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Is it right for judges to engage in politics?

The Dutch State is set to challenge The Hague Court of Appeal's ruling that the Netherlands must stop exporting arms to Israel at the Supreme Court. The government believes that foreign policy falls within the political domain and not within the judiciary. Geerten Boogaard, Professor of Constitutional Law, discusses this issue in Dutch newspaper ‘de Volkskrant’.

Treaty over national legislation

Judges, politicians and Appeals Court judges share the same view: if a judge were to take a political stance, it would violate the principle of the separation of powers, also known as the trias politica [link in Dutch]. Rutte refers to exporting arms to Israel as ‘a political issue’ and argues that the cabinet is in charge of its own foreign policy. The case is similar to a previous controversial ruling in the Urgenda case.

Interest groups are increasingly attempting to establish policy through the courts rather than through the cabinet by enforcing compliance with international treaties in court. In addition, Article 94 of the Dutch Constitution stipulates that international treaties – in this case, the Arms Trade Treaty – take precedence over national legislation. According to de Volkskrant, another factor is that there is a risk of violating the humanitarian law of war in Gaza.

Overlap between political and judicial domains

The Supreme Court maintains that the Dutch government and parliament have lots of freedom when it comes to making political decisions. It is the responsibility of the judge to assess whether rulings were made within the limits of the law. Friction can arise between the political and judicial domains at this interface – which Boogaard calls the ‘overlap category’ – and questions arise from right-wing politics in particular.

Professor Boogaard believes that ‘the judge does not necessarily engage in politics as court rulings have political implications anyway – after all, justice is not value free’. Moreover, Boogaard struggles with the fact that international cases are dealt from a civil law perspective. He adds, ‘it's like trying to push a polar bear through a cat flap’.

More information

Read the full de Volkskrant article (in Dutch, €).

Colleague Professor Wim Voermans discusses this issue on Dutch news talk show WNL Op Zondag (from 35.02 min. onwards)

Photo: Tingey Injury Law Firm through Unsplash

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