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Supply of F-35 parts to Israel in violation of EU Common Position and Arms Trade Treaty? – analysis of the ruling of 12 Feb 2024

Supply of F-35 parts to Israel in violation of EU Common Position and Arms Trade Treaty? – analysis of the ruling of 12 Feb 2024

Mr Freek Vergeer

Court of Appeal ruling

The Hague Court of Appeal ruled on Monday 12 February in the case on the delivery of F-35 parts to Israel. The case had been brought by a group of NGOs against the State of The Netherlands.

The court overturned the decision of the District Court, and ruled that the Netherlands must stop supplying F-35 parts within seven days. This is because there is a clear risk of serious violations of humanitarian law of war. The court stated that because of this risk, the Netherlands is not allowed to export F-35 parts to Israel under international obligations.

The Dutch government has announced it will appeal the decision.

International rules

There are national and international rules that apply in the Netherlands for arms exports. In the European Union Common Position on the Control of Exports of Military Technology and Equipment (hereinafter “the Common Position”), the European Union has laid down a number of issues on arms exports. Among other things, it states that a licence to export arms must be refused if there is “a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.” In this case, the goods in question are components of the F-35.

International Humanitarian law

To determine whether this is the case, the Court of Appeal first looks at the provisions of humanitarian law (the laws of war, or IHL). IHL states that a distinction must be made between civilian targets and military targets. Attacks that do not distinguish between these are prohibited by definition. The Court also states that proportionality is important: a balance must be struck between the importance of the military target and the expected harm of the attack. In case of excessively high collateral damage in relation to the military advantage, the attack should not take place. So far, the ruling is easy to follow.

Next, the Court of Appeal establishes a number of “facts” that in its view have not been insufficiently refuted by the State. This involves taking comments by Israeli officials out of context, such as a statement by spokesman Daniel Hagari about the IDF’s tactics. Similarly, a statement by Chief of Staff Tishler in Magazine +972 about not using pre-emptive ‘robbery knocking’ before bombing a building is interpreted as if it relates to the entire war effort in Gaza. But Tishler was talking about buildings in which an enemy is hiding. However, the Court of Appeal does not name among the facts what the State has put forward about the safeguards applied by the IDF, which ensure that army operations do not cause unnecessary civilian casualties. In addition, the Court considers reports by the United Nations and NGOs, which are replete with accusations against Israel. The reports contain allegations that Israel is committing war crimes and crimes against humanity. However, this has not been established by a judge. Yet the Court of Appeal relies on this material in its assessment. In criminal law, however, one is innocent until proven guilty. In this way, the civil court circumvents this basic premise.

War crimes

To actually investigate whether war crimes were committed, it will be necessary to look at what Israeli commanders knew at the time an attack took place. After all, these have to assess the risks of the attacks. The Court agrees, but says the issue now is whether there is a clear risk of serious violations in the future. To do so, the Court of Appeal says it does not need to determine the exact situation.

The Court allows its view be determined by all sorts of circumstances. These are of course also horrendous, but focusing only on the damage caused by the Israeli military campaign completely ignores the nature of Hamas’ warfare. Hamas hides among civilians. The hundreds of kilometres of tunnels, the placement of rocket launchers in residential areas and the storage of weapons and ammunition in homes, mosques and under hospitals are clear evidence of this. Moreover, the Court does not take into account all the measures Israel does take, which the State had also mentioned at the hearing. The Court paints a very one-sided picture.

About the use of the F-35, the Court again states a number of “facts” that have not, in its view, been refuted by the State. On the basis of a wafer-thin factual foundation, the Court concludes that the F-35 is actively being used by Israel in bombing in Gaza.

