The court in The Hague just ordered the state of the Netherlands to halt all exports of F-35 parts to Israel. The state has 7 days to comply. The court ruled that there is a risk F-35 parts will contribute to breaches of IHL, therefore export of weapons to Israel would be a breach of the Arms Trade Treaty and the EU Common Position. The court also recalled the Netherlands’ duties unde Art. 1 of the Geneva Conventions, which orders state parties to ensure compliance with the Conventions.
The court rules that the Minister did not correctly review the export permit: the risk of breaches of IHL should have been the criterium, not the legal confirmation of breaches of IHL. The court also ruled that political and economic grounds should not play a role in the examination of arms export permits.
The Hague, 12 februari 2024
Three non-governmental organizations have filed summary proceedings against the Dutch State, demanding that it stops the export of parts for F-35 fighter jets to Israel. The Court agrees with them and orders the Dutch State to block the export of F-35 parts from the Netherlands to Israel.
The Netherlands hosts a regional warehouse of F-35 parts in Woensdrecht. From there, these parts are distributed to a number of countries, including Israel. These F-35 parts are considered to be military equipment, which implies that an export license is required for export from the Netherlands. Such an export license was granted in 2016.
On 7 October 2023 Hamas carried out an attack on Israel, intentionally killing, wounding and abducting many civilians. These actions by Hamas qualify as war crimes. Israel has reacted by carrying out attacks in the Gaza Strip, from where Hamas operates.
In light of the attacks by Israel on Gaza, the Dutch Minister of Foreign Trade and Development Cooperation has considered whether the export license for F-35 parts to Israel should be revoked. The Minister decided not to do so and to allow the export of F-35 parts to continue.
The claim
Oxfam Novib, Vredesbeweging PAX Nederland and The Rights Forum (hereafter: Oxfam Novib) are non-governmental organizations that are committed, inter alia, to reaching a peaceful solution to the conflict in Gaza. They disagree with the decision of the Minister not to block the export of F-35 parts to Israel. According to Oxfam Novib, Israel violates international humanitarian law. Oxfam Novib demands that the court orders the State to stop the export of F-35 parts from the Netherlands to Israel.
The court’s decision
The court agrees with Oxfam Novib. The court finds that there is a clear risk that Israel’s F-35 fighter jets might be used in the commission of serious violations of international humanitarian law. Israel does not take sufficient account of the consequences of its attacks for the civilian population. Israel’s attacks on Gaza have resulted in a disproportionate number of civilian casualties, including thousands of children. The Netherlands is a party to several international regulations which stipulate that if a clear risk of serious violations of international humanitarian law exists, the Netherlands has the obligation to prevent the export of military equipment. This means that the export of F-35 parts from the Netherlands to Israel has to be stopped. By deciding that the export license for deliveries of F-35 parts to Israel should not be revoked, the Minister has failed to comply with this international obligation of the Netherlands. The court orders the State to stop the export of F-35 parts to Israel within 7 days.