Thanks for talking to us. Could you each briefly introduce yourselves?
Daan de Grefte (DdG): I am based in Amsterdam, and I am a Senior Legal Officer at the European Legal Support Center (ELSC). It’s a non-profit organization that protects and empowers the Palestine solidarity movement in Europe through legal means. My specific role is to lead the Crimes and Complicity team. The buzzword term would be strategic litigation, but it also encompasses other work, like advocacy and building coalitions.
Juul Seesing (JS): I work as the advocacy and communications officer for the Netherlands at ELSC. When people are faced with any form of repression while advocating for Palestinian rights, we ask them to report this to us. This can vary from facing police violence to an employer wanting to silence you, for example. We can connect people to our networks of lawyers if need be, but we also gather evidence to expose and challenge the oppression in Europe. When any communication or outreach is required, then that is my job.
We mainly want to talk about your latest piece of strategic litigation. You’re taking the Dutch government to court. Could you explain why you’re doing this?
DdG: The Dutch government has been complicit in Israel’s colonization of Palestine and the oppression of the Palestinian people for a very long time. This does not only relate to political support, but also economic support, military support and political cover and backing, especially to shield Israel from criticism on the international stage.
After October 7th, it became apparent that Israel was not only committing more basic war crimes and violations of Palestinian human rights, but also the crime of genocide, which is of a much more severe nature. The Dutch government has continued to unconditionally support the Israeli government, even when its ministers are under investigation by the International Criminal Court.
The recent F35 motor parts case involved the Dutch government exporting F35 parts to Israel that could then be used in its genocidal assault in Gaza, even though there was a very clear risk of serious violations of international law and potentially the risk of being complicit in the actual commission of the crime of genocide. The government has never conditioned any kind of economic or military support on Israel’s respect for international humanitarian law.
Besides this, there’s the long standing problem of what the Dutch government calls the “ontmoedigingsbeleid”, the discouragement policy, where the official line of the Dutch government has always been, “we discourage companies from doing business with illegal Israeli settlements, but we do not take an active role in it”.
If you are a company and you come to the Dutch government with a request for information on the legality of Israeli settlements, then they would advise you about what it actually means under international law, but they do not preclude you whatsoever from doing business with settlements. Even though, in July 2024, the International Court of Justice ruled that third states, including the Netherlands, have a legal obligation to take steps to prevent trade with settlements.
Our interpretation of this advisory opinion is extremely clear. We think that the Dutch government is now under an obligation to actively stop any trade with Israeli settlements because they are clearly conducive to the illegal situation that has unfolded in Palestine at the hands of Israel.
Our case of strategic litigation has the primary goal of doing whatever we can here in the Netherlands to stop the genocide from continuing to take place in Gaza. On the other hand, we are also trying to challenge the Dutch government’s discouragement policy, which effectively still allows trade with settlements, even though the world’s highest court has clearly banned it.
JS: The Dutch state argues that there’s no international or domestic legislation that prohibits Dutch corporations from doing business in Israeli settlements, disregarding its own International Crimes Act. The Dutch government isn’t even complying with its own laws.
DdG: In our proceedings against the Dutch state, which is broader than that F35 case, the Dutch government alluded to their policy having changed, saying that they actually do not export any weapons that can be used in Israel’s assault on Gaza any more. That was news for us. They never said that before, even though we repeatedly asked for any kind of updates on their policy about delivering weapons to Israel.
But it seems very strange, because in the meantime, they are still appealing this decision that tells them to do exactly that.
When the Dutch government says that they’re not sending weapons to Gaza, do you believe them?
DdG: To be very honest with you, I don’t. The Dutch government is making every effort to make it as un-transparent as possible for us to know exactly what kind of arms are being sent to Israel, and especially which kind of arms might be used in Gaza. They do publish overviews of the type of export licenses they give, but it is not really certain if they encompass all licenses because, for example, the F35 parts are not even on any of those lists.
There are other issues with the list because it’s quite unclear where any of the dual-use goods are used. These are goods that can be used for both civilian and military purposes. It is completely unclear whether or not there is a risk that they end up being used in Gaza, even though the term dual-use means that there should be at least a risk of them being used for military purposes.
My personal opinion is that I don’t think we should believe what the government is saying.
JS: In the F35 case the Court of Appeal ordered the government not to send F35 parts to the occupation. However, it became clear that F35 parts were still being exported to the occupation but via the United States. That says it all. You can’t trust the government, even after a court order.
DdG: Our case differs from the F35 case in a very important aspect. We do not think that only offensive weapons that can be used in Gaza should be banned. Of course, we think that those weapons should also not be exported to Israel. But we think that the ICJ advisory opinion made it very clear that third states, like the Dutch state, cannot be involved in any way in the illegal situation that Israel has created in Palestine, which means the occupation, the settlements, or anything that is related to them.
On that basis, we think that defensive weapons can also contribute to the occupation. That’s not a very difficult argument to make. But even on top of that, it is very clear that states can in no way be involved in the commission of the crime of genocide and should do whatever is in their power to prevent it from happening when there is a risk.
