Conclusie
PROCURATOR GENERAL
TO THE
SUPREME COURT OF THE NETHERLANDS
Number24/01340
Hearing29 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
1.1
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]
1.2
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
2.1
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.
2.2
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.
2.3
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.
2.4
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.
2.5
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.
2.6
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.
2.7
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.
2.8
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.
2.9
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]
2.1
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).
2.11
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.
2.12
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.
2.13
On 22 January 2024, the oral hearing took place at the Court of Appeal, during which the parties both submitted memoranda of oral arguments.
2.14
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.
2.15
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).
2.16
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).
2.17
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).
2.18
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).
2.19
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).
2.2
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).
2.21
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).
2.22
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).
2.23
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.
2.24
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.
2.25
In an Initiating Document dated 8 April 2024, the State instituted a timely [11] 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
A. International rules
3.1
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]
3.2
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.
3.3
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]
3.4
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).
3.5
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;
(…)’
3.6
To the extent relevant, some provisions of the Arms Trade Treaty (in the authentic English text) read as follows:
‘
Article 1. Object and Purpose
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.’
3.7
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.’
3.8
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
3.9
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.
3.1
To the extent relevant to this matter, the provisions of the Strategic Equipment Decree read as follows:
‘
Article 1
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 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.
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
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.
(…).’
3.11
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
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]
3.12
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."
3.13
Article 8 GL009 reads as follows:
‘
Article 8
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.’
3.14
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]
3.15
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]
3.16
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."
3.17
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.
4.Judicial review and government policy
4.1
The question of whether and to what extent the courts may review the State's actions is closely linked to the question of the extent to which the State is entitled to discretion and policy latitude. [26] The distinction between discretion and policy latitude can be traced largely to W. Duk's analyses of the different forms of administrative freedom. [27] His division into room for manoeuvre, discretion and latitude (bound or otherwise) has been widely followed. For some time now, the Administrative Jurisdiction Division of the Council of State has been using different terminology because the term "discretion" could be a cause for confusion. The terms discretion and latitude have been replaced by “degree of discretion” and “scope for policymaking”, respectively, with "discretionary power" being the umbrella term. The term "bound degree of discretion" is no longer used. [28] In what follows, I will use the current terminology.
4.2
The term
degree of discretionrefers to the latitude that may be granted to the Sate in describing the factual circumstances of the case. The degree of discretion can usually be derived from the law. The legislator may explicitly grant a degree of discretion to the administrative body, for example by using the phrase "in the opinion of" or by using subjective/vague terms that are normative/evaluative rather than factual/descriptive, such as the words "strictly necessary for the protection of national security". [29] That the legislator uses a subjective/vague term is perhaps not decisive for the opinion that a degree of discretion exists, but it is indicative of this. [30] With regard to degree of discretion, the question must be answered whether the conditions for the lawful exercise of a power or a right are met in a specific case. In principle, this does not require a weighing of interests. [31] If there is a degree of discretion, the courts should not substitute their own opinion on the description of the facts for that of the administrative body and should exercise restraint in their review.
degree of discretionrefers to the latitude that may be granted to the Sate in describing the factual circumstances of the case. The degree of discretion can usually be derived from the law. The legislator may explicitly grant a degree of discretion to the administrative body, for example by using the phrase "in the opinion of" or by using subjective/vague terms that are normative/evaluative rather than factual/descriptive, such as the words "strictly necessary for the protection of national security". [29] That the legislator uses a subjective/vague term is perhaps not decisive for the opinion that a degree of discretion exists, but it is indicative of this. [30] With regard to degree of discretion, the question must be answered whether the conditions for the lawful exercise of a power or a right are met in a specific case. In principle, this does not require a weighing of interests. [31] If there is a degree of discretion, the courts should not substitute their own opinion on the description of the facts for that of the administrative body and should exercise restraint in their review.
4.3
The term
scope for policymakingrefers to the administrative body's scope to exercise the power granted to it. Spier noted the following in this regard:
scope for policymakingrefers to the administrative body's scope to exercise the power granted to it. Spier noted the following in this regard:
‘It is up to [the government] to make choices, and an opinion as to whether they are right is inappropriate as long as it stays within this scope. This in fact expresses the following: various behaviours may be acceptable; therefore, they are not self-evidently unlawful.’ [32] (footnote omitted, AG)
4.4
Unlike in the case of degree of discretion, the administrative body’s weighing of interests in the case of scope for policymaking does play a central role. [33] If there is scope for policymaking, the courts must also exercise restraint; they may not interfere with the administrative body’s considerations. The courts may, however, review whether the administrative body has weighed all the interests involved and was reasonably able to arrive at its course of action in light of all the circumstances of the case. [34]
4.5
The question of whether the administrative body can make use of its policy latitude, and may thus proceed to a weighing of interests, is preceded by the question of whether the conditions for the exercise of power are met. The latter question must be assessed by the administrative body, which may have a degree of discretion. [35] The degree of discretion therefore precedes the policy latitude Incidentally, the distinction between the degree of discretion and the policy latitude is not always clear; the degree of discretion may also involve that in order to determine whether a specific criterion has been met, the interest involved must also be taken into account. [36]
4.6
The basic principle is that where the State is accorded a considerable degree of discretion, the courts should exercise considerable restraint in reviewing the State's actions. The rationale for this restraint by the courts must be sought in the democratic legitimacy of administrative bodies, which the courts do not have. [37] Also relevant is that administrative bodies can be held responsible for the consequences of their choices to a much greater extent than the courts. [38]
4.7
The foregoing shows that the extent to which the government is granted discretionary power in its actions has consequences for the extent to which the courts should exercise restraint in reviewing those actions.
4.8
In his opinion preceding the judgment in
IS-reizigers,, AG Valk distinguished three degrees of discretionary power, corresponding to three degrees of intensity of judicial review. [39] In addition, AG Valk also noted, in practice the policy latitude and the degree of discretion must be determined on a case-by-case basis, and the intensity of review is context-related and a matter of 'more or less'. Nevertheless, this classification provides an outline of how the discretionary power affects the intensity of review. The first category concerns policy areas where the State has no more than a relatively limited policy latitude and degree of discretion and where the courts review the State's actions without restraint, for example in the case of government liability for defective road and water management. The second category concerns policy areas in which the State has wide policy latitude and degree of discretion, and in which the courts review with restraint by examining whether the State could reasonably have arrived at its actions. This category includes housing policy and maintaining public order, where the State is always forced to make choices between conflicting interests. The third category concerns policy areas where the government has very wide policy latitude and degree of discretion, which, according to AG Valk, results in the courts observing
extrarestraint in their review. This category includes the State's foreign and defence policy, where highly political choices have to be made. According to the Supreme Court's established case law, the courts are therefore mandated to exercise considerable restraint when reviewing the State's policy in these areas. I will provide a brief overview of this case law.
IS-reizigers,, AG Valk distinguished three degrees of discretionary power, corresponding to three degrees of intensity of judicial review. [39] In addition, AG Valk also noted, in practice the policy latitude and the degree of discretion must be determined on a case-by-case basis, and the intensity of review is context-related and a matter of 'more or less'. Nevertheless, this classification provides an outline of how the discretionary power affects the intensity of review. The first category concerns policy areas where the State has no more than a relatively limited policy latitude and degree of discretion and where the courts review the State's actions without restraint, for example in the case of government liability for defective road and water management. The second category concerns policy areas in which the State has wide policy latitude and degree of discretion, and in which the courts review with restraint by examining whether the State could reasonably have arrived at its actions. This category includes housing policy and maintaining public order, where the State is always forced to make choices between conflicting interests. The third category concerns policy areas where the government has very wide policy latitude and degree of discretion, which, according to AG Valk, results in the courts observing
extrarestraint in their review. This category includes the State's foreign and defence policy, where highly political choices have to be made. According to the Supreme Court's established case law, the courts are therefore mandated to exercise considerable restraint when reviewing the State's policy in these areas. I will provide a brief overview of this case law.
4.9
The
Kruisrakettencase dating from the 1980's can be considered as a starting point in this regard. That case concerned the government's decision to proceed with the deployment of cruise missiles on Dutch territory on the basis of a treaty with the United States approved by the States General. Among other claims, "Stichting Verbiedt de Kruisraketten" (Prohibit Cruise Missiles Foundation), filed a claim for an injunction against that deployment. The court declined jurisdiction, holding as follows:
Kruisrakettencase dating from the 1980's can be considered as a starting point in this regard. That case concerned the government's decision to proceed with the deployment of cruise missiles on Dutch territory on the basis of a treaty with the United States approved by the States General. Among other claims, "Stichting Verbiedt de Kruisraketten" (Prohibit Cruise Missiles Foundation), filed a claim for an injunction against that deployment. The court declined jurisdiction, holding as follows:
"6. (…) whether or not to deploy cruise missiles in the Netherlands is a matter that concerns the entire Dutch population and the government has therefore rightly put this to the States General – the elected representation of that people – at various times. The States General must be deemed to have made a decision after weighing all the interests involved in the deployment or non-deployment of cruise missiles, including the interest in the protection of everyone’s fundamental rights, and that decision, however wrong in the opinion of many, should be respected.
7. In this matter, the States General is the body that monitors the government. In this monitoring task, the States General must be expected to investigate independently whether the decisions of the government, which according to Article 90 of the Constitution is tasked with promoting international law and order, are contrary to international law. Where such an investigation has taken place, resulting in the approval of government decisions (whether or not laid down in an agreement with another State), the civil courts are not entitled to take precedence over the parliament in monitoring the work that led to those decisions.
8. The conclusion to be drawn from all of this is that, ultimately, the civil courts do not have jurisdiction to render a judgment in this regard." [40]
4.1
However, on appeal the Court of Appeal ruled that the court
didhave jurisdiction. The Court of Appeal concurred with the
objectum litisdoctrine, which the Supreme Court had accepted in 1915. [41] Under this doctrine, the civil courts always have jurisdiction to hear a dispute if a claimant claims the protection or performance of a civil claim. It is not relevant whether the dispute actually comes under the scope of public law. However, the Court of Appeal also held that the courts were not authorised to review treaties against the written and unwritten rules of international law and ruled that such review is reserved to the government and parliament. The Supreme Court ruled differently and held:
didhave jurisdiction. The Court of Appeal concurred with the
objectum litisdoctrine, which the Supreme Court had accepted in 1915. [41] Under this doctrine, the civil courts always have jurisdiction to hear a dispute if a claimant claims the protection or performance of a civil claim. It is not relevant whether the dispute actually comes under the scope of public law. However, the Court of Appeal also held that the courts were not authorised to review treaties against the written and unwritten rules of international law and ruled that such review is reserved to the government and parliament. The Supreme Court ruled differently and held:
‘Neither the provisions of the Constitution referred to by the Court of Appeal, nor any other rule under Dutch national law preclude the Dutch courts from examining whether a treaty, either explicitly or implicitly approved by parliament, conflicts with other treaties or other standards under international law. Specifically, in the absence of a clear statutory provision to that effect, it cannot be accepted that the mere fact that that form of treaty has been chosen to regulate a particular action of the State or the State is obliged to such conduct under a treaty, would preclude a court from assessing whether such action by the State is in breach of a standard under international law which citizens can directly derive rights from, and which therefore constitutes an unlawful act against them." [42]
4.11
The Supreme Court then assessed the merits of the dispute and ruled that the deployment of Cruise Missiles was not in violation of international law. [43] In its ruling, the Supreme Court did not expressly address the defence policy dimension of that matter or the role of the courts in that regard. AG Mok did address this in his opinion:
‘The assessment of whether the deterrence strategy espoused by NATO is an effective and reasonable means to keep the peace is of a political nature and, therefore, it may not be left to the courts. If one were to take the view that the courts do have jurisdiction to review this to a limited extent (which I doubt) I would like to add that I can find no basis for the position that they would not reasonably issue a positive assessment in this regard.’ [44]
4.12
In 2001, the Supreme Court again had to rule on policy with regard to foreign politics and defence. In the
Kernwapensjudgment, [45] the Supreme Court did address the role of the courts in its review of political decision-making on foreign policy and defence. In that case, a claim for a declaratory decision was sought for the State to be prohibited from providing any cooperation in the deployment of nuclear arms, in which respect the claimants relied on the principles of international humanitarian law. The Court of Appeal had declared the claimants' claim inadmissible due to insufficient specific interest, because there was no evidence of a real and specific threat that the nuclear arms would be deployed. The Supreme Court upheld that judgment. The Supreme Court held as follows regarding the role of the courts in reviewing government policy on foreign policy and defence:
Kernwapensjudgment, [45] the Supreme Court did address the role of the courts in its review of political decision-making on foreign policy and defence. In that case, a claim for a declaratory decision was sought for the State to be prohibited from providing any cooperation in the deployment of nuclear arms, in which respect the claimants relied on the principles of international humanitarian law. The Court of Appeal had declared the claimants' claim inadmissible due to insufficient specific interest, because there was no evidence of a real and specific threat that the nuclear arms would be deployed. The Supreme Court upheld that judgment. The Supreme Court held as follows regarding the role of the courts in reviewing government policy on foreign policy and defence:
‘With regard to the question of whether and when the use of nuclear arms is impermissible if contrary to the law of war, it is worth noting that the claims brought in these proceedings relate to questions about the State's foreign and defence policy which policy will depend to a large extent on political considerations relating to the circumstances of the case. This means that the civil courts must exercise a high degree of restraint in assessing claims, such as those brought in these proceedings, that seek to declare acts implementing political decision-making in the areas of foreign policy and defence, which could be carried out in the future, as already being unlawful and therefore prohibited. The fact is that it is not for the civil courts to make such political considerations. Moreover, the civil courts should leave the State bodies called upon to make them sufficient leeway to do so based on the concrete circumstances of the case, which cannot be currently foreseen, and restrict this leeway as little as possible in advance by imposing an injunction where such circumstances cannot be taken into account.' [46]
4.13
In his NJ annotation to the judgment, Koopmans argued that the courts should exercise reticence when dealing with international humanitarian law:
‘The Dutch courts often take a rather cautious approach to international law (not taking into account ECHR and EC law). They do not deal with it on a daily basis either. However, when it comes to international humanitarian law of war, there is, in my opinion, an additional reason for caution. The Dutch courts have little control over the development of that law. The impact of the facts in that regard is still extremely strong, and the Supreme Court is less qualified than the ICJ (and soon the international criminal courts) to provide guidance in such types of developments. Growth in the humanitarian law of war is often a response to war and mass atrocities, and humanity is inventive when it comes to coming up with ever new and more sophisticated acts of war and atrocities. Consequently, the Supreme Court is unable to deal with such law as if it were bankruptcy law or employment law. Perhaps the civil courts should take Blankenburg's thought to heart by realising primarily what its essential function is in disputes of this nature: a place for citizens to file their legal complaints and a political sideshow. The real drama takes place on a different stage.’
4.14
In its judgment of 29 November 2002, the Supreme Court largely repeated its considerations from the
Kernwapensjudgment. The parties had brought preliminary relief proceedings on whether military actions directed against the Federal Republic of Yugoslavia, in which the Netherlands participated under the auspices of NATO, had to be classified as violations of international humanitarian law that could be prohibited by the civil courts. Unlike in the
Kernwapensjudgment, the claim in this case did not merely concern acts that “could be carried out in the future”. Rather a decision was sought on the lawfulness of acts that had already taken place. Nevertheless, in that case too, the Supreme Court considered that the courts had to exercise a
high degreeof restraint in assessing the claims, to which it added "especially in case of preliminary relief proceedings". I quote the specific paragraph:
Kernwapensjudgment. The parties had brought preliminary relief proceedings on whether military actions directed against the Federal Republic of Yugoslavia, in which the Netherlands participated under the auspices of NATO, had to be classified as violations of international humanitarian law that could be prohibited by the civil courts. Unlike in the
Kernwapensjudgment, the claim in this case did not merely concern acts that “could be carried out in the future”. Rather a decision was sought on the lawfulness of acts that had already taken place. Nevertheless, in that case too, the Supreme Court considered that the courts had to exercise a
high degreeof restraint in assessing the claims, to which it added "especially in case of preliminary relief proceedings". I quote the specific paragraph:
‘3.3 (...) With regard to the assessment of these grounds for appeal, the basic principle should be that the claims brought in the present proceedings relate to questions concerning the State's foreign and defence policy, which policy would to a large extent depend on political considerations related to the circumstances of the case. This means that, especially in preliminary relief proceedings, the civil courts must exercise a high degree of restraint in assessing claims, such as those brought in these proceedings, that seek to declare acts implementing political decision-making in areas of foreign policy and defence as unlawful and therefore prohibited. The fact is that it is not for the civil courts to make these political considerations.’ [47]
4.15
In subsequent judgments, too, the Supreme Court has emphasised that the State's foreign and defence policy depends to a large extent on political considerations and that it is not up to the civil courts to make those considerations. The judgment of 6 February 2004 focused on whether the courts may impose an order on the State in relation to the Dutch government's support for certain actions by the United States of America in the context of the war on terror, involving the use of force. The claimants had invoked the ban on violence provided by Article 2(4) UN Charter and Article 90 of the Dutch Constitution, which determines that the government will promote the development of international law and order. The Supreme Court held:
'3.4 Article 2(4) of the United Nations Charter orders Members, among other things, to refrain from the threat or use of force against the territorial integrity or political independence of any State. This ban on violence is therefore aimed at protecting States, and the Court of Appeal was therefore correct to rule that a citizen may not invoke this provision before their national courts, nor the closely related Articles 42 and 51 of the UN Charter (cf. Supreme Court 29 November 2002, no C01/027, NJ 2003, 35, para 3.5).
