Parket bij de Hoge Raad, 29-11-2024, ECLI:NL:PHR:2024:1424, 24/01340 (Engels)
Parket bij de Hoge Raad, 29-11-2024, ECLI:NL:PHR:2024:1424, 24/01340 (Engels)
Gegevens
- Instantie
- Parket bij de Hoge Raad
- Datum uitspraak
- 29 november 2024
- Datum publicatie
- 20 januari 2025
- ECLI
- ECLI:NL:PHR:2024:1424
- Zaaknummer
- 24/01340 (Engels)
Inhoudsindicatie
Preliminary relief proceedings. Public international law. Tort law. Prohibition order against Dutch State for exporting and transferring F-35 parts to Israel. Discretionary power of the State in the field of foreign policy and defence; obligation to reassess the granted licence under EU Common Position (2008/944/CFSP), Arms Trade Treaty and Geneva Conventions?; ground for refusal of licence on the basis of ‘clear risk’ of serious violation of international humanitarian law; obligation to reassess under the Dutch Strategic Equipment Decree 2008 and the General Licence Regulation LJN GL2009?; treaty-compliant interpretation.
Disclaimer: The translation of this advisory opinion is solely intended to provide information. The text of the translation is an unofficial translation. The Dutch text of the advisory opinion is the only authentic and formal text.
Conclusie
PROCURATOR GENERAL
TO THE
SUPREME COURT OF THE NETHERLANDS
Number 24/01340
Hearing 29 November 2024
OPINION
P. Vlas
In the matter of
The State of the Netherlands (Ministry of Foreign Affairs)
v
1. Stichting Oxfam Novib
(hereinafter "Oxfam Novib")
2. Stichting Vredesbeweging PAX Nederland
(hereinafter "Pax")
3. Stichting The Rights Forum
(hereinafter "The Rights Forum"),
(defendants 1 to 3 are hereinafter also jointly referred to as “Oxfam Novib et al.”)
1 Introduction
At its core, this case is about the question of whether and, if so, to what extent civil courts may review the State's actions in the areas of foreign policy and defence, more specifically arms policy. This question is relevant in the context of the horrific events in Israel on 7 October 2023, and the subsequent war in the Gaza Strip that also has horrific consequences for the residents of that area. May the courts order the State to intervene with regard to the licence for the export and transfer of parts of the F-35 fighter jet to Israel in the event that there is a clear risk that these parts will be used in serious violation of international humanitarian law?1
This statement is structured as follows. First, in para. 2, as usual, I provide a brief overview of the facts and the course of the proceedings in this matter. Subsequently, in para. 3, I provide an overview of the international and national regulations relevant in this matter. In para. 4, I address in general terms the possibility of a judicial review of government policies and the policy latitude and discretion of the government, particularly in the areas of foreign policy and defence. In para. 5, I discuss the various grounds for the principal appeal in cassation followed by the final conclusion in para. 6.
2 The facts and the course of the proceedings
The following may be assumed in cassation.2 The Netherlands is one of the countries participating as a partner in the F-35 Lightning II programme with regard to the manufacture and maintenance of the F-35 fighter aircraft (hereinafter the "F-35") manufactured in the United States (US). The Netherlands is one of the purchasers of the F-35. Israel is also a purchaser of the F-35, but not a partner in the F-35 programme.
For the purpose of maintaining the F-35, three "hubs" have been set up around the world, where parts (supplied by the U.S.) are stored for onward supply to countries that have the F-35. The F-35 parts present in the hubs are US property and will remain so until they are assembled in the F-35. One such hub is located in the Netherlands (Woensdrecht), at Logistiek Centrum Woensdrecht. From the Dutch hub, F-35 parts are delivered to Israel, among other countries.
In the Netherlands, the transit, export and transfer of military equipment is regulated by the Strategic Equipment Decree (Besluit strategische goederen).3 Under the Strategic Equipment Decree, a licence is required for each of these activities. Since 2012 (in implementation of European Directive 2009/43/EC),4 a distinction is made between individual, global and general licences. A general licence is granted by ministerial order.
