Advocate General’s recommendation to Supreme Court: Court of Appeal's decision that Dutch State must cease exports of F-35 parts to Israel can be upheld
The Hague Court of Appeal’s ruling that the State of the Netherlands (hereinafter the “State”) must cease exports of F-35 parts to Israel can be upheld. That is the recommendation given by Advocate General Vlas to the Supreme Court in the opinion he delivered today. According to the Advocate General, the Court of Appeal was justified in finding that there is a clear risk that Israel’s F-35 fighter jets are being used to commit serious violations of international humanitarian law in the Gaza Strip. Under various international regulations to which the Netherlands is a party, exports of military goods must be banned if such a clear risk exists.
The Supreme Court of the Netherlands is a court of cassation. This means that it assesses whether the Court of Appeal applied the correct rules of law in its decision, offered sufficiently comprehensible reasons for its decision and properly followed the rules of procedure.
The case
The case is set in the context of the events in Israel on 7 October 2023 and the ensuing war in the Gaza Strip.
Parts for the F-35 fighter jets are supplied from the Netherlands to countries including Israel. These parts are considered military goods, which means a licence is required to export them from the Netherlands. That licence was granted in 2016. Following Israel’s attacks in the Gaza Strip, the Minister for Foreign Trade and Development Cooperation evaluated whether the export licence for F-35 parts to Israel could be maintained. The Minister decided not to intervene in the licence and to continue exports of the parts to Israel. In response, Oxfam Novib, Vredesbeweging PAX Nederland and The Rights Forum (hereinafter “Oxfam Novib et al.”) instituted preliminary relief proceedings against the State. These organisations aim to protect the interests of the civilian population in Gaza. They want the courts to prohibit the State from exporting the F-35 parts from the Netherlands to Israel because there is a clear risk that Israel is violating international humanitarian law in its attacks in the Gaza Strip using F-35 fighter jets.
At its core, the case is about the question of whether and, if so, to what extent civil courts can review the State’s actions in the field of foreign policy and defence, more specifically arms policy. More specifically, it is about whether the courts can order the State to intervene in the licence permitting the supply of F-35 parts to Israel if there is a clear risk that these parts will be used in the commission of serious violations of international humanitarian law.
The District Court rejected Oxfam Novib et al.’s claim; the Court of Appeal ruled otherwise and decided in their favour. Because of the latter decision, the Netherlands must cease exports of F-35 parts to Israel. The State lodged an appeal in cassation against this decision with the Supreme Court.
Complaints in cassation
The State is asking the Supreme Court to set aside the Court of Appeal’s decision. Several complaints in cassations have been filed. The State considers, among other things, that after the events of 7 October 2023, the Minister was not obliged to review the licence granted – leaving aside the fact that she did do so but decided not to amend or revoke it. The State also feels that in matters of national security and foreign policy the State is entitled to considerable policy latitude and discretion and that the Court of Appeal failed to observe the restraint required by applying a “full” review.
Advocate General’s recommendation
According to the Advocate General, it follows from national and international regulations (i) that in the given circumstances, the Minister did have an obligation to review the licence, (ii) that this review must test for the mandatory criteria of international treaties to which the Netherlands is a party, and (iii) that in the case of a clear risk that the F-35 parts would be used in the commission of serious violations of international humanitarian law, the Minister was obliged to intervene in the licence. According to the Advocate General, the Court of Appeal was therefore right to find that the Minister’s decision not to intervene in the export licence was in breach of international obligations.
Courts can review without restraint whether the State has remained within the bounds of law in the field of foreign policy and defence when national and international regulations have provided concrete and useful standards for the State’s actions. It follows from the regulations applied by the Court of Appeal that a licence will not be granted or continued to the extent that such arises from international obligations. In this case, there must be a “clear risk” that the military goods will be used in the commission of serious violations of international humanitarian law. Whether a “clear risk” exists is for the governing body to determine. This determination should be reviewed by the court with restraint. In this case, the Court of Appeal held that there was no evidence that the Minister tested for the “clear risk” criterion. Therefore, the Court of Appeal itself could test for this criterion in respect of which, among other things, reports had been published that were not contested at all or sufficiently by the State.
Other complaints in cassation
According to the Advocate General, the other complaints in cassation that the State brought against the Court of Appeal’s decision are also unsuccessful.
Conclusion
The Advocate General has recommended the Supreme Court to uphold the Court of Appeal’s decision.
The Supreme Court’s decision
The Supreme Court will give its decision as soon as possible.
The Advocate General’s opinion is an independent recommendation to the Supreme Court, which is free to decide whether or not to follow it. The Advocate General is a member of the Procurator General’s Office at the Supreme Court, which is an autonomous and independent part of the judiciary. The Procurator General’s Office is not part of the Public Prosecution Service.