In a landmark ruling in mid-February, the Hague Court of Appeal ordered the Dutch government to stop exporting parts for the Lockheed Martin F-35 Lightning II to Israel, citing the risk of serious violations of international humanitarian law if the F-35 were used for airstrikes in Gaza. Although it seems unlikely that the court order will have any significant impact on Israeli air operations, it raises a number of legal and political challenges to the global F-35 program, the U.S. Department of Defense’s most ambitious and most expensive weapons program to date.
On February 12, 2024, the Hague Court of Appeal ordered the Dutch government to halt all deliveries of parts for the Lockheed Martin F-35 Lightning II, also known as the Joint Strike Fighter, from the F-35 European regional warehouse in Woensdrecht to Israel.
The Court held that the export of F-35 fighter jet parts were no longer permitted given the fact that there “is a clear risk that serious violations of humanitarian law of war are committed with the F-35”. The parts for the F-35 qualify as military goods which require a permit for export, which was granted in 2016. However, the situation drastically changed when Hamas attacked Israel on 7 October 2023, resulting in Israel’s invasion of the Gaza strip. In light of these developments, the Dutch Minister for Foreign Trade and Development Cooperation reassessed the export permit but ultimately took the decision not to intervene by withdrawing or altering the permit.
Three Dutch NGOs, Oxfam Novib, Pax, and The Rights Forum, questioned the decision taken by the Minister and thus initiated proceedings at the District Court of The Hague. On 15 December 2023, the Court decided that the Netherlands was under no obligation to halt the export of F-35 fighter jet parts to Israel. But only a few weeks later, the Appeals Court overturned the decision, arguing that there was a clear risk that the Israeli F-35 fleet would be used in violation of international law, most notably humanitarian law, and that the Netherlands was thus obliged to halt all exports of F-35 parts. The government has announced that it will challenge the Appeal Court decision at the Dutch Supreme Court but until this process has concluded, all exports of these parts remain on hold.
The decision by the Court raises a number of challenges from a legal but also from a military and a political perspective. For example, will the court order affect Israel’s air war in Gaza? And are there any broader ramifications for the F-35 program – the U.S. Department of Defense’s most ambitious and most expensive weapons program to date, in which three U.S. military services and seven partner nations participate?
Military Impact on Air Operations in Gaza
The Israeli Air Force is one of the most modern air forces in the world deploying 340 combat capable aircraft. As the only nation in the Middle East operating the F-35, Israel currently operates two squadrons with a total of 39 Lockheed F-35I Adir (Hebrew for “Mighty One”) fifth-generation fighter jets, and its original contract includes orders for another 11 airframes. Moreover, the Israeli government announced in June 2023 that it would acquire an additional 25 aircraft.
Although operational details about Israel’s air campaign in Gaza are not publicly available, the Israeli Defense Forces (IDF) have confirmed in a press briefing that the Israeli Air Force uses the F-35I to strike targets in Gaza. Moreover, comments from IDF Chief of Staff Lt. Gen. Herzi Halevi in November 2023 seem to suggest that the F-35I provides Close Air Support with “very heavy munitions” to Israeli ground forces in Gaza, who operate in close proximity – about 200 meters – to their opponents. What this means is that the Israeli Air Force likely employs 2,000-pound, GPS-aided GBU-31 Joint Direct Attack Munitions (JDAMs) for Close Air Support, a highly unusual weapon for this kind of tasking due to the high risk of friendly fire (harm to one’s own troops) and collateral damage (unintentional harm to civilians and civilian objects).
Even though the F-35I Adir is used to strike targets in Gaza, the Dutch court order is unlikely to affect the further conduct of Israeli air operations in the conflict. Firstly, the U.S. government can supply Israel with F-35 spares directly from U.S. territory, and it has already surged spare parts and support capacity to Israel according to U.S. Representative Rob Wittman.
Secondly, Israel is less dependent on the global F-35 support infrastructure than any other participant in the F-35 program. The shipments of spare parts for the F-35 are managed through a centralized support infrastructure, the Autonomic Logistics Information System (ALIS), which operates on a “just-in-time” logistics model. For example, if ALIS would detect that the aircraft required maintenance, it would order the necessary spare parts from the regional warehouse where it would be quickly dispatched to the relevant airbase. However, since ALIS does not work as intended and will be replaced by a new logistics system, and because of Israel’s unique geopolitical situation in the Middle East, the country has pressed Lockheed Martin and the United States for permission to build an indigenous maintenance, sustainment, and upgrade system. Israel secured the rights to do so in 2020 already, so it was probably not as reliant on the Woundsrecht logistics center as other F-35 users in the first place.