In 2016, the Minister for Foreign Trade and Development Cooperation (the "Minister") adopted the General Licence Regulation NL009 (Regeling Algemene Vergunning NL009)5 (hereinafter referred to as "GL009”, in line with the contested judgment). The GL009 applies to transit, export or transfer covered by a contract in the context of the F-35 programme between a "person with power of disposition" and a "recipient". On the basis of GL009, F-35 parts may be delivered from Logistiek Centrum Woensdrecht to Israel without a separate licence being required for each individual delivery.
GL009 contains rules on the use of the licence, how a request for registration and notification must be made and the method of reporting, among other things. On the basis of Article 8 GL009, this licence may no longer be used if the Minister has notified the registered user or person with power of disposition that integrated foreign policy or security considerations preclude the continued use of the licence; therefore, such notification may be made at any time.
On 7 October 2023, Hamas launched attacks on Israel from the Gaza Strip, deliberately killing about 1,200 people, mostly civilians including young children. Hamas also took around 240 people hostage, many of whom have not been released to this day. There is – rightly – no dispute between the parties that Hamas is thereby guilty of war crimes.
Israel responded to this attack by launching attacks on targets in the Gaza Strip. In doing so, it carried out bombings and Israeli forces entered Gaza. As a result of these attacks, at least 19,000 people had been killed, including 7,700 children, and more than 52,000 people had been injured by the time of the judgment contested in cassation.
In light of these developments, the Minister investigated whether, as provided in Article 8 GL009, integrated foreign policy or security considerations preclude the continued use of this licence. The Minister concluded that this is not the case. This position has not changed since. In this regard, the Minister took the following into consideration:
(i) for its survival, Israel must be able to respond to terrorist threats from the – fundamentally unsafe – region and has a strong interest in preventing the conflict from spreading to the region through, among other things, the deterrent effect of the F-35,
(ii) the possible risk that F-35 parts could be used in serious violations of international humanitarian law, but it is not established that Israel is violating that law,
(iii) halting the delivery of F-35 parts to Israel would very seriously harm the good relations that the Netherlands has with Israel and the U.S. and would also damage the confidence of other allies participating in the F-35 project, and
(iv) on the basis of the GL009, it is not possible to exclude a particular country as a destination for supplies; all suppliers to Israel would then have to be excluded, but that would mean that those suppliers would then also no longer be allowed to supply other countries, meaning that individual licences would have to be applied for in every instance, which would be obstructive.
On 23 November 2023, Oxfam Novib et al. held the State liable in preliminary relief proceedings before the Preliminary Relief Court of the District Court of The Hague. They claimed, briefly put, that the State be ordered to cease the actual export and transfer of F-35 parts to Israel and not to allow any further export or transfer of them to Israel until that is no longer contrary to the State's obligations. They also claimed that the State be ordered to bring the export and transfer under GL009 to Israel, as the final destination, into compliance with the State's international obligations, such as the EU Common Position (hereinafter the "EUCP")6 and the Arms Trade Treaty.7
After the oral hearing took place on 4 December 2023, the Preliminary Relief Court dismissed the claims of Oxfam Novib et al. by judgment of 15 December 2023.8 In short, the essence of the Preliminary Relief Court’s decision is as follows.
- Oxfam Novib et al. meet the requirements of Article 3:305a of the Dutch Civil Code and their claims are admissible (para. 4.2).
- As an employer, Oxfam Novib itself also has an interest in standing up for its employees residing in Gaza, who Oxfam Novib says fear for their lives (para. 4.3).
- After GL009 was adopted in 2016, and given that it has remained in force, the State is not required to reassess whether the EUCP criteria have been met (para. 4.10).
