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Dutch Arms and Yemen, Egypt

Jurisdiction

The Netherlands

Locale

Armed Conflict in Yemen, Internal Repression in Egypt

Recipient State

Egypt

Status

Closed

Legal proceedings in the Netherlands have sought to cancel and suspend licences issued for the export of military material to the Egyptian Navy, in light of their alleged involvement in the commission of international humanitarian law

(IHL)

International Humanitarian Law (IHL) is the legal framework that governs activities during armed conflict.

and international human rights law
(IHRL)

Several rights are usually placed at risk by the use of exported arms. The most prominent are the right to life and the right to freedom from torture and cruel, inhuman or degrading treatment or punishment.

violations in the conflict in Yemen as well as on the basis of internal repression in Egypt.

The claimants have faced difficulties in getting arms export licences to Egypt substantively reviewed in judicial proceedings, and were denied legal

standing

A prospective claimant must demonstrate to the court that they have a sufficient connection to the matter under challenge in order to bring a case.

to bring administrative proceedings of this nature in the Netherlands on two occasions.

In a notable development, the Dutch courts recently recognised the standing of NGOs to bring civil proceedings and assessed the most recent case on its merits. Despite this achievement, the court did not rule in the claimants’ favour, finding that the connection between the specific arms exports in question and human rights violations in Egypt had not been made sufficiently clear.

Latest developments

17/05/2022

Case Development: Judgement of the Hague Court of Appeal on the Appeal against the Decision of the District Court of the Hague

The Hague Court of Appeal upholds the decision of the District Court, ruling that there is insufficient evidence that the specific goods will be involved in IHL / IHRL violations. nnn It concludes...

19/12/2021

Case Development: Appeal of the Decision of the District Court of the Hague

The claimants argue, based on the severity of the human rights situation in Egypt and its role in Yemen, the supply of military equipment is in violation of the Common Position.nnn The claimants...

23/11/2021

Case Development: Judgement of the District Court of the Hague on the Claim against the Dutch State

The court finds that the claimants, acting in the public interest, have standing to bring civil proceedings but dismisses the request for a ban on future exports of military goods to Egypt.nnn In...

11/10/2021

Case Development: Claim Submitted to District Court of the Hague

The claimants contend that the Netherlands is acting unlawfully in allowing the exports of military goods to the Egyptian Navy, due to the risk of  internal repression and IHL violations.nn It is...

11/10/2021

Case: Summary Proceedings (Civil) against the State of Netherlands

The third legal challenge, initiated as summary proceedings in November 2021, sought to halt all exports of arms to Egypt in light of the severity of the human rights violations committed by the...

19/10/2017

Case Development: Judgement on Appeal against the Decision of the District Court of Noord Holland

The Amsterdam Court of Appeal declares the claim inadmissible due to lack of standing. The Court maintains that the correct threshold for standing in these administrative proceedings requires the...

15/02/2017

Case Development: Submission to District Court of Noord Holland against the Minister of Foreign Trade and Minister of Foreign Trade and Development Cooperation

The claimants appeal the decision to extend a licence for exports to Egypt before the District Court, seeking to eventually bring the case to the Court of Appeal in order to obtain a determination...

15/02/2017

Case: Second Administrative Challenge against the Minister of Foreign Affairs and Minister of Foreign Trade and Development Cooperation

The second administrative challenge brought by the same claimants in December 2016 also sought to challenge the Minister of Foreign Affairs’ decision to grant a licence to export arms to the...

24/01/2017

Case Development: Judgement by the Court of Appeal on the Appeal against the Decision of the District Court of Noord Holland

The Court of Appeal declares the appeal as inadmissible, concluding that the claimants lack interest to bring the proceedings as the contested licence had expired on 30.09.2016.n Although this...

03/10/2016

Case Development: Appeal Submission to the Court of Appeal against the Decision of the District Court of Noord Holland

The appeal submits that the claimants are interested parties, and challenges the conclusion of the District Court that the customs law of the EU does not qualify them as interested parties. In...

25/08/2016

Case Development: Judgement by the District Court of Noord Holland on the Claim filed 06.07.2016

The District Court dismisses the claimants’ argument that they have standing to bring this case, and finds that the action against the Minister of Foreign Affairs is unfounded. In particular,...

11/08/2016

Opinion Piece: The Public Interest Litigation Project Case against Arms Trade

This blog post provides a critical overview of the 2016 case submitted by PILP as part of a group of NGOs that sought to challenge arms export licensing decisions by the government.