What are your chances of winning the case?
DdG: This case is politically very sensitive. It touches upon the Dutch foreign policy, where it has to operate through alliances, and there are many geo-strategic and geopolitical considerations that the Dutch government has to take into account. That makes it difficult for judges, especially in the first instance, because it’s just one judge, who potentially upsets Dutch foreign policy.
In the appeal court, it’s different. It’s a three judge system there. They also have a little bit more authority to make decisions that touch upon Dutch foreign policy, but we know that it is very scary for judges to make a decision like this. That, in combination with the fact that it is a case about Palestine, which is always very difficult to win in court.
However, all our research, all our expertise from the people in the coalition and independent advisors have pointed towards the fact that legally, it is extremely clear what the Dutch government has to do, and those are adequately described in our demands.
During the hearing last Friday, it became very clear that the Dutch government actually does not really have a clear policy on this, and that they don’t really have a strong argument to present to the courts to say, what they are doing is adequate to prevent genocide and to prevent other violations of international law.
So I think that there is a very strong chance that in an appeal, and potentially before the Highest Court, we would actually win this case. But it’s very hard to predict. These cases take a long time. It really depends also on what the judge themself thinks. It depends on all kinds of other information that we do not have.
And if you do in either the case or the appeal, what are the implications for countries outside the Netherlands?
DdG: The potential impact of this case for other jurisdictions could potentially be quite big. Of course, the Dutch court does not have any authority over the German legal system or the French legal system. But it does indicate that there is a development happening in the legal system that, under current international law, it is legally impossible for European governments to act as they are currently acting.
You’re not the first people to take the Dutch government to court. There have been environmental actions. Is there something specific about the Dutch legal system or Dutch activism, which makes this more common?
DdG: It’s important to understand that there is this provision in Dutch law. Our tort legislation gives us the opportunity to establish unlawfulness of the conduct of the Dutch state, not only because it is violating certain prescribed legislation, but also because it could violate a certain unwritten norm of fundamental societal value. This allows for international norms to be used to explain those societal values.
This is what happened in the case against Shell, which was litigated recently in the Netherlands. The judges upheld the fact that international norms, like the Paris Accords, can be used to explain this unwritten societal norm.
Article One of the Genocide Convention says that states should do whatever is in their power to prevent genocide when there’s a risk of it occurring. Also, Article One of Geneva Conventions states that third states should do whatever they can to ensure respect for international law.
I think that it’s a very strong argument that since these norms are so fundamental to the functioning of the international legal system and the international rule of law, coupled with the fact that the Dutch state is, of course, home to the ICC and the ICJ. It is a very fundamental value to Dutch society as a whole to respect those norms. That is where I think the Dutch legal system is unique, as it offers that opportunity.
Do you think that the fact that the Netherlands doesn’t have a constitutional court, and so doesn’t test their laws against a standard, is also part of this?
DdG: The fact that we don’t have a constitutional court is one of the reasons that judges actually get to test the constitutionality of certain laws and policies in the first place. It is always a very difficult and sensitive thing for a judge to rule that a certain act or policy of the government is unconstitutional, because it will always have quite significant effects in society.
But our Constitution says very clearly that the Dutch government has to take a proactive role in the progressive development of international law and the international rule of law.
The Dutch government’s argument at this point is that they can go against an ICJ advisory opinion and not link any consequences to the fact that Israel is in active violation of ICJ rulings, when their constitution says that they should be vanguards in the development of international law and the international rule of law.
Going back to the Shell case that you mentioned, this has been recently overturned. Is this something that could happen to you as well?
DdG: The reasons for overturning the first instance decision on Shell were related to both practical and factual considerations. For example, the court ruled that it was not made sufficiently clear that the effects of Shell taking action on climate change would be one to one translatable into a reduction of CO2 emissions.
It therefore said that the 45% norm cannot be made to directly apply to Shell, because there is a chance that if Shell does not do it, other companies will do it. I think this is bizarre reasoning, by the way. This is what people usually call the drug dealer justification: if I don’t deal these drugs, someone else will do it. It’s bizarre that the court would make that argument.
But what is very positive about this reasoning is that the courts very explicitly upheld the principle that these international norms can be transposed into a Dutch court.
Let’s get into wider Dutch politics. Recently, Maccabi Tel Aviv fans rioted in Amsterdam. We had some bizarre reporting in Germany. How was the media response in the Netherlands?
JS: It was just as bad as in Germany, I’m sure. The mainstream media in the Netherlands is a far cry from the watchdog journalists are supposed to be. They follow the framing of the racists in the Dutch government usually without question.
On the night of November 7–8th, Netanyahu already spoke of a pogrom in the city of Amsterdam, and even compared it to Kristallnacht. This was at 3am, while the authorities in Amsterdam were still collecting facts and figuring out what happened.
With that first statement, Israel set the frame of a pogrom night in Amsterdam. The mayor of Amsterdam fell for that trap, the Hasbara trap. All of this was a huge gift for the racist wannabe-fascist Dutch government, unofficially led by the convicted racist Geert Wilders, who has been convicted for discrimination against Moroccan people. They were looking for weapons to discriminate against the Muslim population and people with a migrant background in general in the Netherlands anyway, and now they found it. Then the mainstream media followed that frame without any critical thoughts, as most state media do.