- The Arms Trade Treaty also contains no obligation, after a general licence has been granted, to reassess this based on circumstances that have arisen after that. Article 7(1) of the Arms Trade Treaty contains a pre-export assessment and Article 7(7) contains an encouragement for the exporting State to reassess the authorisation if it becomes aware of new relevant information after an authorisation has been granted (para. 4.12).
- The State does have an obligation to assess whether the continued use of GL009 in terms of the transfer and export of F-35 parts to Israel can be maintained, but in doing so it has the freedom to make a broader consideration than solely reviewing against the EUCP criteria. The State has made that consideration (para. 4.15).
- In the areas of national security and foreign policy, the State is entitled to considerable discretion and policy latitude and discretion. The State's policy depends heavily on political and other policy considerations related to the circumstances of the case, in which regard the Preliminary Relief Court refers to the judgment of the Supreme Court dated 26 June 2020.9 In that broader review, the State has considerable discretion and policy latitude, because the questions involved are closely related to questions of national security and foreign policy. A court may only review whether the State has weighed all the interests involved and could reasonably have arrived at its decision or course of action in light of all the circumstances of the case. When there is a clear risk of serious violations of the humanitarian law of war through the deployment of the F-35, that circumstance is a compelling factor that the State should be expressly take into consideration in its assessment (para. 4.18).
- As for how the exported F-35 parts are being used, what is relevant is whether the exported parts are being used in committing serious violations of international humanitarian law. If the F-35 makes a contribution towards other aircraft being able to carry out bombings, this requirement is met. Given the advanced features available to the F-35, it is highly plausible that the F-35 is making such a contribution where there are alleged violations (para. 4.21).
- The State's position that specific information about the actual combat actions is lacking is not incomprehensible. The Minister's assessment deals exclusively with the use of the F-35. The consequences of other acts of war by Israel, however reprehensible they may be, may not be included in this assessment (para. 4.24).
- The Minister's reasoning that the F-35, partly because of its deterrent effect, is also of great importance to Israel in preventing the expansion of the conflict into the region is not incomprehensible. The Minister could also reasonably factor in that degrading GL009 would negatively affect relations with the countries cooperating within the programme, including the U.S. and Israel (para. 4.25).
- Contrary to what the State argues, Article 8 GL009 appears to allow only a registered user (Israel) to be notified that continued use of the licence is no longer permitted. It is plausible, however, that a change in the programme's logistics chain would result in deteriorated operational readiness and could therefore negatively affect the national security of the countries involved in the F-35 project (para. 4.26).
- The Preliminary Relief Court concluded that the Minister could reasonably have arrived at her decision and that, in light of the aforementioned limited judicial framework for review, there was no room for the courts to intervene (para. 4.27).
Oxfam Novib et al. appealed this judgment. They amended their claim on appeal and claimed, in a judgment immediately enforceable regardless of appeal:
I. That the State be ordered to immediately cease all actual export and transfer of F-35 parts to Israel as the final destination, at least until the court hearing the case on the merits has rendered a decision or until such time as the export and transfer is no longer in violation of obligations incumbent upon the State; or at least, that the State be ordered to now reassess whether the continued actual export and transfer of F-35 parts to Israel may continue;
II. To prohibit the State with immediate effect from allowing any new export and transit of F-35 parts with Israel as the final destination, at least until the court hearing the case on the merits has rendered a decision or until such time that the export and transit is no longer in violation of obligations incumbent upon the State; or at least to order the State to now reassess whether the new export and transit of F-35 parts to Israel may be allowed;
III. That the State be ordered to immediately bring the export and transfer to Israel, as the final destination, based on the General Licence Regulation NL009, into compliance with the State's international obligations arising from, among other things, the Council Common Position and the Arms Trade Treaty, at least within a term deemed appropriate by the Court of Appeal;
IV. Or at least such relief as the Court of Appeal deems appropriate;
V. That the State be ordered to pay the costs of these proceedings, or at least to set off the parties' costs, with the stipulation that if these costs are not paid within fourteen days from the date the judgment is rendered, statutory interest will be payable thereon.
