“Clear Risk” of War Crimes Cited in Dutch F-35 Case Awaiting Final Ruling

A judicial finding of a “clear risk” of war crimes is at the center of a case before the Dutch Supreme Court, which will soon decide whether to uphold a ban on F-35 parts exports to Israel. The government is challenging the lower court’s risk assessment, arguing it is a political matter, not a legal one.
The lawsuit was brought by human rights groups who successfully argued before an appeals court that the evidence of how Israel was conducting its war in Gaza was sufficient to establish a clear risk of serious violations of international humanitarian law.
That appeals court ruling in February 2024 was a watershed moment, as it translated abstract legal principles into a concrete order to halt the shipments. The court explicitly stated that the state’s obligation to prevent such violations outweighed other interests. The government’s appeal directly attacks this finding.
In its defense, the government has not only questioned the court’s authority but also the premise of the ban. It claims that since the Netherlands is just a transit point for U.S.-owned parts, its actions have little bearing on the ultimate outcome, a view contested by the rights groups.
The Supreme Court’s deliberation on what constitutes a “clear risk” is being closely watched. The context is the Israel-Hamas war, which began on October 7 and has led to a humanitarian catastrophe in Gaza, prompting widespread calls for accountability and restrictions on arms transfers to the region.