Uneasy Alliances: The Gaza-Conflict before Dutch Courts

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Introduction

In the past few days, the international community has been transfixed on the public hearings in the case that South Africa instituted against the State of Israel before the International Court of Justice (‘ICJ’): i.e. the ‘Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza StripCase. The blogosphere is boiling with commentaries on the core issues of whether the Court has prima facie jurisdiction to hear the case, as well as on the need for indicating provisional measures. All eyes would be on the ICJ in the coming weeks since a potential ruling against Israel based on the Genocide Convention would have significant legal, political and military consequences, notwithstanding the rather mixed compliance record that ICJ provisional measures appear to have inspired to date. Indeed, the Israeli Prime Minister Netanyahu seems to have already indicated that Israel will not be deterred by any outcome in these proceedings. However, an ICJ ruling that indicates provisional measures would, for one, likely impact how third States assess their ability to continue offering military support to Israel in this conflict. To demonstrate this point, this commentary examines a decision – currently on appeal – delivered by the District Court of the Hague on 15 December 2023 (available in Dutch only), which refused to grant an injunction against the Dutch State to stop delivering F-35 jet fighter parts to Israel.

A civil case against the Dutch State to stop exporting F-35 parts to Israel

In early December 2023, three NGOs (Oxfam Novib, Pax and The Rights Forum), represented by the well-known lawyer Liesbeth Zegveld, petitioned The Hague District Court to order the Dutch State to stop delivering spare parts for F-35 jet fighters to Israel (see here and here). The Netherlands has been part of the US-led ‘F-35 Lightning II-program’ since its establishment in 2001. Pursuant to this program, there are three F-35 maintenance hubs worldwide, one of them in the Netherlands, which inter alia deliver parts for the F-35 jet fighters of states participating in the program. Israel has been one of those states since 2010.

The plaintiffs’ arguments are available here (in Dutch only). In a nutshell, they argued that the Israel Defence Forces (‘IDF’) are using F-35 jet fighters in their ongoing bombardment campaign in the Gaza Strip, which systematically fails to distinguish between civilians/civilian objects and military targets, thereby involving serious violations of international humanitarian law. Also, the IDF’s bombardment campaign is said to contribute to an ‘(impending) genocide’ [‘(dreigende) genocide’] in Gaza (Brief, paras. 2-15). The brief does not offer much in the way of legal analysis on the constituent elements of concrete war crimes, or of genocide. Rather, it generally refers to supporting reports and statements by officials, including e.g. statements by the UN Special Rapporteur Francesca Albanese of a ‘serious risk of genocide’ being committed in Gaza (Brief, para. 15; also here).

The plaintiffs have cited two legal bases to argue that the Netherlands is obliged to stop delivering F-35 jet fighter spare parts to Israel. First, they refer to Article 1 of the UN Genocide Convention and the obligation of State Parties to ‘prevent’ the commission of genocide (Brief, para. 16). Second, they invoked the applicable Dutch regulations on military exports, namely the ‘Strategic Goods Decree’ (‘Besluit strategische goederen’) and ‘General Permit Regulation NL009’ (‘Regeling algemene vergunning NL009’), which have to be applied in conformity with the EU Council Common Position 2008/944/CFSP of 8 December 2008 (‘EUCP’). The latter creates certain common rules for EU Member States on the exports of military technology and equipment. Of particular importance here is Article 2 EUCP, which establishes eight disjunctive criteria for denying export licenses of military equipment and technology to requesting states. The plaintiffs referred to inter alia Criterion Two, which states:

— Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall:

(c) 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.

It is important to emphasize here that the aforesaid provision does not require the exporting EU State to be certain that the recipient State will be committing serious violation of IHL with the exported military technology or technology. Rather, a ‘clear risk’ that this ‘might’ happen shall prompt the concerned State to deny export license. The official User’s Guide to EUCP explains that this requires a thorough assessment which includes ‘an inquiry into the recipient’s past and present record of respect for international humanitarian law’ (p. 44) and can consider questions such as:

  • Is there national legislation in place prohibiting and punishing violations of international humanitarian law?
  • Has the recipient country put in place requirements for its military commanders to prevent, suppress and take action against those under their control who have committed violations of international humanitarian law?
  • Has the recipient country ratified the Rome Statute of the International Criminal Court?
  • Does the recipient state cooperate with other States, ad hoc tribunals or the International Criminal Court in connection with criminal proceedings relating to violations? (p. 45)

The legally binding effect of the EUCP, and the testing criteria established under Article 2, was further reinforced by EU Directive 2009/43/EC.

