Legal challenge to Dutch government over 'loopholes' in export ban on F-35 parts

The Dutch government is set to face new legal challenges aimed at closing “loopholes” in a ban on sending F-35 jet parts to Israel, The National can reveal.

Though highly symbolic, a decision by an EU country to halt exports of components of the US-made F-35 fighter jets to Israel, including those that transit via the United States, would represent a blow to Israel's reputation.

It would also represent one of the few concrete actions taken by an Israeli ally to express disagreement with its war on Gaza, which has killed more than 41,500 people in close to a year despite a January order by the International Court of Justice to stop military operations.

Israel's more recent bombing campaign in Lebanon has killed at least 550 people, including dozens of children, in what Israel says are targeted strikes against Hezbollah. The Lebanese health ministry describes them as indiscriminate.

Dutch NGOs believe that exporting F-35 spare parts to Israel violates their country's obligations in the 2013 Arms Trade Treaty, which bans weapons exports if they are used to commit a serious violation of international law, and the 2008 European Common Position on exporting military equipment. Media reports have confirmed that Israel has used F-35s to bomb Gaza but it has been difficult for external observers to establish what kind of jet was used in which attack.

Multiple court cases in the Netherlands

The Dutch state is fighting a legal battle against Oxfam and two other NGOs, which in February won a lawsuit forcing the state to stop exporting F-35 parts to Israel. The government implemented the ban but also lodged an appeal at the Supreme Court, which scheduled a hearing with both parties on September 6. A verdict is expected around the end of the year.

“I find it extremely painful after everything that has happened – rulings by ICJ, the request for arrest warrants by the International Criminal Court, all the UN reports and Amnesty reports – the Dutch government still cannot bring itself to actually acknowledge that Israel is violating international law,” Michiel Servaes, president of Oxfam Novib, the Dutch affiliate of the international charity, told The National.

“Every time they refer to the situation in Gaza, they do it indirectly,” added Mr Servaes, a former diplomat and ex-Labour MP in the Netherlands. “They’re extremely concerned by the humanitarian tragedy that’s unfolding there, as if it were the consequence of a natural disaster without someone being responsible for it.”

But a ban on direct exports to Israel is not enough, according to the NGOs. They want to also stop exports of F-35 parts to the US, where most fighter jets are assembled by Lockheed Martin and then exported to third parties, including Israel. The ban concerns parts installed in new aircraft and those that end up in existing fighter jets. Both are supplied by the Netherlands, said Oxfam.

Dutch media reports allege that the government is trying to bypass the February ban by finding other routes to export to Israel – a claim denied by the state. “The big question is: has the Netherlands found ways to bring spare parts to Israel anyway by exporting some materials first to the US and then from the US to Israel?” said Mr Servaes.

The Dutch state also says it cannot trace the F-35 parts after they reach the US. This argument is widely viewed as unconvincing. “They play dumb and say it's impossible to track those parts once they arrive in the US, which is a bizarre claim because you need to know where those parts go,” said Mr Servaes.

Bill Hartung, senior research fellow at the Quincy Institute for Responsible Statecraft, said manufacturing governments are likely to be aware of where spare parts go. “My guess is they are [able to trace components] because they need to track inventory, but that they keep that information very close,” he said.

NGOs have failed so far to force the state to stop exports of F-35 parts to the US and lost a court case in June. But Mr Servaes told The National that the case was lost for largely procedural reasons and that they would take it to a different court in the coming months.

“The government is trying everything to bypass the ban by shifting these goods between different countries before exporting them to Israel. So we'll need more time to be effective on that aspect,” he said.

International reputation at stake

Lawsuits brought by NGOs against the Dutch state are closely scrutinised because the Netherlands is an important part of the F-35 programme, which also includes the US, the UK, Italy, Canada, Denmark, Norway and Australia. Participation in the biggest joint military production programme in the world gives fast-track access to F-35s and allows allies to co-ordinate more easily during a conflict.

“The Netherlands was one of the F-35 programme's first international partners, and has a stake in the industrial support of the aircraft with more than 25 national suppliers participating in the effort,” said Gareth Jennings, aviation editor at Janes, an open-source defence intelligence company.

The government is keen to remain in the F-35 programme and has warned that a withdrawal would have far-reaching consequences because Dutch companies are the sole suppliers of certain components.

Another argument put forward by the Dutch state, which is represented by the Ministry of Trade and Development Co-operation in the court cases against NGOs, has been that it is up to the state to shape foreign policy, not to courts, and that Israel needs F-35s to defend itself against Iran.

The Netherlands appears to be struggling to mitigate reputational damage on two fronts: either it continues selling weapons to Israel despite the global outcry about human rights violations in Gaza, or it comes across as an untrustworthy member of the highly prized F-35 programme.

In a statement published in February to explain why it was lodging an appeal at the Supreme Court, the ministry said: “The government will do everything it can to convince allies and partners that the Netherlands remains a reliable partner in the F-35 project and in European and international defence co-operation.” Contacted by The National, the ministry said it could not comment because the appeal at the Supreme Court is ongoing.

“It cuts both ways,” said Mr Hartung. “In the larger scheme of things, any country enabling Israel to commit these crimes is already suffering, or should suffer, from major reputational damage. The narrower question of whether it will survive in the programme is harder to say, but the humanitarian issue should take precedence because we haven't seen this kind of slaughter in such a short amount of time in a long time.”

So far, the Netherlands appears to be more keen on sticking to the F-35 programme than on taking public action against the Israeli government over the war in Gaza. The Netherlands is viewed as one of the EU's more pro-Israeli members. The bloc, which is deeply divided over the conflict, has been slow to react and has adopted similar sanctions to the US targeting Hamas leaders and against extremist Israeli settlers in the occupied West Bank.

The Netherlands houses a large warehouse for F-35 spare parts. Maintenance, repair and overhaul was shifted to the Netherlands and Norway from Turkey when Ankara was expelled from the F-35 programme, according to Mr Jennings.

Redundancy is built into the programme to minimise the impact of any country being unable to fulfil its commitments, said Mr Jennings. It is also likely that Israel has an extensive pool of spares to prevent its F-35 fleet from being impacted by unilateral national actions.

“As such, Dutch court efforts to stop F-35 exports to Israel are likely to have a more symbolic than practical effect, with little to no operational impact on the Israeli Air Force or its ongoing operations,” Mr Jennings told The National. “Where things might get testy for Israel and Lockheed Martin, however, is if any Dutch action might lead to similar judicial actions in other partner countries.”

So far, F-35 partners that have implemented partial bans on weapons exports to Israel citing human rights concerns, including the UK and Canada, have refused to touch the F-35 programme. Both countries have exceptions regarding transfers of F-35 parts to the US, meaning there is no vetting for the end user of the fighter jets, said Kelsey Gallagher, a researcher at Project Ploughshares, where he monitors Canadian arms exports.

Implementing an end user ban on Israel may cause a ripple effect that would be detrimental to its political image. Manufacturing companies may also worry over losing contracts with Lockheed Martin, though Mr Gallagher said this concern is largely unfounded. “It's a possibility, but in highly advanced aerospace technology manufacturing, you can't just jump on Amazon and find a replacement for some of these components,” he said.

Ultimately, this is a test case of the Dutch state's commitment to respecting human rights, said Mr Servaes. “We are not asking the Dutch government to stop the whole F-35 programme, just to not contribute to what's happening in Gaza,” he said. “We are asking them to abide [by] international law.”

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