{"id":26723,"date":"2025-11-24T16:00:44","date_gmt":"2025-11-24T15:00:44","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=26723"},"modified":"2025-11-26T11:58:26","modified_gmt":"2025-11-26T10:58:26","slug":"dutch-court-of-appeal-recognizes-a-serious-risk-of-genocide-in-gaza","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/dutch-court-of-appeal-recognizes-a-serious-risk-of-genocide-in-gaza\/","title":{"rendered":"Dutch Court of Appeal Recognizes a Serious Risk of Genocide in Gaza"},"content":{"rendered":"

On 6 November 2025, the Court of Appeal in The Hague (\u201cHague Court\u201d) delivered its judgment<\/a> in a case brought by Al-Haq and several other foundations against the Dutch State. Al-Haq, representing Palestinians in Gaza and the occupied territories, argued that the Netherlands is failing to meet its duty to prevent genocide, war crimes, and grave human rights violations. Strikingly, the Court agreed that there is a plausible risk of genocide and confirmed that serious breaches of international humanitarian law are occurring. Yet it rejected all specific demands to halt military exports, trained-dog transfers, and trade with illegal settlements. This post first examines the Court\u2019s recognition of a legal duty to prevent genocide – arguably the most significant aspect of the ruling – before turning to why the plaintiffs\u2019 specific claims were ultimately dismissed.<\/p>\n

It is noteworthy that these are proceedings before the Dutch civil courts – and not the administrative courts – essentially taking the form of a tort claim. The Netherlands has a strong tradition of this type of public interest litigation, seen in cases like Urgenda<\/a>, Shell<\/a>, Fossielvrij<\/a>, and F-35<\/a>, to name but a few recent examples. Under Article 3:305a of the Dutch Civil Code<\/a>, anyone may create a foundation to represent a public interest and bring legal action to protect it – whether against the Dutch State or private entities such as multinationals. I previously discussed this rather unique provision in a post<\/a> on EJIL: Talk!<\/em>.<\/p>\n

Serious Risk of Genocide in Gaza<\/strong><\/p>\n

The Hague Court refers to the provisional measures ordered<\/a> against Israel by the International Court of Justice (ICJ) on 26 January 2024, at the request of South Africa. From this order, the Hague Court concludes that, \u201calthough the ICJ does not explicitly consider that there is a serious risk of genocide, there can be no reasonable doubt that the ICJ\u2019s assessment amounts to that\u201d (para. 5.4<\/a>). This conclusion is further supported, according to the Hague Court, by the two subsequent ICJ provisional measures\u2019 orders in the same case (see here<\/a> and here<\/a>), and the \u201cextensively documented reports of Amnesty International, the European Center for Constitutional and Human Rights, and Human Rights Watch.\u201d All three organizations, as noted by the Hague Court, conclude that Israel is already committing genocide in Gaza (para. 5.5<\/a>). Other sources not mentioned here by the Hague Court, such as the reports<\/a> by the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, and the report<\/a> by the Independent International Commission of Inquiry on the Occupied Palestinian Territory, come to the same conclusion.<\/p>\n

According to the Hague Court, the Netherlands has not sufficiently rebutted the alleged existence of a serious risk of genocide. \u201cTo the extent that the Netherlands wishes to argue that only the ICJ has jurisdiction to rule on the question of whether genocide has occurred, this is not only incorrect,\u201d the Hague Court says firmly, \u201cbut also irrelevant, because the issue in this case is not whether it has been established that Israel is committing genocide, but whether there is a serious risk of it.\u201d The Court explains:<\/p>\n

\u201cThe obligation of a state party to take action under Article I of the Genocide Convention<\/a> arises as soon as a state is aware, or would have been aware under normal circumstances, of a serious risk of genocide. The obligation of a state party to take action under these circumstances would be of little practical use if a state were first required to wait for the ICJ\u2019s final judgment on the question of whether genocide has been committed. Moreover, the ICJ already ruled in 2024 that there is a serious risk of genocide in this case\u201d (para. 5.6<\/a>).<\/p>\n

This is a crucial observation. The Netherlands has repeatedly maintained that only an international court such as the ICJ can determine whether obligations under Article I of the Genocide Convention are triggered. I argued in an article published already in September of 2024<\/a> why I find this position legally and factually unconvincing. The Hague Court now reaches the same conclusion.<\/p>\n