Sitting in the minister’s chair

It is extraordinary that the Court of Appeal itself decided to carry out an investigation into whether there is a clear risk of IHL violations. Because that is precisely the minister’s job. After all, terms such as “clear risk” and “serious violations” are not concrete. They need to be fleshed out. It is pre-eminently the minister who has to make an assessment whether there is a “clear risk”. In its ruling, the District Court of The Hague had also considered that the State is entitled to a wide margin of discretion for making policy assessments in the field of (national) security and foreign policy. The question is not: what decision would the Court of Appeal make? The test should be: could the minister reasonably have reached her decision? By conducting this test itself now, the Court of Appeal is really sitting in the minister’s chair.

Mandatory rejection

Next, the Court of Appeal argued that the Minister also had no policy discretion. According to the judges, the provisions of the Common Position and the Arms Trade Treaty apply directly in the Netherlands. In fact, the Strategic Goods Decree twice contains the phrase “A licence shall in any case not be granted insofar as this arises from international obligations.” By international obligations, the legislator then means the Common Position and the Arms Trade Treaty, the court said. But a perceptive reader will immediately see that this only refers to the situation where the licence has not yet been granted.

According to the Court of Appeal, these mandatory provisions apply not only when the licence is granted, but also afterwards. According to the court, this is in line with the intention of the Common Position and the Arms Trade Treaty. Economic and diplomatic considerations can therefore play no role at all in the mMinister’s decision, the court said. Although the Strategic Goods Decree and the text of the licence give the minister much leeway, the Court of Appeal gives a restrictive interpretation of that leeway by reading it through the lens of the Common Position.

Since it is mandatory law and the Court of Appeal found that there is indeed a clear risk of serious violations of humanitarian law of war, only one decision remains: the State must stop supplying F-35 parts within 7 days. To cap it all off, the Court of Appeal also decides that in the event of an appeal to the Supreme Court, this ruling will still stand.

Far-reaching

In conclusion, the first part of the Court of Appeal’s judgment is mainly based on wafer-thin evidence. Therefore, the Court’s conclusion that there is be a clear risk of serious IHL violations is already debatable. In addition, the Court of Appeal sits in the Minister’s chair by making its own assessment instead of testing whether the Minister’s decision is reasonable.

The second part of the judgment is also questionable. In it, the Court of Appeal limits the minister’s policy discretion and interprets the Comon Position very broadly. The Court believes it can do so because it is in the spirit of international obligations. It itself acknowledges that those obligations are not literally there. That goes a very long way.

Summary of the main criticisms of the Court’s decision of 12th Feb 2024

  • The Court’s assessment of the “clear risk of serious violations” is based mainly on UN and NGO reports. The court states that the State has not contested these “facts” or has not contested them sufficiently.
  • These NGO reports contain allegations of war crimes and crimes against humanity. These are very serious allegations, which have not been established by a judge. The fact that the State does not sufficiently rebut these “facts” does not mean that the allegations are true.
  • The Minister has discretion to determine whether there is “clear risk” and “serious violations”. The Court of Appeal should have reviewed whether the minister could reasonably have reached her decision. Instead, the Court of Appeal has now made the decision itself. In doing so, the Court of Appeal went beyond its remit. This is contrary to the Minister’s discretion.
  • The Court of Appeal argued that the Common Position contains mandatory provisions that should lead to re-examination of the decision. That is not contained in the text of the Common Position. It only contains an encouragement to re-review.
  • The Court of Appeal held that the provisions of the Common Position have direct effect and that this effect ensures that the Strategic Goods Decision and the licence must be interpreted in the light of the Common Position. In doing so, the Court of Appeal limited the minister’s policy discretion.
  • The Court of Appeal stated that the direct effect is based on provisions of the Strategic Goods Decree, which states the following: “In any event, a licence shall not be granted insofar as it arises from international obligations.” However, that only refers to the granting of a new licence. The Minister’s policy discretion under the Strategic Goods Decree is unjustifiably completely curtailed.

Mr Freek Vergeer is a researcher at CIDI. This article was produced with the cooperation of Dutch Jurists for Israel (NJVI), a working group of The Hague Initiative for International Cooperation (thinc.).

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