The State lodged a cross-appeal and argued that the Preliminary Relief Court wrongly found Oxfam Novib to be admissible, because the interests of Palestinian civilians in Gaza who are or threaten to become victims of war violence and the general interest served in the compliance with international humanitarian law of war, human rights and the prevention of genocide and in the Dutch legal framework on export policy do not fall under Oxfam Novib's objective under the articles. The State also argued that Oxfam Novib’s claims instituted as an employer are not admissible because those interests are already represented by Pax and The Rights Forum.
On 22 January 2024, the oral hearing took place at the Court of Appeal, during which the parties both submitted memoranda of oral arguments.
By judgment of 12 February 2024, the Court of Appeal set aside the judgment of the Preliminary Relief Court. The Court of Appeal, in short, held as follows.
The Court of Appeal dismissed the State's cross-appeal. According to the Court of Appeal, the interest pursued by Oxfam Novib in this matter was that Israel cease the violations of international humanitarian law alleged by Oxfam Novib, which interest falls under the object of promoting a peaceful world. Oxfam Novib's articles provide that it seeks to achieve this object by promoting the establishment of global law and order. In those proceedings, Oxfam Novib’s goal was for the Netherlands to cease contributing to violations of international humanitarian law by neglecting its international legal obligations on arms exports. This objective can unmistakably contribute to establishing global law and order, meaning that Oxfam Novib’s claims are admissible (paras. 5.2 and 5.3).
Subsequently, the Court of Appeal heard the grounds of Oxfam Novib's principal appeal. According to Oxfam Novib et al., there is a clear risk that the F-35 parts to be exported to Israel will be used in serious violations of international humanitarian law within the meaning of Article 2(2)(c) EUCP, and that this obliges the State to put an end to the export or transfer of F-35 parts from Woensdrecht to Israel (para. 5.4). The Court subsequently explained (i) what obligations international humanitarian law imposes on litigating parties (paras. 5.6-5.9), (ii) what facts and reports the Court of Appeal was proceeding from in the present preliminary relief proceedings (paras. 5.10-5.13), and (iii) what facts the Court of Appeal was proceeding from regarding the deployment of the F-35 over Gaza (paras. 5.14-5.16). The Court of Appeal concluded that there were many indications that Israel had violated international humanitarian law in a not inconsiderable number of instances (para. 5.16), that these violations, of which there was a clear risk, were "serious" (para. 5.17), and that it had become sufficiently plausible that the F-35 had been used in these violations (para. 5.18). Consequently, there is a clear risk that the F-35 parts to be exported to Israel will be used in committing serious violations of international humanitarian law within the meaning of Article 2(2)(c) EUCP (para. 5.19).
The Court of Appeal then discussed the question of whether this "clear risk" should lead the State to cease exporting F-35 parts to Israel (para. 5.20). To this end, the Court of Appeal examined whether (i) the State was obliged, following the events in Gaza after 7 October 2023, to reassess the mandatory criteria of the EUCP and the Arms Trade Treaty, (ii) the State's defence that the EUCP and the Arms Trade Treaty had no direct effect was successful, and that, therefore, Oxfam Novib et al. could not rely on their provisions, and (iii) the State had correctly complied with its obligations under the EUCP, the Strategic Equipment Decree and GL009 (para. 5.21).
