The fundamental principle of separation of powers is at the very heart of a legal battle over F-35 parts that has reached the Dutch Supreme Court. The case is less about the parts themselves and more about who has the final say in the Netherlands: the government or the courts.
The Dutch government’s central argument in its appeal is that the judiciary has no constitutional right to dictate foreign policy. Its lawyers contend that decisions on arms exports and international alliances belong exclusively to the executive branch, which is accountable to parliament and the electorate.
This claim is a direct response to a February 2024 appeals court decision that shattered this traditional view. The court ordered the government to halt F-35 part shipments to Israel, effectively vetoing a foreign policy decision. The judges based their ruling on their interpretation of the Netherlands’ obligations under international humanitarian law.
This action was celebrated by human rights groups as a vital check on executive power, ensuring that the government cannot act in violation of international law. However, the government has framed it as an act of judicial overreach that could create chaos and uncertainty in the conduct of the nation’s foreign affairs.
The Supreme Court is now cast in the role of constitutional referee. It must draw the line between the judiciary’s duty to uphold the law and the government’s authority to govern. The outcome of this case will have a lasting impact on the balance of power between the different branches of the Dutch state.