Article 90 of the Dutch Constitution, on which VJV et al. have partly based their claims, does not lead to a different position. While this article does contain an instruction to the government to promote international law and order, neither this nor any other article specifies how it is to be implemented. In this context, the Supreme Court notes that the claims brought in these proceedings relate to questions concerning the State's foreign and defence policy, which policy depends to a large extent on political considerations related to the circumstances of the case. It is not up to the civil courts, even where the ban on violence is concerned, to make these political considerations and, at a citizen’s request, to prohibit the State (the government) from taking certain actions to implement political decision-making in the areas of foreign policy or defence, or to order it to adopt a certain course of action in those areas. (...)’ [48]
4.16
Unlike in its judgments issued in 2001 (
kernwapens) and 2002 (
militaire actie in Joegoslavië), cited above, the Supreme Court does not speak of a "high degree of restraint” in its judgment of 6 February 2004. It could be inferred from the finding quoted above that the State's actions can indeed be reviewed by the courts against legal norms if these concretely determine the manner in which the State must exercise its power. [49]
kernwapens) and 2002 (
militaire actie in Joegoslavië), cited above, the Supreme Court does not speak of a "high degree of restraint” in its judgment of 6 February 2004. It could be inferred from the finding quoted above that the State's actions can indeed be reviewed by the courts against legal norms if these concretely determine the manner in which the State must exercise its power. [49]
4.17
The issue [50] was raised again in the aforementioned Supreme Court judgment of 26 June 2020 in
IS-reizigers. That judgment concerned the question whether the State was obliged to make efforts to repatriate IS women and children from northern Syria. The Supreme Court reiterated the basic principle that courts should exercise restraint when assessing the State's foreign policy and - in the case at hand - national security. I quote from the judgment:
IS-reizigers. That judgment concerned the question whether the State was obliged to make efforts to repatriate IS women and children from northern Syria. The Supreme Court reiterated the basic principle that courts should exercise restraint when assessing the State's foreign policy and - in the case at hand - national security. I quote from the judgment:
‘3.10. 3 (…) In the areas of national security and foreign policy, the State is entitled to a considerable degree of discretion and scope for policymaking. The State's policy in these areas depends heavily on political and other policy considerations related to the circumstances of the case. This means that it is not up to the courts to make these considerations and, moreover, that it must exercise restraint when it comes to the considerations made by the State.
3.10.4
To the extent that the State's actions fall within the scope of the degree of discretion and scope for policymaking available to it, the courts may only ascertain whether the State has weighed up all the interests involved and whether, in the light of all the circumstances of the case, it could reasonably have arrived at its course of action (Article 3:1(2) and Article 3:4 of the Dutch General Administrative Law Act (Algemene wet bestuursrecht)).'
4.18
In that judgment, the Supreme Court provided some guidance on the standard for an assessment conducted with restraint. It is clear that (i) in the areas of national security and foreign policy, the State has a broad degree of discretion and scope for policymaking, and (ii) the courts may only review the State's policy against the principle of proportionality: has the State taken into account all the interests involved and, in the light of all the circumstances of the case, could it reasonably have arrived at its course of action?
4.19
The fact that the Supreme Court used the concept of reasonableness in this judgment leads me to infer that the Council (in this case) saw no reason for exercising
extrarestraint in its review. The Supreme Court also held that while the circumstance that interests protected by human rights treaties are at stake must be taken into account in assessing whether the State was able to arrive at its course of action when balancing all the interests involved, that circumstance does not mean that a different standard must be applied or that the courts must exercise less restraint. [51] However, the State should nevertheless sufficiently substantiate its argument by submitting substantiated facts and circumstances from which it can follow that it could reasonably have arrived at its decision. [52]
extrarestraint in its review. The Supreme Court also held that while the circumstance that interests protected by human rights treaties are at stake must be taken into account in assessing whether the State was able to arrive at its course of action when balancing all the interests involved, that circumstance does not mean that a different standard must be applied or that the courts must exercise less restraint. [51] However, the State should nevertheless sufficiently substantiate its argument by submitting substantiated facts and circumstances from which it can follow that it could reasonably have arrived at its decision. [52]
4.2
Thus, according to the Supreme Court, the courts must exercise restraint when reviewing government actions in the areas of foreign policy and defence. The question has been raised in the literature as to what extent this restrained review, even when fundamental interests are at stake, is consistent with the case law of the Administrative Jurisdiction Division of the Council of State. [53] In this case law, the concept of reasonableness no longer takes precedence when reviewing decisions against the principle of proportionality; however, the circumstance that the decision infringes fundamental rights is deemed to influence the intensity of the review. In the 2022
Harderwijkdecision, the Division held:
Harderwijkdecision, the Division held:
"[t]he intensity of the proportionality test is determined by, among other things, the nature and extent of the administrative body's scope for policymaking, the nature and importance of the objectives to be served by the decision, and the nature of the interests involved and the extent to which they are affected by the decision. The review will be more intensive the more compelling the interests are, the more serious the adverse affects of the decision are, or the extent to which the decision infringes fundamental rights. [54]
4.21
The
Harderwijkdecision deals with the proportionality test of decisions by administrative bodies where the administrative body has a certain scope for policymaking. On the basis of the mutatis mutandis provision of Article 3:1(2) of the Dutch General Administrative Law Act, the principle of proportionality also applies to acts of administrative bodies other than decisions, insofar as this is not opposed by the nature of those acts. It is defensible that civil courts should also take the
Harderwijkdecision as a starting point when reviewing government actions against the proportionality principle. [55] Tjepkema et al. argue, however, that while the degree of impairment of fundamental rights does normally warrant a more intensive review, the threshold for judicial correction in the area of foreign and security policy is particularly high even when fundamental rights or legal principles are at stake. [56]
Harderwijkdecision deals with the proportionality test of decisions by administrative bodies where the administrative body has a certain scope for policymaking. On the basis of the mutatis mutandis provision of Article 3:1(2) of the Dutch General Administrative Law Act, the principle of proportionality also applies to acts of administrative bodies other than decisions, insofar as this is not opposed by the nature of those acts. It is defensible that civil courts should also take the
Harderwijkdecision as a starting point when reviewing government actions against the proportionality principle. [55] Tjepkema et al. argue, however, that while the degree of impairment of fundamental rights does normally warrant a more intensive review, the threshold for judicial correction in the area of foreign and security policy is particularly high even when fundamental rights or legal principles are at stake. [56]
4.22
The background for the restraint exercised by the courts when reviewing government actions in the areas of foreign policy and defence must be sought primarily in the political sensitivity of this policy area, where decisions are often made on the basis of confidential information and the political bodies involved must engage in diplomatic negotiations. In order to achieve results, politicians need room for manoeuvre, which usually translates into very considerable policy latitude and discretion. [57] The courts may then only exercise restraint in reviewing policy: after all,
makingpolitical considerations is not up to the courts. [58] While the courts do have the authority to assess the considerations made by the government, they must also exercise restraint in this regard and respect politicians’ scope for policymaking and degree of discretion. The restraint of judicial review also has a practical component: it is usually related to the secret or confidential nature of the information on which government action is based, which the courts cannot review or can only review to a limited extent. Fleuren also points this out:
makingpolitical considerations is not up to the courts. [58] While the courts do have the authority to assess the considerations made by the government, they must also exercise restraint in this regard and respect politicians’ scope for policymaking and degree of discretion. The restraint of judicial review also has a practical component: it is usually related to the secret or confidential nature of the information on which government action is based, which the courts cannot review or can only review to a limited extent. Fleuren also points this out:
’The role of the national courts in the area of international politics has traditionally been controversial, although more so elsewhere than in the Netherlands. Broadly speaking, two positions can be distinguished. On the one hand there is the view that this role cannot be the same as the role of the courts in domestic matters. The knowledge that national courts have of international law is often inadequate to resolve complex issues of international law, it is said. When it comes to the interpretation and application of national law, the highest national court in principle has the last word, while its judgments on the interpretation and application of international law are not binding under international law. A decision by a national court that goes against the government's international policy could seriously embarrass the government. Such a decision could harm the national interest. If it concerns defence or the deployment of armed forces abroad, it is even conceivable that it could endanger national and international peace and security. It should be borne in mind that foreign policy, especially when it comes to maintaining international peace and security, often depends on secret or confidential information obtained through intelligence services and diplomatic channels, which the courts have little or no ability to review. If the government and possibly parliament ignore a court's decision because they do not agree with its assessment of the facts or its interpretation of international law, or because they consider compliance with the decision to be contrary to the national interest or national or international peace and security, the court's authority is seriously undermined.’ [59]
4.23
In the
IS-reizigers judgment, the Supreme Court also addressed the confidential nature of information underlying foreign policy. The Supreme Court has considered that the circumstance that the State's decision relates to national security and foreign policy implies that the State cannot be required to always provide precise insight into its data, because it may be of such a confidential nature that the State cannot disclose it in court proceedings. [60]
IS-reizigers judgment, the Supreme Court also addressed the confidential nature of information underlying foreign policy. The Supreme Court has considered that the circumstance that the State's decision relates to national security and foreign policy implies that the State cannot be required to always provide precise insight into its data, because it may be of such a confidential nature that the State cannot disclose it in court proceedings. [60]
4.24
Does the foregoing mean that the civil courts must exercise great restraint in assessing all questions that arise in the areas of foreign policy and defence? De Bock believes that foreign policy and defence are the only areas in which the premise is that the courts must exercise great restraint because of their subject matter. [61] Schutgens infers from the Supreme Court's case law that national and international standards regulating defence policy are categorically unsuitable for judicial review and that defence is one of the few general interests that the civilian courts stay away from as a matter of principle because it is "too political" in nature. [62] Bovend'Eert believes that certain issues belong exclusively to the political domain, meaning that the courts have no function in settling disputes involving them and should decline jurisdiction in those cases. [63]
4.25
I believe that it does not follow from the case law of the Supreme Court that government action in the field of foreign policy and defence is categorically excluded from judicial review. More compatible with this case law is the view that the restrained review of the courts is not connected to the subject of foreign policy and defence itself, but to the scope for policymaking and/or degree of discretion that has traditionally been generously accorded to governing bodies in those areas. In this view, the intensity of review is determined by the
framework for review: when the standards are vaguely formulated and leave considerable scope for policymaking and/or degree of discretion to the government, the courts must review the government's actions with great restraint. If, on the other hand, there are specific, workable review criteria available that limit or even exclude the government's discretionary power, the courts will be able to review the government's actions more intensively, [64] even if such actions are in the areas of foreign policy and defence. Thus, in this view, which Tjepkema et al. and others defend, [65] standards in the area of defence policy are not categorically unsuitable as grounds for review, and it is up to the courts to determine, by interpretation, whether a standard is specific enough and may be used to review government action against it.
framework for review: when the standards are vaguely formulated and leave considerable scope for policymaking and/or degree of discretion to the government, the courts must review the government's actions with great restraint. If, on the other hand, there are specific, workable review criteria available that limit or even exclude the government's discretionary power, the courts will be able to review the government's actions more intensively, [64] even if such actions are in the areas of foreign policy and defence. Thus, in this view, which Tjepkema et al. and others defend, [65] standards in the area of defence policy are not categorically unsuitable as grounds for review, and it is up to the courts to determine, by interpretation, whether a standard is specific enough and may be used to review government action against it.
4.26
In the cited judgment of 6 February 2004 on Dutch support for the war on terror, the Supreme Court noted the absence of legal standards that determine how the general constitutional instruction to the Dutch government to promote international law and order should be implemented. In the absence of standards suitable for judicial review, the courts' role is limited.
4.27
Back in 1970, Koopmans established a link between the lack of statutory review criteria and the reticence of the courts in reviewing policies. He argued that review against the law, which barely provides any legal standards, is meaningless, because the courts cannot effectively control policy on that basis. Koopmans therefore thought it right that, in the absence of a statutory framework for review, the courts had opted for a limited review of policies against general legal principles and systems. [66]
4.28
According to Bovend'Eert, however, the existence of a legal standard does not provide an argument for the judicial review of the State's actions that are of a predominantly political nature. He argues that legal standards can always be found somewhere in written and unwritten international or national law, and that the courts soon find themselves on thin ice when looking for standards that could be applicable in disputes of a predominantly political nature. [67] In contrast, Leijten and Uzman argue that answering the question of whether a standard is too unspecific or too politically charged to be applied by the courts always requires judicial interpretation. According to them, it is not possible to establish in advance that the courts may not initiate a substantive assessment. [68] The authors argue for shifting the focus from the question of which state power may decide on political issues to the question of whether government action, which affects the interests of citizens, is substantively justified. In this regard, they speak of a "culture of justification", as opposed to a "culture of authority".
’In a culture of justification, it is not so much for the courts to "repeat" choices made – in order to weigh interests themselves and arrive at their "own" judgment based on them. That does tend to be the impression given by judicial review (in sensitive cases). Instead, the justification given by democratically elected bodies must be taken as a starting point and it must be considered whether it can be placed within a range of reasonable positions. (...) [The citizen] must always be able to enforce justification, which in turn requires the powers to relate to each other in a way that ensures that such justification is always given." [69] (footnotes omitted, AG)
4.29
I hereby conclude this reflection on scope for policymaking and degree of discretion. It follows from the case law of the Supreme Court that, despite its political sensitivity, the foreign policy and defence policies of the State are not categorically exempt from judicial review. In their review, however, the courts must respect the scope for policymaking and degree of discretion available to the State. As a rule, that scope is very considerable in this policy area because of the political and other policy considerations underlying it and the often confidential nature of the data underlying the choices made. To the extent that the State's actions fall within the scope for policymaking and degree of discretion available to it, the courts must therefore review those actions with considerable restraint. Exactly what standard is used here – a reasonableness test or an even more cautious test, e.g. that the policy is manifestly unlawful – depends on the context. [70]
4.3
The courts may, on the other hand, review – without restraint – whether the State's actions have stayed
within the parametersof its policymaking and degree of discretion. Those parameters are determined by law. Even with regard to foreign policy and defence policy, it is possible that the law – for example on the basis of international rules – contains standards on a specific matter that limit or even exclude the State's scope for policymaking and/or degree of discretion and that provide the courts with sufficiently specific and useful legal standards to "fully" review government action. Whether that is the case is a matter of interpretation reserved to the courts.
within the parametersof its policymaking and degree of discretion. Those parameters are determined by law. Even with regard to foreign policy and defence policy, it is possible that the law – for example on the basis of international rules – contains standards on a specific matter that limit or even exclude the State's scope for policymaking and/or degree of discretion and that provide the courts with sufficiently specific and useful legal standards to "fully" review government action. Whether that is the case is a matter of interpretation reserved to the courts.
4.31
After this general explanation of the rules and judicial review of public policy, I will now proceed to discuss the principal grounds lodged for cassation.
5.Discussion of the principal grounds lodged for cassation
5.1
The appeal in cassation is divided into six grounds for cassation.
Ground for Cassation 1complains that there is no obligation to reassess under the EUCP, the Arms Trade Treaty or the Geneva Conventions.
Ground for Cassation 2builds on this by arguing that in case of a "voluntary" reassessment, a mandatory review under the mandatory criteria, such as under Article 2(2)(c) EUCP, do not have to take place.
Ground for Cassation 3argues that Oxfam Novib et al. cannot rely on the Strategic Equipment Decree or GL009, nor on the EUCP or the Arms Trade Treaty.
Ground for Cassation 4complains that the Court of Appeal failed to recognise that in this case the State is allowed a large, or at least a certain, degree of discretion and policy latitude.
Ground for Cassation 5comprises various types of complaints.
Ground for Cassation 1complains that there is no obligation to reassess under the EUCP, the Arms Trade Treaty or the Geneva Conventions.
Ground for Cassation 2builds on this by arguing that in case of a "voluntary" reassessment, a mandatory review under the mandatory criteria, such as under Article 2(2)(c) EUCP, do not have to take place.
Ground for Cassation 3argues that Oxfam Novib et al. cannot rely on the Strategic Equipment Decree or GL009, nor on the EUCP or the Arms Trade Treaty.
Ground for Cassation 4complains that the Court of Appeal failed to recognise that in this case the State is allowed a large, or at least a certain, degree of discretion and policy latitude.
Ground for Cassation 5comprises various types of complaints.
Ground for Cassation 1: obligation to reassess?
5.2
Ground for Cassation 1is directed against paras. 5.24 up to and including 5.27 of the contested judgment, in which the Court of Appeal ruled that the State had an obligation to reassess GL009. The ground for cassation is subdivided into another seven subgrounds, which in turn comprise several complaints.
5.3
Ground for Cassation 1.1argues that the Court of Appeal failed to recognise that the EUCP and the Arms Trade Treaty do not provide for a need to reassess, and only encourage the reassessment of licences already granted in the event of new (relevant) information.
Ground for Cassation 1.2complains that the Court of Appeal failed to recognise in para. 5.27 that the EUCP and the Arms Trade Treaty do not provide the Member States with a framework for the reassessment. The reassessment leaves room for broader consideration, in which respect criteria other than those referred to in Article 2(2)(c) EUCP can also be assessed. The ground for denial in Article 2(2)(c) EUCP is not an obligatory, mandatory ground for denial to terminate further performance under the licence in the case of reassessment.
Ground for Cassation 1.3follows up on these parts with the complaint that the contested Court of Appeal judgments under parts 1.1 and 1.2 are incomprehensible.
Ground for Cassation 1.2complains that the Court of Appeal failed to recognise in para. 5.27 that the EUCP and the Arms Trade Treaty do not provide the Member States with a framework for the reassessment. The reassessment leaves room for broader consideration, in which respect criteria other than those referred to in Article 2(2)(c) EUCP can also be assessed. The ground for denial in Article 2(2)(c) EUCP is not an obligatory, mandatory ground for denial to terminate further performance under the licence in the case of reassessment.
Ground for Cassation 1.3follows up on these parts with the complaint that the contested Court of Appeal judgments under parts 1.1 and 1.2 are incomprehensible.
5.4
In essence,
Grounds for Cassation 1.1 through 1.3raise the question of whether the State had an obligation to reassess the licence granted. These grounds for cassation can be discussed together.
Grounds for Cassation 1.1 through 1.3raise the question of whether the State had an obligation to reassess the licence granted. These grounds for cassation can be discussed together.
