Dutch Courts on Delivery of F-35 parts to Israel
The Netherlands is one of the partner countries joining the Lockheed Martin F-35 Lightning II programme for the production and maintenance of F-35 jetfighters. Spare parts for the maintenance are stored in three hubs of which one is located inWoensdrecht, the Netherlands. From this location parts are transported to Israel and other countries. Parts are considered to be military goods for which an export licence is required.
Accordingly, the minister of foreign affairs issued in 2016 a general licence for an undetermined time, but subject to conditions. A critical condition in Dutch legislation (Decision Strategy Goods) is that “in any event an export licence will not be granted when this follows from international obligations”.1
Late 2023 three Dutch NGOs2 instituted summary proceedings against the State of the Netherlands asking the civil law court to order a ban on the distribution of F-35 parts to Israel. NGOs claim that the existing licence should be revoked because Israel violates international law in Gaza by large scale F-35 bombardments.
Under the Dutch civil code “a foundation or association with full legal capacity that, according to its articles of association, has the object to protect specific interests, may bring to court a legal claim that intents to protect similar interests of other persons’.3 Given their statutory provisions (e.g. promotion of world legal order and human rights) there was little dispute that the NGOs have standing before the civil courts in the Netherlands.
The court of first instance4 rejected the claim of the NGOs arguing that the government has a large degree of discretion regarding international policy. The court also points out that judgments on matters of international security and foreign policy require restraint from the courts. Given that detailed information on the Israeli military operations is not available, the court finds that the decision not to revoke the licence was reasonable.
The Appeals Court (AC)5 orders a ban
The AC argues that the Decision Strategy Goods enables the NGOs to rely indirectly on international agreements, without the need to demonstrate the direct effect of such agreements. The AC also states that even if direct effect cannot be assumed, domestic law must be interpreted in conformity with international obligations.
The AC starts a full review of relevant international instruments including the Arms Trade Treaty (ATT)6 and the decision of the EU Council Defining Common Rules Governing Control of Exports of Military Technology and Equipment (EUCP).7 Derived from these instruments the AC also applies international humanitarian law.
The ATT stipulates in Art. 7 that exporting countries should assess the potential that arms could be used to commit of facilitate a “serious violation” of international humanitarian rights law. When there is an overriding risk of such violation, the exporting state shall not authorize the export. The EUCP states that after having “assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall deny an export licence 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.”
The ATT adds a temporary element:
“If, after an authorization has been granted, an exporting State Party becomes aware of new relevant information, it is encouraged to reassess the authorization after consultations, if appropriate, with the importing State.”8
Similar language is used in the EUCP: “where new relevant information becomes available, each Member State is encouraged to reassess export licences (…)”.9
These provisions are relevant because the licence of 2016 was not reconsidered when Israel started military operations in Gaza after 9 October 2023. Particularly relevant is the “encourage” requirement which seems to leave state parties considerable leeway to wait-and-see.
However, the AC argues that “encourage” cannot be an excuse to avoid or postpone reconsideration of the licence. When a State does not respond to a change of circumstances, the result of inaction may be unacceptable. The AC believes that the purpose of the ATT and the EUCP would be completely undermined when no review of licences would take place, especially when serious violation of international humanitarian law might occur.
In addition, the AC states that inaction contravenes Article 1 common to the four Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. Therefore, a Stateexporting arms cannot ignore perceived serious violations of humanitarian law committed by the importing State.
The AC concludes that the Netherlands has failed to review the export licence after the start of the Israeli military operations on October 7 and thereby violated its obligations under the ATT and the EUCP.
Clear risk of serious violations of international humanitarian law
The AC could have stopped here, by merely stating that the Netherlands violated its obligations not to reconsider and revoke the licence. It could have ordered the government to review the licence, after consultation with Israel (as suggested by the ATT) and taking into account the current military operations in Gaza. Instead, the AC makes its own assessment of the humanitarian situation in Gaza.
In its considerations whether there are clear risks of violations of humanitarian law the AC explains the principle of distinction between combatants and military objectives on the one hand and civilians and civilian objects on the other hand. The duty to observe the principle of distinction is the main strand in the court’s argumentation.10
Based on information provided by the NGOs, the AC notes that Israel uses unguided bombs that have demolished 60% of apartments and houses, and made 1,9 million Gazans homeless. It quotes a spokesman of the IDF stating that the Israeli Defence force “continues to strike every neighborhood we have even a chip of intelligence regarding terrorist activity in”.
Statements of the UN Office for the Coordination of Humanitarian Affairs (OCHA) reveal the number of deaths among the Gazan population. OCHA reports on military attacks on hospitals and water supplies. It also mentions increasing number of households that suffer from moderate to severe hunger.
The AC further relies on information from NGOs and UN bodies reporting massive bombardments on hospitals, schools, refugee camps, civilian houses, markets and religious buildings. The AC considers that these attacks are likely incompatible with international humanitarian law.
