Supreme Court: Minister must perform reassessment of licence to export F-35 parts to Israel again
The Minister must perform the reassessment of the licence to export F-35 parts to Israel (hereinafter the "licence") again. In that reassessment, the Minister must apply the criterion of whether granting the licence poses a clear risk of serious violations of international humanitarian law. That is what the Supreme Court decided today. The Minister's reassessment must take place within six weeks.
The case
The case concerns the question of whether the export and transit from the Netherlands to Israel of parts for F-35 fighter jets must be halted, and whether the court can issue an order to the Dutch State to that effect.
Parts for the F-35 fighter jets are supplied from the Netherlands to various countries. These parts are considered military goods, which means a licence is required to export them from the Netherlands. The Minister for Foreign Trade and Development Cooperation granted a permanent licence in 2016. On this basis, F-35 parts could be delivered to Israel, among other countries.
Following the attack by Hamas against Israel on 7 October 2023 and Israel's response in Gaza, the Minister (re)assessed whether the licence could be maintained. The result of this reassessment was that the Minister decided not to intervene in the licence and to allow exports to Israel to continue.
Oxfam Novib et al. then claimed in legal proceedings that the court orders the State to cease the export and transit of F-35 parts to Israel and not allow any new export or transit thereof. The judge in summary proceedings denied these claims. On appeal, the Court of Appeal allowed the claim and ruled that the export and transit had to be halted immediately. The State lodged an appeal in cassation against this decision before the Supreme Court.
Following the Court of Appeal's decision of 12 February 2024, the Minister amended the licence to the effect that export of F-35 parts to Israel is not allowed.
Cassation complaints
The State applied to the Supreme Court to set aside the Court of Appeal's decision. Among other things, the State held that the Minister was not required to reassess the licence after the events on 7 October 2023, and that the Minister performed that reassessment of his own accord. The State also argued that in matters of national security and foreign policy the State is entitled to considerable policy latitude and degree of discretion, and that the Court of Appeal failed to observe the restraint required.
Advisory opinion of the Advocate General (AG)
On 29 November 2024, the AG recommended that the Supreme Court upholds the Court of Appeal's decision.
Opinion of the Supreme Court
The Supreme Court ruled as follows.
The Strategic Equipment Decree stipulates, among other things, that an export licence for military goods will in any case not be granted insofar as it arises from international obligations. These are the obligations under the Arms Trade Treaty and the EU Common Position, which extend to the Dutch legal system. They are partly aimed at preventing individual civilians from becoming victims of the use of weapons in violation of international humanitarian law.
The Minister has the authority, when new circumstances arise, to reassess a granted licence, but is not obliged to do so. That said, if the Minister does proceed with a reassessment, which is what happened in this case, he has to adhere to the aforementioned Strategic Equipment Decree and the mandatory criteria set out in the Arms Trade Treaty and EU regulations. This means that if, upon reassessment, the Minister determines that there is a clear risk that the goods to be exported will be used in committing serious violations of international humanitarian law, he may no longer allow the use of the licence.
In the area of national and international security and foreign policy, the courts must review the State's actions with great restraint, especially in preliminary relief proceedings. The Court of Appeal held that the Minister, in making the reassessment, did not apply the criterion of a clear risk of serious violations of international humanitarian law. The Court of Appeal subsequently made its own assessment of whether there was a clear risk of serious violations of international humanitarian law. The Court of Appeal concluded that this was the case.
In doing so, according to the Supreme Court, the Court of Appeal failed to acknowledge that the relationship between the Minister and the court in this case means that the court does not itself assess whether there is a clear risk of serious violations of international humanitarian law, but instead instructs the State (read: the Minister) to reassess the licence. The Supreme Court now gives that instruction to the Minister. The Supreme Court sets the term for that reassessment at six weeks. The outcome of that reassessment may again be submitted to the civil court.
In summary
Briefly put, the Supreme Court's decision means that the Court of Appeal was not entitled to make its own assessment of whether there is clear risk of serious violations of international humanitarian law, but that the Minister must reassess the licence based on that criterion. The Supreme Court set the term for that reassessment at six weeks.
Status of the licence after Supreme Court decision
Following the Court of Appeal's decision, the Minister amended the licence to the effect that export of F-35 parts to Israel is not allowed. Until the Minister issues a new decision, the licence will remain in force in that form.