The Court of Appeal found that while the EUCP and the Arms Trade Treaty may not contain an obligation to reassess every licence granted if new circumstances arose, that obligation did exist in that case. A reasonable interpretation of the EUCP in that case entailed a new assessment against the criteria of the EUCP. The State's position that there is no obligation to conduct a new assessment would lead to the unacceptable result that the purpose of the EUCP could be completely undermined by granting licences for an indefinite period of time that would never have to be assessed again, even if at a later date the country of destination were to commit serious violations of the humanitarian law of war using the exported military equipment (para. 5.24). The State's position was also contrary to the purport of Article 1 of the Geneva Conventions (including Article 1(1) of the First Protocol), which in fact obliges States to ensure that other parties to them act in accordance with international humanitarian law "in all circumstances". The obvious interpretation of the standards of the EUCP and the Arms Trade Treaty is that they do not conflict with those obligations (para. 5.25). If this mandatory reassessment leads to the finding that there is a compelling ground for denial under Article 2 EUCP, such as that under Article 2(2)(c) EUCP, the consequence must be that the relevant Member State must cease further exports of military equipment under that licence (para. 5.27).
Even if the Minister was not required to conduct a reassessment on the basis of the EUCP, the Minister should still have reviewed against the mandatory ground for denial under Article 2(2)(c) EUCP. It was common ground that after 7 October 2023, the Minister conducted a reassessment and also reviewed against the criteria of the EUCP. According to the Court of Appeal, a reasonable interpretation of the EUCP implies that if a Member State proceeds to reassess a licence it has granted, it must also be reviewed against the mandatory criteria of Article 2(2)(c) EUCP: export must be denied if there is a clear risk of serious violations of international humanitarian law (paras. 5.28-5.29).
According to the Court of Appeal, it could remain moot whether the EUCP and the Arms Trade Treaty had direct effect, because it was not in dispute that the EUCP and the Arms Trade Treaty were international obligations within the meaning of Article 5(4) of the Strategic Equipment Decree (for transit) and Article 11(3) of the Strategic Equipment Decree (for export), which provides that a licence will not be granted insofar as this is pursuant to international obligations. As Dutch national law refers to these international instruments, the standards they lay down have been incorporated into the Dutch legal system, meaning that the courts may review against them. The question of whether these standards have direct effect is then no longer relevant (paras. 5.31-5.34).
The next question the Court of Appeal had to answer was whether the Minister properly conducted the reassessment (para. 5.35). The Court of Appeal held that it did not appear that the Minister had reviewed against the criterion of there being a "clear risk" that the F-35 would be used in serious violation of international humanitarian law. According to the Court of Appeal, the Minister should have reviewed GL009 against the criteria of the EUCP after 7 October 2023. To the extent that it must be assumed that the Minister did conduct the required review, that was done on the basis of an incorrect assessment framework, since it has been sufficiently demonstrated that the Minister did not correctly review against the criterion of Article 2(2)(c) EUCP due to not having given priority to this mandatory provision of law over any other foreign policy considerations (paras. 5.37-5.38).
In paras. 5.39-5.47, the Court of Appeal discusses the State's other defences, including the defence that the Netherlands had given the U.S. the undertaking that F-35 parts could be supplied onward from the Netherlands without restriction. A ban on the export or transfer of F-35 parts would result in the Netherlands violating its international obligations to the U.S. The Court of Appeal also rejected this defence, because the interest in the State complying with international obligations under international instruments on the regulation of the arms trade and in complying with the standard of (Common) Article 1 of the Geneva Conventions (including Article 1(1) of the First Protocol) nonetheless carries more weight (para. 5.47).
The Court of Appeal concludes that the State is acting unlawfully by not intervening in GL009 and by not preventing the export and transfer of F-35 parts to Israel (para. 5.48). The Court of Appeal ordered the State to cease all actual export and transfer of F-35 parts to Israel as the final destination within 7 days after service of the judgment, denied all other or additional claims and declared its judgment immediately enforceable regardless of appeal.
In implementation of the Court of Appeal's judgment, the Minister amended – inter alia – GL009 by ministerial order dated 16 February 2024.10 The Minister limited the scope of the regulation by determining that the transfer and export of equipment within the framework of the F-35 programme is not allowed if it is established that the final destination is Israel.