For reasons of brevity, I will not lay out all the arguments that the Dutch State presented in court, some of which were quite perfunctory: e.g., it submitted that stopping the export would damage its relationship with F-35 partners and in any event would not change anything, seeing as Israel could still obtain the F-35 parts from the other two maintenance hubs in Australia and the USA. (Brief, paras 59-61). The two core arguments that the State put forward were that: (i) the Dutch Minister of External Trade and Development Cooperation had already done a EUCP-analysis when originally granting permit NL009 to export F-35 parts to Israel in 2016 and was not legally obliged under the EUCP to reevaluate that analysis now; and (ii) in any event:

the Minister did actually recently assess whether the developments [in the Gaza Strip] gave reason to prevent the continued use of permit NL009 for the resupply of F-35 parts to Israel. The Minister decided not to intervene, after having made a – in the State’s words – ‘broad assessment’, in which considerations from the fields of foreign policy, security policy and international law obligations were involved (Decision, para. 4.8, own translation).

To further explain its ‘broad assessment’, the State told the Court that Israel’s very existence is threatened by Hamas’ massacres and further indiscriminate rocket attacks on its territory, which triggered Israel’s right to self-defence subject to the proportionality and necessity requirements. The State submitted that it is not able at this stage to determine whether these requirements are not met as there is not enough ‘specific information about the circumstances and considerations regarding the concrete acts of combat, including bombardments’ (Decision, para. 4.24). Simply put, the State argues that Israel’s very existence is currently under threat which, combined also with the expected damage to the Dutch State’s international relations with allied states, weighs in favor of continuing the export of F-35 parts to Israel. On the opposite scale, we have the legal obligations of the Dutch State to ensure respect for e.g. IHL (and the UN Genocide Convention), but the State submits that there is not enough information at this stage to conclude that Israel is violating IHL in Gaza.

The Hague District Court’s ruling

As already noted above, the preliminary injunction judge delivered his ruling on 15 December 2023. He agreed with the Dutch State that nothing in the EUCP text obliges states to reevaluate an already issued permit because the only legal provision to this effect is the new Article 1a of the EUCP, which was added with an amendment from 2019 and states that ‘where new relevant information becomes available, each Member State is encouraged to reassess export licences for items on the EU Common Military List after they have been granted.’ (Decision, para. 4.11). Strangely, the revised EUCP User’s Guide did not offer any commentary on this newly inserted Article 1a and the use of the word ‘encourages’ indeed indicates an intention not to establish an obligation for EU Member States to reassess granted export permits. At the same time, however, maintaining willful blindness in the face of changed circumstances as to the application of the eight rejection criteria in Article 2 EUCP is against the spirit of this legislation. If disrespect for IHL and human right law is established as a core mandatory criterion for rejecting the issuance of a license to export military equipment, it makes little sense to limit the criterion’s application to one (arbitrary) point of time and exclude its application during the subsequent continued use of that licence. It is notable that the judge also looked at the relevant provisions of the UN Arms Trade Treaty, which contains similar provisions (also on reassessment of licenses) as the EUCP (see Article 7 ATT), and drew the same conclusion: i.e., this treaty also does not oblige, but only encourages, state parties to reassess issued licenses when new information emerges.

Turning then to the plaintiffs’ submission that Article 1 of the UN Genocide Convention establishes a legal obligation for the Netherlands to stop providing F-35 parts to Israel, the judge observed that this provision indeed obliges the Dutch State to evaluate relevant new information and determine whether it must ‘make efforts to ensure that other State Parties respect’ the United Nations Genocide Convention (Decision, para 4.13). Indeed, at a very basic minimum, this legal obligation to ‘prevent’ entails a negative obligation not to assist in the commission of genocide, which requires reassessing any ongoing assistance that a State Party uses to commit genocide. Also, the judge drew the same finding in relation to war crimes, noting that Common Article 1 of the Geneva Conventions obliges State Parties to ‘ensure respect’ for the Conventions. Even so, he then rightly found that the obligations arising from these treaties do not necessarily bring into operation the assessment criteria adopted in the EUCP: viz., the Dutch State is not required to apply the Article 2 EUCP-test of ‘clear risk’ that war crimes (or genocide) may be committed by Israel with the military equipment provided by the Netherlands (Decision, para. 4.15). The legal standard that should be applied here to make sure that the Netherlands does not violate its obligations under the said provisions of the Genocide Convention and the Geneva Conventions is discussed further below. At this point, it is important to underscore that the judge recognized these treaties as creating a legal obligation for the Dutch State to reassess its continued export of F-35 parts to Israel in light of new information it received on the conduct of hostilities in the Gaza Strip.

