13. The Dutch Contribution to the Armed Coalition Against ISIS

The ‘Independent Research Committee Decision-Making Iraq’ (Davids Committee) investigated the preparation and decision-making regarding Dutch political support for the invasion of Iraq in the summer 2002 to summer 2003 period. The Committee—which was enacted in January 2009—presented the results of its research on 12 January 2010. The report is available at: https://​www.​rijksoverheid.​nl/​documenten/​rapporten/​2010/​01/​12/​rapport-commissie-davids. Incidentally, the demand for an ‘adequate international legal mandate’ was first mentioned in the coalition-agreement of the fourth cabinet under Prime Minister Balkenende. Under point 4 of this agreement’s first pillar, entitled ‘an active international and European role’, we read: ‘Participation in missions which require the effort of Dutch military personnel requires an adequate international legal mandate’. This is clarified further in the governmental Note “Legal basis and mandate of missions with a contribution of Dutch military units” at page 3: ‘The demand for a legal basis must be separated from the mission’s mandate. The “mandate” refers to the provision of an assignment whereby the political and military goals, and more specifically the task description, are detailed. Both aspects—an international legal basis and clear mandate—are crucial factors in the decision-making process regarding the commitment of Dutch military units. While political support is of a different order than participation in a military mission, it also requires the existence of an international legal basis; a mandate however is not necessary in that case.’ Mandates always stem from the United Nations, principally in the form of a Security Council resolution. Such resolutions can be adopted without reference to Chapter VII of the Charter. The point is that the legal basis and mandate for contributing to the armed coalition against ISIS in Iraq and Syria were muddled together within the different discussions detailed in this article. Kamerstukken II, 2006/07, 29521, nr. 41, at 3–6.

E.g. Article 25 ILC Articles on Responsibility of States for Internationally Wrongful Acts.

In 2011, Professor Nollkaemper was appointed the external advisor on international law by the Minister of Foreign Affairs. With this measure, the Minister heeded the advice of the Davids Committee, which had recommended safeguarding the Ministry of Foreign Affairs’ decision-making process with the addition of international legal advice. See https://​www.​rijksoverheid.​nl/​actueel/​nieuws/​2011/​05/​25/​andre-nollkaemper-benoemd-tot-externe-volkenrechtelijk​-adviseur.

Article 100 was added to the Dutch Constitution in 2000 with the purpose of explicitly arranging the participation of parliament in deciding to supply Dutch military personnel to international peace- or crisis-management operations. It states: ‘1. The Government shall inform the States General in advance if the armed forces are to be deployed or made available to maintain or promote the international legal order. This shall include the provision of humanitarian aid in the event of armed conflict.’ Such informational memos sent by the government to parliament are referred to as ‘Article 100 letters’.

Ibid., at 2.

Ibid.

Ibid.

Ibid.

Ibid., at 4. For the Iraqi letter of 25 June 2014, see S/2014/440, 25 June 2014; for the Iraqi letter of 20 September 2014, see S/2014/691, 22 September 2014.

Ibid., at 5.

Ibid. For the letter by the United States Representative to the United Nations Samantha Power, see http://​justsecurity.​org/​15436/​war-powers-resolution-article-51-letters-force-syria-isil-khorasan-group.

Ibid.

Ibid.

Statement by H.E Walid Al-Moualem, Deputy Prime Minister, Minister of Foreign Affairs and Expatriates Of The Syrian Arab Republic at The General Debate of the 69th Session of the UNGA, UN Doc. A/64/PV.11 [GA/10865], 29 September 2014.

Ibid., at 19.

Ibid., at 19, 20, 23.

Ibid., at 21. Referring to Article 25 ILC Articles on Responsibility of States for Internationally Wrongful Acts. For the legal argumentation that necessity can provide a justification for the use of force to end systematic and severe violations of fundamental human rights, see Molier 2006, at 52–60.

See: VVD and PvdA (2012) Bruggen slaan. Regeerakkoord VVD—PvdA. [Building bridges. Coalition agreement VVD—PvdA.]. 2012, at 16. http://​www.​rijksoverheid.​nl/​documenten-en-publicaties/​rapporten/​2012/​10/​29/​regeerakkoord.​html. Accessed 6 October 2016.

