A fundamental question of judicial power is before the Dutch Supreme Court: can judges override the government on matters of foreign policy and national security? The court’s answer will come in a ruling on the government’s appeal against a ban on transferring F-35 fighter jet components to Israel.
The case represents the culmination of a legal campaign by human rights activists who argue the Netherlands has a legal and moral duty to stop the shipments. They contend the parts are being used in Israeli military operations in Gaza that have resulted in alleged war crimes, a charge Israel denies.
The government’s hand was forced by an appeals court in February 2024, which sided with the activists and imposed the ban. That court’s decision was a bold assertion of judicial oversight, stating that the risk of complicity in humanitarian law violations was too great to ignore. The government’s appeal argues this represents an overreach of judicial authority.
A key element in the government’s argument is the presence of a U.S.-owned F-35 parts warehouse in the Netherlands. State lawyers argue that a Dutch prohibition would be meaningless, as the U.S. would not be deterred from supplying a key ally. They frame the issue as one of international diplomacy, best left to the executive branch.
The backdrop to this constitutional debate is the ongoing war that has killed over 66,200 Palestinians, according to the Gaza Health Ministry, following Hamas’s October 7 attack on Israel. The Dutch case is a focal point in a wider European debate, where court cases and government actions in countries like Spain, the UK, and France are challenging the status quo on arms exports to Israel.