We thus arrive at the crux of the judge’s decision: his findings on the above-stated ‘broad assessment’ which the Dutch State said that it made when deciding to not revoke permit NL009 for Israel. While noting that the State has a considerable margin of discretion when deciding on matters of foreign policy and security, the judge held that he can still examine whether the State weighed all interests involved and thereby could reasonably arrive at the decision it took: i.e., a high review standard of ‘reasonableness’ was confirmed, according to which the Court would rule against a Minister’s decision only if it finds that he or she could not have reasonably arrived at that decision (Decision, para. 4.18). The critical part of the Court’s substantive analysis merits a full quotation here:

the State noted that the Hamas’ massacres and their indiscriminate rocket attacks on Israel clearly qualify as war crimes, that Israel’s very existence is threatened by these actions and that Israel has the right to self-defense against these armed attacks. According to the State, there is no question that in doing so Israel must respect international humanitarian law. The State submits that, given the grave concerns over the situation in Gaza, the State has taken actions and has also emphasized and emphatically underlined this point in its contacts with Israel. However, according to the State, […] it is at present very complex to be able to remotely form an opinion on this matter. In this respect, the State points out that there is only limited information available about Hamas’ method of warfare, their infrastructure in Gaza and the extent of the threat still posed by Hamas. It refers to indications that there are Hamas command centers and facilities just below several hospitals in Gaza. According to the State, whether the requirements of necessity and proportionality are met by Israel when exercising its right to self-defense can only be assessed when all relevant facts are available. The State submits that, given the unclear situation on the ground, this is not possible at the present time. In this context, the State says that specific information about the circumstances and considerations regarding the concrete acts of combat, including bombardments, is lacking. It is the Court’s opinion in the context of these preliminary proceedings that the State’s argument is not inexplicable. It bears reminding here that the Minister’s assessment relates exclusively to Israel’s use of the F-35 jet fighters. The consequences of other acts (of war) by Israel, however reprehensible they (may) be, cannot be included in this assessment. The present interim injunction proceedings only concern the strict legal framework to be applied to the decision to continue (for the time being) the resupply of F-35 parts to Israel. (Decision, para. 4.15, own translation).

There is a lot to unpack in this dictum. As a point of departure, it bears noting that when invoking Israel’s right to self-defence, the Dutch State clearly refers to the self-defence notion under Article 51 UN Charter, citing its customary requirements of proportionality and necessity. This is interesting because the submission that Israel has a legal right to self-defence under that provision presupposes, as also aptly explained by Milanovic here, a recognition of Palestine as a sovereign state, which the Dutch State has not actually done (see here). More importantly, the focus of the State’s analysis seems misplaced when it insists that ‘whether the requirements of necessity and proportionality are met by Israel when exercising its right to self-defense can only be assessed when all relevant facts are available’ and such information is lacking. The question of whether Israel is exercising self-defence in accordance with the necessity and proportionality requirements is a matter of jus ad bellum and, if answered, would determine whether its use of force was legal under international law. What has to be established for the purpose of the above-identified obligation under Common Article 1 of the Geneva Conventions, however, is whether Israel is committing serious violations of IHL (jus in bello) at a rate that has triggered the Dutch State’s legal obligation to ‘ensure respect’ for the Geneva Conventions by, inter alia, reassessing and revoking its license to export F-35 parts to Israel. The analyses on these two questions can overlap but are certainly not identical. For one, a general proportionality assessment of Israel’s bombardment campaign vis-à-vis the threat that Israel has faced from the terrorist organization Hamas (jus ad bellum) would differ from the proportionality assessment of specific incidents where a hospital or a refugee camp is bombed because Hamas terrorists are believed to be in it (as a potential war crime, jus in bello).

This brings us to the substantive legal question of how certain the Dutch State has to be that the F-35 parts it delivers to Israel are used to commit war crimes and/or genocide, in order for its obligations under, respectively, Common Article 1 of the Geneva Convention and Article 1 of the Genocide Convention to be triggered, so as to require the termination of these military exports. As the judge rightly pointed out, this assessment does not have to be done based on the criteria of the EUCP, though he did not then provide further analysis on this particular question. The answer depends on the treaty in question. If we are applying Article 1 of the UN Genocide Convention, the ICJ concluded in its Bosnia Genocide Case that ‘a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’ (Judgment, para. 431; emphasis added) Notice that the Court did not refer only to instances where the State actually obtains knowledge (‘learns’) of a ‘serious risk’ that genocide would be committed, but also included within this culpability standard a paradigm where the State ‘should normally have learned of’ such a risk: a form of constructive knowledge that rejects willful blindness by States and requires them to actively follow up on general information to this effect. From that moment on, any State Party to the Genocide Convention that possesses “means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent […] is under a duty to make such use of these means as the circumstances permit.” (Ibid.)