5.5
I would like to remark in advance that the Court of Appeal held in para. 5.28 that the minister has reassessed licence GL009 in response to the events after 7 October 2023. On appeal in cassation, no complaints were directed against this passage in para. 5.28. Since it is established that the Minister proceeded to reassess the licence and this did not lead to a change or revocation of the licence granted, the question of whether the State was obliged to perform a reassessment need not be answered. However, I am of the opinion that this question is in fact relevant, also considering the argument put forward by the State that in so far as no obligation to reassess exists, the State also has no obligation to interpret or perform a voluntary reassessment in a certain way. [71]
5.6
In discussing this matter, I note the following first and foremost. The question on the extent to which the State is given any policy latitude in reassessing a licence already granted for the export and/or transit of weapons and weapon parts can be divided into three sub-questions: (i) is the State given policy latitude with regard to its decision to reassess or not, (ii) is the State given any policy latitude with regard to the substance of the reassessment (the criteria to be applied), and (iii) is the State given any policy latitude with regard to the consequences it attaches to the reassessment? I will discuss these questions in what follows.
(i) Did the State have an obligation to reassess?
5.7
The applicable national laws – the Strategic Equipment Decree and GL009 – do not contain any provisions that arrange for the reassessment of a licence that was already granted.
5.8
Article 7(7) of the Arms Trade Treaty provides that the exporting State Parties are encouraged to reassess new relevant information and, if appropriate, after consultations with the importing State, reassess the licence that was already granted. As a result of the Arms Trade Treaty entering into force in 2019, Article 1.1a was added to the EUCP. This provision is based on Article 7(7) of the Arms Trade Treaty and has an almost identical text, on the understanding that this does not refer to prior discussion with the exporting State. No information about Article 1.1a EUCP is included in the User's Guide. I will therefore mainly use the interpretation of Article 7(7) of the Arms Trade Treaty for the interpretation of this provision on the basis of the rules of interpretation of Articles 31-33 of the Vienna Convention on the Law of Treaties (hereinafter: VCLT). [72] For the interpretation of the EUCP standards for interpretation under EU-law similar to the VCLT apply, which I will not consider further hereinafter. [73]
5.9
The main provision of Article 31(1) VCLT reads that a treaty must be interpreted in good faith in accordance with the ordinary meaning of the terms of the treaty in their context and in light of the object and purpose of the treaty. The term context mainly refers to the text, the preamble and the appendices of the treaty (Article 31(2) VCLT). Article 31(3) opening words and (b) VCLT provide that, in addition to considering the context, every later use in the application of the treaty which has caused the State Parties to agree on the interpretation of the treaty must also be considered. For the interpretation of the Arms Trade Treaty, this means that the prevailing view in the case law and literature of the treaty countries must also be considered a primary means of interpretation.
5.1
Article 32 VCLT provides that under certain circumstances, additional (or secondary) means of interpretation can be relied on, more in particular the preparatory work (
travaux préparatoires) and the circumstances under which the treaty was entered into. These additional means of interpretation can be used to confirm the meaning provided by the application of Article 31 VCLT or to determine the meaning if the result achieved by the primary means of interpretation is unclear or ambiguous, or incongruous or unreasonable.
travaux préparatoires) and the circumstances under which the treaty was entered into. These additional means of interpretation can be used to confirm the meaning provided by the application of Article 31 VCLT or to determine the meaning if the result achieved by the primary means of interpretation is unclear or ambiguous, or incongruous or unreasonable.
5.11
Article 7(7) of the Arms Trade Treaty uses the phrasing
"encouraged to reassess".These words – which were also used in Article 1.1a EUCP – indicate a power for the State Parties to reassess rather than an obligation to do so, which would indicate the existence of the policy latitude. The last subclause of Article 7(7) –
"after consultations, if appropriate, with the importing State"– refers to the possibility to have diplomatic consultations with the importing State prior to the reassessment. This subclause can be interpreted in such a way that the State Parties are offered diplomatic room for manoeuvre (and therefore policy latitude). An investigation by the Arms Trade Treaty (ATT) Expert Group [74] demonstrates that this possibility, which is intended to promote the dialogue between the exporting and importing states, is only used to a limited extent in practice. [75]
"encouraged to reassess".These words – which were also used in Article 1.1a EUCP – indicate a power for the State Parties to reassess rather than an obligation to do so, which would indicate the existence of the policy latitude. The last subclause of Article 7(7) –
"after consultations, if appropriate, with the importing State"– refers to the possibility to have diplomatic consultations with the importing State prior to the reassessment. This subclause can be interpreted in such a way that the State Parties are offered diplomatic room for manoeuvre (and therefore policy latitude). An investigation by the Arms Trade Treaty (ATT) Expert Group [74] demonstrates that this possibility, which is intended to promote the dialogue between the exporting and importing states, is only used to a limited extent in practice. [75]
5.12
As a rule, arms export licences are granted for a certain period, usually for one to five years. At times they are renewed automatically if they have not been used and the circumstances have not changed. [76] The encouragement provided in the Arms Trade Treaty to reassess must be considered in that context. The fact that on the basis of this treaty
under all circumstancesa mere encouragement for (voluntary) reassessment of licences already granted exists is difficult to reconcile with the object and purpose of this treaty. This is because Article 1 of the Arms Trade Treaty includes a provision stating that the object of the treaty is "[t]o establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms", with the purpose of contributing to international and regional peace, safety and stability, as well as reducing human suffering. In the light of these objectives, it is difficult to see how a State Party in all cases would be free to opt for the reassessment of a licence that has already been granted, particularly if the licence in question is one that has an extended or even unlimited term [77] and the situation in the State of destination has changed in the sense that there is a clear risk that the arms to be exported will be used for serious violations of human rights or international humanitarian law.
under all circumstancesa mere encouragement for (voluntary) reassessment of licences already granted exists is difficult to reconcile with the object and purpose of this treaty. This is because Article 1 of the Arms Trade Treaty includes a provision stating that the object of the treaty is "[t]o establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms", with the purpose of contributing to international and regional peace, safety and stability, as well as reducing human suffering. In the light of these objectives, it is difficult to see how a State Party in all cases would be free to opt for the reassessment of a licence that has already been granted, particularly if the licence in question is one that has an extended or even unlimited term [77] and the situation in the State of destination has changed in the sense that there is a clear risk that the arms to be exported will be used for serious violations of human rights or international humanitarian law.
5.13
The fact that the States under certain circumstances have an obligation to reassess a licence already granted is also in line with the purport of (common) Article 1 of the Geneva Conventions 1949 and the Supplementary Protocol I 1997. The commentary of the International Committee of the Red Cross (hereinafter: the "ICRC commentary") provides that this provision also has an external dimension in the sense that the State Parties also have an obligation to ensure that the other States observe the Geneva Conventions. The ICRC commentary further states that for the State Parties this provision entails both the negative obligation to not further encourage a conflict and to not provide any help or support upon violation of the Geneva Conventions, and the positive obligation to do everything that is reasonably within their power to prevent or put a stop to such violations. [78]
5.14
In relation to the negative obligation, the ICRC commentary notes:
"162. An illustration of a negative obligation can be made in the context of arms transfers. Common Article 1 requires High Contracting Parties to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the Conventions.’
5.15
In relation to the positive obligation, the ICRC commentary notes:
"164. The High Contracting Parties also have positive obligations under common Article 1, which means they must take proactive steps to bring violations of the Conventions to an end and to bring an erring Party to a conflict back to an attitude of respect for the Conventions, in particular by using their influence on that Party. This obligation is not limited to stopping ongoing violations but includes 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.
165. States remain in principle free to choose between different possible measures, as long as those adopted are considered adequate to ensure respect. The duty to ensure respect is to be carried out with due diligence. As noted above, its content depends on the specific circumstances, including the gravity of the breach, the means reasonably available to the State, and the degree of influence it exercises over those responsible for the breach.’ (footnotes omitted, AG)
5.16
The interpretation of Article 1 of the Geneva Conventions included in the ICRC commentary is not entirely undisputed. [79] Nevertheless, the International Court of Justice (ICJ) has also confirmed that Article 1 of the Geneva Conventions has an external dimension. The ICJ held that this provision provides that every State that is a party to the Geneva Conventions:
‘(…) whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with.’ [80]
5.17
In the case
Nicaragua v. Germany, Nicaragua sought preliminary relief from the ICJ aimed at putting a stop to the supply of arms by Germany to Israel. In its Order (interim judgment) of 30 April 2024, the ICJ rejected the claim and reiterated and re-emphasised the external dimension of (common) Article 1 of the Geneva Conventions:
Nicaragua v. Germany, Nicaragua sought preliminary relief from the ICJ aimed at putting a stop to the supply of arms by Germany to Israel. In its Order (interim judgment) of 30 April 2024, the ICJ rejected the claim and reiterated and re-emphasised the external dimension of (common) Article 1 of the Geneva Conventions:
’23. The Court recalls that, pursuant to common Article 1 of the Geneva Conventions, all States parties are under an obligation “to respect and to ensure respect” for the Conventions “in all circumstances”. It follows from that provision that every State party to these Conventions, “whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” (
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, para. 158). Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 114, para. 220). With regard to the Genocide Convention, the Court has had the opportunity to observe that the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible (
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 221-222, paras. 430-431). Further, States parties are bound by the Genocide Convention not to commit any other acts enumerated in Article III (
ibid., p. 114, para. 168).
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, para. 158). Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 114, para. 220). With regard to the Genocide Convention, the Court has had the opportunity to observe that the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible (
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 221-222, paras. 430-431). Further, States parties are bound by the Genocide Convention not to commit any other acts enumerated in Article III (
ibid., p. 114, para. 168).
24. Moreover, the Court considers it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.’ [81]
5.18
For its rejection of the claim, the ICJ referred to, among other things, the German legal framework on the basis of which two licences are needed for the export of weapons of war and a risk analysis regarding the violations of international humanitarian law must be performed. Judge Cleveland, in her concurring statement to this Order, stated that Germany had put forward in these proceedings that the German legal framework provides for constant reassessment of the licences in the light of
highly dynamic situations on the ground. [82] According to Judge Cleveland, the case between Nicaragua and Germany differs from the present F-35 case on this point, because the Dutch State – unlike Germany – does not acknowledge the obligation of constant reassessment of licences already granted:
"14. The circumstances before the Court are not analogous to those confronted by The Hague Court of Appeal concerning distribution of F-35 fighter jet parts from the Netherlands to Israel. In that case, the Dutch court concluded that the Netherlands did not treat the military licensing requirements under the EU Common Position and the Arms Trade Treaty as obligatory, since the standards of “clear risk” and “overriding risk” were balanced against political and diplomatic considerations, including relations with allies such as Israel and the United States. The Netherlands did not recognize an obligation of continuing review of the situation on the ground for standing licences, and the evidence before the Dutch court established that F-35 fighter planes were being actively deployed by Israel in the Gaza conflict.’ [83]
5.19
In view of the above, an independent obligation can be inferred from Article 1 of the Geneva Conventions for the State Parties to assess in the event of new relevant information regarding the (risk of) severe violations of international humanitarian law whether any action must be taken regarding an already granted licence for the export or transfer of arms.
5.2
Article 1 of the Geneva Conventions is also relevant for the interpretation of the Arms Trade Treaty and the EUCP, and the question of whether these documents provide an obligation to reassess (under certain circumstances). In the recitals to the Arms Trade Treaty it is stated that the State Parties are determined to honour the principle of international humanitarian law and to have such honoured in accordance with, among other things, the Geneva Conventions. While the EUCP itself does not refer to the Geneva Conventions, the User's Guide does refer to them when discussing the question of whether a "clear risk" exists. I quote:
‘
Clear risk. A thorough assessment of the risk that the proposed export of military technology or equipment will be used in the commission of serious violations of international humanitarian law should include an inquiry into the recipient’s past and present record of respect for international humanitarian law, the recipient’s intentions as expressed through formal commitments and the recipient’s capacity to ensure that the equipment or technology transferred is used in a manner consistent with international humanitarian law and is not diverted or transferred to other destinations where it might be used for serious violations of this law.
Clear risk. A thorough assessment of the risk that the proposed export of military technology or equipment will be used in the commission of serious violations of international humanitarian law should include an inquiry into the recipient’s past and present record of respect for international humanitarian law, the recipient’s intentions as expressed through formal commitments and the recipient’s capacity to ensure that the equipment or technology transferred is used in a manner consistent with international humanitarian law and is not diverted or transferred to other destinations where it might be used for serious violations of this law.
Isolated incidents of international humanitarian law violations are not necessarily indicative of the recipient country’s attitude towards international humanitarian law and may not by themselves be considered to constitute a basis for denying an arms transfer. Where a certain pattern of violations can be discerned or the recipient country has not taken appropriate steps to punish violations, this should give cause for serious concern.
Common Article 1 of the Geneva Conventions is generally interpreted as conferring a responsibility on third party states not involved in an armed conflict to not encourage a party to an armed conflict to violate international humanitarian law, nor to take action that would assist in such violations, and to take appropriate steps to cause such violations to cease. They have a particular responsibility to intervene with states or armed groups over which they might have some influence. Arms producing and exporting states can be considered particularly influential in "ensuring respect" for international humanitarian law due to their ability to provide or withhold the means by which certain serious violations are carried out. They should therefore exercise particular caution to ensure that their export is not used to commit serious violations of international humanitarian law.
The obligations set out in the Common Position 2008/944/CFSP are consistent with those set out in Article 7, paragraphs 1, 3 and 4 of the Arms Trade Treaty. Member States, in making this assessment, shall take into account the risk of the conventional arms covered under Article 2 (1) or of the items covered under Article 3 or Article 4 of the ATT being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.’ [84]
5.21
On the basis of the above, the conclusion is justified that on the basis of the Arms Trade Treaty, the EUCP and Article 1 of the Geneva Conventions, the State has an obligation to reassess GL009 if new, relevant information comes to light that there is a clear risk that the F35 parts will be used by Israel for severe violations of international humanitarian law.
5.22
I want to remark that, even if it is to be concluded that no obligation to reassess exists but the State has a "mere" power to reassess and is therefore granted policy latitude, this does not mean that the Sate has any discretion to decide whether or not to reassess and that the courts would be unable to assess the actions of the State. While the principle of restrained assessment by the courts does apply in the policy area of foreign policy and defence, the courts can in fact verify whether the State, acting within the limits of its policy latitude and degree of discretion, has weighed all of the relevant interests and whether, in view of all circumstances of the case, it reasonably would have arrived at the actions it has taken. [85]
(ii) Does the State have policy latitude in view of the substance of the reassessment?
5.23
The second question pertains to the policy latitude accrued to the State with regard to assessment criteria to be applied in the context of the reassessment.
5.24
The text of Article 7(7) of the Arms Trade Treaty and Article 1.1a EUCP offers little guidance on how the reassessment has to take place. These documents do not specify within which time period the State must perform a reassessment, nor do they specify which assessment criteria apply.
5.25
However, the context of these provisions demonstrates that the criteria included in the Arms Trade Treaty and the EUCP for the benefit of the assessment prior to the granting of the licence also apply to reassessment. In the Arms Trade Treaty, the "encouragement to reassess" a licence was included in Article 7, which also includes the assessment criteria for the granting of licences. The "encouragement" to reassess a licence in Article 1.1a EUCP follows Article 1.1 EUCP, which states that Member States must assess applications for licences against the criteria of Article 2 EUCP.
5.26
The fact that the assessment criteria from Article 7 of the Arms Trade Treaty and Article 2 EUCP must also be applied in the context of a reassessment is in line with the object and purpose of these documents, which is to contribute to regional and international peace, safety and stability as well as to reduce human suffering. The explanatory memorandum to the Act approving the Arms Trade Treaty notes that Article 7 of the Arms Trade Treaty lie "at the heart" of the treaty and that "the most important merit of the Treaty is that this «golden rule» was included in the text of the treaty". [86] I fail to see how the assessment criteria, which are considered mandatory in the context of the assessment of the application – as will be addressed below – can become points of view in the reassessment stage which the State Parties can involve in a broader weighing of interests as they see fit. While the granting of a licence affords the importing State legal certainty, the elementary rules of international humanitarian law are at stake, and I am therefore of the opinion that the interest of legal certainty cannot be a justification for the use of a more lenient assessment framework for the reassessment than for the assessment of the application for the licence.
5.27
The fact that the assessment criteria for the assessment of an application for a licence also apply for the reassessment was initially expressly included in a draft version of the Arms Trade Treaty, as demonstrated by the
travaux préparatoires. In the draft treaty of 26 July 2012 [87] the predecessor of Article 7(7) of the Arms Trade Treaty read as follows:
travaux préparatoires. In the draft treaty of 26 July 2012 [87] the predecessor of Article 7(7) of the Arms Trade Treaty read as follows:
‘If, after an authorization has been granted, a State Party becomes aware of new relevant information that causes it to reassess that there is an overriding risk of any of the consequences of paragraphs 1, 2, 3, 4, and 5 of article 4 [currently Article 7 (1)-(3) Arms Trade Treaty, AG], the State Party may suspend or revoke the authorization.’
5.28
The draft provision provided the same assessment criteria for the reassessment as those that are in place for the granting of a licence. However, the wording of Article 7(7) of the Arms Trade Treaty is considerably more vague. This Article does not specify which assessment criteria apply, and also does not specify which consequences a State Party can or should attach to the result of a reassessment – which I will discuss below. This vague wording was part of a compromise between the states exporting and importing arms that participated in the treaty negotiations. The compromise also related to the text of the final text of Article 26 of the Arms Trade Treaty, which arranges the relationship with other international agreements. Article 26 led to much debate during the treaty negotiations between the major arms-producing and exporting States and the States importing arms. The latter States were mainly concerned about how legal certainty would be affected if the exporting State could suspend or revoke the supply of arms for which a licence had already been granted under certain circumstances. In the version of the draft treaty of July 2012, Article 26 stated that the performance of the Arms Trade Treaty will not affect obligations entered into in relation to the other instruments. However, this provision was considered a potential loophole in the treaty, because the State Parties to the treaty could completely contract out of their obligations from the Arms Trade Treaty. As a compromise, the loophole in Article 26.1 of the Arms Trade Treaty was closed in exchange for mitigation of the provision regarding the reassessment of licences already granted. [88] It cannot be inferred
a contrariofrom the removal of the reference to the assessment criteria that the reassessment under Article 7(7) must be performed on the basis of criteria other than those that apply to the application for the licence.
a contrariofrom the removal of the reference to the assessment criteria that the reassessment under Article 7(7) must be performed on the basis of criteria other than those that apply to the application for the licence.
