issue was not whether it could be “established” that Israel was in breach of its international obligations with the aircraft, but whether there was a “clear risk” that the F-35 was used in such violations. It did not appear that the minister tested the risk-related criterion, which resulted in the breach of obligations pursuant to the EU Common Position. This underscores the centrality of risk assessments in any arms export or licensing procedure and gestures towards new avenues for supply chain accountability for negligent arms trade.

The need to conduct risk reassessments

The Dutch government contended that when new information becomes available after granting an export license, states are merely “encouraged” to reassess risks derived therefrom according to the EU Common Position and Article 7(7) of the Arms Trade Treaty. However, the Court of Appeal found that a “reasonable interpretation” of the Common Position meant that, under new circumstances, a fresh assessment against its criteria must occur for the following reasons: first, the F-35 program export license was granted indefinitely. Moreover, the last assessment was conducted seven years ago, and, finally, the new circumstances involve a clear risk of serious IHL violations, which constitute a ground for refusal under the Common Position. An alternative reading where indefinite licenses are not subject to review when an impending risk of abuse is identified would “completely undermine” the purpose of the Common Position, said the court.

The court’s reading of these reassessment provisions might be perceived as expansive by some. However, the judges were careful to qualify their reasoning by emphasizing the inherent qualities of indefinite export licenses and the fact that authoritative commentators on the Arms Trade Treaty note that licenses are normally granted for 1 to 5 years. The judges therefore decided that the government had to reassess the F-35 export authorization on the basis of the Common Position’s mandatory criteria. This assessment, the court found, would have resulted in the refusal of the export under Article 2(2)(c) of the Common Position, given that the equipment “might be used in the commission of serious violations of international humanitarian law.” The court therefore concluded that the state was acting unlawfully by not conducting a reassessment of the export license and by not preventing the export and transit of F-35 parts to Israel.

Conclusion

The decision’s robust interpretation of the risk assessment obligations contained in the Arms Trade Treaty and the EU Common Position is a welcome development, considering the enforcement challenges that are inherent to these instruments, as outlined here.

Ultimately, the Hague Court of Appeal takes a step in the right direction and contributes to preventing the commission of core international crimes in the Gaza Strip as outlined in its findings. Finally, at least for now, it also protects the Netherlands from exposure to litigation at the International Court of Justice or other international courts and tribunals for allegedly aiding or abetting in the commission of war crimes, crimes against humanity or genocide through its continued transfer of weapons to Israel.1)

References

References
1 The text quoted from the judgment issued by The Hague Court of Appeal was obtained from an unofficial English translation, available here. The Dutch original is here. I thank Ewa Romanowska and Anna Puigderrajols for their research assistance.

SUGGESTED CITATION  Castellanos-Jankiewicz, León: Dutch Court Halts F-35 Aircraft Deliveries for Israel: A “clear risk” of abuse, VerfBlog, 2024/2/14, https://verfassungsblog.de/f-35/, DOI: 10.59704/4ef8e6e2634877d7.

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