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References

  1. The committee was formally established by the Decree Establishing a Committee to Investigate Decision-Making concerning Iraq, of 6 March 2009. The decree was amended by a further decree on 28 October 2009. See Decrees nos. 3084260 and 16447, published in Staatscourant [Government Gazette] and both appended to the Committee’s report as Appendix A.

  2. Rapport van de Commissie van Onderzoek Besluitvorming Irak (Amsterdam, Boom 2010). See also the website <http://www.onderzoekscommissie-irak.nl> for the text of the report in Dutch as well as an executive summary and the conclusions in English.

  3. Lower House, Kamerstukken II [Parliamentary documents II] 2009-10, 31 847, nos. 15 and 18.

References

  1. See Article 2 of the UN Charter, paragraphs 3 and 4.

  2. Article 53 of the Vienna Convention on the Law of Treaties (1969) describes a peremptory norm of general international law (jus cogens) as ‘a norm that is accepted and recognised by the international community of states in its entirety as a norm from which no deviation is permitted and which can only be changed by a later norm of general international law of the same nature’. Text in Trb 1972-51 and translation in Trb 1985-79. See on the concept of jus cogens J. Wouters, ‘Bronnen van het international recht’, in O. Ribbelink, N. Hornbach and R. Lefeber (eds.), Handboek Internationaal Recht (The Hague, Asser Press 2007), pp. 95–101. On the status of the prohibition of the use of force, see P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht (10th edn, Deventer, Kluwer 2008), p. 21; P.A. Nollkaemper, Kern van het international publiekrecht (4th edn., The Hague, Boom 2009), p. 212 and p. 288; B.V.A. Roling, Volkenrecht en Vrede (3rd edn., Deventer, Kluwer 1985), p. 143.

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  3. See the joint advice of the Advisory Council on International Affairs and the Advisory Committee for Advice on Issues of Public International Law, Preemptief optreden [Pre-emptive Action], report no. 36, The Hague, July 2000 and the government’s response summarised in a letter to the Lower House dated 29 October 2004, Parliamentary documents II 2004/04, 29 800 V, no. 56.

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  4. Article 27, paragraph 3 of the UN Charter stipulates that resolutions of the 15 member Security Council on non-procedural matters are adopted with at least nine members for, including all five permanent members. In practice, a new rule of customary international law has evolved that renders the voting procedure more flexible by only requiring that none of the five permanent members votes against. This practice allows permanent members to abstain from voting without blocking the adoption of a resolution. Until 1 September 1965 the Security Council was composed of 11 members.

  5. Security Council resolution 83, 27 June 1950, adopted with seven members for, 1 against and two abstentions (Egypt and India). The Soviet Union had at that time an ‘empty seat’ policy in protest against the Chinese seat not being allocated to the People’s Republic of China. Resolution 83 (1950) called upon states ‘to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area’; resolution 84 of 7 July 1950 urged that all member states ‘providing military forces and other assistance (…) make such forces and other assistance available to a unified command under the United States of America’.

  6. See Security Council resolutions 161 and 169 (1961). Resolution 161 authorised the UN to take ‘all appropriate measures to prevent the occurrence of civil war in Congo, including (…) the use of force, if necessary, in the last resort’ and resolution 169 authorised the UN ‘to take vigorous action, including the use of the requisite measure of force, if necessary’.

  7. Security Council Resolution 221 (1966), which authorised the UK ‘to prevent, by the use of force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia’.

  8. See N.M. Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing”’, in European Journal of International Law, vol. 11 (2000), pp. 541–568.

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  9. See the advice of the Adviesraad Internationale Vraagstukken and the Commissie van Advies inzake Volkenrechtelijke Vraagstukken, Humaniaire interventie, report no. 13, The Hague, April 2000 and the government’s response in a memorandum to the Lower House dated 30 October 2001, Parliamentary documents II 2001/2002, 27 742, no. 5.