5.29
In view of the above, I think it should be assumed that in any case the same criteria must be used for both the reassessment of licences already granted and the assessment of applications for a licence. However, this does not answer the question of the extent to which the State must be granted policy latitude with regard to the application of the assessment criteria in Article 7 of the Arms Trade Treaty and Article 2 EUCP. I will further discuss this matter below.
5.3
I reiterate that the State Parties have an obligation on the basis of Article 7(3) of the Arms Trade Treaty to deny the export or transit licence if there is an overriding risk of the weapons being used to commit or promote a serious violation of international humanitarian law within the meaning of Article 7(1)(b)(i) of the Arms Trade Treaty. In the literature it has been pointed out that the wording of Article 7(3) seems to leave room for a weighing of interests. The term "overriding risk" in Article 7(3) seems to imply that the State Parties must determine whether the risk of negative consequences of the arms export – which is the use of the arms for serious violations of international humanitarian law or the promotion thereof – outweighs the possibility that the arms export contributes to peace and security (Article 7(1)(a) of the Arms Trade Treaty). [89] This could include a situation wherein a State violates international humanitarian law, but can only put a stop to genocide or an act of aggression with the help of imported weapons. [90] In the literature it is doubted whether such actions under the motto of "the end justifies the means" reflects the objects of the Arms Trade Treaty. [91]
5.31
However, the term "overriding risk" is open to different interpretations. For example, some State Parties have indicated that they interpret "overriding risk" as such that the risk is more likely than not going to materialise, or that this entails a "substantial risk". According to these States, the existence of this risk provides a compelling ground for denial and no weighing of interests can take place. [92] Casey-Maslen notes the following in this regard:
‘If there were no balancing, and it was a question only of the substantive threshold of potential harm, there would be no need for the inclusion of the notion of a contribution to peace and security. It is clear, however, that the language is sufficiently unclear and ambiguous that if enough states maintain their interpretation that an absolute ‘shall not authorize’ obligation exists once a sufficient threshold of risk is attained this might, in time, become the authoritative interpretation of the provision.’ [93]
5.32
For the interpretation of the term "overriding risk" it is significant for the EU Member States, which are all parties to the Arms Trade Treaty, that they are bound by the EUCP on the basis of which they have a legal obligation to assess applications for licences for the export of conventional weapons using the eight criteria listed in Article 2 EUCP. While the EUCP had already been adopted in 2008, and therefore before the formation of the Arms Trade Treaty, the EU and its Member States have stated multiple times that the criteria from the EUCP align with the criteria from the Arms Trade Treaty. During the Ninth Conference on the Implementation of the Arms Trade Treaty held in Geneva in August 2023, statements including the following were made on behalf of the EU and its Member States:
‘(…) The EU underlines the essential contribution that a responsible arms trade policy makes to the maintenance of international peace and security and respect for international human rights law and international humanitarian law. EU Member States are legally bound under the EU Common Position 2008/944 on arms exports to assess license applications for the export of conventional arms against eight criteria. These criteria are in line with the ATT. Among other cases, EU Member States deny licenses whenever there is a clear risk that the export of military technology and equipment might be used for internal repression, contribute to regional instability, or might be used in the commission of serious violations of international human rights law or international humanitarian law.’ [94]
5.33
It clearly follows from the text of Article 2(2)(c) EUCP that the Member States must deny an export licence if there is a clear risk that the weapons will be used for serious violations of human rights or international humanitarian law. The wording does not allow for any weighing of interests. The fact that the aforementioned risk cannot be weighed against other risks or interests is also demonstrated by the other criteria referred to in Article 2 EUCP. Particularly relevant to this case are criterion 4 (in Article 2(4) EUCP) and criterion 5 (in Article 2(5) EUCP), which read as follows:
"Criterion Four: Preservation of regional peace, security and stability.
Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. When considering these risks, Member States shall take into account inter alia:
(a)
the existence or likelihood of armed conflict between the recipient and another country;
(b)
a claim against the territory of a neighbouring country which the recipient has in the past tried or threatened to pursue by means of force;
(c)
the likelihood of the military technology or equipment being used other than for the legitimate national security and defence of the recipient;
(d)
the need not to affect adversely regional stability in any significant way.
Criterion Five: National security of the Member States and of territories whose external relations are the responsibility of a Member State, as well as that of friendly and allied countries
Member States shall take into account:
(a)
the potential effect of the military technology or equipment to be exported on their defence and security interests as well as those of Member State and those of friendly and allied countries, while recognising that this factor cannot affect consideration of the criteria on respect for human rights and on regional peace, security and stability;
(b)
the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries.
5.34
Criterion 4 contains a ground for denial if there is a clear risk that the importing state will use the weapons in an aggressive manner. While the Dutch version [95] of this provision seems to leave room for a weighing of interest, I consider it to be out of the question that a Member State could allow the export of weapons under the EUCP while relying on the maintenance or contribution to regional peace, security and stability on the basis of this provision if there is a clear risk that the weapons will be used for serious violations of human rights or international humanitarian law (Criterion 2).
5.35
Criterion 5 is clearly worded: the national security of the Member States and allies is an interest which the State Parties must consider when granting licences, but this factor does not influence the application of criteria 2 and 4. National security therefore cannot be an argument to still allow the export of arms that involve a clear risk of being used for serious violations of human rights or international humanitarian law.
5.36
Article 10 EUCP provides that Member States may also consider the impact of the proposed export on their economic, social, commercial and industrial interests, but these factors should not affect the application of the criteria of the EUCP. This provision also underscores the mandatory nature of the criteria in Article 2 EUCP.
5.37
The above demonstrates that EUCP offers (some) room to the Member States when granting an export licence to consider the different interests involved in the export or transit of the weapons. However,
no such room existsif there is a clear risk that the weapons to be exported or transited will be used for serious violations of human rights or international humanitarian law within the meaning of Article 2(2)(c) EUCP This criterion provides a mandatory ground for denial.
no such room existsif there is a clear risk that the weapons to be exported or transited will be used for serious violations of human rights or international humanitarian law within the meaning of Article 2(2)(c) EUCP This criterion provides a mandatory ground for denial.
5.38
In my opinion it follows from the above that the State is not given any policy latitude with regard to the application of the assessment criteria in Article 7 of the Arms Trade Treaty and Article 2 EUCP if there is a clear risk that the weapons to be exported or transhipped will be used for serious violations of human rights or international humanitarian law.
5.39
This brings me to the third question, which is whether the State has any policy latitude with regard to the consequences the State attaches to the reassessment.
(iii) Does the State have policy latitude with regard to the consequences the State attaches to the reassessment?
5.4
The literature assumes that the State Parties are authorised on the basis of Article 7(7) of the Arms Trade Treaty to suspend or revoke the licence after reassessment, but that they do not have an obligation thereto. [96] I do not deem the notion that policy latitude would exist with regard to the consequences of the reassessment when there is a clear risk that the arms will be used for serious violations of international humanitarian law, to be compatible with the mandatory nature of the assessment criteria referred to in Article 2(2)(c) EUCP and Article 7(3) Arms Trade Treaty which – as argued above – are also applicable in the context of the reassessment. The fact that the basic rules of international humanitarian law are at issue, which rules intend to protect against human suffering, removes the policy latitude. In situations like these, on the basis of the aforementioned provisions a State has an obligation to intervene in the operation of the licence and to put a stop to the export or transit of weapons. [97]
5.41
Moreover, it is defensible that a State that continues the export or transit of arms when there is a clear risk of the State of destination using the arms for serious violations of international humanitarian law, is in violation of Article 1 of the Geneva Conventions. [98] In this context, I refer to Resolution 24/35 of the United Nations Human Rights Council in which, with reference to documents including the Geneva Conventions and the Arms Trade Treaty, calls upon all States to refrain from exporting weapons to designations involved in armed conflict if they, in accordance with their applicable national procedures and international obligations and standards, are of the opinion that it is sufficiently plausible that these weapons will be used to commit or promote serious violations of human rights or international humanitarian law. I quote from this Resolution of 27 September 2013:
‘
Recallingthe principles and provisions related to international human rights law and international humanitarian law, and to the promotion of responsible action by States, as contained in the Arms Trade Treaty adopted by the General Assembly on 2 April 2013, as well as in other relevant instruments,
Recallingthe principles and provisions related to international human rights law and international humanitarian law, and to the promotion of responsible action by States, as contained in the Arms Trade Treaty adopted by the General Assembly on 2 April 2013, as well as in other relevant instruments,
Reaffirmingthat all efforts should be made to ensure the cessation of all violations and abuses of, and the full respect for, international human rights law and international humanitarian law in armed conflicts,
1.
Expresses its deep concernat the fact that arms transfers to those involved in armed conflicts may seriously undermine the human rights of civilians, especially women, children, the elderly, persons with disabilities and vulnerable groups;
Expresses its deep concernat the fact that arms transfers to those involved in armed conflicts may seriously undermine the human rights of civilians, especially women, children, the elderly, persons with disabilities and vulnerable groups;
2.
Notes with alarmthat such arms transfers can have a seriously negative impact on the human rights of women and girls, who may be disproportionately affected by the widespread availability of arms, as it may increase the risk of sexual and gender-based violence, and may also contribute to the recruitment and use of children in armed conflicts;
Notes with alarmthat such arms transfers can have a seriously negative impact on the human rights of women and girls, who may be disproportionately affected by the widespread availability of arms, as it may increase the risk of sexual and gender-based violence, and may also contribute to the recruitment and use of children in armed conflicts;
3.
Urgesall States to refrain from transferring arms to those involved in armed conflicts when said States assess, in accordance with their applicable national procedures and international obligations and standards, that such arms are sufficiently likely to be used to commit or facilitate serious violations or abuses of international human rights law or international humanitarian law;
Urgesall States to refrain from transferring arms to those involved in armed conflicts when said States assess, in accordance with their applicable national procedures and international obligations and standards, that such arms are sufficiently likely to be used to commit or facilitate serious violations or abuses of international human rights law or international humanitarian law;
4.
Invitesall relevant special procedures, commissions of inquiry and human rights treaty bodies to bear the present resolution in mind, within the framework of their respective mandates, when considering the situation of human rights in armed conflicts.’ [99]
Invitesall relevant special procedures, commissions of inquiry and human rights treaty bodies to bear the present resolution in mind, within the framework of their respective mandates, when considering the situation of human rights in armed conflicts.’ [99]
5.42
I hereby conclude this analysis and, on the basis of the foregoing, I come to the conclusion that (i) the State in the given circumstances had an obligation to reassess licence GL009, (ii) the State, upon reassessment, in any case had to assess it using the assessment criteria referred to in Article 2 EUCP and Article 7(3) of the Arms Trade Treaty, respectively, and (iii) that the State, if there is a clear risk that the F-35 parts would be used for serious violations of international humanitarian law, has an obligation to intervene in the operation of the licence and put a stop to the export and transfer of F-35 parts to Israel.
5.43
I want to superfluously remark the following. Oxfam Novib et al. stated during their reply at the oral hearing that Article 1 of the Genocide Convention [100] provides the State with an obligation to refrain from supplying weapons in the event of an imminent genocide and that this is an independent legal ground in this case that could also be examined in cassation. [101] Since fact-finding is reserved to the fact-finding court and the Court of Appeal has not determined in the contested judgment that there is a clear risk that the weapons will be used for genocide, this ground (violation of the Genocide Convention) cannot be examined separately in cassation.
5.44
I now return to
Grounds for Cassation 1.1-1.3.
Grounds for Cassation 1.1-1.3.
5.45
The Arms Trade Treaty, the EUCP and (common) Article 1 of the Geneva Conventions and the First Additional Protocol provide, as I explained above, that the State has an obligation to reassess in circumstances as they present themselves in this case, namely in the event that a general licence was issued for an unlimited period and the situation in the State of destination changed to the extent that there is a clear risk that the weapon parts to be exported or transferred will be used for serious violations of international humanitarian law. I believe that a different interpretation of these instruments is incompatible with the objects of the EUCP and the Arms Trade Treaty and with the interpretation by the ICJ of Article 1 of the Geneva Conventions.
5.46
Ground for Cassation 1.1., which argues that the Arms Trade Treaty and the EUCP do not contain an obligation for reassessment, is therefore based on an incorrect interpretation of the law and therefore cannot succeed.
5.47
Also incorrect is the interpretation of
Ground for Cassation 1.2that the Arms Trade Treaty and the EUCP leave room for a broader consideration upon reassessment of a licence already granted, in which respect it other standards and/or criteria will also be assessed and in which respect States are not held to revocation of or changes to the licence if there appears to be a clear risk of serious violations of international humanitarian law. As I set out above, in any case the same criteria must be used for both the reassessment of licences already granted and the assessment of applications for a licence. The ground for denial under Article 2(2)(c) EUCP is also mandatory in the context of the reassessment. The fact that basic rules of international humanitarian law are at issue, which rules intend to protect against human suffering, removes the policy latitude for the State. If this ground for denial arises, the State has an obligation to put a stop to the export and transfer of military equipment. Ground for Cassation 1.2 is therefore based on an incorrect interpretation of the law and therefore fails.
Ground for Cassation 1.2that the Arms Trade Treaty and the EUCP leave room for a broader consideration upon reassessment of a licence already granted, in which respect it other standards and/or criteria will also be assessed and in which respect States are not held to revocation of or changes to the licence if there appears to be a clear risk of serious violations of international humanitarian law. As I set out above, in any case the same criteria must be used for both the reassessment of licences already granted and the assessment of applications for a licence. The ground for denial under Article 2(2)(c) EUCP is also mandatory in the context of the reassessment. The fact that basic rules of international humanitarian law are at issue, which rules intend to protect against human suffering, removes the policy latitude for the State. If this ground for denial arises, the State has an obligation to put a stop to the export and transfer of military equipment. Ground for Cassation 1.2 is therefore based on an incorrect interpretation of the law and therefore fails.
5.48
Ground for Cassation 1.3argues that the findings of the Court of Appeal contested in Grounds for Cassation 1.1 and 1.2 and the arguments on which the Court of Appeal based these findings, are incomprehensible without further substantiation in light of that which the State argued in the fact-finding instances.
5.49
This ground for cassation builds on the previous grounds for cassation and must share their fate. Incidentally, the ground for cassation fails to recognise that a legal opinion cannot be contested with an appeal on an issue of fact, so it also fails for that reason.
Ground for Cassation 1.4: Inadmissible order to create legislation?
5.5
Ground for Cassation 1.4is directed against paras. 5.24-5.27 and the operative part of the contested judgment that is partially based thereon. The ground for cassation claims that the Court of Appeal issued an inadmissible order to create legislation and therefore acted contrary to Article 3:296 of the Dutch Civil Code and the Supreme Court case law in this regard. The ground for cassation argues that these judgments and the order given in their operative part cannot be complied with other than by amending GL009 or revoking it in part, to the extent that the export and transfer of F-35 parts with Israel as their final destination is no longer permitted pursuant to GL009.
5.51
With regard to this ground for cassation, I note the following. The government, if it has any obligation to act, may be ordered by the courts to take action on the basis of a claim by an entitled party on the basis of Article 3:296 of the Dutch Civil Code, unless an exception provided by law or following from the nature of the obligation or juridical act occurs. The established case law of the Supreme Court determines that a court order to create legislation constitutes such an exception. [102] This case law, which initially concerned legislation in a formal sense but was later extended to a lower, generally binding regulation, [103] is based on two considerations, which are (i) that the courts cannot interfere in the political decision-making process involved in the creation of the legislation and (ii) that such an order must create a regulation which would then also apply to parties other than the parties to the proceedings. [104] The Supreme Court held the following in this regard in the
Urgendajudgment:
Urgendajudgment:
"8.2.4 The first holding does not mean that courts cannot enter the field of political decision-making at all. In the case law referred to above, therefore, the earlier case law of the Supreme Court has been reiterated, which dictates that, on the basis of Article 94 of the Dutch Constitution, the courts must disapply legislation if any binding provisions of treaties entail such. It has also been decided in that case law that the courts may issue a declaratory decision to the effect that the public authority in question is acting unlawfully by failing to enact legislation with a specific subject matter. The first consideration (...) must therefore be understood to mean that the courts should not interfere in the political decision-making process regarding the expediency of creating legislation with a specific, concretely defined subject matter by issuing an order to create legislation. In view of the constitutional relationships, it is solely for the legislator concerned to determine for itself whether legislation with a particular subject matter is enacted. Therefore, the courts cannot order the legislator to create legislation with a particular subject matter.
8.2.5
The second holding (…) relates to the circumstance that the civil courts only pronounce binding decisions between the parties to the dispute (cf. Article 236 of the Dutch Code of Civil Procedure). The courts do not have the power to decide in a manner binding on everyone how a statutory provision should read. An order to create legislation is therefore subject to the objection that third parties, which are not involved in the proceedings and are therefore not bound by the judgment, would still be bound directly or indirectly by that order by virtue of the fact that that legislation will also apply to them. This objection does not arise in the case of an order not to apply statutory provisions, which applies only to a particular claimant, or in the case of a declaratory decision. The same applies to a general order to take measures, while respecting the legislator’s freedom (...) to create or not to create legislation with a particular subject matter. After all, the courts in that case do not determine the subject matter of the statutory provision by issuing their order; this determination is still reserved to the legislator in question." (footnotes omitted, AG)
5.52
The Supreme Court has concluded from this that the courts are only not permitted to issue an order to create legislation with a particular, specific subject matter. The courts may, however, issue a declaratory decision that the failure to enact legislation is unlawful, or issue an order to the public body concerned to take measures to achieve a certain goal, as long as that order is not an order to enact legislation with certain, specific content. [105]
5.53
In the case currently on appeal in cassation, the Court of Appeal ordered the State to cease all actual export and transfer of F-35 parts with Israel as the final destination no later than within 7 days of service of the judgment. It already follows from para. 5.44 of the contested judgment that the State has several options for complying with this order, namely by using the authority under Article 8 GL009 to exclude registered users or persons with power of disposition from continued use of GL009 or by amending GL009 itself. In this regard, the Court of Appeal notes that this is up to the State.