In an Initiating Document dated 8 April 2024, the State instituted a timely11 appeal in cassation against the Court of Appeal's judgment. Oxfam Novib et al. conducted a defence and lodged a conditional cross-appeal in cassation. The State moved to dismiss the conditional cross-appeal in cassation. On 6 September 2024, the parties submitted written explanations and also presented their positions orally, submitting memoranda of oral arguments. The parties then filed a reply and a rejoinder (in writing).
3 Legal framework: the regulations
On 8 December 2008, the Council of the European Union adopted the aforementioned EUCP in implementation of the common foreign and defence policy on the basis of Article 15 (now: Article 28) of the Treaty on European Union (TEU). The EUCP defines the common rules governing control of exports of military technology and equipment. The EUCP builds on the common criteria adopted at the European Councils of Luxembourg and Lisbon in 1991 and 1992, as well as on the European Union Code of Conduct regarding arms export adopted by the Council in 1998, establishing common rules for the control of exports of military technology and equipment. The EUCP was amended by Council Decision of 16 September 2019,12 partly in view of the entry into force of the Arms Trade Treaty, to which all EU Member States are parties. For the sake of completeness, I note that, on the basis of Article 24(1) TEU, the CJEU in principle does not have jurisdiction to assess the legality of or interpret acts or omissions directly related to the common defence and security policy.13
In so far as relevant, the EUCP reads as follows:
Article 1
1. Each Member State shall assess the export licence applications made to it, including those relating to government-to-government transfers, for items on the EU Common Military List mentioned in Article 12 on a case-by-case basis against the criteria of Article 2.
1a. .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
(...)
Article 2
Criteria
(...)
2. Criterion 2: Respect for human rights in the country of final destination and as well as respect by that country of international humanitarian law
(...)
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.
(...)
Article 10
While Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, these factors shall not affect the application of the above criteria.
The Council of the EU has adopted a "User's Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment" (hereinafter the "User's Guide"), the latest update of which is dated 16 September 2019. The purpose of this User's Guide is to assist Member States in implementing the EUCP:
‘The User’s Guide is intended to help Member States apply the Common Position. It does not replace the Common Position in any way, but summarises agreed guidance for the interpretation of its criteria and implementation of its articles. It is intended for use primarily by export licensing officials. This User's Guide will be regularly updated.’14
On 2 April 2013, the aforementioned Arms Trade Treaty was adopted by the United Nations General Assembly. The Arms Trade Treaty regulates international trade in conventional arms and aims to prevent and eradicate the illicit trade and abuse of conventional arms by establishing international standards for the transfer, export and transit of arms. The Netherlands adopted the Arms Trade Treaty for the entire Kingdom by law on 10 December 2014.15 The treaty entered into force on 24 December 2014.16 Currently (as at 1 November 2024), there are 115 States Parties to the treaty. In addition, 29 States have signed but not yet ratified the treaty (including the United States and Israel).
The Preamble to the Arms Trade Treaty (in the authentic English text) includes the following:
‘The States Parties to this Treaty,
(...)
Determined to act in accordance with the following principles:
Principles
(...)
- Respecting and ensuring respect for international humanitarian law in accordance with, inter alia, the Geneva Conventions of 1949, and respecting and ensuring respect for human rights in accordance with, inter alia, the Charter of the United Nations and the Universal Declaration of Human Rights;
(...)
- The respect for the legitimate interests of States to acquire conventional arms to exercise their right to self-defence and for peacekeeping operations; and to produce, export, import and transfer conventional arms;
(...)’
To the extent relevant, some provisions of the Arms Trade Treaty (in the authentic English text) read as follows:
‘Article 1. Object and Purpose
The object of this Treaty is to:
– Establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms;
– Prevent and eradicate the illicit trade in conventional arms and prevent their diversion;
for the purpose of:
– Contributing to international and regional peace, security and stability;
– Reducing human suffering;
– Promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties.