Thirdly, the Gaza strip is what one may describe as a relatively “permissive” operational environment, meaning that Israel does not need to fear enemy air defenses. In other words, it can use its large fleet of older and less costly 4th generation F-15 and F-16 multirole fighters to strike ground targets in Gaza. The 5th generation F-35, which is optimized to penetrate advanced, integrated air defense systems, would be more suitable for strike operations in Lebanon, Syria, or Iran, but is not required for Israel’s air campaign in Gaza.
The more interesting question, then, is whether the Dutch court ruling may affect the F-35 program as a whole, and whether other participants in the program may be breaking the law by continuing to supply parts to Israel, as some outlets have suggested.
The F-35 Program is a Global Enterprise
The F-35 may be an American aircraft, but the F-35 program is in fact a global enterprise. Usually, the United States will design and build an aircraft before selling it to its allies through the foreign military sales (FMS) process. FMS contracts come with an additional “tax” to the buyer in order to recover non-recurring research, development, or production costs payed up-front by the U.S. government. Moreover, the contracts include offset-agreements to roughly balance out the cost of the acquisition. This may be done by integrating the buyer’s domestic systems into the airplane, or with investments totally unrelated to the defense industry. For example, the Hilton hotel in Ankara, Turkey, was built as part of the F-16 offset program.
The F-35 program is different because U.S. allies were allowed to participate in the development of the aircraft from fairly early on. Depending on the financial contribution to the program, allies were designated specific partner levels. The United Kingdom is a level 1 partner, whereas Italy and the Netherlands are level 2 partners. Australia, Canada, Denmark, and Norway are all level 3 partners, and Turkey was also a level 3 partner until it was removed from the program in 2018. Germany itself is not a partner in the F-35 program – it acquired the aircraft through the FMS process. Participating on the F-35 program came with a number of benefits. Partner countries could participate in defining the requirements for the aircraft and would not need to pay the additional FMS tax. The most important benefit, however, was industry participation.
In exchange for their contributions to the F-35 program, partner countries were allowed to compete with their own industries to build key subcomponents of the aircraft. As a result, only 30 percent of the F-35 is actually manufactured by Lockheed Martin, the prime contractor responsible for integration, final assemble, and check out. (Usually, the prime contractor will make about 70 percent of the plane.)
Lockheed Martin produces the wing and the forward fuselage of the aircraft. The center fuselage for the F-35 is built by the U.S. defense contractor Northrop Grumman, while Pratt & Whitney builds the F-135 engine. British BAE Systems produces the aft fuselage and tails, as well as the F-35’s electronic warfare system, whereas the Dutch company Fokker is responsible for the flaperons, the inflight opening doors, the arresting gear, and the Electrical Wiring and Interconnection Systems (EWIS). The Danish Terma Group is also a major supplier for the F-35 and produces more than 80 unique parts, including radar electronics, composites for the aircraft’s horizontal tails and stabilizers, missionized gun pods, and the air-to-ground pylons where the weapons are mounted. All these parts are then assembled in one of the three final assembly and checkout facilities in Fort Worth, Texas, Caimeri, Italy, and Nagoya, Japan.
In the future, Germany might also play a substantial role in constructing the F-35 fighter jet. In August 2023, defense contractor Rheinmetall announced the construction of a factory in North Rhine-Westphalia where the center fuselage sections for at least 400 F-35 fighter jets will be built in cooperation with Northrop Grumman.
Does the Arms Trade Treaty Prohibit Indirect Transfers?
In light of the recent verdict rendered by the Dutch Court of Appeal, the question arises whether Germany and other participants of the F-35 global enterprise might face similar legal challenges. Assuming that Israel’s war against Hamas continues, would states be prohibited from issuing export licenses in case there was a risk that the F-35 fighter jets would be used to commit or facilitate the violation of humanitarian and/or human rights law?