If, on the other hand, we are discussing the Netherlands’ legal obligation under Common Article 1 of the Geneva Conventions to ‘ensure respect’ for these Conventions – by, inter alia, upholding its negative obligation not to assist in the commission of war crimes – then we would enter a different line of discussion on the applicable culpability standard. The difficulty here is that such a standard is not expressly provided by the Conventions and varying approaches have been proposed by states and academics: specifically on account of whether awareness of a ‘risk’ should fall within the scope of this provision, or whether the obligation under Common Article 1 is triggered only when the State is aware of a virtual certainty that war crimes are committed by another State (for a detailed analysis on this point, see Milanovic, pp 1324-1338). The ICRC maintains that this provision indeed creates an obligation ‘to prevent violations when there is a foreseeable risk that they will be committed and to prevent further violations in case they have already occurred’ (here, para 164) and, notably, the preliminary injunction judge also appeared to apply a risk-based standard when he held that the relevant question in the case is ‘whether or not it is possible to establish a clear risk of serious violation of international humanitarian law, due to the deployment of the F-35’s’ (Decision, para. 4.22).

Ultimately, the Hague District Court found that the Dutch Minister’s ‘broad assessment’ and resulting decision to continue exporting F-35 parts to Israel was reasonable (Decision, para. 4.27). According to the judge, the State’s submission that that there is not enough information to assess ‘the circumstances and considerations regarding the concrete acts of combat, including bombardments’, was not inexplicable. This finding is quite tenuous when one considers that the applicable culpability standard accepted by the judge was one of ‘clear risk’, as opposed to e.g. awareness of certainty by the Dutch State that serious IHL violations are being committed with the F-35’s in Gaza. There are very strong indications, certainly going beyond a mere risk, that e.g. the war crime of using starvation of civilians as a method of warfare is being committed in Gaza, and it stands to reason that the blockade of borders (including Gaza’s border with Egypt) is enforced by the Israeli Air Force, using also its F-35’s. General references to how difficult it is to evaluate the conduct of hostilities on the ground vis-à-vis IHL’s concepts of proportionality and necessity (something that is undoubtedly true in any conflict) should be complemented with a genuine effort to examine information that is actually widely available and may indicate a risk that war crimes have been, and continue to be, committed.

Conclusion

The plaintiffs immediately appealed the decision of the preliminary injunction judge and thus this case is now in the hands of The Hague Court of Appeal. This is coming together at a time when, next to the ICJ proceedings between South Africa and Israel, a referral of the situation in Gaza to the ICC was made by Mexico and Chile. The conflict appears to be drawing sharp divisions between the Global South and the Global North, where each side is convinced that the other is driven by political agendas, rather than legal convictions. Israel dismissed South Africa’s case against it as ‘an absurd blood libel’ and, in a truly extraordinary move, the German Government announced that it will intervene in the case before the ICJ ‘on behalf of Israel’ even before the Court has actually ruled on its jurisdiction to hear the case: a move that sparked sharp criticism from UN representatives and Namibia (see here). We are moving to a place where less and less room is left for legal discussions, as they get strangled by Realpolitik. This is the difficult setting in which The Hague Court of Appeal will now have to make a decision on whether to grant an injunction against the Dutch State to stop delivering F-35 parts to Israel. When examining the reasonableness of the Minister’s ‘broad assessment’, the judges can – and indeed must – be deferential to her weighing of foreign policy and security matters. If the Dutch State submits that Hamas, a terrorist organization with no air force, no navy, estimated 30,000 members and lacking advanced military equipment presents a threat to Israel’s very existence as a state, and that the F-35 parts it provides are necessary for its survival from that threat, then that is an assessment of foreign security and policy that the judge should accept. However, it would be very problematic if courts became deferential to how the State evaluates its actions under international law. Rather than a blanket acceptance of the State’s “currently insufficient information”-argument, the appeal judges should clearly define the applicable legal standards under Article 1 of the Genocide Convention and Common Article 1 of the Geneva Conventions, and then strictly apply those standards to the information that is available. The ICJ’s findings in its provisional measures proceedings, whatever they may be, will be very helpful to this end.

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Nicolas Boeglin says

January 24, 2024

Dear professor Yanev

Many thanks for this extremely interesting post.

Similar legal actions in national courts of State providing weapons to Israel should be also taken: Israel is showing to the whole world that, despite its very high military budget and access to last technology for its soldiers, it doesn´t know to use correctly its weapons in Gaza.

Yours sincerely

Nicolas Boeglin

Note: may I refer you to a note (in French, sorry) on recent collective initiative of Mexico and Chile before ICC related to the absolute drama observed in Gaza:

https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-propos-de-lannonce-dun.html

Nicolas Boeglin says

January 24, 2024

Dear professor Yanev

Many thanks for this extremely interesting post.

Similar legal actions in national courts of several States providing weapons to Israel should be also taken: Israel is showing to the whole world that, despite its very high military budget and access to last technology for its soldiers, it doesn´t know to use correctly its weapons in Gaza.

Yours sincerely

Nicolas Boeglin

Note: may I refer you to a note (in French, sorry) on recent collective initiative of Mexico and Chile before ICC related to the absolute drama observed in Gaza:

https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-propos-de-lannonce-dun.html