Article 2. Scope
1. This Treaty shall apply to all conventional arms within the following categories:
a) Battle tanks;
b) Armoured combat vehicles;
c) Large-calibre artillery systems;
d) Combat aircraft;
e) Attack helicopters;
f) Warships;
g) Missiles and missile launchers; and
h) Small arms and light weapons.
2. For the purposes of this Treaty, the activities of the international trade comprise export, import, transit, trans-shipment and brokering, hereafter referred to as “transfer”.
3. This Treaty shall not apply to the international movement of conventional arms by, or on behalf of, a State Party for its use provided that the conventional arms remain under that State Party’s ownership.
(...)
Article 4. Parts and Components
Each State Party shall establish and maintain a national control system to regulate the export of parts and components where the export is in a form that provides the capability to assemble the conventional arms covered under Article 2 (1) and shall apply the provisions of Article 6 and Article 7 prior to authorizing the export of such parts and components.
(...)
Article 6. Prohibitions
(...)
3. A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.
Article 7. Export and Export Assessment
1. If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, under its jurisdiction and pursuant to its national control system, shall, in an objective and non-discriminatory manner, taking into account relevant factors, including information provided by the importing State in accordance with Article 8 (1), assess the potential that the conventional arms or items:
a) would contribute to or undermine peace and security;
b) could be used to:
(i) commit or facilitate a serious violation of international humanitarian law;
(...)
2. The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1, such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States.
3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.
(...)
7. 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.
(...)
Article 26. Relationship with other international agreements
1. The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing or future international agreements, to which they are parties, where those obligations are consistent with this Treaty.
2. This Treaty shall not be cited as grounds for voiding defence cooperation agreements concluded between States Parties to this Treaty.’
Both the User's Guide to the EUCP and the Arms Trade Treaty refer to the 1949 Geneva Conventions, a composite of four treaties on international humanitarian law. The first two conventions deal with the fate of wounded and sick persons in the armed forces on the ground and the fate of such persons in naval forces. The third convention deals with the treatment of prisoners of war and the fourth with the protection of civilians in time of war.17 There are also two Additional Protocols dating from 1977: the First Additional Protocol deals with the protection of victims of international armed conflicts.18 The Geneva Conventions and the First Additional Protocol have a common Article 1 (in the authentic English text):
‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’
The United Nations International Law Commission (ILC) drafted "Articles on the Responsibility of States for Internationally Wrongful Acts" in 2001. This draft plays no role in this matter and I therefore disregard its provisions.19
B. National regulations
On 1 August 2008, the Strategic Equipment Decree referred to in para. 2.3 entered into force. The Strategic Equipment Decree is based on Articles 1:4 and 3:1 of the Customs Act (Douanewet)20 and regulates the export control of strategic equipment, which was previously regulated by the Import and Export Decree on Strategic Equipment.21 The Strategic Equipment Decree distinguishes dual-use equipment (with both civilian and military uses) from military equipment.
To the extent relevant to this matter, the provisions of the Strategic Equipment Decree read as follows:
‘Article 1
In this decree and the provisions based on it, the following terms have the following meanings:
- general transit licence: permission granted by ministerial order to persons with power of disposition in the Netherlands for the transit of military equipment through the Netherlands;
(...)
- general export licence: permission granted by ministerial order to persons with power of disposition in the Netherlands for the export of military equipment to a third country.
- person with power of disposition: a natural person or legal entity authorised to dispose of military equipment
(...)
paragraph 3. Import and transit of military equipment
Article 5
1. The transit of military equipment through the Netherlands without a general transit licence is prohibited.
2. The first paragraph does not apply to:
a. transit through the Netherlands of military equipment transported exclusively through territorial waters or airspace;
b. transit through the Netherlands of military equipment originating from, or having as its final destination, Australia, Japan, New Zealand, Switzerland, a Member State or one of the Member States of the North Atlantic Treaty Organisation which leaves the Netherlands using the same means of transport as that by which it entered without transshipment in the Netherlands;
c. transit through the Netherlands of military equipment originating from, and having as its final destination, a Member State.
