On February 12, 2024, the Dutch Court of Appeal ruled that the Netherlands must cease transfer of US-owned F-35 fighter jet components to Israel. The appeal was initiated by four pro-BDS NGOs – Oxfam Novib, PAX, Rights Forum, and Amnesty International – which had sued the Dutch government to stop the transfers and had lost in District Court.

The Court of Appeal relied heavily on information from anti-Israel NGOs and UN bodies in concluding that there is a “clear risk” that transferring this materiel would lead to international law violations. Without any verification or basis, the Court “assumed” that information provided by these actors is “reliable.”

At the same time, in its arguments before the Court, the Dutch government voiced skepticism over the veracity and accuracy of the information presented by the NGOs and UN officials. None of them had the ability to conduct credible investigations of the war in Gaza. They are unable to access Gaza and do not possesses operational and intelligence information to evaluate the legality of Israeli strikes. Given Hamas control of Gaza at the beginning of the war and the chaos afterward, there is no way to credibly assert that a particular attack was not aimed at military targets. In sum, neither the NGOs nor the UN bodies could actually verify the allegations they made to the Court and in their publications.

The government’s observations coincide with NGO Monitor’s findings regarding NGO fact-finding in the context of armed conflict.

Moreover, this ruling is a clear example of harm that is caused by failing to scrutinize the claims made by politicized NGOs advancing an extreme anti-Israel agenda. According to a February 12, government statement announcing its intention to appeal the ruling: “The government will consult with international partners within the F-35 programme very soon in order to secure the Netherlands role’ within the programme. The government will do everything it can to convince allies and partners that the Netherlands remains a reliable partner in the F-35 project and in European and international defence cooperation. That cooperation is important for the Netherlands’ own national security.”

Uncritical Reliance on NGOs and UN Agencies in the Decision

Amnesty International

  • “The court states that findings by NGOs such as Amnesty International must be taken very seriously, especially when it comes to the question of whether international humanitarian law has been violated… the Court assumes that Amnesty International has relied on information that it considers reliable. This concerns in particular Amnesty International’s finding that numerous civilians have been killed, while no presence of military activity could be detected on site.” (emphasis added)
  • “The court also takes into account the following reports and alerts from…international human rights organizations: two reports from Amnesty International dated October 20, 2023 and December 5, 2023, in which Amnesty International concludes, based on on-site investigations, that civilian targets have been attacked, or at least that there have been ‘indiscriminate attacks’, that not all possible precaution had been taken to spare civilians and that these attacks should be investigated as war crimes because there is ‘damning evidence’ that Israel is committing war crimes.”

Oxfam, PAX, and Rights Forum

Throughout the ruling, the Court cites to documents published or provided by the appellant NGOs, regarding alleged Israeli actions in Gaza and the humanitarian situation there. Oxfam Novib, PAX, and Rights Forum have long advocated and lobbied for BDS and other anti-Israel campaigns, underlining their inherent bias and unreliability.

UN Office for the Coordination of Humanitarian Affairs (OCHA)

The Court quotes UN-OCHA claims regarding Palestinian casualties, availability of basic goods in Gaza, and the state of the Palestinian healthcare infrastructure.

As NGO Monitor has demonstrated, OCHA data is often little more than a reprinting of statistics produced by Hamas and anti-Israel and pro-BDS NGOs.  In particular, previous reviews of OCHA casualty data reveal that Palestinian terrorists have been identified as civilians, and Israeli civilians murdered in Palestinian terror attacks have been categorized as victims of “settler violence.”

(See the following NGO Monitor reports for more information on OCHA’s unreliable casualty data: “False Claims, Discredited Sources: The Initial Report from the UN’s Permanent COI Targeting Israel,” and “Oxfam Exploits COVID Pandemic to Call for BDS.”)

UN Special Rapporteurs

The Court cites a number of Special Rapporteurs to bolster claims that Israeli actions are disproportionate.  For instance, it references the “UN Special Rapporteur on the right to adequate housing, [who] has condemned… the attacks on civilian targets in Gaza.” Also cited is a statement by “Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Francesca Albanese – and other Rapporteurs – who claimed that Israel has engaged in “willful and systematic destruction of civilian homes and infrastructure.”

Despite their presence in Europe, the Court wrote: “The Court assumes that the Special Rapporteurs must be considered quite capable of assessing the actual situation in Gaza and whether civilian targets have been hit and whether the damage caused is proportionate (emphasis added).

The Court’s assumption is false. Neither of the cited Rapporteurs has been to Gaza during their tenure, much less since October 7, and neither has any expertise in military operations such that they could make an assessment with regards to targeting or proportionality. In addition, the appointment of Rapporteurs is made by the UN Human Rights Council and is based on politics as opposed to qualifications (see Comment by Professor Christine Cerna).

Albanese has a documented history of extreme antisemitism and anti-Israel bias, including denying the antisemitism of the October 7th atrocities and labeling terror-linked individuals as “human rights defenders.” The governments of France, Germany, and the US issued sharp criticism of Albanese after she egregiously claimed at an event on February 10, 2024 that “The victims of 7/10 were not killed because of their Judaism, but in response to Israel’s oppression.”

Skepticism of NGO Claims by the Dutch Government

According to the Court decision, “The State has questioned Amnesty International’s findings. The State wonders whether Amnesty International itself was able to visit the Gaza Strip. The State also states that an assessment of the legitimacy of the use of force requires specific operational information that an NGO such as Amnesty International does not have.”

Furthermore, “The State has also disputed the findings of the UN experts. According to the State, the UN Special Rapporteur on the right to adequate housing has no special expertise in international humanitarian law and does not have adequate information to make such a complex assessment. The State states that other positions of the Special Rapporteurs do not constitute valid legal judgments about the use of the F-35 or the Israeli armed actions” (emphases added).