Arms trade from the Netherlands
The Netherlands is the 8th biggest arms exporter in the world, issuing arms export licences worth around 1 billion Euros annually. Some of these are destined for conflict areas or areas with problematic human rights situations. Weapons have been exported from the Netherlands to Saudi Arabia, Bahrain and Pakistan, among other places.
Every large arms export has to be licensed by the government in a separate procedure. The EU and UN have devised rules for this procedure to account for conflict situations and human rights violations. The question remains whether these rules make an impact in practice.
Organisations dispute arms export licence for Egypt
The PILP-NJCM and peace organisations PAX and Stop Wapenhandel have appealed the granting of an arms trade licence by the Dutch government to Egypt. According to these organisations, the licence should not have been granted; the government has insufficiently taken the human rights situation into consideration. In this case, the concern is also around the Egyptian involvement in the Yemen war.
In September 2015, the government wrote a letter to the House of Representatives stating that it had licensed arms trade export for the Egyptian navy. The government’s response mentions that ‘severe human rights violations’ are taking place in Egypt, but that those violations cannot be connected to the 34 million Euros worth of military material being exported. It is the PILP-NJCM’s position that Dutch government has not sufficiently taken into account the involvement of the Egyptian navy in the Yemen blockade, nor the media reports of the Egyptian navy opening fire on refugee boats. The marine blockade has drastically deteriorated the humanitarian situation in Yemen and international war crimes have allegedly been committed.
The Netherlands is obliged to conduct an investigation into human rights and international law when granting arms trade licences. According to the PILP-NJCM, the government has not sufficiently conducted this investigation. Similarly, the government has not, or has insufficiently taken the facts of the situation into account, particularly concerning the Yemen blockade. Pax and Stop Wapenhandel think the arms trade licence is harmful to peace in the Middle East.
Together, the three organisations objected to the arms trade licence on October 12, 2015. We further requested the government withdraw the arms trade licence on December 16, 2015. After the licence was granted, there have been new events and information about the involvement of Egypt in the Yemen blockade that necessitate a review and withdrawal of the licence. In their response of June 1, 2016, the government declared the three organisations inadmissible. As justification, they claim that the organisations’ interests are not directly affected as required by the customs legislation, in this administrative procedure. Whilst, before, PAX and Stop Wapenhandel were declared inadmissible in a civil procedure, because, as the civil judge and the government put forward, it was an issue for the administrative court.
The organisations feel it should be possible to have a discussion around a licence’s legality where the government is licensing arms trade whilst human rights are at stake. For this reason, the organisations appealed the decision on July 6, 2016. The appeal asks for a provisional remedy to suspend the licence and freeze the delivery of military material until a final decision is made. On August 5, 2016, a court meeting took place regarding the temporary judgement; you can read the pleading notes here.
On August 25, 2016, the Dutch court decided the organisations could not challenge the arms export licence. The customs legislation of the European Union only allows for intervention by parties that are directly and individually affected by the arms delivery. Thus, the appeal was declared inadmissible. By adopting this European legislation, the Dutch law, according to which the organisations would have been able to challenge the licence, became inoperative.
PAX, Stop Arms Trade and the PILP have deliberated and decided to appeal the judgment of the district court of Noord-Holland with a new notice of appeal and pleading notes. At the December 2016 hearing, it came to light that the original licensing decision had expired. In September 2016, a second decision to licence the export was made. We objected to this second decision on December 23, 2016.
On January 30, 2017, the Court of Appeal in Amsterdam decided that the procedure was no longer of use as the original arms trade licence had expired.
On February 15, 2017, the organisations appealed the decision on the licence extension. If the case goes to the high court before the extension expires on October 31, 2017, the court will have to decide whether non-governmental organisations (NGOs) can litigate arms trade export licences.
The Court of Appeal has unfortunately dismissed the second appeal of the PILP-NJCM, PAX and Stop Wapenhandel.
According to the Court of Appeal, the NGOs are inadmissible in administrative law and thereby the appeal was rejected. The NGOs are far from satisfied with the dismissal, but are pleased to finally have clarity: an NGO must challenge an arms trade license at the civil court.
Arms export research
On April 9, 2016, the PILP, Campaign against Arms Trade, the independent Public International Law and Policy Group (PILPG) and a group of enthusiastic students gathered. During this meeting, the group researched the types of human rights tests states conduct before granting export permission to arms trade companies. This question was used to further research arms trade on a national, national-European, European and international public law level. The PILP has used the results of this research as a basis for their strategy.
Arms export research by PILPG
PILPG provided the PILP with two independent reports. The first analyses the judicial instruments relevant for regulating the export of arms by Belgium, France, the United Kingdom and the United States. The second focuses on the UN Arms Trade Treaty.
Research by students
Law students provided much additional information regarding this case. Research by Claudia Wenker on Dutch law and weapon export is available here. Additionally, Saskia Bril worked to illustrate what we can learn from previous Dutch cases concerning arms export and human rights in her essay. In a third study by Emma Bree, the cases Mother of Srebrenica v. The Netherlands and Shell/Nigeria were analyzed in light of the state and company liability. How European rules are applied in the Dutch legal context was analysed by Lydia de Leeuw. Bianca Hettinga examined how EU Member States apply and adhere to the human rights criterion outlined in the Common Position. Finally, Lingxi Zhong explored the possibilities for states to be held liable under international law when they export arms to countries notoriously known for violating human rights.
While these reports were written by individual students to assist our case, the PILP does not necessarily agree with all of the ideas and conclusions made in the research.
On 26 October 2018, PAX, Stop Wapenhandel and the NJCM announced to start investigating legal steps in relation to the delivery of Dutch patrol vessels to Libya. Read the press statement here and read an elaborate news article in the NRC here (in Dutch).
On October 19, 2017 the Court of Appeal has unfortunately dismissed the second appeal. According to the Court of Appeal, the NGOs are inadmissible in administrative law and thereby the appeal was rejected. Read more here.
On October 3, 2017 the court hearing on the admissibility of our objection against the second licence took place at the Court of Appeal in Amsterdam.
On April 20, 2017, the district court of Noord-Holland declared our appeal to the decision on our objection against the second licence inadmissible.
On February 15, 2017, the PILP appealed the second decision on the extension of the arms export licence. The hearing was on 30 March 2017.
On December 23, 2016, we objected to the second decision to renew the export licence.
The hearing on the appeal was on August 15, 2016, at the Regional Court in Haarlem. Read our pleading notes.
On August 14, 2016, Jelle Klaas was interviewed in the broadcast Sportzomer on radio NPO 1 regarding the PILP’s position and the status of the court case.
On August 11, 2016, a blog post written by Jelle Klaas and Merel Hendrickx was published on the Humboldt Law Clinic Grund-und Menschenrechte blog page on the licence to export weapons to Egypt.
On July 6, 2016, the organisations appealed the Dutch government’s decision to grant an arms export licence. Read the press release here.
On June 1, 2016, the PILP and peace organisations were declared inadmissible in the decision on the objection to the arms export licence.
On October 12, 2015, the PILP and peace organisations objected to the export licence.