3. Our Minister may decide that the transit of military equipment through the Netherlands in situations referred to in subsection 2 requires a licence:
a. if the interests of international law and order or a related international agreement so require or
b. if Our Minister considers it necessary for the protection of the fundamental interests of national security.
4. In any case, a licence will not be granted in so far as this is pursuant to international obligations.
(...)
Article 6a
1. A general transit licence is established by ministerial order.
2. A general transit licence may be established subject to restrictions and may have rules and conditions attached to it.
3. Our Minister may exclude a person with power of disposition from using a general transit licence in order to protect essential security interests, public policy or public safety.
(...)
paragraph 4. Export of military equipment
Article 11
1. The export military equipment from the Netherlands without a general export licence is prohibited.
2. (...)
3. In any case, a licence will not be granted in so far as this is pursuant to international obligations.
(...)
Article 13
1. A general export licence is established by ministerial order.
2. A general export licence may be established subject to restrictions and may have rules and conditions attached to it.
3. Our Minister may exclude a person with power of disposition from using a general transit licence in order to protect essential security interests, public policy or public safety.
(...).’
The GL009 entered into force on 1 October 2016. This general licence includes the general transit licence referred to in Article 6a of the Strategic Equipment Decree, the general export licence referred to in Article 13 of the Strategic Equipment Decree and (what is irrelevant to this matter) the general transit licence referred to in Article 20 of the Strategic Equipment Decree. The explanatory notes to GL009 state:
‘General Licence NL009 may be used under the conditions and rules set out in this regulation for the supply of military equipment to parties to approved contracts under the F-35 Lightning II programme.
The memorandum In the interest of the Netherlands (In het belang van Nederland) (TK 33 763, no. 1: https://www.defensie.nl/downloads/ beleidsnota-s/2013/09/17/in-het-belang-van-nederland) lays down the government decision to replace the F-16 by the F-35
As indicated in the memorandum, the involvement of Dutch business community was an important reason for the decision to participate in the F-35 programme. Where possible, the government has worked to secure as many contracts for the Dutch industrial sector as possible in the interests of Dutch employment. In order to preserve the competitive position of Dutch business community and to increase the chances of further orders within the F-35 programme, the government is introducing General Licence NL009."22
When GL009 was introduced, Article 3 read as follows:
’General Licence NL009 applies only to transit, export or transfer covered by a contract between a person with power of disposition and a recipient."
Article 8 GL009 reads as follows:
‘Article 8
General Licence NL009 may no longer be used if the registered user or person with power of disposition has been notified by the Minister that integrated foreign policy or security considerations oppose the continued use of General Licence NL009. For that reason, a notification can be made at all times.’
The explanatory notes to this article state:
’This article provides that unforeseen foreign policy or security developments may arise that require the Minister to make General Licence NL009 no longer available for the transit, export or transfer of military equipment for which a contract has been entered into that meets the requirements listed in this General Licence NL009.’23
By Regulation dated 16 July 2021, Article 3 of GL009 now reads as follows:
‘General Licence NL009 only applies to transit, export or transfer covered by a contract under the F-35 Lightning II programme between a person with power of disposition and a recipient, or to transit, export or transfer under the F-35 Lightning II programme in respect of which the person with power of disposition is entitled to use the exceptions referred to in the ITAR’.24
As I mentioned in no. 2.24, GL009 was amended with effect from 20 February 2024 following the judgment challenged in cassation.25 A second paragraph has been added to Article 3 GL009, providing the following:
"2. The transfer and export of equipment within the framework of the F-35 Lightning II programme is not allowed if it is established that their final destination is Israel."
After this explanation of the rules that play a role in the arms trade and, in particular, in the export of F-35 parts, I will devote some attention to the judicial review of government policy, particularly as regards foreign policy and defence.