Since 8 October 2023, the day after Hamas’s attack on Israel, arms exports have been the subject of much debate. After spiking in 2023 (see report concerning Germany), exports have since declined. Governments in Canada, Belgium, Italy, and Spain have voluntarily suspended trade. Others, such as the Dutch Government, have done so after legal action in domestic courts. In fact, domestic cases are proliferating and have been strengthened by UN reports that confirm serious violations of international law, particularly international humanitarian law (IHL – see here and here). While the proceedings before the International Court of Justice (ICJ) have received significant attention, domestic legal proceedings – with the exception of a recent Dutch case – have received comparatively little coverage. This is surprising, as domestic courts may provide a faster and more effective avenue for enforcing international law. This blog provides an overview of cases in Germany, the UK, France, and Denmark, focusing on a common problem facing litigants: access to justice. But first, some context.
The Wider Context
Most readers are aware of cases brought by South Africa and Germany before the ICJ (see here, here). While these cases are undoubtedly interesting, they are likely to continue for years and will have little or no immediate effect on most States. In contrast, the well-known Dutch case has demonstrated how fast and efficient domestic proceedings can be. In February 2024, the Hague Court of Appeals ordered the Dutch Government to halt the export of F-35 parts to Israel following a claim by three NGOs. This decision was appealed to the Dutch Supreme Court, which heard the case on 6 September 2024. Following the ruling by the High Court, Dutch authorities suspended the export of F-35 parts to Israel (see here, here and here). The claimants have since filed a new case, arguing that the Dutch Government is evading the ruling by sending F-35 parts to the US, where they could be re-exported to Israel. A decision on this second case, heard in June 2024, is expected soon.
German Cases Rejected: Almost Impossible Barriers to Legal Review
After the US, Germany is the second largest exporter of arms to Israel, accounting for 30% of Israel’s imports of major conventional arms. German courts have already heard several cases. In June, the Administrative Court of Berlin dismissed a case regarding arms exports. The ruling was upheld in August by the Higher Administrative Court. The case was filed by a group of Palestinians and NGOs, among others the Palestinian human rights group Al-Haq, arguing that Germany violated the War Weapons Control Act (Kriegswaffenkontrollgesetz – hereinafter ‘Control Act’), which prohibits exports if they breach Germany’s international obligations. The case was eventually dismissed because no active export decisions were up for review – new licences had been paused in early 2024 – and German Administrative Law generally prohibits measures against anticipated decisions (see here and here). This restrictive approach presents challenges for interim measures, as export licences are typically not disclosed in advance (see eg report by Forensis). In response, the claimants filed a new application for information on future licences, presumably to prepare for new legal challenge.
An additional case was filed with the Administrative Court of Frankfurt am Main, concerning other military equipment, such as engines or technology transfer (sonstige Rüstungsgüter), which fall under the Foreign Trade and Payments Act (Außenwirtschaftsgesetz – hereinafter ‘Payments Act’) rather than the Control Act (see the analysis here). While exports of military equipment under the Control Act have declined, exports under the Payments Act have not. Also this case was dismissed, as ‘inadmissible and also obviously unfounded’ (para 17). The Frankfurt Court found the claimants to lack standing, as the Payments Act does not establish individual rights. Additionally, the Frankfurt Court said that the export of other military equipment falls under governmental discretion and is therefore only subject to a judicial review for arbitrariness. In relation to the latter, the Court deemed the Government’s assessment sufficient.
UK Case Rejected: High Court Defers to Government Assessment
The Global Legal Action Network (GLAN) and Al-Haq sought permission for judicial review regarding the UK’s export licences to Israel under part 54 Civil Procedure Rules. The granting of arms export licences is regulated by the Export Control Act 2002 and – following Brexit – the Strategic Export Licensing Criteria (SELC). The relevant rules stipulate that the Government must refuse an arms exports licence if there is a clear risk that the controlled items could be used to commit or facilitate serious violations of IHL or human rights (Criteria 2).
The claimants argued that, in light of the situation in Gaza, the only rational course of action under the SELC was, and remains, to suspend the relevant export licences to Israel. In a ruling in February 2024, the High Court in London found that this claim had no ‘realistic prospect of success’ (see here). The High Court noted that, as SELC requires a ‘clear risk’ of a ‘serious violation’ there was ‘a high hurdle to surmount.’ It ruled that the Government’s decision to grant licences was not irrational, and expressed satisfaction with its assessment and scrutiny.
