Civil suit against the State of the Netherlands for transfer of F-35 parts to Israel

The plaintiffs made the following arguments in their submission:

1. Israel’s bombing of Gaza constitutes a violation of IHL and risks genocide. The case argues that the Israel Defence Forces (IDF) have explicitly stated they are targeting residential areas. The IDF have bombed hospitals, targeted water supplies, and placed a blockade on humanitarian aid, all of which are prohibited under international law. As a result, the principle of distinction between civilian and military objects is not respected. The plaintiffs also note that several Israeli officials have stated their intent to “exterminate the people of Gaza”, including Israeli Prime Minister Benjamin Netanyahu who referred to the ‘Amalek’, “a call to eradicate the enemy of Israelis”.  
2. The supply of F-35 parts to Israel is a violation of the Netherlands’ international obligations and export regulations. The plaintiffs argue that the continuous supply of these parts is a violation of Genocide Convention Article 1, which places on States Parties the duty to prevent genocide. The plaintiffs also argue that the Netherlands is in violation of the EU Common Position criteria, including criterion 1, regarding its obligations under the ATT, and criterion 2, stating that an export licence will be refused if there is a “clear risk” that the goods “might be used in the commission of serious violations of international humanitarian law”. The plaintiffs further argue that even if a general licence was provided in 2016 for the transfer of F-35 parts to Israel, with the EU Common Position criteria tested in that moment, the state is obliged to reassess the licence given the emerging situation in Gaza since 7 October 2023.  
3. Israel should be excluded as an end-user of F-35 parts produced by the Netherlands, regardless of its commitment to agreements on jointly-produced military equipment. The plaintiffs argue that the Netherlands’ obligations under the EU Common Position supersede joint production agreements as well as other arguments, such as Israel’s right to self-defence (which still mandates respect for IHL), the importance of the F-35 in Israel’s Regional Security Strategy (which is contradicted by Israel’s military supremacy in the region and the US’s security guarantees), and the impact on the Netherlands’ relationship with its F-35 partners.

On 15 December 2023, the judge ruled against the plaintiffs.

The decision was taken on the basis of a special article in the 2016 general licence, which while placing an obligation on the government to reassess the licence, allows it to take into consideration other interests as well, such as its relations with the US and Israel, besides the actions of Israel in Gaza.

The judge also ruled that the decision to grant a licence constitutes a political act that comprises a government’s foreign policy decision, over which the court has very limited purview.

The appeal, filed on 22 January 2024, was based on the following grounds:  

1. The court used an incorrect assessment framework or, at least, applied the relevant assessment framework incorrectly or comprehensively. 
2. The court failed to qualify the facts of the case as violations of IHL, which risks genocide and human rights violations, committed with the aid of F-35s.  
3. The Netherlands is obligated to cease the export of arms on the basis of its obligations under general international law, the Genocide Convention, and human rights treaties.  
4. The Netherlands is obligated to cease the export of arms on the basis of the EU Common Position and the ATT. Moreover, the State is obligated to reassess the general licence on the basis of the current relevant information.  
5. The court has wrongly or, at least, not sufficiently tested whether the State has weighed all the relevant interests, as well as whether the interests stated by the State are (sufficiently) substantiated.

On 12 February 2024, the appeals court ruled in favour of the plaintiffs. The decision outlines the following points:  

• In response to the State’s claim that Oxfam Novib is not admissible in its claims, the court disagreed. It stated that Oxfam Novib is admissible because its “interest falls under the goal of promoting a (peaceful) world society. This was initially contested by the State on the grounds that it is unclear how a ban on F-35 components exports promotes a global society. 
• The Netherlands is party to the Geneva Conventions and obligated to respect IHL. On the basis of IHL, the principle of distinction (between civilian and military objects) must be respected. If “collateral damage” is “excessive in relation to the concrete and direct military advantage anticipated” it violates this principle. Israel’s activities in Gaza constitute “indiscriminate attacks” and have resulted in the targeting of housing units, water infrastructure, hospitals, schools etc., and have resulted in significant casualties and displacement of the majority of the population. F-35s have been confirmed to be deployed in Gaza, carrying out several of these attacks. The court therefore concludes that there “is a clear risk that F-35 parts to be exported to Israel will be used to commit serious violations of [IHL]” as cited by EU Common Position Article 2 criterion 2(c). 
• The State is required to reassess the licence in the current case, because it was a general licence granted in 2016. A failure to reassess the licence would violate the object and purpose of both the EU Common Position and the ATT, as well as the State’s obligation under the Geneva Conventions. Since there is in this case a “clear risk”, the export is not permitted. The court is also obliged to interpret provisions of national law in accordance with the EU Common Position and ATT, which grants rights to citizens and renders it applicable to this situation. In the case of a reassessment of the licence, the State should have come to the conclusion that the export of F-35 parts should no longer have been permitted.   
• The defence that other considerations, such as the importance of F-35 to the defence of the security of Israel and relations with the US, Israel, and other countries within the F-35 programme, and the risk to the European Regional Warehouse, should also be weighed, does not hold. These interests do not carry as much weight as the “clear risk” of violating IHL. 
• While the State does have the freedom to assess issues relating to national security and foreign policy, it does not exist in this case, where national law prescribes mandatory cases in which a permit must be refused.  
• The State’s obligations under international law carry more weight than contractual agreements with partner states, such as the US, in this regard. 

The State intends to appeal the judgement at the Supreme Court on the grounds that its decision to export F-35 parts constitutes a foreign policy decision. It will maintain the ban on the export of F-35 components until the Supreme Court’s ruling. The government’s appeal hearing will be held on 6 September 2024.