Ibid., at 35.

Ibid.

Ibid., at 43.

Ibid.

Ibid.

Ibid., at 2.

Ibid., at 3.

For an elaboration on this academic discussion regarding the “unable and unwilling test”, see our concluding paragraph and the relevant literature mentioned in footnotes 95 and 96.

Ibid., at 4.

Ibid., at 5.

See for the stance of Adama Dieng, Special Adviser of the Secretary-General on the Prevention of Genocide, and Jennifer Welsh, Special Adviser of the Secretary-General on the Responsibility to Protect, on the situation in Kobane, Syria http://​www.​un.​org/​en/​preventgenocide/​adviser/​pdf/​10.​10.​14%20​Statement%20​of%20​the%20​Special%20​Advisers%20​on%20​the%20​situation%20​in%20​Kobane.​pdf.

Ibid.

Ibid., at 4 (VVD), at 7 (SP), at 9 (CDA), at 19 (SGP).

Ibid., at 16.

Ibid., at 19.

Ibid., at 22.

Ibid., at 22.

Ibid., at 24.

Ibid., at 25.

Ibid., at 6.

Ibid.

Please note that all quotations stemming from government or political party statements were translated by the authors from the original Dutch.

Ibid.

Ibid., at 2.

Ibid., at 7.

Ibid., at 16.

Ibid., at 23.

Ibid., at 24.

Ibid.

Ibid., at 4.

Ibid., at 28.

Ibid., at 29.

Ibid., at 43.

Ibid., at 45.

Ibid., at 46.

Ibid., at 56.

UNSC Res 2254, 18 December 2015, particularly para 4.

UNSC Res 2249, 20 November 2015, para 5.

Although in para 5 of Resolution 2249 the Council ‘calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter …’, para 5 could not be interpreted as Security Council authorisation for the use of force because the Council did not use the terms ‘acting under Chapter VII’, nor the term ‘decides’. See, e.g., O’Connor 2016, at 76; and http://​www.​ejiltalk.​org/​the-constructive-ambiguity-of-the-security-councils-isis-resolution/​.

Ibid., at 5.

Ibid., at 2.

Ibid., at 3.

Ibid., at 8.

Ibid., at 9, 18.

Ibid., at 13.

Ibid., at 29.

Ibid., at 26.

Ibid., at 43.

Ibid., at 45.

S/2016/132, 10 February 2016.

For a thorough discussion on this matter, see O’Connor 2016. Notably, at 88 she notes that all states that provided a legal basis for the use of force claimed to be acting in collective self-defence. However, merely ‘four of the nine states also referred to Syria being unwilling or unable to prevent the attacks’. Ultimately, on the basis of an analysis of state practice she concludes at 96: ‘International law may be moving towards the “unwilling or unable” standard, but the evidence does not yet support this.’For another critical stance with regard to the claim that the unable/unwilling criteria have been crystallized as the standard for applying collective self-defence against non-state actors, see Arimatsu and Schmitt 2014 at 24 and 29.

See, e.g., O’Connor 2016, at 88: ‘[…] these invocations have not been at the level required for the [“unwilling or unable” standard] to be established under customary international law. The “unwilling or unable” standard in itself is problematic due to the lack of definition and that a simple inability by a state could excuse a violation of its sovereignty. The fact that four states referred to the “unwilling and unable” standard could be interpreted as evidence of growing support for it, but one must equally keep in mind that the other states did not reference this standard.’; O’Connell 2013, at 384: ‘[…] states have not accepted such a right [to resort to force against states “unable or unwilling” to control terrorism on their territory] and are unlikely to ever accept a rule this flexible on intervention.’; Arimatsu and Schmitt 2015, at 23, 24, 29; Tams 2009, at 385–386; Becker 2006, at 334, 354–355; Kammerhofer 2007, para 3.1.3; Molier 2011, at 331; and Ruys and Verhoeven 2005, at 312, 317, 319. Contrary: Wettberg 2007, at 209, 228; Van Steenberghe 2010, at 199, 207.