5.54
Incidentally, the official opinion shared with the Dutch House of Representatives on 15 November 2023 regarding the distribution of F-35 parts to Israel, shows that the Minister for Foreign Trade and Development Cooperation had been made aware by her officials of the same options for intervention, namely the possibility of having companies apply for individual licences for all transactions under the F-35 programme, or an amendment to GL009 itself. [106]
5.55
In view of the foregoing, the order given by the Court of Appeal constitutes an application of the main rule of Article 3:296 of the Dutch Civil Code. After all, this order is not intended as an order to take specific legislative measures, but leaves the State free to choose the measures to be taken to achieve the cessation of the actual export and transit of F-35 parts with Israel as the final destination. Ground for Cassation 1.4 therefore fails.
Grounds for Cassation 1.5-1.7: No requirement for reassessment based on the Strategic Equipment Decree and GL009?
5.56
Ground for Cassation 1.5argues that the complaints directed against the interpretation of the EUCP and the Arms Trade Treaty apply
mutatis mutandisto the Court of Appeal's interpretation of the Strategic Equipment Decree and GL009. The ground for cassation, as it also points out itself, builds on Grounds for Cassation 1.1 to 1.3, so that the ground for cassation needs no discussion. The ground for cassation shares the fate of Grounds for Cassation 1.1 to 1.3 and fails.
mutatis mutandisto the Court of Appeal's interpretation of the Strategic Equipment Decree and GL009. The ground for cassation, as it also points out itself, builds on Grounds for Cassation 1.1 to 1.3, so that the ground for cassation needs no discussion. The ground for cassation shares the fate of Grounds for Cassation 1.1 to 1.3 and fails.
5.57
Ground for Cassation 1.6is directed against the Court of Appeal's opinion in para. 5.31 that with Article 5(4) and Article 11(3) Strategic Equipment Decree, which stipulates that a licence will in any case not be granted insofar as it arises from "international obligations," the standards from these international instruments (the EUCP and the Arms Trade Treaty) have been imported into the Dutch legal order. According to the ground for cassation, this opinion is incorrect and the Court of Appeal failed to recognise that these articles in the Strategic Equipment Decree refer to the granting of a licence. Additionally, the ground for cassation is directed against para. 5.41 in which the Court of Appeal held that, by referring in the Strategic Equipment Decree to "international obligations," the purpose of the Strategic Equipment Decree is in part to prohibit the export of military equipment insofar as a clear risk exists that they will be used in the commission of serious violations of international humanitarian law. This opinion is incorrect in general, because from the reference to "international obligations" it can at most be inferred that the purpose of the Strategic Equipment Decree is also to prohibit the
grantingof an export licence for military equipment insofar as there is a clear risk that this equipment will be used in the commission of serious violations of international humanitarian law (as follows from Article 2(2)(c) EUCP) or at least insofar as there is a decisive risk of this (as follows from Article 7(3) Arms Trade Treaty), according to the ground for cassation.
grantingof an export licence for military equipment insofar as there is a clear risk that this equipment will be used in the commission of serious violations of international humanitarian law (as follows from Article 2(2)(c) EUCP) or at least insofar as there is a decisive risk of this (as follows from Article 7(3) Arms Trade Treaty), according to the ground for cassation.
5.58
Article 5(4) and Article 11(3) Strategic Equipment Decree stipulate that a licence for the transit or export of military equipment will in any case not be granted insofar as this results from international obligations. It follows from this reference that, inter alia, a licence will not be granted to the extent that the review of the licence application demonstrates a clear risk that the military equipment will be used for serious violations of international humanitarian law (as stipulated in Article 2(2)(c) EUCP and Article 7(3) Arms Trade Treaty). The Strategic Equipment Decree and GL009 contain no provisions stipulating when the State must reassess a licence that has already been granted. The Court of Appeal held in para. 5.41 that, by referring in Article 5(4) and Article 11(3) Strategic Equipment Decree to "international obligations" (which includes the EUCP and the Arms Trade Treaty), one of the purposes of the Strategic Equipment Decree is to prohibit the export of military equipment in so far as a clear risk exists that they will be used in the commission of serious violations of international humanitarian law. The Court of Appeal apparently derived this purpose from (i) the prohibition in Article 6(3) Arms Trade Treaty on authorising the transfer of military equipment if, at the time of granting the authorisation, the State Party has knowledge that the arms or products would be used to commit – in short – serious violations of international humanitarian law, (ii) the obligation contained in both the EUCP and the Arms Trade Treaty to deny an export licence if there is a clear risk that the military equipment would be used for the commission of serious violations of international humanitarian law, and (iii) the obligation arising from these instruments to intervene in the operation of a licence already granted if a reassessment reveals the aforementioned risk.
5.59
The Court of Appeal's opinion on the purpose of the EUCP and Arms Trade Treaty and – through treaty-compliant interpretation – of the Strategic Equipment Decree and GL009 is, in my view, correct. This is because it follows from international law that the export of military equipment may not or no longer be allowed (in the Court of Appeal's words: must be prohibited) if a clear risk exists that the military equipment will be used for serious violations of international humanitarian law. In view of the starting point the Court of Appeal held in para. 5.32 – uncontested in cassation – that the Strategic Equipment Decree and GL009 must be interpreted treaty-compliant, I believe that the failure to grant a licence within the meaning of Article 5(4) and Article 11(3) Strategic Equipment Decree must also be understood to mean the non-continuation of a licence already granted. The complaints of this ground for cassation fail on the basis of the above.
5.6
Ground for Cassation 1.7is directed against para. 5.33, in which the Court of Appeal ruled that a treaty-compliant interpretation of Article 8 GL009, Article 6a(3) and Article 13(3) Strategic Equipment Decree implies that if a new review takes place under the EUCP and the Arms Trade Treaty and one of the compelling grounds for denial arises, the Minister will be obliged to make use of her broad powers under Article 8 GL009, Article 6a(3) and Article 13(3) Strategic Equipment Decree. The ground for cassation argues that this judgment is incorrect because these provisions contain a power of the Minister, which she may use on account of essential security interests, public order or public security, or integrated foreign policy or security considerations, respectively. According to the ground for cassation, the Court of Appeal failed to recognise that treaty-compliant interpretation cannot be the basis for assuming an obligation on the part of the Minister to exercise this power when a compelling ground for denial under the EUCP or the Arms Trade Treaty arises. This is not altered by the fact that the Court of Appeal considers the security considerations mentioned in these international law provisions to be closely related to the regulation of arms exports. The circumstance that the regulation of arms exports in a general sense is closely linked to security considerations provides no, or at least insufficient, support for the Court of Appeal's opinion that the Minister is obliged to make use of her powers under Article 6a(3) and Article 13(3) Strategic Equipment Decree and/or Article 8 GL009 if one of the compelling grounds for denial from the EUCP or the Arms Trade Treaty occurs. To the extent that the Court of Appeal finds that this interpretation of the Strategic Equipment Decree and GL009 is possible because the Minister herself took the criteria of the EUCP into consideration in her reassessment under Article 8 GL009, that opinion is also incorrect. Considering the criteria of the EUCP when applying Article 8 GL009 is different from a mandatory, exclusive review against the mandatory grounds for denial (criteria) of the EUCP, according to the ground for cassation.
5.61
As was shown in the discussion of Ground for Cassation 1.6, Articles 5(4) and 11(3) Strategic Equipment Decree impose an obligation on the State to intervene in the operation of a licence if a reassessment of that licence reveals a clear risk that the military equipment will be used for serious violations of international humanitarian law. The complaint in Ground for Cassation 1.7 essentially entails that such an obligation supposedly does not follow from Article 6a(3), Article 13(3) Strategic Equipment Decree and Article 8 GL009. Thus, the ground for cassation builds on from Ground for Cassation 1.6 and also fails.
5.62
The conclusion is that all complaints in ground for cassation 1 fail.
Ground for Cassation 2: review against mandatory criteria in voluntary reassessment?
5.63
Ground for Cassation 2is directed against paras. 5.28, 5.30-5.34, 5.40, 5.41 of the contested judgment. The ground for cassation is divided into four subgrounds.
5.64
Ground for Cassation 2.1is directed against para. 5.28, in which the Court of Appeal holds that a reasonable interpretation of the EUCP means that if a Member State voluntarily reassesses a licence granted on the basis of new relevant information, this Member State must in any event also review against the compelling criteria laid down in the EUCP, such as Article 2(2)(c) EUCP, and that further exports under an existing licence must also be terminated in this case if a compelling ground for denial such as that of Article 2(2)(c) EUCP arises. According to the ground for cassation, this opinion is legally incorrect because it fails to recognise – in short – that where a Member State is not required to proceed with a reassessment, that Member State is also not required to complete or conduct a voluntary reassessment in a particular way. In any event, even in light of the State's assertions, without further substantiation, which is lacking, it is impossible to see that what the Court of Appeal deduces from the EUCP and/or the Arms Trade Treaty is correct. This also applies if a voluntary reassessment would partly or fully follow up on the encouragement of Article 1(1)(a) EUCP and/or Article 7(7) Arms Trade Treaty, and all the more so if there is question of an assessment (weighing of interests) on the basis of Article 8 GL009 which provides for a broader assessment framework than just a review against the criteria in the EUCP and/or the Arms Trade Treaty, according to the ground for cassation.
5.65
In my discussion of Ground for Cassation 1, I explained that the Court of Appeal's opinion that in the circumstances at hand the State was obliged to reassess the licence against the mandatory criteria laid down in the EUCP and the Arms Trade Treaty is, in my view, correct. Ground for Cassation 2.1 builds on from Grounds for Cassation 1.1 to 1.3 and shares their fate.
5.66
Grounds for Cassation 2.2 to 2.4contain complaints that build on complaints in Ground for Cassation 1. Consequently, these grounds for cassation also fail.
Ground for Cassation 3: direct effect EUCP and Arms Trade Treaty?
5.67
Ground for Cassation 3is directed against paras. 5.30-5.34, 5.40 and 5.41 of the contested judgment and is divided into three subgrounds. The ground for cassation argues that Oxfam Novib et al. cannot rely at law on the Strategic Equipment Decree or GL009, nor on the EUCP or the Arms Trade Treaty either directly or indirectly.
5.68
Ground for Cassation 3.1complains that the Court of Appeal has failed to recognise that the Strategic Equipment Decree and GL009 do not impose any obligations on civilians and do not confer any rights on civilians, at least not with regard to compliance with regulations on arms exports and/or international humanitarian law or regulations with regard to the review of a licence already granted. The purpose and/or purport of the Strategic Equipment Decree and GL009 is not the protection of civilians or their interests, so that the relativity requirement as it follows from Article 3:296 of the Dutch Civil Code and/or Article 6:163 of the Dutch Civil Code has not been met either. According to the ground for cassation, this is not altered in the event of a class action that stands up, or also stands up, for a general interest.
5.69
At its core, Ground for Cassation 3.1 raises the question of whether the relativity requirement has been met in this case. Article 3:296(1) of the Dutch Civil Code provides the basis for the court order sought against the State in this case. This article provides that unless provided otherwise by law, the nature of the obligation or a juridical act, the party obliged to give, do or refrain from doing something
in relation to another partywill be ordered to do so by the courts in response to the entitled party's claim. The words “in relation to another party” show that the relativity requirement, which must be met for liability based on an unlawful act under Article 6:162 of the Dutch Civil Code and which is further elaborated for damages actions in Article 6:163 of the Dutch Civil Code, also applies to court orders and injunctions. [107] Van der Helm notes the following on the distinction between the relativity requirement for damages actions and for court orders and injunctions:
in relation to another partywill be ordered to do so by the courts in response to the entitled party's claim. The words “in relation to another party” show that the relativity requirement, which must be met for liability based on an unlawful act under Article 6:162 of the Dutch Civil Code and which is further elaborated for damages actions in Article 6:163 of the Dutch Civil Code, also applies to court orders and injunctions. [107] Van der Helm notes the following on the distinction between the relativity requirement for damages actions and for court orders and injunctions:
“The relativity requirement does not seem to raise any special requirements for court orders or injunctions. Whereas the awarding of damages requires an examination of (i) the persons, (ii) the harm and (iii) the modes of occurrence of the harm done to which the protection extends, a similar examination will have to be performed for a court order or injunction. This will involve an examination of whether (i) the specific claimant is protected (ii) in this interest and (iii) against the/this violation.” [108] (footnotes omitted, AG)
5.7
These elements can also be found in the opinion of Deputy PG Langemeijer and AG Wissink preceding the
Urgendajudgment, in which they argue that in actions for orders and injunctions it is sufficient for the defendant to have a legal obligation to the claimant (Article 3:296 of the Dutch Civil Code) and for the claimant to have a sufficient interest in preventing an imminent violation thereof (Article 3:303 of the Dutch Civil Code). [109] In determining whether the relativity requirement is met in the case of “an act or omission in violation of a duty imposed by the law” – which unlawfulness category is at issue in this case – the scope of protection of the legal standard that has been violated must be examined: does this standard aim to protect the other party's interest that has been or is at risk of being prejudiced? The search for that scope of protection is often complicated. The scope of protection may be apparent from the text, purpose and purport of the legal standard. An indication of the scope of protection can seldom be found in the parliamentary history. [110] Moreover, the subjective intention of the legislature, if it can be ascertained at all, is not always considered decisive. [111] The case law shows that other points of view may also be relevant, such as the system of law, including the nature of the interest violated, the nature of the liability, the specificity or lack of specificity of the group of potentially injured parties, the current social context, advanced insights and reasonableness. [112] AG Hartlief also points to the possibility that the purport and scope of protection of a regulation may change under the influence of later societal and other developments. [113]
Urgendajudgment, in which they argue that in actions for orders and injunctions it is sufficient for the defendant to have a legal obligation to the claimant (Article 3:296 of the Dutch Civil Code) and for the claimant to have a sufficient interest in preventing an imminent violation thereof (Article 3:303 of the Dutch Civil Code). [109] In determining whether the relativity requirement is met in the case of “an act or omission in violation of a duty imposed by the law” – which unlawfulness category is at issue in this case – the scope of protection of the legal standard that has been violated must be examined: does this standard aim to protect the other party's interest that has been or is at risk of being prejudiced? The search for that scope of protection is often complicated. The scope of protection may be apparent from the text, purpose and purport of the legal standard. An indication of the scope of protection can seldom be found in the parliamentary history. [110] Moreover, the subjective intention of the legislature, if it can be ascertained at all, is not always considered decisive. [111] The case law shows that other points of view may also be relevant, such as the system of law, including the nature of the interest violated, the nature of the liability, the specificity or lack of specificity of the group of potentially injured parties, the current social context, advanced insights and reasonableness. [112] AG Hartlief also points to the possibility that the purport and scope of protection of a regulation may change under the influence of later societal and other developments. [113]
5.71
The scope of protection of the legal standard was central to the Supreme Court's judgment on policy liability following the shooting incident in Alphen aan den Rijn. [114] In that case, which involved an action for damages and the relativity requirement applied as elaborated in Article 6:163 of the Dutch Civil Code, the Supreme Court held that the rules of the licence system in the Weapons and Munitions Act serve to protect against the harm of the injured parties. The Supreme Court supported its judgment by pointing to the purport of the rules which is also evident from the parliamentary history, namely the protection of the safety of society. [115] Against this background, a firearms possession permit can only be granted, renewed and remain in force if it is clear that it justified from a security perspective, according to the Supreme Court, which went on to consider as follows:
“3.1.6 (…) The
raison d'êtreof this stringent regime lies in the risks associated with the possession of firearms. In view of this
raison d'être, it must be assumed that (...) the rules aim not only to promote the security in society in a general sense (...), but also to prevent individual citizens from becoming victims of firearms possession that is unjustifiable in the sense referred to here. The granting of a licence in case where it was or should have been clear that the licence was not justified is therefore unlawful towards victims of the use of firearms made possible thereby.”
raison d'êtreof this stringent regime lies in the risks associated with the possession of firearms. In view of this
raison d'être, it must be assumed that (...) the rules aim not only to promote the security in society in a general sense (...), but also to prevent individual citizens from becoming victims of firearms possession that is unjustifiable in the sense referred to here. The granting of a licence in case where it was or should have been clear that the licence was not justified is therefore unlawful towards victims of the use of firearms made possible thereby.”