This ruling was somewhat undermined by the newly elected Labour Government’s decision on 2 September 2024 to suspend arms exports, following a review of Israel’s actions. The Government found there was a ‘clear risk certain military exports to Israel might be used in violations of [IHL]’. Notwithstanding, the UK suspended only 30 from a total of around 350 arms licences. These suspensions will not apply to British-made components for the global F-35 fighter jet programme – despite the reported use of F-35 fighter jets by Israel to conduct airstrikes in Gaza and the opposite decision by the Dutch High Court. The ruling has been appealed.
French Cases Rejected: Arms Export Licences Shielded from Judicial Review
Elven NGOs brought cases in France (see here). In their request for interim measures before the Paris Administrative Court, they sought to suspend all export licences for both weapons and dual-use goods, demanding a re-examination of the licences for exports of war materiel pursuant to the provisions of Article L. 2335-4 of the Defence Code. The relevant Article allows the Government to suspend, modify, revoke, or withdraw export licences if the export does not comply with France’s international obligations. The phrasing of the Article (L’autorité administrative peut…) indicates that suspension is a possibility, but not an obligation. The claimants argued that exports would violate international, constitutional and European Law (inter alia Art 6(3) of the UN Arms Trade Treaty and EU 2008/944/PESC) and sought standing under Article L. 521-2 of the Code of Administrative Justice. The application was rejected in April 2024. The Paris Court followed the Government’s position that the issuing of export licences constituted a governmental act and thus was not subject to judicial review. An appeal was rejected in May. This case follows precedents of earlier legal challenges related to arms exports to Saudi Arabia, Egypt, and the United Arab Emirates, amid concerns over potential violations of IHL and human rights in Yemen, which were similarly rejected. Together, these cases demonstrate the near impossibility of securing judicial review of arms exports in France.
Ongoing Legal Battles in Denmark
Two cases have recently been filed in Denmark. In one case, a group of NGOs, including Al-Haq, has applied for judicial review against the police and the Ministry of Foreign Affairs. In another case, filed by a young Palestinian, the Ministry of Justice has also been named as the defendant. In both cases, the claimants argue that Denmark is violating the Danish Weapons Act (Våbenloven), as well as EU and international law, by granting export licences for Danish-produced components of the F-35 fighter jet destined for Israel. The legality of these exports has been debated in parliamentary committees, prompting the introduction of a bill in March 2024 to cease new licences. The bill garnered only 11 votes out of 189 and was accordingly defeated.
The Government has consistently stated in parliamentary committees that no weapon parts are exported directly from Denmark to Israel. Instead, parts are shipped to the US, and the Danish Government claims to be unaware of their final destination. This claim was, however, undermined when it was documented that a Danish company had explicitly entered Israel as the potential end user in its application for an export licence. Despite this, when the authorities issued the permit, the licence listed the end user as ‘unknown.’
In an unusual turn of events, three former Ministers of Foreign Affairs recently wrote an op-ed expressing support for the filing of the cases. They will be heard by the Eastern High Court of Denmark on 25 February 2025.
Conclusion
While the Dutch case has set an important precedent, the UK ruling highlights the limitations of judicial review, particularly when courts defer to the Government’s assessments. Such deferral diminishes the value of the generally lenient standing requirements in the UK (for a comparison, see here). This is regrettable, as UK courts are typically more open to reviewing government decisions, especially in matters involving human rights or environmental concerns.
In contrast, Germany and Denmark have stricter, rights-based standing requirements that necessitate a direct impact on the claimant’s rights. Additionally, interim measures are generally inadmissible, and courts often defer to administrative decisions. France also has a narrow, interest-based standing. In the above cases, however, the courts have refused to review the relevant acts. The Netherlands, by contrast, strikes a balance with a broader, rights-based approach that allows for legal challenges when a legitimate interest is demonstrated.
Over the years, access to judicial review has been expanded in many states, particularly in the field of environmental law. Here, the Aarhus Convention has had great impact: it requires the existence of judicial or administrative procedures to challenge breaches of environmental laws. In Verein KlimaSeniorinnen, ECtHR underscored the importance of granting standing to interest organisations, noting that ‘in modern-day societies, where citizens face particularly complex administrative decisions, recourse to collective bodies such as associations is often one of the only means available to defend their interests effectively’ (para 489). This observation holds true not only for environmental law, but also in the current cases, raising legitimate questions about how governments can be held accountable if there is no access to justice or if governmental acts are exempt from review by domestic courts. Pressure on domestic authorities increased as 39 UN experts recently called on states to comply with the norms in the ICJ’s recent Advisory Opinion by inter alia imposing a ‘full arms embargo on Israel’. Litigation is likely to continue.