The Hague Court ends this part of the ruling by saying that \u201cit must be assumed that there is a serious risk of Israel committing genocide against the Palestinian population in Gaza\u201d (para. 5.7<\/a>).<\/p>\n

War Crimes Are Being Committed in Gaza <\/strong><\/p>\n

The Court also addresses the question of serious war crimes. On this point, it finds that Israel\u2019s violations of international humanitarian law in Gaza are not disputed in these proceedings. In fact, the Netherlands has already refused several export permits for military goods to Israel because of the \u201cclear risk\u201d that such goods could be used in serious breaches of humanitarian law.<\/p>\n

The Hague Court thus finds that it is \u201csufficiently plausible\u201d that \u201cthere is a serious risk that Israel will commit genocide in Gaza and [that] there is a clear risk that Israel violates international humanitarian law through its actions in Gaza\u201d (para. 5.11<\/a>).<\/p>\n

Responsibility For the Netherlands to Prevent and Stop These Crimes<\/strong><\/p>\n

This finding has significant implications for the Netherlands\u2019 legal responsibility. As the Hague Court explains, \u201cin the event of a serious threat of genocide, all states party to the Genocide Convention, including the Netherlands, are obligated to make efforts to prevent genocide,\u201d and \u201cunder Common Article 1 of the Geneva Conventions, a similar obligation to make efforts rests with the Netherlands insofar as there is a clear risk of violation of international humanitarian law by Israel.\u201d In short, \u201cthe Netherlands is therefore obligated to make efforts to prevent (further) genocide and violations of international humanitarian law by Israel\u201d (para. 5.12<\/a>).<\/p>\n

The Hague Court then stresses that it is not generally for the judiciary to dictate to the government what concrete measures must be taken. As it put it:<\/p>\n

\u201cUnder Article I of the Genocide Convention and Article 1 of the Geneva Conventions, the State [of the Netherlands] is obligated to take all reasonable steps to prevent genocide and the violation of international humanitarian law by Israel. It is up to the State to determine which measures it will and will not take in this regard. The State has considerable discretion in this regard, which requires judicial restraint. However, this discretion is not unlimited and must be weighed against the compelling interest that the State comply with its obligations under Article I of the Genocide Convention and Article 1 of the Geneva Conventions. Although Article I of the Genocide Convention and Article 1 of the Geneva Conventions do not have direct effect, the civil court can assess in specific cases whether the State is acting in violation of the standard of care under Article 6:162, paragraph 2, of the Dutch Civil Code<\/a> by refraining from taking certain measures\u201d (para. 5.16<\/a>).<\/p>\n

I believe that Article I of the Genocide Convention, which obliges states to prevent and punish genocide, should have direct effect<\/a>. Courts in the Netherlands have consistently \u2013 see my earlier blog for links to all relevant cases<\/a> – ruled it lacks direct effect because the provision leaves states wide discretion on how to fulfil this duty, and thus it is not \u201cunconditional and sufficiently precise\u201d. However, I argue that many provisions which do have direct effect are just as vague. But the Hague Court clearly does not share that view and follows the jurisprudential line of the Dutch courts.<\/p>\n

Why the Specific Claims of the Plaintiffs Were Dismissed<\/strong><\/p>\n

In the remainder of its ruling, the Court assesses each of Al-Haq\u2019s specific requests. Here, the plaintiffs were not successful. As mentioned above, they had asked the Hague Court to compel the Netherlands to halt (i) exports of military and dual-use goods to Israel, (ii) exports of dogs that could be used by the Israeli army, and (iii) business relations of Dutch companies – such as Booking.com – with illegal settlements in the occupied Palestinian territories.<\/p>\n

The Hague Court dismisses all these specific claims. It finds that the Netherlands already withholds export licenses for military goods where there is a risk of their use in Gaza, that prohibiting the export of dogs would require legislative change \u2013 which is beyond the Court\u2019s authority, and that there is insufficient evidence to compel the Netherlands to take additional action against companies doing business with illegal settlements. In the Court\u2019s view, existing deterrent policies have not been shown to be ineffective.<\/p>\n