Case Analysis

Proceedings in the Netherlands have given rise to a detailed discussion on whether NGOs can be considered to have legal standing to challenge arms export licensing decisions before Dutch courts. After two administrative cases were lost on admissibility grounds, the court has now recognised the judicial standing of the NGO claimants to bring civil proceedings and substantively engaged with the merits of Dutch licensing decisions in the most recent challenge. However, the court has required the claimants to demonstrate that there is a clear risk that the arms will be used in violations of international law. This sets a very high threshold of proof that will need to be met in order to suspend or cancel arms export licences in future judicial proceedings.

Arms export controls in the Netherlands are regulated at the national level by the Strategic Goods Decree of 2008 and the General Customs Act, which govern the conditions under which export licences can be issued. This seeks to fulfil Dutch international obligations arising from the ATT and the EU Common Position. The Customs Central Import and Export Office (CDIU) issues export licences acting under the guidance and authority of the Ministry of Foreign Affairs, which is responsible for arms export control policy in the Netherlands. A licence is granted by the Minister for Foreign Trade and Development Cooperation following an assessment made by the Ministry of Foreign Affairs.

Reports of licences issued can be found here

Legal challenges in the Netherlands have sought to challenge the licensing decisions of the government in proceedings pursuant to the governing General Administrative Law Act, Article 1.2(3). However, in the first two cases that were brought under an administrative route, the court found that the Union Custom Code Regulation, Article 44.1, was applicable to proceedings, meaning that in order for a case to be admissible, claimants must be ‘directly and individually’ affected by the challenged decision, which was a requirement the NGO claimants did not satisfy. This was based on an EU law standard under the TFEU, Article 263(4), which states that a person may bring an action for suspension or annulment of a contested decision only “against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”.

In civil proceedings, under the General Administrative Law Act, organisations that represent ‘broad and collective’ interests are able to bring a collective action in the public interest, as discussed in the civil procedure that was brought by the claimants.

Three Dutch NGOs – the Public Interest Litigation Project (PILP-NCJM), PAX and Stop Wapenhandel – have brought the three legal challenges against the Minister of Foreign Affairs, with PILP-NCJM acting as legal representatives.

To get in touch with the claimants, please see here

Themes

i

A lack of transparency has made the initiation of legal challenges harder, and stifled the success of claims heard in the Netherlands. The government does make limited information available on new licences (such as date of issuance, value, destination country and type of material), but does not provide any real insight into the licensing procedure. The Dutch Parliament is only informed of new licenses worth over 2 million euros.

Read more about the lack of transparency in other jurisdictions

This has been a fundamental issue. The court denied legal standing to NGOs in two administrative procedures (see here and here), finding that they were not ‘directly affected’ by the contested licence, however have recently recognised the ability of NGOs to bring civil proceedings. 

Read more about whether claimants have been granted standing in other jurisdiction

The Courts have substantively reviewed licensing decisions of the Dutch government in the most recent judicial challenge, however have set a very high threshold for claimants to meet to demonstrate their wrongfulness.

Read more about the issue of justiciability in other jurisdictions

The ATT and EU Common Position are fully applicable in the Netherlands. The EU Common Position is incorporated through the Dutch Customs Code. In principle, under the Dutch civil code, they can also be invoked in civil proceedings. See discussion in the most recent case here.

Read more about the applicability of the ATT and the EU Common Position in other jurisdictions

Dutch courts have not granted remedy as all cases have been unsuccessful.

Read more about whether claimants have been granted remedy in other jurisdictions

Cases

Three cases have been brought in the Dutch courts against the Minister of Foreign Affairs in the context of Yemen. Click ‘explore case’ to find out about each case in more detail and access all case documents.

Case status

Closed

First Administrative Challenge against the Minister of Foreign Affairs and Minister of Foreign Trade and Development Cooperation

Explore case

This case called for the suspension of a specific licence issued for the export of military material to the Egyptian Army. At first instance, the District Court dismissed the claim as inadmissible due to a lack of standing. On appeal, the Court did not consider the matter of standing as the contested licence had already expired by the time the appeal was heard meaning the claim was immediately dismissed as moot. 

Closed

Second Administrative Challenge against the Minister of Foreign Affairs and Minister of Foreign Trade and Development Cooperation

Explore case

The case sought to challenge the Minister of Foreign Affairs’ decision to renew the licence to export arms to the Egyptian Navy that was at issue in the previous case. This case also centered on questions of standing, and was dismissed on appeal as the claimants were not ‘individually affected’ by the contested decision.

Closed

Summary Proceedings (Civil) against the State of Netherlands

Explore case

This case was initiated as summary proceedings and sought to halt all exports of arms to Egypt in light of the severity of the human rights violations committed by the Egyptian forces. As this was pursued under a different (civil) procedure to the previous cases, the claimants’ were granted legal standing and the case was assessed on its merits. However, the courts did not rule in the claimants’ favour and exports to Egypt have continued. 