In contrast to the Netherlands, Germany, for example, would not send parts of the F-35 fighter jet directly to Israel. Rather, it would deliver them to the United States, Italy or Japan for final assemblage. At the European level, Germany is bound by the European Union Council Common Position of 2008, defining common rules governing control of exports of military technology and equipment. Furthermore, it has ratified the Arms Trade Treaty (ATT) whose Article 7 stipulates that States Parties must – when authorizing the export of weapons (or parts thereof) – assess the potential that the weapon could be used to commit or facilitate serious violations of humanitarian and/or human rights law. But the ATT is silent on the question of whether direct and indirect arms exports are covered by its scope of application.
Only applying the ATT to direct arms transfers would certainly undermine the ATT’s object and purpose. A good faith performance of States Parties would thus – arguably – include indirect transfers. Indirect arms transfers could also be relevant from the perspective of state responsibility. States, which have indirectly delivered weapons could – arguably – be at least complicit in violating international law within the meaning of Article 16 of the ILC Draft Articles on State Responsibility. And finally, account should be taken of the fact that while Italy and Japan have acceded to the ATT obliging them to assess their own obligations when issuing export licenses, the United States has merely signed but not officially acceded to the treaty. Especially in case parts of the F-35 were sent to the United States for final assemblage, Germany would need to pay particular attention to a complete assessment in order to comply with its obligations under the ATT.
The arguments speaking in favor of an extensive reading of the ATT should be sufficiently taken into account by the respective governments. Given the dire situation of Palestinians in the Gaza strip, the export of parts for the F-35 fighter jet could very well violate the ATT, at least in case that the governments similarly conclude that there is a risk that these exports could be used to commit or facilitate a violation of humanitarian and/or human rights law.
However, it is imperative to look not only at international law. In fact, a number of other legal challenges remain, at least in the case of Germany. These are primarily linked to German domestic law.
Additional Legal Challenges: The Role of the Bundessicherheitsrat and the (Im-)possibility of Group Action in Germany
According to Article 26 para 2 of the German Basic Law, “[w]eapons designed for warfare may be manufactured, transported or marketed only with the permission of the Federal Government”. Details on export control are regulated in federal laws, such as the Weapons of War Control Act (Kriegswaffenkontrollgesetz) and the Foreign Trade and Payments Act (Außenwirtschaftsgesetz). Another legal source is the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung).
It is important to note that it is not the Federal Government which takes decisions about arms transfers but the so-called Federal Security Council (“Bundessicherheitsrat”). However, decisions by the Federal Security Council cannot be challenged in legal terms and there is hardly any opportunity for parliamentary control. Moreover, unlike the Netherlands, the German legal system does not allow for group action by organisations such as NGOs. The German Coalition Agreement (Koalitionsvertrag) entails an explicit commitment of the German government to adopt a new Arms Control Law that would – finally – regulate the issuance of export control licenses in line with international and domestic law.
Currently, Germany under the auspices of the German Ministry for Economic Affairs and Climate Action, is working on a draft of this law. However, a list of key points, published by the ministry in late 2022, did not contain any such provisions. Consequently, even once the new law passes, it will likely remain impossible to challenge export decisions in German courts.
Outlook
While the Dutch court order is unlikely to have any direct impact on Israeli air operations in Gaza, the implications of the ruling for the F-35 program loom large. If the war in Gaza continues, then a legal case could be made that the ATT prohibits not only direct exports, but also indirect exports to Israel. As a consequence, members of the F-35 global enterprise – at least those who have ratified the ATT – might well be in violation of international law and could be obliged to stop exporting crucial components for the F-35 program. This holds especially true in case F-35 fighter jet parts were exported to countries which are not States Parties to the ATT.
The effect of the Dutch court order will probably not be felt in Germany because it does not yet produce parts for the F-35, and because German domestic law does not allow for group action. However, other countries such as Belgium, Italy, and the United Kingdom all participate in the F-35 program and have legal frameworks that could make export permits subject to legal scrutiny. Therefore, the decision of the Dutch Supreme Court, which may or may not overturn the present ruling of the Dutch Court of Appeals, will likely be expected with great interest in European capitals.
Frank Kuhn
Latest posts by Frank Kuhn (see all)
- Court Orders Dutch Government to halt the Export of F-35 Parts to Israel: Implications for the War in Gaza and Beyond - 6. März 2024
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Elisabeth Hoffberger-Pippan
Latest posts by Elisabeth Hoffberger-Pippan (see all)
- Court Orders Dutch Government to halt the Export of F-35 Parts to Israel: Implications for the War in Gaza and Beyond - 6. März 2024
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