The AC concludes on the bases of reports from NGOs and UN bodies that F-35 operations in Gaza bear a clear risk of serious violations of international humanitarian law, and orders a ban on de delivery of F-35 parts to Israel.
Defences
The Netherlands raises objections and points out that it has large discretion when deciding on national security and foreign policy, a position that was endorsed by the court of first instance. The AC recognizes some degree of discretion but argues that mandatory language in relevant legal texts restricts discretionary powers. Language leaves no room, according to the AC: a licence must be refused in case of a clear risk of serious violations.
The Netherlands doubts the expertise of the NGOs and UN bodies. Amnesty International has not investigated the situation in Gaza and cannot evaluate the legitimacy of the use of force without knowledge of military operational information. The reports provided by the UN bodies, such as OCHA and the Special Rapporteur on the right of adequate housing, cannot be reliable since it does not have adequate expertise and information to appraise complex military matters. The AC rejects these arguments. First, according to the ATT11 and the EUGS12, NGOs are explicitly mentioned as sources contributing to the objectives of these instruments. Second, the information provided by the NGOs and UN bodies do not need to demonstrate that actual violations of humanitarian law have taken place. The only requirement is to show that there is a clear risk of serious violations.
Further, the Netherlands argues that a ban would jeopardize Israel defence capacities against other enemies, such as Hezbollah and the Houthi insurgents. The AC denies that a military conflict with neighbouring States and other insurgent groups is currently taking place, but the ministry of foreign affairs may take Israel’s right to self-defence into account when reviewing the licence. More geopolitical concerns are brought forward (such as diplomatic relations with Israel and the US) but the ACbelieves the need to uphold international humanitarian law overrides such concerns.
Supreme Court overturns Appeals Court
The government appealed to the Supreme Court (SC) which published its decision October 2025.13 The SC explains that the proper interpretation of treaties must follow the direction of Articles 31 and 32 of the 1969 Vienna convention of the Law on Treaties. In this context it stresses that the ATT and EUGS do not include mandatory but rather hortatory (encourage to review the licence) language. However, it follows the teleological approach of the AC and accepts that the purpose of the ATT and the EUCP would be undermined when no review of licences would take place.14 The SC also concludes that government has violated its obligations under these instruments.
The SC rejects most grounds for appeal but stresses the government’s discrete competences in the area of foreign policy and security:
“the Supreme Court notes that (…) the civil court, especially in summary proceedings, must exercise great restraint in reviewing the State’s actions in the area of foreign policy and (national and international) security. The State’s policy in these areas depends heavily on political and other policy considerations related to the circumstances of the case. This means that it is not up to the court to make these considerations and that, moreover, the court must exercise restraint with regard to the considerations made by the State. It is also important to note that decisions by the State in this area may be (partly) based on secret or confidential information obtained, for example, through domestic and foreign intelligence services and diplomatic channels, and that the State cannot be expected to always provide accurate insight into this information before the court. After all, this information may be of such a confidential nature that the State cannot bring it forward in proceedings”.15
Accordingly, the SC stipulates that civil courts do not assess themselves
“whether there is a clear risk of serious violations of international humanitarian law as referred to in Article 2, paragraph 2(c), of the EUGS, but rather allows the Minister to reassess the permit and issue a new decision. The outcome of this reassessment can again be submitted to the civil court”.16
Final Thoughts
Generous accessibility of NGOs to the Dutch civil court system offers ample opportunity to challenge policy-making by the Dutch State. Particularly, the Hague civil appeals court has shown responsiveness to claims made by NGO groups. Most well-known was the Urgenda Case17 ordering the State to take measures for the reduction of CO2 emissions by at least 25% by end-2020. In this case the court stated that unambiguous language in domestic and international law substantially reducesdiscretionary policy making. The Urgenda Case related to environmental matters and did not refer to national or international security as in the case discussed above. In both cases, however, the question was raised under which conditions judges may set aside government policies by issuing court orders.
In the F-35 parts case the SC urges courts to show considerable restraint in adjudicating foreign policy disputes brought by NGOs. It explains that foreign policy matters are multilayered and complex; courts may be unable to appreciate all relevant aspects and consequences in this area. Indeed, how should a court evaluate that the use F-35 jets are indispensable for Israel’s self-defence against its enemies in the region? Should courts ignore or recognize the “inherent” right to self-defence of Art. 51 of the UN Charter? Courts may also be unaware of confidential exchange of information between the Netherlands and Israel on the use of F-35 jets in Gaza.
In conclusion, it is not for the civil courts to substitute for the assessment of the government deciding on the existence of a clear risk of serious violations of international humanitarian law. Once the government takes a decision (or fails to do so), NGOs may challenge this before the court. Finally, the court is confined to answer the question whether the State has met its international obligations.
