[Blog post] Dutch court halts F-35 aircraft deliveries to Israel

Citing a “clear risk” of abuse, the Hague Court of Appeal has ordered the Dutch government to stop delivering F-35 aircraft components to Israel. Asser Institute researcher León Castellanos-Jankiewicz is following the case and provides his analysis of the 12 February decision. As he stated in a recent interview with Al-Jazeera: “the judgment underlines the urgency for further transparency in the arms trade.”  

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

Citing the decision, Josep Borrel, the High Representative of the EU for Foreign Affairs and Security Policy, alluded to the unchecked provision of arms to Israel as having a role in the civilian death toll on the Gaza strip. Since the judgment was handed down, the F-35 programme has also prompted parliamentary questions in Australia, where parts of the aircraft are manufactured.  

The decision also comes amid high-profile resignations in the U.S. government over arms sales to Israel and in the Dutch Foreign Ministry over similar policy issues. 

Dutch arms exports to Israel 
According to the latest available data, 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. 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 for Peace 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. Their key argument is that, following the despicable events of 7 October and their repercussions, the Dutch government was under the obligation to conduct a new risk assessment for its F-35 program on the basis of relevant legal standards. 

The case before the Hague Court of Appeal 
The judgment of 12 February 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 favor of the government by invoking the broad discretionary power of the executive branch to decide on matters relating to foreign policy and security.  

On appeal, the NGOs 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 that a new risk assessment be conducted. 

 In their unanimous decision halting the F-35 transfers, 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. 

“Clear risk” as a rationale for the decision 
The Court of Appeal found against the government because it determined that the risk of having the F-35 contribute to IHL violations was present. 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.”  

The government 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.  

The need to conduct risk reassessments 
The Dutch government further contended that when new information becomes available following the granting of an export license, states are merely “encouraged” to reassess risks. But the Court of Appeal found that a “reasonable interpretation” of the EU Common Position meant that, under new circumstances, a fresh assessment against its criteria must take place. 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. 

Finally, the court concluded that the state was acting unlawfully by not conducting a risk reassessment of the export license, and by not preventing the export and transit of F-35 parts to Israel. This underscores the centrality of risk assessments in any arms export or licensing procedure, and gestures to new avenues for supply chain accountability for negligent arms trade. More broadly, the case underlines the need for increased transparency in the arms trade, a notoriously opaque industry.  

This analysis has been adapted from the in-depth analysis published on Verfassungsblog. 

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. 

Watch: León speaks to Al-Jazeera about the court’s decision

Read more 
León Castellanos-Jankiewicz, "Dutch Court Halts F-35 Aircraft Deliveries For Israel", Verfassungsblog, 14 February 2024. 

León Castellanos-Jankiewicz,  "European arms manufacturers are virtually untouchable in court: That has to change," NRC, 8 August 2023 (in Dutch). 

"Access to Justice for Gun Violence. Seeking Accountability for European Arms Exports", University of Amsterdam International Law Clinic (Supervised by León Castellanos-Jankiewicz, authored by Jasmijn van Dijk, Felix Hartner, Viktoria Schmidt and Nada Ben Yahia), 28 July 2023. 

León Castellanos-Jankiewicz and Melanie Schneider "Including the Arms Sector in the EU Corporate Due Diligence Directive," Verfassungsblog, 19 May 2023.  

Dr León Castellanos-Jankiewicz