Timeline

FILTERS

17 May 2022

Challenge 3

Judgement on the appeal on the District Court ruling is issued by the Hague Court of Appeal. Decision upheld and the claims are dismissed.

Read the judgement here

31 Mar 2022

Challenge 3

Appeal hearing at the Court of Appeal in the Hague.

20 Dec 2021

Challenge 3

The claimants appeal the ruling of the District Court.

Read the appeal submission here

23 Nov 2021

Challenge 3

Judgement issued by the District Court. Claims dismissed.

Read the judgement here

09 Nov 2021

Challenge 3

The Summary Proceedings take place in the District Court.

Read the claimants pleadings here

11 Oct 2021

Challenge 3

Case enters the courts. Claim submitted to the District Court under summary proceedings to immediately halt all arms exports to Egypt in light of the severity of human rights and IHL violations by the Egyptian forces internally (in the North Sinai conflict) and in Yemen.

23 Dec 2017

Challenge 2

Notice of objection is filed by the claimants against the extension decision.

19 Oct 2017

Challenge 2

Appeal Judgement Issued. Decision of the District Court upheld and case dismissed.

Read the judgement here

15 May 2017

Challenge 2

Claimants submit appeal to Court of Appeal.

20 Apr 2017

Challenge 2

Judgement Issued by District Court - Claim Dismissed.

15 Feb 2017

Challenge 2

Challenge 2 enters the courts. Claim submitted to the District Court to recognise claimants’ legal standing and provisionally suspend licence.

Read the claimants' submission here

10 Feb 2017

Challenge 2

Minister dismisses notice of objection filed by the claimants.

24 Jan 2017

Challenge 1

Judgement issued. Claim dismissed as moot.

Read the judgement here

03 Oct 2016

Challenge 1

Appeal submitted before the Court of Appeal. Claimants maintain the argument that they meet the legal standing criteria to challenge the licensing decision.

Read the claimants' pleadings here

21 Sep 2016

Challenge 2

Dutch Minister of Foreign Affairs extends the licence for arms export to the Egyptian Navy, which was the subject of proceedings in Challenge 1, until 31 October 2017.

25 Aug 2016

Challenge 1

Judgement issued. Claim dismissed as inadmissible.

Read the judgement here

06 Jul 2016

Challenge 1

Case enters the courts. The Minister's decision is appealed before the District Court of Noord-Holland. Claimants argue a general and collective interest that was affected by the adoption of the licence.

Read the claimants' submission here

01 Jun 2016

Challenge 1

Notice of Objection is unsuccessful. Minister of Foreign Affairs declares that the administrative complaint is inadmissible as the claimants are not sufficiently directly affected by the licensing decisions to bring a case against them.

12 Oct 2015

Challenge 1

‘Notice of objection against the permit’ is filed against the Minister of Foreign Affairs. The claimants formally object to a licence granted to a third party for the transfer of military equipment to France with an end-user of the Egyptian Navy.

01 Sep 2015

Challenge 1

Ministers of Foreign Trade and Development Cooperation and the Minister of Foreign Affairs informs the House of Representatives that it has issued a permit to a Dutch company for the supply of military equipment, worth €34,050,000 to Egypt (via France).

Read the minister's letter here

Analysis

06 December 2021

A Clear Risk of What? The Egyptian Navy, the Dutch Arms Export Policy and Linguistic Inconsistencies in the EU Common Position

Joëlle Trampert | Rethinking SLIC

The Netherlands Opinion Piece

This blog post reflects on the inconsistencies in the interpretation of the Common Position by English and Dutch Courts, namely the notion of clear risk.

25 March 2022

Raakt Nederland Betrokken Bij Mensenrechten-Schendingen in Egypte?

Jenne Jan Holtland and Ludo Hekman | de Volkskrant

The Netherlands News Article

This news article (in Dutch) provides coverage of the investigations by Lighthouse Reports that discovered indications of human rights violations by the Egyptian forces.

11 August 2016

The Public Interest Litigation Project Case against Arms Trade

Jelle Klaas and Merel Hendrickx (PILP) | Humboldt Law Clinic Blog

The Netherlands Opinion Piece

This blog post provides a critical overview of the 2016 case submitted by PILP as part of a group of NGOs that sought to challenge arms export licensing decisions by the government.

Contact & More Information

If you would like to know more about this case, please get in touch with our primary contacts Rosa Beets and Jelle Klaas (PILP-NCJM) via email.

You can find out more about the work of the claimants at their website:

PAX for Peace

Stop Wapenhandel

Public Interest Litigation Project (PILP-NCJM)

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