5.72
In his annotation under the judgment, Lindenbergh wrote:
“It is not quite as simple as one might think to answer the question why the standard violated in the issuance of the firearms licence does confer upon civilians the right to claim performance or damages. I think a factor here is that it involves the granting of a licence for firearms – which by their nature are obviously dangerous – while the monopoly on the use of force lies with the government. It concerned not just a licensing error, but rather a failure to recognise the specific risk that should have been taken into account when the licence was granted and that particularly concerned the claimants. Moreover, the prudent licensing standard did not have the function of promoting certain behaviour by the licence applicant, but rather the function of ensuring that a licence to use firearms is not granted in cases where it is not justified in order to prevent them from falling into irresponsible hands. It can therefore be said that the obligation borne by the government is thus not only to safeguard the interest of general safety, but also to provide claims to third parties who thereby face risks that should have been specifically mitigated by the licensing.” [116]
5.73
The case currently on appeal in cassation shows important parallels with this. The Strategic Equipment Decree and GL009 lack a statement on the scope of protection of these schemes. As regards purpose, I note that since the 2015 amendment the Strategic Equipment Decree explicitly refers to the standards of the Arms Trade Treaty and the EUCP for the granting and reassessment of a licence for the export of military equipment (see also the discussion of Ground for Cassation 4.1). [117] These standards undeniably aim to contribute to international and regional peace, security and stability and the reduction of human suffering (see in particular Article 1 of the Arms Trade Treaty). Against this background, a licence should
notbe granted (or remain in full force and effect) if there is a clear risk that the military equipment will be used for malevolent purposes in the country of destination, which is reflected in the review criteria of Article 7(3) of the Arms Trade Treaty and Article 2 EUCP. With the incorporation of these standards of international law into the Strategic Equipment Decree when it was amended in 2015, or at least the treaty-compliant interpretation of the Strategic Equipment Decree and GL009, it must be assumed that the national rules on the granting and review of licences for the export of military equipment pursue the same goals.
notbe granted (or remain in full force and effect) if there is a clear risk that the military equipment will be used for malevolent purposes in the country of destination, which is reflected in the review criteria of Article 7(3) of the Arms Trade Treaty and Article 2 EUCP. With the incorporation of these standards of international law into the Strategic Equipment Decree when it was amended in 2015, or at least the treaty-compliant interpretation of the Strategic Equipment Decree and GL009, it must be assumed that the national rules on the granting and review of licences for the export of military equipment pursue the same goals.
5.74
Like the rules of the licence system in the Weapons and Ammunitions Act, the rules regarding the granting and review of licences for the export of military equipment serve, or primarily serve, to promote certain behaviour on the part of the licence applicant. Their function is mainly to ensure that in cases where this is not justified, a licence for export is not granted or, where a licence has already been granted, to ensure that it does not remain in full force and effect. The grounds for denial from the EUCP and the Arms Trade Treaty indicate when an export licence is not justified, namely when there is a clear risk that the military equipment will be used for malevolent purposes, including the commission of serious violations of international humanitarian law.
5.75
In my view, the State's obligation to grant licences responsibly and, in the event of review, to continue licences responsibly does not only serve to promote international security and stability and prevent human suffering in general, but also to protect the interests of individual civilians who, in the event of a licence to export military equipment irresponsibly granted or continued, are at risk – as in this case – of becoming victims of serious violations of international humanitarian law in which those military equipment are used.
5.76
In view of the above, I concur with the Court of Appeal that the provisions of the Strategic Equipment Decree and GL009 aim, or also aim, to protect the interests that Oxfam Novib et al. claim to represent in these proceedings, in particular the protection of the interests of civilian population in Gaza and their interest in the State's compliance with the regulations in the field of arms exports. This means that the relativity requirement has been met. Ground for Cassation 3.1 fails because of this.
5.77
I also note that both parties refer in their written explanations [118] to the Union law relativity, also because the provisions of Union law (the EUCP) are at issue. The Union law relativity requirement means that liability requires that the breached provision of Union law is intended to confer rights on individuals. [119] The requirement pertains to the
minimumprotection to be provided and allows national liability law to provide more protection. [120] With national law having incorporated not only the EUCP, but also the Arms Trade Treaty, the Strategic Equipment Decree – as I have argued above – also extends to the protection of the interests Oxfam Novib et al. claim to be representing. Whether the Union law relativity requirement has been met as well therefore need not be discussed.
minimumprotection to be provided and allows national liability law to provide more protection. [120] With national law having incorporated not only the EUCP, but also the Arms Trade Treaty, the Strategic Equipment Decree – as I have argued above – also extends to the protection of the interests Oxfam Novib et al. claim to be representing. Whether the Union law relativity requirement has been met as well therefore need not be discussed.
5.78
Ground for Cassation 3.2argues, put succinctly, that the Court of Appeal has failed to recognise that the EUCP and the Arms Trade Treaty do not have direct effect. This is relevant, according to the ground for cassation, because the Court of Appeal indirectly tested for the standards of the EUCP and the Arms Trade Treaty through the Strategic Equipment Decree and GL009.
5.79
The Court of Appeal did not discuss whether the EUCP and the Arms Trade Treaty have direct effect, because the State's defence that there is no such direct effect already fails on account of the circumstance that (i) the standards from these instruments have been imported into the Dutch legal order by reference and (ii) the Strategic Equipment Decree and GL009 must be interpreted treaty-compliant. It follows from Article 93 of the Dutch Constitution that universally binding provisions of treaties and decisions of international organisations have binding force after they have been published. In the
Rookverbodjudgment, the Supreme Court held that the question of the extent to which a treaty provision is “binding on everyone” and therefore has direct effect must be answered through the interpretation thereof. The first thing to consider is the text and legislative drafting history of the treaty provision. Where these are inconclusive, the substance of the provision is the decisive factor, the question being whether the provision is unconditional and sufficiently precise to be applied as objective law in the national legal order, in the context in which it is invoked. [121]
Rookverbodjudgment, the Supreme Court held that the question of the extent to which a treaty provision is “binding on everyone” and therefore has direct effect must be answered through the interpretation thereof. The first thing to consider is the text and legislative drafting history of the treaty provision. Where these are inconclusive, the substance of the provision is the decisive factor, the question being whether the provision is unconditional and sufficiently precise to be applied as objective law in the national legal order, in the context in which it is invoked. [121]
5.8
However, the fact that a treaty provision does not have direct effect does not mean that citizens cannot rely on a national standard interpreted in accordance with that treaty provision. Fleuren noted the following in this regard:
“The question of whether a provision is binding on everyone is relevant if the board or the courts consider applying the provision itself (...) or disapplying a statutory regulation because of that provision. In treaty-compliant interpretation and application, the provision is merely and argument or motive for a particular interpretation or application of a standard of
domesticlaw. Some authors speak of
indirector
intermediateapplication (or indirect effect) of the treaty provision in this context. After all, it is not the treaty provision but the domestic legal standard that is applied directly. (...) Therefore, the platitude that civilians cannot rely in court on provisions that lack binding force on everyone is misleading. Indirectly, namely in support of the interpretation and application of domestic law advocated by him, he may well derive arguments from it.” [122] (footnotes omitted, AG)
domesticlaw. Some authors speak of
indirector
intermediateapplication (or indirect effect) of the treaty provision in this context. After all, it is not the treaty provision but the domestic legal standard that is applied directly. (...) Therefore, the platitude that civilians cannot rely in court on provisions that lack binding force on everyone is misleading. Indirectly, namely in support of the interpretation and application of domestic law advocated by him, he may well derive arguments from it.” [122] (footnotes omitted, AG)
5.81
When answering the question of whether citizens or organisations defending the public interest or collective interests like Oxfam Novib et al. can invoke provisions from the Strategic Equipment Decree or GL009, it is relevant what the scope of those provisions is, in which regard – as it turned out in the discussion of Ground for Cassation 3.1 – arguments can also be derived from international law via treaty-compliant interpretation or via incorporation of international standards in domestic law. The circumstance that those international standards do not have direct effect, whether actually or allegedly, is irrelevant to the answer to this question. Ground for Cassation 3.2 is therefore based on an incorrect interpretation of the law and therefore fails.
5.82
Ground for Cassation 3.3complains that the Court of Appeal started from an incorrect interpretation of the law by failing to recognise that the procedural question of whether a party's claims are admissible must be distinguished from the substantive question of whether that party can also rely on the laws and regulations invoked by it and of whether substantive defences as referred to in Grounds for Cassation 3.1 and 3.2 hold good.
5.83
The question as to which interests Oxfam Novib et al. are representing is relevant to the question of whether Oxfam Novib et al. as public interest organisations meet the requirements of Article 3:305a of the Dutch Civil Code and whether their claims are admissible as well as to the question of whether the interests represented by Oxfam Novib et al. fall within the scope of protection of the Strategic Equipment Decree and GL009. In para. 5.41, the Court of Appeal answered the second question in the affirmative and to that end considered that the Strategic Equipment Decree and GL009 aim to protect the interests represented by Oxfam Novib et al. according to the objective it pursues. The complaint that the Court of Appeal erred in finding that the circumstance that Oxfam Novib et al.'s claims are admissible means that they can rely on the Strategic Equipment Decree and GL009 is based on an incorrect interpretation of the judgment. Ground for Cassation 3.3 fails for that reason.
Ground for Cassation 5: The State's policy latitude and degree of discretion
5.84
Ground for Cassation 4is directed against paras. 5.46, 5.27 and 5.28 of the contested judgment and is divided into three subgrounds.
5.85
Ground for Cassation 4.1is directed against para. 5.46, in which the Court of Appeal found that the State has no policymaking latitude in this case because Article 2(2)(c) EUCP and Article 5(4) of the Strategic Equipment Decree and Article 11(3) of the Strategic Equipment Decree, respectively, prescribe as a matter of mandatory law in which cases a licence must be denied. According to the ground for cassation, the Court of Appeal has failed to recognise, especially in preliminary relief proceedings, that the State absolutely does have a wide, or at least a certain, scope of policymaking in this case that is closely related to national and international security and foreign policy. The ground for cassation also complains that the Court of Appeal has failed to recognise that in the field of (national and international) security and foreign policy, the State is entitled to a large degree of discretion, pertaining not just to the assessment of the relevant facts but also the qualification of those facts. This large degree of discretion also accrues to the State with regard to the assessment of whether the relevant grounds for denial from the EUCP, the Arms Trade Treaty and the Strategic Equipment Decree. According to the ground for cassation, this is no different if interests protected by fundamental rights, such as those arising from international humanitarian law, are at stake. The Court of Appeal did not exercise the required restraint in paras. 5.10-5.19, but instead applied a “full” review, or at least an overly intrusive review, according to the ground for cassation.
5.86
To the extent that Ground for Cassation 4.1 complains that the Court of Appeal has failed to recognise that the State has policy latitude, it builds on from the complaints of Ground for Cassation 1.1 and shares its fate. I would add to this the following. In my reflection on the judicial review of government policy, I wrote that courts may review without restraint whether the State has remained within the bounds of law in the field of foreign policy and defence when national and international regulations have provided concrete and useful legal standards for the State's actions. In discussing Ground for Cassation 1.1, I concluded, among other things, that in its review the State in any case had to test for the review criteria of Article 2 EUCP and Article 7(3) of the Arms Trade Treaty, respectively, and that the State, in the event of a clear risk that the F-35 parts would be used in the commission of serious violations of international humanitarian law, is required to intervene in the licence and to stop the export and transit of F-35 parts to Israel. It follows from the national regulations applied by the Court of Appeal (in particular Article 5(4) and Article 11(3) of the Strategic Equipment Decree), which are fully in line with the review criteria of the EUCP and the Arms Trade Treaty, that a licence will not be granted at any rate to the extent that such arises from international obligations.
5.87
The ground for cassation further complains about the Court of Appeal's “full”, or at least overly intrusive, review in paras. 5.10-5.19, in which the Court of Appeal itself found that there was a clear risk that the F-35 would be used by Israel in the commission of serious violations of international humanitarian law. At its core, the ground for cassation argues that in conducting this review the Court of Appeal failed to observe the appropriate policy latitude and degree of discretion on the part of the State.
5.88
In discussing this complaint, I note the following first and foremost. Above (at 4.2), I explained that when there is a degree of discretion – the discretion that can be granted to an administrative body in qualifying the factual circumstances of the case – the courts should not substitute their own judgment on the qualification for that of the administrative body and should observe restraint in conducting its review. Whether a certain degree of discretion exists can be inferred from the law, where the legislature's use of subjective-vague concepts can be an indication of the presence of a degree of discretion. It has been argued in the literature that a “clear risk” within the meaning of Article 2(2)(c) EUCP is such a subjective-vague term, the interpretation of which is primarily up to the administrative body and which interpretation the courts should review with restraint. [123] This has also been the approach of the Court of Appeal of The Hague in its 2022 judgment [124] on the State's granting of a licence to export certain military equipment to Egypt. In it, the Court of Appeal held that the State has a certain degree of discretion in weighing whether there is a clear risk within the meaning of Article 2(2)(c) EUCP. The Court of Appeal then examined whether the Minister could reasonably conclude that there was no clear risk that the equipment to be exported would be used in the commission of serious violations of international humanitarian law and held that the appellants had failed to make a plausible case that the Minister could not in all reasonableness have reached his decision. The Court of Appeal thus observed restraint in conducting its review of the Minister's conclusion that there was no clear risk.
5.89
There is an important difference between the present case and the 2022 judgment. Indeed, in para. 5.36 of the contested judgment the Court of Appeal held that it does not appear that the Minister tested for the “clear risk” criterion. There was thus no conclusion of the Minister regarding the existence of a clear risk that could be reviewed with restraint by the Court of Appeal. In other words, the courts are unable to review whether the Minister could reasonably have reached her conclusion as there is no conclusion of the Minister regarding the existence of the “clear risk”. In the absence of that opinion, the Court of Appeal itself could proceed to test for the “clear risk” criterion on the basis of the facts and reports mentioned in paras. 5.10 and 5.11. [125] I refer to my discussion of Ground for Cassation 5.1.1, at 5.102 below. The fact that the proceedings concern preliminary relief proceedings does not detract from this, contrary to what the State asserts.
5.9
My conclusion is that Ground for Cassation 4.1 fails.
5.91
Ground for Cassation 4.2is directed against para. 5.27, in which the Court of Appeal held that in the event that a mandatory reassessment leads to a finding that a compelling ground for denial under Article 2 EUCP arises, the consequence must be that the relevant Member State must stop further exports of military equipment under that licence. According to the ground for cassation, this conclusion is based on an incorrect interpretation of the law and/or incomprehensible reasoning, as argued in Grounds for Cassation 1.2 and 1.3, but also on a failure to appreciate that in terms of security and foreign policy the State has a wide, or at least a certain, policy latitude and degree of discretion, so that the courts, especially in preliminary relief proceedings, must exercise a corresponding degree of restraint.
5.92
Ground for Cassation 4.2 builds on from Grounds for Cassation 1.2 and 1.3 and shares their fate. For the rest, the ground for cassation essentially reiterates the complaint of Ground for Cassation 4.1 about the Court of Appeal's disregard of the wide policy latitude and large degree of discretion supposedly accruing to the State in this case. Ground for Cassation 4.2 builds on from this and shares the fate of Ground for Cassation 4.1.
5.93
Ground for Cassation 4.3is directed against para. 5.28, in which the Court of Appeal briefly held that when voluntarily reviewing a granted licence, the mandatory criteria of the EUCP must be assessed. The ground for cassation argues that this conclusion is wrong pursuant to the complaints of Ground for Cassation 2.1, but also because the Court of Appeal has failed to recognise that a wide, or at least a certain, policy latitude and degree of discretion accrue to the State in the case of a voluntary review of an existing licence.
5.94
Ground for Cassation 4.3 builds on from Ground for Cassation 2.1 and shares its fate. In all other respects, the ground for cassation builds on from Ground for Cassation 4.1 and also fails.
5.95
Ground for Cassation 4.4argues that Grounds for Cassation 4.1 through 4.3 apply
mutatis mutandisinsofar as the Court of Appeal reviewed the State's actions against the Strategic Equipment Decree and GL009.
mutatis mutandisinsofar as the Court of Appeal reviewed the State's actions against the Strategic Equipment Decree and GL009.
5.96
Ground for Cassation 4.4 builds on from Grounds for Cassation 4.1 through 4.3 and need not be discussed. The ground for cassation shares the fate of the previous grounds for cassation.
Ground for Cassation 5: Other complaints
5.97
Ground for Cassation 5is directed against various paragraphs of the contested judgment and is divided into six subgrounds.
5.98
Ground for Cassation 5.1is divided into two subgrounds and relates to the Minister's assessment under Article 8 GL0009.
5.99
Ground for Cassation 5.1.1is directed against paras. 3.15 and 5.36, in which the Court of Appeal held that there was no evidence that the Minister had tested for the criterion that there exist a “clear risk” of the F-35 being used in the commission of serious violations of international humanitarian law, and that the possible complexity of the situation should not be reason not to apply the review of Article 2(2)(c) EUCP. According to the ground for cassation, the Court of Appeal rendered judgments that were reasoned in an insufficiently comprehensible manner in light of the State's assertions. Put succinctly, these assertions boil down to the following: (i) the Minister considered the risk that the F-35 parts could be used in the commission of serious violations of international humanitarian law in the review under Article 8 GL009, and (ii) that review did not and could not establish that there was a clear risk of serious violations of international humanitarian law with the deployment of the F-35.
5.100 With regard to this ground for cassation, I note the following. In para. 3.15, the Court of Appeal represented the considerations that the Minister took into account in considering whether foreign policy or security interests preclude continued use of GL009. In para. 5.36, the Court of Appeal held that the question of how the Minister arrived at her decision not to intervene in GL009 must be deduced from what the State has asserted in this regard, as there is no written record of that decision. The Court of Appeal subsequently considered that the Minister had relied on (i) general foreign policy interests, (ii) the Netherlands’ desire not to harm good relations with the U.S. and Israel, (iii) the complexity of the situation and that (iv) this made it impossible to determine whether Israel had violated international humanitarian law by using the F-35. The Court of Appeal held that the issue is not whether it can be “established” that Israel is violating international humanitarian law by using the F-35, but whether there is a “clear risk” that the F-35 will be used in violation of international humanitarian law. According to the Court of Appeal, it is not apparent that the Minister tested for the criterion of a “clear risk”.
5.100 Contrary to what the State argues, it does not follow from the State's few assertions in the fact-finding instances referred to in the initiating document that the Minister, at the time of her decision not to intervene in GL009, had actually tested for the criterion of Article 2(2)(c) EUCP, which constitutes a compelling ground for denial. The ground for cassation thus already fails for lack of a factual basis.
