Judicial Activism or Upholding the Law? The Dutch F-35 Conundrum

The Dutch Supreme Court is faced with a conundrum that goes to the heart of its role: is it engaging in judicial activism or simply upholding the law by intervening in the government’s decision to ship F-35 parts to Israel? Its final ruling will be a landmark in Dutch legal history.
The case was initiated by activists who argue the court has a duty to act, as the government is allegedly violating its own laws by permitting the exports. They see the courts as the last line of defense for international humanitarian law.
This view was endorsed by an appeals court in February 2024, which imposed a ban on the shipments to Israel. The government, in its appeal, has framed this as an illegitimate incursion into its executive domain, accusing the court of making political decisions under the guise of legal interpretation.
The government’s argument is that assessing the complexities of foreign relations and the practicalities of international logistics—such as the fact the parts are U.S.-owned—is a task for which the judiciary is ill-equipped. This is the central pillar of its attempt to have the ban overturned.
As the court prepares its ruling, the conflict that sparked the case continues to rage. The war, which started with Hamas’s attack on October 7, has created deep divisions and raised profound legal and ethical questions for Israel’s allies, with the Dutch case being one of the most prominent examples.