Courts are not meant to conduct foreign policy. Yet in 2025, the highest courts in Germany and the Netherlands were asked to rule on some of the most sensitive geopolitical questions of our time. In Germany, families of Yemeni drone strike victims turned to the courts with a request to stop the US from using the military airbase Ramstein to carry out lethal drone strikes in Yemen. In the Netherlands, NGOs asked the courts to halt the export of F-35 parts to Israel. Both cases raise the same fundamental dilemma: how far should the courts go in matters of national security and foreign policy, especially when relations with key allies are at stake?

Two cases, one dilemma

Germany’s Federal Constitutional Court (Bundesverfassungsgericht) grappled with this dilemma in its Ramstein decision of July 2025, and the Dutch Supreme Court (Hoge Raad) reckoned with the same dilemma in its F-35 decision of October 2025.

The Ramstein case concerned the use by the United States of a satellite relay at the US-operated Ramstein Air Base in Germany to carry out lethal drone strikes in Yemen. Relatives of victims of those strikes asked the German courts to order the government to stop the US from using the Ramstein Air Base for this purpose. This claim cut to the heart of the already sensitive security relationship between Germany and the US. The Bundesverfassungsgericht rejected the claim – but did so in a groundbreaking decision. The court held that a constitutional duty to protect can exist even towards non-German citizens living outside Germany, and that this duty could cover threats from another state. It then set out a comprehensive framework for when such a duty arises. One key requirement was that the court has to establish a serious risk of systematic violations of applicable international law (see paras 31, 80, 84, 106, 156 of the decision).

The F-35 case concerned the export of F-35 parts to Israel under the US-led F-35 Lightning II programme. Three Dutch NGOs asked the court to order the government to halt all such exports, arguing that there was a clear risk that these parts would be used to commit serious violations of international humanitarian law in Gaza. This claim touched on the security relationship between the Netherlands and Israel, and – to some degree – the US. The Hoge Raad held that the government was not legally obliged to reassess a previously granted indefinite export licence for F-35 parts. However, since the government had already voluntarily initiated such a reassessment, it was bound to assess compliance with the Arms Trade Treaty and the EU Common Position on arms exports. Under these instruments, a licence must be refused if there is a clear risk that the arms will be used to commit serious violations of international humanitarian law.

Same approach: restrained on substance, strict on procedure

In grappling with this dilemma, both courts took a similar approach. Unlike in countries that apply a doctrine similar to the US ‘political questions’ doctrine – by which foreign policy matters tend to be deemed nonjusticiable altogether – both courts were willing to hear and decide these cases on their merits. Both courts do, however, tread with considerable restraint in these questions of national security and foreign policy. The Bundesverfassungsgericht ruled that the government's legal position should carry decisive weight if it is tenable (‘vertretbar’). The Hoge Raad similarly held that courts must review the government's conduct in matters of foreign and security policy with considerable restraint. If the government has failed to apply the correct legal test, the court will refer the matter back to the government rather than substitute its own judgment.

Applying these standards, both courts concluded that the claim could not, in the end, be (fully) granted. In Ramstein, the government’s legal view was held to be tenable. In F-35, the assessment against the correct legal criterion was never made at all, so the matter was referred back to the government. Both courts imposed a strict legal framework against which the government must conduct its review, while the substance of that final review is examined only with considerable restraint.

Why this matters now

The approach shared by both courts offers a model for European courts facing similar dilemmas. Courts that simply defer to governments offer no real check. In the cases of Yemen and Gaza, that would have meant leaving serious allegations of international law violations entirely unexamined. Courts that substitute their own foreign policy judgment overstep their role. The German and Dutch courts steer a careful middle course: governments are held to their legal obligations, but courts stop short of dictating foreign policy.

That balance is harder to strike than it sounds. As drone strikes continue in Yemen, weapon exports to conflict zones remain contested and geopolitical turbulence continues to upend international relations, courts across Europe will face similar questions. At a time when the international rule of law is under pressure, the Ramstein and F-35 decisions show that there is a workable middle ground. Courts can look, and look seriously, without stepping into the realm of foreign affairs.