5.100 Moreover, the ground for cassation fails due to lack of interest. In paras. 5.10 and 5.11, the Court of Appeal listed facts and reports the Court of Appeal relied on in these preliminary relief proceedings that are indicative of the existence of a “clear risk” of serious violations of international humanitarian law. The facts mentioned by the Court of Appeal in para. 5.10 were advanced by Oxfam Novib et al. and were not or insufficiently rebutted by the State. In addition, the Court of Appeal has taken into account two reports by Amnesty International and alerts from United Nations experts. The State has challenged these reports and alerts, which defence was rejected by the Court of Appeal (paras. 5.12 and 5.13). No complaints are directed against this on appeal in cassation. The Court of Appeal rightly held that a definitive conclusion on whether Israel had violated international humanitarian law could not be inferred from these sources, but that such a conclusion was not necessary either, as these preliminary relief proceedings are about whether there was a “clear risk” of such violations. In the Court of Appeal's opinion, the existence of a “clear risk” actually can be inferred from the sources.
5.100 The ground for cassation also includes the complaint that the State's assertion that it has not been established that Israel's use of the F-35 seriously violates the humanitarian law of war relevant here refers to the debate between the parties in the context of Article 2(6) EUCP [126] and not to the debate between the parties in the context of Article 2(2) EUCP. The ground for cassation contains a complaint that the Court of Appeal interpreted the State's assertions in an incomprehensible manner and did not sufficiently distinguish between the State's assertions on Article 2(2) EUCP and those on Article 2(6) EUCP.
5.104 The starting point is that the interpretation of the assertions is reserved for the fact-finding courts and in cassation can only be tested in cassation for comprehensibility. In light of the procedural documents, [127] I do not find it incomprehensible that the Court of Appeal considered the State's assertion that it has not been established (or could not be established) that Israel's use of the F-35 violates the international humanitarian law relevant here, to be part of the debate between the parties on Article 2(2)(c) EUCP. The complaint therefore fails.
5.105 I would also note that in the appeal in cassation no separate complaint was directed against para. 5.37, in which the Court of Appeal held, among other things, that to the extent that it must be assumed that the Minister did conduct out the required review (of Article 2(2)(c) EUCP), this was done on the basis of an incorrect assessment, as it was sufficiently demonstrated that the Minister – put succinctly – did not prioritise the criterion of mandatory law of Article 2(2)(c) EUCP. Apparently, the Court of Appeal meant by this that to the extent that it must be assumed that the Minister did test for the aforementioned criterion, she must have identified a clear risk of serious violations of international humanitarian law, but – wrongly – considered the interests served by non-intervention to be decisive.
5.105 That the Minister has prioritised other interests is supported by the parliamentary documents submitted in the proceedings, in which the Minister for Foreign Trade and Development Cooperation and the Minister of Foreign Affairs, in response to questions from Members of Parliament, explained the trade-off in not stopping the supply of F-35 parts to Israel. In response to questions by MP Piri, the Ministers decided on 23 November 2023 to make public the official notes on the issue and answered as follows, among other things, in reply: [128]
“Questions 1, 2 and 3
What is the reason that the government has not blocked the supply of F-35 parts from the Netherlands, despite an official opinion warning that the Israeli army may be committing serious violations of humanitarian law of war with the bombing of the Gaza Strip?
What specific warning does the opinion issue? And on the basis of what facts and circumstances were those warnings overruled?
Is it true that political considerations for allowing the supplies to go ahead outweighed legal considerations that this supply could potentially contribute to the commission of violation of humanitarian law of war? If not, where is the evidence for this?
Answers 1, 2 and 3
The official opinion concerned the question of whether the government could and would stop the onward supply of the F-35 parts to Israel through intervention in the operation of the General Licence Regulation NL009.
A decision was made not to intervene in the operation of the General Licence Regulation NL009.
This decision was made on the basis of an integral foreign policy and security assessment.
The F-35 is very important for Israel to be able to respond to a possible regional escalation of the conflict (threats from Iran, Syria, Hezbollah, among others) and has a deterrent effect on this threat to Israel's survival. Stopping the onward supply of F-35 parts to Israel would impose restrictions on Israel's ability to deploy the aircraft in the face of these regional threats. All things considered, this is an undesirable signal, both to Israel and to countries in the region.
The official opinion included the risk of Israeli F-35 aircraft being used in serious violations of humanitarian law of war.
In general terms, it is complex to form an opinion on compliance with humanitarian law of war in relation to concrete combat operations such as bombings. This also applies to specific deployment of the F-35. Based on current information on the Israeli F-35 deployment, it cannot be determined that the F-35s have been involved in serious violations of humanitarian law of war.
In addition, through the European Regional Warehouse in Woensdrecht, the Netherlands is giving substance to long-term agreements with the F-35 programme that oversee reliable onward supply of US parts to all partners within the programme. Direct intervention in the operation of the General Licence Regulation NL009 is probably possible under Article 8 of that Regulation, but would have the undesirable effect of subjecting the onward supply of F-35 parts to all F-35 partner countries using the European Regional Warehouse to individual authorisation. Stopping these supplies via intervention in general licence NL009 would be detrimental to the expectations of all F-35 partners and the importance of being a reliable ally.
It would also have a negative impact on the Dutch share in the F-35 programme because the position of the European Regional Warehouse will be called into question. This will negatively affect the deployability of the Dutch F-35 fleet and may affect the F-35 engine maintenance facility also located at Woensdrecht. It could also negatively affect the participation of Dutch companies in the F-35 programme.
For the government's position on Israel's right of existence, right to self-defence and the importance of compliance with international law and humanitarian law of war, please refer to the government's response to the Written Consultation on Israel and the Palestinian Territories.
Lastly, it is unclear at this time whether, in the context of agreements on the F-35 programme, the Netherlands has the ability to intervene in the onward supply of US-owned equipment from the European Regional Warehouse to Israel. The government is currently conducting further investigations.
Question 4
Could you share with the House all official opinions on this supply? If not, why not?
Answer 4
In order to respond to your request in the most transparent way possible, we provide you with the full memoranda in which you will find the legal elements and the other elements that contributed to the broad consideration underlying the decision that was taken.
As an appendix to this response the House will receive two memoranda on the onward supply of F-35 parts, containing legal aspects. The memoranda follow one another, with the second memorandum containing additions and clarifications to the first.
The decision not to intervene in the operation of General Licence Regulation NL009 was taken on the basis of the second memorandum(my italics, AG). You will also find in the appendices an information memorandum from the Legal Affairs Directorate on international legal aspects of the armed conflict between Hamas and Israel and a legal appreciation, requested by us, of a statement by High Representative of the Union for Foreign Affairs and Security Policy Borell.
The decision not to intervene in the operation of General Licence Regulation NL009 was taken on the basis of the second memorandum(my italics, AG). You will also find in the appendices an information memorandum from the Legal Affairs Directorate on international legal aspects of the armed conflict between Hamas and Israel and a legal appreciation, requested by us, of a statement by High Representative of the Union for Foreign Affairs and Security Policy Borell.
Information on diplomatic implications of the integrated foreign policy and security assessment may harm the position and diplomatic relations of the Dutch State and is therefore not shared.
(…).’
5.107 Two official memoranda were subsequently made public. [129] The memorandum dated 19 October 2023 (Memorandum 1) states, to the extent relevant:
“(…) Recommended decision
M: Your agreement to the following recommended decision to R.
R: You will be asked to choose between two options:
Option AThe ministerial authority to intervene in customary procedure allowing the supply of US equipment from NL to Israel for maintenance of F-35 fighter jets is not exercised
Option B: The authority is exercised with the aim of stopping the supply of US F-35 equipment from NL to Israel
DVB recommends choosing option A.
Please note:
DJZ notes that that option does involve the risk of the EU arms export control policy not being implemented, whereas there is a clear risk of serious violations of humanitarian law of war being committed as a result of the use of the equipment;
(…)
Option B: the ministerial authority under Article 8 is exercised
You can also weigh the above facts in such a way that the facts are such that integrated foreign policy and security considerations oppose their continued use for supplies to Israel.
In this case, you opine that the clear risk of F-35 being used in the commission of serious violations of humanitarian law of war outweighs the other elements described above.
(…)
If you decide to opt for option B, a licence application will then be assessed against the eight criteria of the export control policy. A rejection requires argumentation that there is a “clear risk of F-35 being used in the commission of serious violations of humanitarian law of war.” In DJZ's view, this clear risk currently exists;
Such a decision is only sensible if the intention is to subsequently deny the licence. Intervening in the customary procedure to then still approve the individual transactions only results in logistical delays and unnecessary diplomatic harm;
Temporarily exempting Israel is considered undesirable because this temporariness implies that over time it can be argued that these risks no longer exist. This is considered unlikely given the volatile situation in the region.”
5.108 The memorandum dated 15 November 2023 (Memorandum 2) states, to the extent relevant:
“Recommended decision:
M: Your agreement to the following recommended decision (option A) to R.
R: Your agreement to not intervening in the General Licence Regulation NL009 based on M's foreign policy advice.
(…)
Options for decision
Option A: no intervention in operation of the General Licence Regulation NL009 as a result of which the supply of US equipment from NL to Israel for maintenance of F-35 fighter jets.
Option B: intervention in operation of the General Licence Regulation NL009 with the aim of stopping the supply of US F-35 equipment from NL to Israel;
DVB recommends choosing option A, given:
o
The importance of the F-35 in Israel's regional security strategy
The importance of the F-35 in Israel's regional security strategy
(…)
o
The disruptive effect of intervention on the functioning of the ERW[European Regional Warehouse F-35, AG]
The disruptive effect of intervention on the functioning of the ERW[European Regional Warehouse F-35, AG]
(…)
o
The impact of intervention on relationship with F-35 partners
The impact of intervention on relationship with F-35 partners
(…)
o
The negative consequences for the position of the ERW
The negative consequences for the position of the ERW
(…)
o
The limited material effect of intervention
The limited material effect of intervention
(…)
o
Political and diplomatic action
Political and diplomatic action
(…)
DJZ notes at option A that there is a risk of the EU arms export control policy not being implemented while there is a clear risk of serious violations of humanitarian law of war as a result of the use of the equipment (this is a ground for mandatory rejection under the EU Common Position on arms export controls).
Explanation
This explanation provides additional background on the two options for decision, the operation of the General Licence Regulation NL009, the legal ambiguity on the export control mandate and on the European Regional Warehouse in Woensdrecht.
Explanation to Option A: no intervention in the operation of the General Licence Regulation NL009
Humanitarian law of war| Transactions under NL009 are not individually assessed against EU arms export policy criteria. Nevertheless, the relationship between F-35 deployment and the humanitarian law of war has been considered in the context of the present decision-making process.
In view of the current armed conflict, with large-scale bombings of Gaza causing major civilian losses, there is a clear risk that the F-35 components could be used in the commission of serious violations of humanitarian law of war by Israel;
In an individual licence application, it would be assessed (under the EU Common Position on arms export controls) whether there is a “clear risk that the equipment will be used in the commission of serious violations of international humanitarian law of war,” which is also a mandatory ground for rejection in the EU Common Position.
The large-scale Israeli airstrikes on Gaza, with great losses among the civilian population and much damage to civilian objects, raise concerns about compliance with humanitarian law of war. However, without precise details and circumstances of an attack,
an assessmenton lawfulness is limited and restraint must be observed. Indeed, information on the military targets that were targeted in an attack will not always be available to outsiders, as target selection is often based on intelligence, which may or may not be secret. Even a civilian object could, by using it for military purposes, become a military target and an attack on it therefore could be lawful. In addition, the number of civilian casualties in an attack alone is insufficient to make an informed decision on the lawfulness of an attack. High numbers of civilian casualties do underscore the need for further independent research.
an assessmenton lawfulness is limited and restraint must be observed. Indeed, information on the military targets that were targeted in an attack will not always be available to outsiders, as target selection is often based on intelligence, which may or may not be secret. Even a civilian object could, by using it for military purposes, become a military target and an attack on it therefore could be lawful. In addition, the number of civilian casualties in an attack alone is insufficient to make an informed decision on the lawfulness of an attack. High numbers of civilian casualties do underscore the need for further independent research.
Based on current information on the Israeli F-35 deployment, it therefore cannot be
establishedthat the F-35s have been involved in serious of humanitarian law of war.
establishedthat the F-35s have been involved in serious of humanitarian law of war.
DJZ believes, however, that there is sufficient information available to conclude that there is a “
clear risk” thereof as defined by criterion 2 of the EU Common Position on arms export controls (considering air strikes carried out since 7 October 2023).
clear risk” thereof as defined by criterion 2 of the EU Common Position on arms export controls (considering air strikes carried out since 7 October 2023).
As regards Israel's past actions, there are several reports by NGOs and reports by the various Commissions of Inquiry (Col) of the UN MRR into the military actions of Israel, as well as Hamas, including during the Gaza war in 2014 and 2021 and the protests in Gaza in 2018. Those reports point to violations of humanitarian law of war and human rights by both Israel and Hamas. UN investigations into events in 2021 have not been concluded yet;
Israel deployed F-35s over Gaza in 2021 but it is not clear whether humanitarian law of war was violated in the process;
Despite the clear risk identified by DJZ that Israeli F-35s are and/or will be involved in violations of humanitarian law of war, the recommendation in option A is not to intervene in the operation of the NL009.
(…)
Option B: intervention in the operation of the General Licence Regulation NL009
You may attribute more weight to the clear risk of deployment in serious violations of humanitarian law of war identified by DJZ than the other elements described above and decide to intervene on that basis;
If you exercise the authority under Article 8 of the General Licence Regulation NL009, the result is that companies must submit an individual licence application to the Customs Administration for all transactions under the F-35 programme. The regular arms export control procedure by means of a test against European arms export policy will be followed in that case;
In this respect, licences can and should be rejected if there is a “clear risk that the equipment (F-35s) will be used in the commission of serious violations of humanitarian law of war”;
A decision to invoke Article 8 is only sensible if the intention is to subsequently deny the licence. Intervening in the customary procedure to then still approve the individual transactions only results in logistical delays and unnecessary diplomatic harm;
Another option to stop the supply of equipment to Israel under the general licence is to amend the General Licence Regulation NL009 itself. This requires an amendment to the ministerial regulation [International and diplomatic interests] This cannot be realised in the short term.
(…).’
5.109 The parliamentary documents and the submitted official memoranda show that the Minister was made aware by the Legal Affairs Directorate of the Ministry of Foreign Affairs that there was a “clear risk” within the meaning of Article 2(2)(c) EUCP that the F-35 parts would be used in the commission of serious violations of humanitarian law of war. The parliamentary documents do
notshow that the Minister was of the opinion that there was no “clear risk”, unlike the Legal Affairs Directorate. Nor do the documents show that the assessment of whether to intervene in GL009
couldnot establish that with the deployment of the F-35 there is a clear risk of serious violations of international humanitarian law. Rather, it follows from the documents that despite the existence of a “clear risk” within the meaning of Article 2(2)(c) EUCP, the Minister prioritised other interests, as she had been advised to do by the Security Policy Directorate of the Ministry of Foreign Affairs. The Minister thereby relied on an “incorrect assessment framework” (see para. 5.37 of the contested judgment). Had the Minister correctly assessed against the criterion of Article 2(2)(c) EUCP, she would indeed have given priority to that provision of mandatory law over other foreign policy considerations and intervened in the operation of GL009.
notshow that the Minister was of the opinion that there was no “clear risk”, unlike the Legal Affairs Directorate. Nor do the documents show that the assessment of whether to intervene in GL009
couldnot establish that with the deployment of the F-35 there is a clear risk of serious violations of international humanitarian law. Rather, it follows from the documents that despite the existence of a “clear risk” within the meaning of Article 2(2)(c) EUCP, the Minister prioritised other interests, as she had been advised to do by the Security Policy Directorate of the Ministry of Foreign Affairs. The Minister thereby relied on an “incorrect assessment framework” (see para. 5.37 of the contested judgment). Had the Minister correctly assessed against the criterion of Article 2(2)(c) EUCP, she would indeed have given priority to that provision of mandatory law over other foreign policy considerations and intervened in the operation of GL009.
5.109 Citizens affected by government action should be able to enforce a substantive justification for this. [130] It follows from paras. 5.36 and 5.37 that the Court of Appeal considered the substantiation given by the State insufficient to substantively justify the Minister's decision not to intervene in the export and transit of F-35 parts to Israel. Having found that the Minister did not or did not correctly assess the crucial criterion of Article 2(2)(c) EUCP, the Minister's decision – to quote Leijten and Uzman – cannot be placed within a “range of reasonable judgements.” [131]
5.111 Ground for Cassation 5.1.1 fails on account of the above.
5.111
Ground for Cassation 5.1.2argues that para. 5.36 contradicts para. 5.28, in which the Court of Appeal held that it is established that the Minister reviewed the licence in response to the events following 7 October 2023 and that the Minister also reviewed it for the criteria of the EUCP. The Court of Appeal also held in para. 5.33 that the Minister took the criteria of Article 2 EUCP into account in the review, and in para. 3.15 held that the Minister incorporated the possible risk of the F-35 parts being used in the commission of serious violations of international humanitarian law in the consideration under Article 8 GL009. According to the ground for cassation, the Court of Appeal's opinion is internally contradictory and insufficient reasoning has been provided for the finding in para. 5.36 that there is no evidence that the Minister tested against the criterion of there being a clear risk that the F-35 will be used in the commission of serious violations of international humanitarian law. Furthermore, the Court of Appeal's opinion has been insufficiently reasoned, or reasoned in an insufficiently comprehensible manner, in light of the State's assertions, the ground for cassation alleged.
Ground for Cassation 5.1.2argues that para. 5.36 contradicts para. 5.28, in which the Court of Appeal held that it is established that the Minister reviewed the licence in response to the events following 7 October 2023 and that the Minister also reviewed it for the criteria of the EUCP. The Court of Appeal also held in para. 5.33 that the Minister took the criteria of Article 2 EUCP into account in the review, and in para. 3.15 held that the Minister incorporated the possible risk of the F-35 parts being used in the commission of serious violations of international humanitarian law in the consideration under Article 8 GL009. According to the ground for cassation, the Court of Appeal's opinion is internally contradictory and insufficient reasoning has been provided for the finding in para. 5.36 that there is no evidence that the Minister tested against the criterion of there being a clear risk that the F-35 will be used in the commission of serious violations of international humanitarian law. Furthermore, the Court of Appeal's opinion has been insufficiently reasoned, or reasoned in an insufficiently comprehensible manner, in light of the State's assertions, the ground for cassation alleged.
