Supreme Court scraps ban on exporting F-35 parts to Israel, but orders gov't to reassess

The Supreme Court scrapped an appeals court ruling banning the Netherlands from exporting parts for F-35 fighter jets to Israel. However, the Supreme Court ordered the responsible Minister to reassess the arms license for these exports to ensure it does not pose a clear risk of serious violations of international humanitarian law. The reassessment must happen within six weeks.

This case was filed by Oxfam Novib and various other aid organizations in an attempt to stop the Dutch government from exporting fighter jet parts to Israel. Israel is using the fighter jets that the Netherlands is maintaining with these exports to slaughter the people of the Gaza Strip, they argued.

The court initially ruled against the aid organizations, but in February 2024, the Court of Appeals ruled in their favor and ordered the Dutch government to stop the exports. According to the Court of Appeals, there was a clear risk that the export of these fighter jet parts would result in serious violations of international humanitarian law.

But according to the Supreme Court, the Court of Appeals did not have the authority to make that assessment. That authority lies with the Minister. The Supreme Court, therefore, scrapped the ban. But it ordered the Minister for Foreign Trade to reassess the export license within six weeks.

The Minister must comply with the Strategic Equipment Decree and the mandatory criteria set out in the Arms Trade Treaty and EU regulations, the Supreme Court said. “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 November last year, the Advocate General advised the Supreme Court to uphold the ban. The Advocate General’s advice is not binding, but the Supreme Court usually follows it.