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  10. See the concluding document of the World Summit in September 2005, A/RES/60/1, 16 September 2005, paragraphs 138-39 and the recent situation in the report of the Secretary-General Ban Ki Moon, Implementing the Responsibility to Protect, UN Doc. A/63/677, 12 January 2009.

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  11. See Article 4 (h) of the founding treaty of the African Union (2000) on the right of the African Union ‘to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’. See also A.A. Yusuf, ‘The right of intervention by the African Union: a new paradigm in regional enforcement action?’, African Yearbook of International Law, vol. 11 (2003), pp. 3–21.

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  12. See C. Gray, International Law and the Use of Force (3rd edn., Oxford, Oxford University Press 2008), pp. 30–66.

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  13. See T.M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge, CUP 2002), final chapter 10.

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  14. Resolution 686 (1991) stipulated that ‘during the period required for Iraq to comply (…) the provisions of paragraph 2 of resolution 678 (1990) remain valid’.

  15. Paragraph 33 of resolution 687 (1991) stipulated that ‘a formal cease-fire is effective between Iraq and Kuwait and the Member States co-operating with Kuwait (…)’.

  16. See UN Doc. S/22456, 6 April 1991.

  17. See UN Doc. S/22485, 12 April 1991.

  18. For more detail on this issue, see N.J. Schrijver, ‘Sovereignty versus Human Rights? A Tale of UN Security Council Resolution 688 (1991) on the Protection of the Kurdish People’, in M. Castermans, F. Van Hoof and J. Smith (eds.), The Role of the Nation-State in the 21st Century. Human Rights, International Organisations and Foreign Policy. Essays in Honour of Peter Baehr (The Hague 1998), pp. 347–357.

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  19. See C. Gray, ‘From Unity to Polarization: International Law and the Use of Force against Iraq’ and M. Byers, ‘The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq’, in European Journal of International Law, vol. 13 (2002), pp. 1–19 and 21-41.

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  20. This information is partly based on the observations of the member of the Commission of Inquiry, Van Walsum, who chaired the Iraq Sanctions Committee in the period 1999–2000.

  21. Security Council resolution 687, 4th, 8th, 14th, 15th and 23rd paragraphs in preamble.

  22. Press Release, Independent Inquiry Committee, <http://www.iic-offp.org/story07Sept05.htm>.

  23. Letter from Ramsey Clark to the members of the UN Security Council on 26 January 2000: ‘Sanctions are genocide’.

  24. ‘Iraq Survey Group, Final Report, 30 September 2004, Regime Strategic Content, Efforts to Lift Sanctions’, <http://www.globalsecurity.org/wmd/library/report/2004/isg-final-report/isg-final-report_vol1_rsi-05.htm>. the ordinary meaning and context of the wording used and in light of the object and purpose. Cf. Article 31 of the Vienna Convention on the Law of Treaties of 1969, supra note 2.

  25. See, for example, resolution 707, 15 August 1991.

  26. See resolution 1194, 9 September 1998.

  27. See J. Kaufmann, ‘The Middle East Peace Process’, in his The Diplomacy of International Relations. Selected Writings (The Hague, Kluwer Law International 1998), pp. 65–78.

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  28. In two presidential declarations of 8 and 11 January 1993, the Council declared that the actions of Iraq constituted an ‘unacceptable and material breach’ of resolution 687 and that further non-compliance with its obligations would have ‘serious consequences’. See UN Docs. S/PV. 3161 and S/PV. 3162. See also R. Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle (Cambridge, Cambridge University Press 2010). This book contains an elaboration of the Lauterpacht lectures at the University of Cambridge delivered by this former UN Assistant Secretary-General of Legal Affairs in 2008. The lectures can be found on <http://www.lcil.cam.ac.uk.Media/lectures/pdf/2007-08_ralph_zacklin.php>.

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  29. The speech by President Bush can be found in General Assembly Official Records, Fiftyseventh session, 2nd plenary meeting, 12 September 2002, UN Doc. A/57/PV.2, pp. 5-9 at p. 8 and p. 9.