DdG: Our prime minister held a press conference after all this unfolded, and said that this shows that in the Netherlands, we have an integration problem. This is a very weird way of spinning what happened when people came to the Netherlands shouting “we want to kill Arabs”, and the Arabs got angry about that.
Our politicians in power also said that what happened in Amsterdam was done at the hands of ‘multicultural scum’. I’m translating literally. I don’t want to make sensationalist comparisons, but this kind of rhetoric is usually the prelude to an insane amount of repression against minority populations.
We can already see that there is much more violence against people from a Muslim or immigrant background. We can see that racists are emboldened by what the Prime Minister has said. There are so many indications for this.
JS: When it comes to antisemitism, both the politicians and the media in the Netherlands keep equating antisemitism with anti-Zionism, and I am pretty sure that at the very least for politicians, that is an intentional choice.
When it comes to mainstream media, they are just following the statements without any critical journalistic eye. This makes the mainstream media complicit in manufacturing consent for the genocide that’s going on, and for the descent into fascism which the Netherlands is experiencing now.
In the middle of this witch hunt, the Amsterdam mayor, who had initially talked about pogroms, retracted her statement. What made her change her mind?
JS: I can’t look inside her head, but I think that she saw how the word pogrom was weaponised against Amsterdammers, both by the Israeli government and by the Dutch government. She is still a liberal mayor and didn’t want to openly discriminate against people in her own city. I think that that’s why she retracted that word specifically.
DdG: A lot of pushback was given to her from civil society and other organizations, including anti-Zionist Jewish organizations, who really do not like their protection being abused for political purposes to create this atmosphere of hostility towards another minoritised people.
JS: Obviously, it is not just the mayor of Amsterdam who spreads Israeli propaganda; it is a common thing for the ruling class to do. What she should have done in that first press conference on November 8th was to keep it very factual.
It was very clear right from the start that there was a huge group of genocide supporters, and even perpetrators, who were unleashed on the streets of Amsterdam and terrorized the streets without the police doing anything about it. Amsterdammers basically defended their own city.
Do you think that the incident with the Maccabi fans will have any impact on your case against the government, either positive or negative?
DdG: I don’t think it would have a direct influence, but it could have a small, maybe significant, indirect effect.
JS: If the legal system works as it’s supposed to work, the judge is not influenced by external events. It doesn’t really have anything to do with our case except that it relates to Palestine. Those are two separate events. But you never really know. Judges are people as well at the end of the day.
What are the next steps in your case?
JS: The ruling will be on December 13th. Then we will know what the outcome is of the preliminary injunction.
DdG: After December 13th, the clock starts running to file the appeal. If the judge does not agree with us, we will file an appeal. And I’m quite sure that if the judge does not agree with the state, it will also file an appeal. In mid-February, maybe March, there will be another hearing, and after that, another judgement.
How can people in Germany follow what’s happening and support you?
JS: We have a fundraiser, and we publish updates on our social media channels. We are most active on Instagram. So keep an eye on our Instagram and website.
The case is also covered by mainstream media. But it is best to hear about it firsthand haha. So I would say just go to our channels.
Is there anything you’d like to say before we finish?
JS: In the aftermath of November 7-8yh there was a demonstration ban which was in direct violation of Article 11 of the European Convention on Human Rights, which resulted in vicious police violence. It is really important to counter the narrative in terms of the criminalization of the Palestine solidarity movement in the Netherlands. We have to push back against this.
We see that the Netherlands is following Germany in its increasing oppression. We see the same playbook to some degree. For example, Samidoun was criminalized here two months ago, and the government wants to ban it. It is banned in Germany already.
On Friday 22 November the Dutch government released a report on fighting antisemitism, which basically is a tool to discriminate against people of migrant background and Muslims. In 2025, they will try to push through legislation that is very discriminatory and fascist. They want to be able to take away somebody’s Dutch citizenship if they are antisemitic, where “antisemitic” means being critical of Israel. Germany has already gone down that path and the Netherlands is following now.
DdG: The failure to challenge Israeli oppression of Palestinians and to take adequate action results in fascism being imported into Europe. Taking away the nationality of people who are convicted of antisemitic offences is a very good illustration of that. It would never happen for any kind of other offence. But it is extremely clearly linked to the fact that Europe is highly complicit in what’s happening in Palestine.
It’s also not a surprise that all the right-wing politicians in the Netherlands, who would rather see the Dutch rule of law deteriorate in order to further their racist goals, are also very close friends and very politically aligned with those in Israel who are trying to do the exact same thing when it comes to the oppression of Palestinians.
Because of our complicity, because of our reluctance to act, we are now importing fascism from Israel to Europe. And it’s a very worrying trend. It should be more visible to people that this is happening and that we are on the verge of copying the things that Israel is doing in Europe.
Questions by Phil Butland and Jitske Grift