By: Ithar Hassan
During his 1961 farewell address, President Dwight D. Eisenhower took the opportunity to address the rise of the military-industrial complex: “Until the latest of our world conflicts, the United States had no armaments industry. American makers of plowshares could, with time and as required, make swords as well. But now . . . we have been compelled to create a permanent armaments industry of vast proportions.” The global arms trade has long been an essential arm of governments, promulgating foreign policy across every corner of the globe. In the aftermath of World War II, many believed that military cooperation through arms transfers was in the best interest of Western countries and an overall positive development.
Today, there has been a growing trend towards responsible security cooperation particularly with respect to the conflicts involving Saudi Arabia, Yemen, Ukraine, Afghanistan, and Iraq. Some U.S. lawmakers have questioned whether arms transfers can influence behavior and promote economic and political cooperation. This skepticism was confirmed in 2022 when Saudi Arabia led the Organization of the Petroleum Exporting Countries and its allies (OPEC+) in an oil production cut, harming its supposed ally, the United States. This cut occurred despite the longstanding oil-for-guns deal between the two countries. If arms transfers no longer benefit national interests, is it time to reconsider the moral and ethical implications of these actions? For instance, does the United States want to be associated with the killing of civilians by US-made Joint Direct Attack Munitions (JDAMs)? Does the United Kingdom want to be associated with the bombing campaign against Yemeni civilians caused by U.K. Tornado and Typhoon aircrafts? The ethics of these transfers have always been an issue, but with little return on these investments, many nations can change course to limit human suffering.
These questions remain central to an ongoing legal case involving the Dutch government and human rights organizations. In November 2023, several human rights groups brought a case against the Dutch government pushing back on the delivery of F-35 jet parts to Israel needed for its war against Hamas. The plaintiffs argued that under customary international law and international conventions such as the Genocide Convention and the Geneva Conventions, the Netherlands is complicit in war crimes and is required to stop the transfer of fighter jet parts. The Regional Court of the Hague agreed that the Dutch government was obligated to reconsider the transfer, taking note of the ongoing Israel-Hamas war. The Minister of Foreign Trade reviewed the transfer before the case reached the appeals court, finding no “clear risk” of international humanitarian law (IHL) violations in light of the available information on the conflict. Additionally, the Minister found that stopping the transfer would significantly deteriorate the Netherlands’ relationship with its allies. This argument was supported by the regional court judge, which found that the Minister made a “broad consideration” and that the Dutch government was not obligated to stop the transfer of weapons given how “unclear” the circumstances of the war are. and that the Dutch government was not obligated to stop the transfer of weapons given how “unclear” the circumstances of the war are.
On February 12, 2024, a Dutch appeals court delivered a significant blow to the Dutch government, putting many other countries on notice. The Dutch appeals court found that the earlier assessment done by the Minister of Foreign Trade was insufficient. In its evaluation of a “clear risk” of an IHL violation, under the EU Common Position on Arms Exports, the court noted that a judicial decision on Israeli violations of IHL is not germane to determining if there is a “clear risk.” The appeals court found that the argument that destruction has only been directed at military targets “is not plausible, not only in light of their unprecedented scale but also in light of statements made by Israeli military personnel themselves.” Through this decision, the appeals court affirmed that the Netherlands is obligated to reassess its export permit to Israel in light of its international commitments. The Dutch government has appealed the case to the country’s Supreme Court, arguing that the courts should not have a role in shaping foreign policy.
The question of whether countries can be held accountable for violating their international obligation to protect civilian life is not novel and has been raised before in international tribunals. In 1986, Nicaragua filed a case against the United States before the International Court of Justice (ICJ) for its financial and material aid to the Contras, a rebel group opposed to the socialist government, the Sandinistas. Widespread human rights abuses occurred during the conflict and while the United States was found in violation of customary international law for its use of force, intervention, and violating the sovereignty of another state, the United States was not found responsible for the human rights abuses carried out by the Contras who used American-made weapons. The court held that even if the crimes against humanity committed by the Contras were caused by US weapons, “for this conduct to give rise to the legal responsibility of the United States, it would in principle have to be proved that the state had effective control of the military and paramilitary operations in the course of which the alleged violations were committed.” Therefore, the court found that the acts committed by the rebel group could not be attributed to the United States.
The effective control test has long been the standard used to analyze the wrongfulness of weapons transfers in the context of human rights abuses. While there are many considerations at play in the Netherlands F-35 parts case, the plaintiffs in the matter would likely fail to overcome the ICJ’s effective control test if the Dutch Supreme Court chose to adopt the standard. There is no evidence to show that the Netherlands, or any of Israel’s many allies, has a say over the operations and conduct of the Israel Defense Force in Gaza. Public reporting indicates that many of Israel’s allies have been at odds with the Netanyahu government’s execution of its war but have been unsuccessful in deterring its actions. Without establishing that Israel is acting as an organ of its allies, one cannot attribute human rights abuses in the conflict to the nations providing weaponry. While the proceedings remain in the Dutch legal system, some have argued that the Dutch courts and judges have been influenced by the ICJ’s recent decisions regarding the Israel-Hamas conflict. These decisions highlight the growing humanitarian crisis in Gaza and assign obligations to Israel under the Genocide Convention. Even so, according to the ICJ, states are only obligated to prevent themselves from engaging in that conduct, but they are not obligated to prevent such conduct. To that end, the Dutch government could likely continue arguing that they are assisting an ally but are not direct participants in the conflict, distancing themselves from the causalities occurring on the ground while also protecting its foreign policy initiatives.
The ICJ’s “effective control” test has undoubtedly enabled countries to continue to arm other governments while also evading legal liability for how the weapons are used. It remains to be seen what the Dutch Supreme Court will do and most importantly, if it aligns itself with the ICJ standard or takes an entirely different position on this matter. If the Dutch Supreme Court affirms the appeals court and goes further by assigning responsibility to the Dutch government, it may influence the ICJ to reconsider its “effective control test”. Given that the ICJ has responded more aggressively towards Israel’s actions in the ongoing conflict, the Court in its current form may be inclined to reconsider its past ruling if given the opportunity.
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