  30. Ibid., pp. 1-3 at p. 2.

  31. The US/UK draft, as published in the The New York Times of 1 October 2002, included a mandate for the use of force. The relevant passage reads: ‘Decides that false statements or omissions in the declarations submitted by Iraq to the Council and failure by Iraq at any time to comply and cooperate fully in accordance with the provisions laid out in this resolution shall constitute a further material breach of Iraq’s obligations, and that such breach authorises member states to use all necessary means to restore peace and security in the area.’

  32. See UN Doc. S/PV. 4644 and 4644 Corr. 1, 8 November 2002.

  33. The Security Council also used the concept serious consequences several times with this meaning in the Yugoslavia crisis. Examples are resolution 871 (1993) and various declarations by the chairperson of the Security Council, UN Doc. S/25162 (25 January 1993), S/26199 (30 July 1993) and S/PRST/1994/23 (4 May 1994).

  34. Interview with Blix, 2 September 2009.

  35. See UN Doc. S/PV. 4644 and S/PV. 4644 Corr. 1, 8 November 2002.

  36. See UN Doc. S/PV. 4644, p. 3

  37. Ibid., pp. 4-5.

  38. Ibid., p. 5.

  39. Ibid., p. 8.

  40. Ibid., p. 13.

  41. Ibid., p. 7.

  42. Ibid., p. 6.

  43. Ibid., p. 10.

  44. See the draft resolution dated 7 March 2003 of the US, UK and Spain in UN Doc. S/2003/2015.

  45. The abbreviation ‘DGPA’ is also used in the text for the person of the Director-General of Political Affairs.

  46. The tasks and responsibilities are divided in the same manner in the current organisational structure.

  47. There was a position of Legal Advisor until 1998. This advisor had direct access to the minister via the SG. In 1998, this position disappeared after a reorganisation which set up DLA. Interview with Koningsberger, 17 June 2009.

  48. Foreign Affairs, memorandum from the Assistant LA to DVB/OV, ‘Iraq/Implementation resolution 687’, 28 July 1992, no. 32/92. (In Dutch only [IDO])

  49. Foreign Affairs, memorandum of Assistant LA to the Minister via DGPA and SG, ‘Legal basis in Security Council resolutions for US action in Iraq’, 10 September 1996, no. 115473. (IDO)

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  50. Foreign Affairs, Memorandum from DLA/IL to the minister through SG, ‘Juridische grondslag voor een mogelijke interventie in Irak, aantekening ten behoeve van de Ministerraad d.d. 13 februari 1998’ [Legal justification for the potential intervention in Iraq, a note for the Cabinet meeting of 13 February 1998], 12 February 1998, no. DJZ/IR — 122307.

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  51. Foreign Affairs, Dossier SC/Iraq/Milit. Actions, ‘Legitimation of “Desert Fox”’, drafted by DAM/GO on 8 February 1999, seen by DLA/IL, for purpose of general consultation in parliament (dossier DGPA) 11 February 1999 (further references are lacking). As follows from a memorandum of 14 March 2003, ref. DLA-IL/100-03, this document was taken from the archives by DLA/IL, in response to the request by DAM/GO to find out whether DLA/IR around 1998 had written a memo on operation Desert Fox. The memorandum of February 1998 was not found at the time. (IDO)

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  52. Foreign Affairs, DJZ/IR/ARA/00525, memorandum from DLA/IR to DAM/GO, ‘Iraq policy document’, 27 May 2002, ref. DJZ/IR/2002/169.

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  53. Interview with De Hoop Scheffer, 22 September 2009.

  54. Ibid.

  55. Foreign Affairs, DLA/IL/ARA/00543, Memorandum from Acting DAM to M through deputy DGPA, ‘Iraq: Netherlands’ position’, 19 August 2002, ref.: DAM — 391/02. (IDO)

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  56. Interview with Frantzen, 25 August 2009.