5.111 To the extent that this ground for cassation builds on from Ground for Cassation 5.1.1, the ground for cassation shares the same fate. I further note the following. In para. 5.28, the Court of Appeal held, among other things, that in the event that the Minister was not obliged to conduct a review, the Minister should nevertheless have applied the mandatory ground for denial under Article 2(2)(c) EUCP. According to the Court of Appeal, the Minister reassessed GL009 after 7 October 2023, also assessing it for the criteria of the EUCP, but not Article 2(2)(c) EUCP. In para. 5.36, the Court of Appeal held that there is no evidence that the Minister had conducted an assessment against the criterion of a “clear risk” of violation of international humanitarian law. Thus, to the extent that the ground for cassation argues that these holdings contradict each other, the complaint is based on a misinterpretation of the judgment. After all, the Court of Appeal also held in para. 5.36 that the Minister had indicated that the situation was complex and that it was therefore impossible to determine whether Israel had violated international humanitarian law by using the F-35. The issue, as the Court of Appeal rightly held, is not the
determinationof such a violation, but whether a “clear risk” thereof exists. According to the Court of Appeal, there was no evidence that the Minister had tested for that criterion. The Court of Appeal's opinion is neither contradictory nor reasoned insufficiently or in an insufficiently comprehensible manner, so that the ground for cassation fails.
determinationof such a violation, but whether a “clear risk” thereof exists. According to the Court of Appeal, there was no evidence that the Minister had tested for that criterion. The Court of Appeal's opinion is neither contradictory nor reasoned insufficiently or in an insufficiently comprehensible manner, so that the ground for cassation fails.
5.111
Ground for Cassation 5.2is divided into two subgrounds and is directed against the Court of Appeal's dismissal in paras. 5.42 and 5.43 of the defence conducted by the State that the State was authorised to assign decisive weight to three interests, including the importance of the F-35 for Israel’s security.
Ground for Cassation 5.2is divided into two subgrounds and is directed against the Court of Appeal's dismissal in paras. 5.42 and 5.43 of the defence conducted by the State that the State was authorised to assign decisive weight to three interests, including the importance of the F-35 for Israel’s security.
5.111
Ground for Cassation 5.2.1argues that the Court of Appeal's opinion in paras. 5.42 and 5.43 reflects an incorrect interpretation of the law and/or has been reasoned insufficiently or in an insufficiently comprehensible manner. According to the ground for cassation, the Court of Appeal, in holding that there is no war against countries or other militant groups in the region at this time, failed to recognise that it should have relied on the State's undisputed assertions and as such the Court of Appeal exceeded the limits of the legal dispute. Indeed, the State has argued: (i) that the importance of the F-35 for Israel's security must be included in the assessment referred to in Article 8 GL009; (ii) that Israel has been forced to evacuate some 100,000 inhabitants from northern Israel in connection with rocket attacks from Lebanon, (iii) that threats are coming from Iran, Syria and Yemen, (iv) that the F-35 provides protection against this and is being used for Israel's defence. These assertions have not been disputed by Oxfam Novib et al. The ground for cassation further complains that, to the extent that the Court of Appeal started from these assertions by the State, the Court of Appeal interpreted the term “war” in a way that is legally incorrect and too narrow, and that the Court of Appeal's opinion that there was no war against countries or other militant group in the region was reasoned insufficiently or in an insufficiently comprehensible manner. To this the ground for cassation adds that the Court of Appeal failed to address the broader question of the importance of the F-35 for Israel's security even if there were no war against countries or militant groups in the region.
Ground for Cassation 5.2.1argues that the Court of Appeal's opinion in paras. 5.42 and 5.43 reflects an incorrect interpretation of the law and/or has been reasoned insufficiently or in an insufficiently comprehensible manner. According to the ground for cassation, the Court of Appeal, in holding that there is no war against countries or other militant groups in the region at this time, failed to recognise that it should have relied on the State's undisputed assertions and as such the Court of Appeal exceeded the limits of the legal dispute. Indeed, the State has argued: (i) that the importance of the F-35 for Israel's security must be included in the assessment referred to in Article 8 GL009; (ii) that Israel has been forced to evacuate some 100,000 inhabitants from northern Israel in connection with rocket attacks from Lebanon, (iii) that threats are coming from Iran, Syria and Yemen, (iv) that the F-35 provides protection against this and is being used for Israel's defence. These assertions have not been disputed by Oxfam Novib et al. The ground for cassation further complains that, to the extent that the Court of Appeal started from these assertions by the State, the Court of Appeal interpreted the term “war” in a way that is legally incorrect and too narrow, and that the Court of Appeal's opinion that there was no war against countries or other militant group in the region was reasoned insufficiently or in an insufficiently comprehensible manner. To this the ground for cassation adds that the Court of Appeal failed to address the broader question of the importance of the F-35 for Israel's security even if there were no war against countries or militant groups in the region.
5.111 To the extent that this ground for cassation builds on from previous grounds for cassation, it must share their fate. I further note the following. The Court of Appeal held in para. 5.42 that the State put forward as a defence that the State was entitled to assign decisive weight to three interests: (i) the importance of the F-35 for Israel's security, (ii) the harm expected to be caused to the Netherlands’ good relations with Israel, the U.S. and the other countries in the F-35 programme if exports of F-35 are ceased, and (iii) the risk for the continued existence of the European Regional Warehouse in Woensdrecht. The Court of Appeal held that these interests do not carry any weight when tested against Article 8 GL009 and the Strategic Equipment Decree when there is a ‘clear risk’ of a serious violation of international humanitarian law. The Court of Appeal's opinion does not show an incorrect interpretation of the law, nor is it incomprehensible. Also, it cannot be understood that the Court of Appeal, with this opinion, has exceeded the limits of the legal debate, as the Court of Appeal has weighed the State's arguments and found them wanting in relation to the criterion of mandatory law of a 'clear risk' of a serious violation of international humanitarian law. Consequently, the complaints of the ground for cassation fail.
5.111
Ground for Cassation 5.2.2is directed against paras. 5.48, 5.49 and against the operative part of the judgment. The ground for cassation asserts that the Court of Appeal has failed to recognise that the assertions of Oxfam Novib et al. and the Court of Appeal's own findings could at most offer sufficient basis for the opinion that the State acts unlawfully by not preventing the export of those F-35 parts that are used in F-35 aircraft that are used in Gaza. According to the ground for cassation, the Court of Appeal should have limited the scope of the claim of Oxfam Novib et al., which according to the Court of Appeal is allowable, to the use in Gaza.
Ground for Cassation 5.2.2is directed against paras. 5.48, 5.49 and against the operative part of the judgment. The ground for cassation asserts that the Court of Appeal has failed to recognise that the assertions of Oxfam Novib et al. and the Court of Appeal's own findings could at most offer sufficient basis for the opinion that the State acts unlawfully by not preventing the export of those F-35 parts that are used in F-35 aircraft that are used in Gaza. According to the ground for cassation, the Court of Appeal should have limited the scope of the claim of Oxfam Novib et al., which according to the Court of Appeal is allowable, to the use in Gaza.
5.111 The ground for cassation fails to recognise that Oxfam Novib et al.'s claim entailed that the State be ordered 'to immediately cease all actual export and transfer of F-35 parts with Israel as the final destination'. The Court of Appeal allowed this claim as requested, as is apparent from paras. 5.48, 5.49 and the operative part of the judgment. Consequently, the ground for cassation fails.
5.111
Ground for Cassation 5.3is directed against para. 5.47, in which the Court of Appeal recognised that the State has an interest in the Netherlands meeting its international obligations to the U.S., but that this interest is outweighed by the interest in compliance with the State's international obligations pursuant to Article 1 of the Geneva Conventions. The ground for cassation argues that this opinion shows an incorrect interpretation of the law or was reasoned insufficiently or in an insufficiently comprehensible manner. Indeed, the Court of Appeal did not conduct a review against the EUCP, the Arms Trade Treaty or the Geneva Conventions, but against the Strategic Equipment Decree and GL009, so that there can be no conflict between international obligations to be resolved through a balancing of interests.
Ground for Cassation 5.3is directed against para. 5.47, in which the Court of Appeal recognised that the State has an interest in the Netherlands meeting its international obligations to the U.S., but that this interest is outweighed by the interest in compliance with the State's international obligations pursuant to Article 1 of the Geneva Conventions. The ground for cassation argues that this opinion shows an incorrect interpretation of the law or was reasoned insufficiently or in an insufficiently comprehensible manner. Indeed, the Court of Appeal did not conduct a review against the EUCP, the Arms Trade Treaty or the Geneva Conventions, but against the Strategic Equipment Decree and GL009, so that there can be no conflict between international obligations to be resolved through a balancing of interests.
5.111 In para. 5.47, the Court of Appeal set out the State's reasoning that the Netherlands has undertaken to the U.S. that the F-35 parts can be supplied onwards from the Netherlands without restriction. The Court of Appeal has recognised the interest of the State that the Netherlands complies with its obligations to the U.S., but also held that this is outweighed by the interest of compliance with international obligations under international instruments (EUCP, Arms Trade Treaty and Geneva Conventions). As the mandatory criteria of these instruments are carried over into the Strategic Equipment Decree and GL009, the Court of Appeal's opinion does not show an incorrect interpretation of the law, nor is it reasoned insufficiently or in an insufficiently comprehensible manner. The ground for cassation fails.
5.111
Ground for Cassation 5.4is directed against paras. 3.12 and 5.25, in which the Court of Appeal ruled that the (common) Article 1 of the Geneva Conventions and Article 1(1) First Additional Protocol imposes on states an obligation to assure in all circumstances that another state acts in accordance with international humanitarian law. The ground for cassation argues that this ruling shows an incorrect interpretation of the law or is incomprehensible, since these provisions concern the situation that a state is aware of serious violations of international humanitarian law, while in this case involves the situation that there is a clear risk of such violations. The Court of Appeal failed to recognise that in the latter case the treaty provisions do not provide for an obligation to the revocation or amendment of a licence for the supply of arms. However, it concerns a best efforts obligation of states, which is given substance by the EUCP and the Arms Trade Treaty. Therefore, where the EUCP and the Arms Trade Treaty do not contain an obligation to attach consequences to an existing licence for the supply of arms in the event of a clear serious risk of violating international humanitarian law, that obligation cannot be read into the EUCP or the Arms Trade Treaty on the basis of Article 1 Geneva Conventions and the First Additional Protocol as well, as stated in the ground for cassation. The ground for cassation also argues that in so far as the Court of Appeal meant in para. 3.12 that Article 1 of the Geneva Conventions and Article 1 of the First Additional Protocol impose more than a best efforts obligation, that conclusion is legally incorrect or incomprehensibly reasoned.
Ground for Cassation 5.4is directed against paras. 3.12 and 5.25, in which the Court of Appeal ruled that the (common) Article 1 of the Geneva Conventions and Article 1(1) First Additional Protocol imposes on states an obligation to assure in all circumstances that another state acts in accordance with international humanitarian law. The ground for cassation argues that this ruling shows an incorrect interpretation of the law or is incomprehensible, since these provisions concern the situation that a state is aware of serious violations of international humanitarian law, while in this case involves the situation that there is a clear risk of such violations. The Court of Appeal failed to recognise that in the latter case the treaty provisions do not provide for an obligation to the revocation or amendment of a licence for the supply of arms. However, it concerns a best efforts obligation of states, which is given substance by the EUCP and the Arms Trade Treaty. Therefore, where the EUCP and the Arms Trade Treaty do not contain an obligation to attach consequences to an existing licence for the supply of arms in the event of a clear serious risk of violating international humanitarian law, that obligation cannot be read into the EUCP or the Arms Trade Treaty on the basis of Article 1 Geneva Conventions and the First Additional Protocol as well, as stated in the ground for cassation. The ground for cassation also argues that in so far as the Court of Appeal meant in para. 3.12 that Article 1 of the Geneva Conventions and Article 1 of the First Additional Protocol impose more than a best efforts obligation, that conclusion is legally incorrect or incomprehensibly reasoned.
5.111 The ground for cassation requires no discussion, since it builds on the previous grounds for cassation, and shares their fate.
5.111
Ground for Cassation 5.5complains about para. 3.15, in which the Court of Appeal has stated the considerations the Minister has made according to the Court of Appeal in its deliberations on the basis of Article 8 GL009. The ground for cassation asserts that these considerations have been stated incompletely, because the Court of Appeal failed to mention the assertion of the State that the Minister has also considered the consequences for the security of the Netherlands in its deliberations. Furthermore, this opinion has been insufficiently reasoned, or reasoned in an insufficiently comprehensible manner, in light of the State's assertions, according to the ground for cassation.
Ground for Cassation 5.5complains about para. 3.15, in which the Court of Appeal has stated the considerations the Minister has made according to the Court of Appeal in its deliberations on the basis of Article 8 GL009. The ground for cassation asserts that these considerations have been stated incompletely, because the Court of Appeal failed to mention the assertion of the State that the Minister has also considered the consequences for the security of the Netherlands in its deliberations. Furthermore, this opinion has been insufficiently reasoned, or reasoned in an insufficiently comprehensible manner, in light of the State's assertions, according to the ground for cassation.
5.111 In paras. 3.13-3.15, the Court of Appeal discussed developments that have occurred since 7 October 2023. In para. 3.15 , the Court of Appeal addressed the Minister's deliberation on the basis of Article 8 GL009, whereby the Court of Appeal listed the considerations the Minister involved in her deliberations. In so far as the ground for cassation contains a complaint that the Court of Appeal in para. 3.15 rendered an incomprehensible
judgment, the complaint is based on an incorrect interpretation of the specific paragraph, since it contains no
judgment. In so far as the ground for cassation contains a complaint that the
findingis reasoned insufficiently or in an insufficiently comprehensible manner, I remark the following. The Court of Appeal ruled that Article 2(2)(c) EUCP is a mandatory ground for denial: export must be denied if there is a clear risk of serious violation of international humanitarian law. [132] Other interests, such as national security interests, do not affect the application of this criterion. [133] Above, I have argued that this judgment is correct. This means that the complaint that the Court of Appeal's finding is reasoned insufficiently or in an insufficiently comprehensible manner because the Court of Appeal did not mention the State's assertion that the use of GL009 is of importance to security in the Netherlands, fails due to lack of interest. In addition, it is apparent from the sources mentioned by the State in its Initiating Document [134] that the State itself makes a direct connection between the interest in being a reliable ally – which interest the Court of Appeal mentions in para. at (iii) – and the consequences of this for Dutch security. The complaint fails on this basis, too.
judgment, the complaint is based on an incorrect interpretation of the specific paragraph, since it contains no
judgment. In so far as the ground for cassation contains a complaint that the
findingis reasoned insufficiently or in an insufficiently comprehensible manner, I remark the following. The Court of Appeal ruled that Article 2(2)(c) EUCP is a mandatory ground for denial: export must be denied if there is a clear risk of serious violation of international humanitarian law. [132] Other interests, such as national security interests, do not affect the application of this criterion. [133] Above, I have argued that this judgment is correct. This means that the complaint that the Court of Appeal's finding is reasoned insufficiently or in an insufficiently comprehensible manner because the Court of Appeal did not mention the State's assertion that the use of GL009 is of importance to security in the Netherlands, fails due to lack of interest. In addition, it is apparent from the sources mentioned by the State in its Initiating Document [134] that the State itself makes a direct connection between the interest in being a reliable ally – which interest the Court of Appeal mentions in para. at (iii) – and the consequences of this for Dutch security. The complaint fails on this basis, too.
5.125
Ground for Cassation 5.6is directed against para. 3.6, in which the Court of Appeal ruled that the Member States of the European Union agreed in the EUCP ‘that they will review the export of military technology and equipment against the standards included in the EUCP’. This opinion is incorrect because in the EUCP the Member States have only agreed that they will review the applications for export licences submitted to them against the criteria of Article 2 EUCP, whereby the legislation of the Member States determines in which cases an export licence is required, according to the ground for cassation.
Ground for Cassation 5.6is directed against para. 3.6, in which the Court of Appeal ruled that the Member States of the European Union agreed in the EUCP ‘that they will review the export of military technology and equipment against the standards included in the EUCP’. This opinion is incorrect because in the EUCP the Member States have only agreed that they will review the applications for export licences submitted to them against the criteria of Article 2 EUCP, whereby the legislation of the Member States determines in which cases an export licence is required, according to the ground for cassation.
5.125 In para. 3.6, the Court of Appeal briefly outlined the background and effect of the EUCP. Contrary to what the ground for cassation appears to assume, it does not contain a
judgment. By reviewing the arms export against the standards included in the EUCP, the Court of Appeal apparently meant: reviewing the possible consequences of the export against the standards of the EUCP in the context of the granting of licences, or in the context of the reassessment of an already granted licence. That the Court of Appeal intended this also follows from the other holdings of the judgment. [135] The holding of the Court of Appeal is not legally incorrect, so that the complaint fails.
judgment. By reviewing the arms export against the standards included in the EUCP, the Court of Appeal apparently meant: reviewing the possible consequences of the export against the standards of the EUCP in the context of the granting of licences, or in the context of the reassessment of an already granted licence. That the Court of Appeal intended this also follows from the other holdings of the judgment. [135] The holding of the Court of Appeal is not legally incorrect, so that the complaint fails.
5.127 The conclusion is that Ground for Cassation 5 fails.
Ground for Cassation 6: follow-on complaint
5.128 Ground for Cassation 6 builds on the previous grounds for cassation. The ground for cassation does not need to be discussed separately and shares the fate of the previous grounds for cassation.
Conclusion
5.129 My conclusion is that the principal appeal in cassation fails. This being the case, the cross-appeal in cassation that was lodged subject to the condition that the principal appeal in cassation should succeed needs no discussion.
6.Conclusion
The conclusion is that the appeal in cassation must be rejected.
The Procurator General at the
Supreme Court of the Netherlands
AG