With respect to the latter, Al-Haq had asked the Dutch Court, among other things, to order the Netherlands to review its policy on trade relations with Israeli settlements in light of the ICJ\u2019s Advisory Opinion of 19 July 2024<\/a>. The Netherlands countered that it already does enough to \u201cdiscourage\u201d \u2013 not prohibit – Dutch companies from engaging with illegal settlements and further argued that there is no international legal rule explicitly prohibiting companies from conducting business in occupied territories. Whether that latter position is tenable is certainly debatable, but the Hague Court accepted it. Yet, in the very next step of its reasoning, the Court emphasizes that \u201cthis does not alter the fact that the State, as expressed in the ICJ\u2019s Advisory Opinion of July 19, 2024, [is] obliged to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory\u201d (para. 8.7<\/a>). This acknowledgment is significant. The Hague Court effectively confirms that the Netherlands does bear a duty to act against trade or investment activities that sustain the illegal occupation. However, it then notes that the ICJ did not specify either what concrete steps states must take. On that basis, the Hague Court concludes that deciding which measures to adopt falls within the discretion of the Netherlands\u2019s government. A more detailed analysis of the Hague Court\u2019s reasoning concerning trade relations between Dutch companies and illegal Israeli settlements is provided in a blog post<\/a> by Alessandra Spadaro on Opinio Juris<\/em>.<\/p>\n

State Has Broad Discretion in Areas of National Security and Foreign Policy<\/strong><\/p>\n

What played a big role in the entire ruling, is that the Hague Court felt that, \u201cbased on established case law, the Netherlands [government] has broad discretion in the areas of national security and foreign policy, and that the civil court, especially in summary proceedings, must exercise great restraint with regard to the considerations made by the State\u201d (para. 5.15<\/a>). Here, we clearly see the influence of a recent ruling of the Netherlands Supreme Court in the so-called F35 case. On 12 February 2024, the Hague Court ordered<\/a> the Netherlands to cease all export and transit of F-35 fighter jet parts to Israel within 7 days. But on 3 October 2025 the Supreme Court held<\/a> that the Hague Court was not entitled to make its own assessment of whether there was clear risk of serious violations of international humanitarian law, and that it was instead up to the Minister to reassess the license based on that criterion. I personally felt it was very disappointing that the Netherlands Supreme Court did not even discuss the possibility that in extreme cases, the courts should be allowed to step in. The Attorney General at the Supreme Court, who advises the court before it rules, devoted a large part of his advice<\/a> to this issue, and was clearly urging the court to say something about these limits to the discretion of the government in the areas of national security and foreign policy (see paras 4.29-30<\/a> of his advice). But the Supreme Court simply avoided discussing them altogether. In stark contrast with the case discussed in this blog post, the F35-case has received significant attention in scholarship and the blogosphere, both in the Netherlands and abroad<\/a>.<\/p>\n

Conclusion<\/strong><\/p>\n

The most consequential aspect of the 6 November ruling lies not in the specific dismissals, but in its broader reasoning: The Hague Court has recognized, in clear and reasoned terms, that there is a serious risk of genocide in Gaza, and that war crimes are being committed there, and that third states -including the Netherlands – are legally obliged to act now to prevent and stop them.<\/p>\n

This part of the ruling (section 5) may well become a key reference point in future debates on the obligations of third states under international law to prevent and stop breaches of the Genocide Convention and the Geneva Conventions.<\/p>\n","protected":false},"excerpt":{"rendered":"

On 6 November 2025, the Court of Appeal in The Hague (\u201cHague Court\u201d) delivered its judgment in a case brought by Al-Haq and several other foundations against the Dutch State. Al-Haq, representing Palestinians in Gaza and the occupied territories, argued that the Netherlands is failing to meet its duty to prevent genocide, war crimes, and […]<\/p>\n","protected":false},"author":37,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7772,5074,3996,5561],"authors":[5824],"article-categories":[6000],"doi":[],"class_list":["post-26723","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-gaza","tag-geneva-conventions","tag-genocide","tag-genocide-convention","authors-otto-spijkers","article-categories-article"],"acf":{"subline":"Advocacy Groups Supporting Palestinians Take Dutch State to Court"},"meta_box":{"doi":"10.17176\/20251125-141524-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26723","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/37"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=26723"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26723\/revisions"}],"predecessor-version":[{"id":26768,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/26723\/revisions\/26768"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=26723"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=26723"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=26723"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=26723"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=26723"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=26723"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}