Marten Zwanenburg and Johanna Trittenbach
Lieber Institute, Dec 23, 2024
“The court stated that the primary question in this case was whether, and to what extent, a court in summary proceedings can exercise judicial review of the State’s foreign and defense policy.”
On Friday 13 December 2024, the District Court of the Hague handed down its judgment in a torts case related to the Netherlands’ military support to and trade cooperation with Israel. Al-Haq and nine other civil society organizations (referred to collectively as Al-Haq) brought the case under civil law against the State of the Netherlands.
In essence, the claimants call for a change in the State’s foreign policy in relation to Israel and the Occupied Palestinian Territory (OPT). More specifically, they seek a blanket ban on transfers of military goods to Israel, as well as on military cooperation with Israel. The claimants also requested a ban on Dutch trade with, or investment in, companies that are active in Israeli settlements in the OPT, including a prohibition on the Netherlands buying from companies that are involved in any way in Israeli operations in the OPT. The court rejected all the claims.
This post provides a brief summary of the judgment, as well as some observations on the court’s assessment of international arms transfer controls, its evaluation of the Netherlands’ trade relations with Israel, and the margin of discretion the court affords to the State in its foreign and defense policy decisions.
Note that this case is distinct from the case that is ongoing before Dutch courts concerning the export and transit of F-35 parts to Israel. The F-35 case, which was brought by other claimants, is much more limited in terms of the claims and international legal obligations invoked. It focuses on transfers of parts and components of F-35 fighter aircraft and examines the question whether an existing general license adopted in 2016 and with no end-date attached to it should be reviewed and amended given the changed circumstances in arms transfer recipient Israel. The F-35 case is currently before the Supreme Court (for more analysis, see here and here). ...SOURCE
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Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at the Faculty of Military Sciences of the Netherlands Defence Academy. He has previously worked as a legal counsel for the ministries of Defence and Foreign Affairs of the Netherlands.
Johanna Trittenbach is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University