Dutch Government Fights for Foreign Policy Control in F-35 Supreme Court Appeal

The Dutch government is making a stand for its control over foreign policy in a critical Supreme Court appeal, seeking to overturn a judicial ban on exporting F-35 fighter jet parts to Israel. The case has evolved into a fundamental test of the executive branch’s authority against judicial oversight.
From the government’s perspective, the decision to allow or block the transfer of military components is a complex foreign policy calculation, not a simple legal question. Lawyers for the state argue that such decisions involve sensitive diplomatic relationships, treaty obligations, and national security considerations that are ill-suited for a courtroom.
This position was directly contradicted by a Dutch appeals court in February 2024. The court prioritized international humanitarian law over the government’s policy discretion, imposing a ban on the F-35 part shipments. This move was seen by the government as an unacceptable encroachment by the judiciary into the political domain.
In its appeal, the government is essentially asking the Supreme Court to restore the traditional separation of powers. It contends that if judges can veto foreign policy decisions based on their interpretation of risk, it could paralyze the government’s ability to act on the international stage.
The case was originally brought by human rights groups concerned about Israeli actions in Gaza. While the humanitarian aspect is significant, the government’s appeal focuses squarely on the constitutional question: Who gets the final say on foreign policy in the Netherlands—the elected government or the appointed judiciary? The Supreme Court’s answer will have lasting implications for governance in the country.