  57. Financial Times, 19 August 2002, p. 12.

  58. Foreign Affairs, DJZ/IR/ARA/00525, memorandum from DLA/IR to M via DGPA and S, ‘Letter sent by P. Van Walsum to Financial Times/Armed action against Iraq/Necessity of SC resolution’, 26 August 2002, ref.: DJZ/IR/202/283.

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  59. Comment in the margin of the above memorandum by deputy DGPA and the SG.

  60. Interview with Blokker, 17 June 2009.

  61. Foreign Affairs, BSG/00731, memorandum from DAM to M via DGPA and S, ‘Emergency debate on Iraq (5 September 2002)’. (IDO)

  62. Appendix to Parliamentary Records II 2002/03, no. 2010215380. (IDO)

  63. Foreign Affairs, DJZ/IR/ARA/00526, memo from DLA/IR to minister via the SG, ‘Urgent advice from the CAVV on military action against Iraq’, 18 September 2002, ref.: DJZ-IR 301/02. (IDO)

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  64. Foreign Affairs, DJZ/IR/ARA/00526, memorandum from DLA/IR to the minister via DGPA and the SG, ’Urgent advice from the CAVV on military action against Iraq’, 18 September 2002, op. cit. This reply was provided to the Lower House, see paragraph 8.7.4. (IDO) Telephone conversation with J.G. Lammers, former head DLA/IR, 7 December 2009.

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  65. The memo came from DLA/IL but was sent on the authority of DLA.

  66. ‘If the US and others were to go outside the Council and take military action it would not be in conformity with the Charter’, Secretary-General of the UN Kofi Annan, press conference 10 March 2003, The Hague, see <http://www.un.org/apps/sg/offthecuff.asp?nid=394>.

  67. Foreign Affairs, DJZ/ir/00195, memorandum of DJZ to the minister via DGPA and the SG, ‘Iraq — Legal justification of the use of force without a second resolution’, 13 March 2003, ref.: DKZ/IR/2003/96. (IDO)

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  68. This was ascertained from discussions of the Committee with the relevant actors. No copy of the memo with the signature of the minister, the Secretary-General or DGPA was found in the archive.

  69. Foreign Affairs, DJZ/IR/NA/00195, memorandum from DGPA to M, ‘Iraq’, 14 April 2003, ref.: 982/03. (IDO)

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  70. Interview with Siblesz, 22 June 2009.

  71. Foreign Affairs, DJZ/IR/NA/00195, memorandum from DLA to minister via the SG, ‘Iraq — Legal basis for military action’, 29 April 2003, ref.: DJZ/IR/2003/158, see also NRC Handelsblad, 26 January 2009, ‘Memorandum DJZ/IR/2003/158: Ministry of Foreign Affairs legal advisors deemed Iraq war unlawful from the beginning’. (IDO)

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  72. Ibid.

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  73. Interview with Majoor, 3 July 2009.

  74. Interview with De Hoop Scheffer, 22 September 2009.

  75. Interview with Lijnzaad, 15 July 2009.

  76. Interview with De Hoop Scheffer, op. cit.

  77. Interview with Van Eenennaam, 23 June 2009.

  78. Until the end of the 1990s, the Legal Advisor of the ministry had direct access to the minister through the SG. As demonstrated below, that was and is still the position of the sister DLA at the ministry of defence.

  79. In the current organisational structure, duties and responsibilities are still divided in this manner.

  80. Def/SSA, Memorandum from Deputy DLA (De Keizer) to the minister of defence, ‘Necessity for a new Security Council resolution with respect to a possible military intervention against Iraq’, 12 February 1998, no. 98000413 C 98/229. (IDO)

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  81. The Committee suspects that the word ‘not’ should be added to this sentence. It is not, however, in the text of the memorandum.

  82. Michael Walzer, Just and Unjust Wars. A moral argument with historical illustrations (3rd edn., New York 2000 [1977]), p. 81.

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  83. Def/SSA, Memorandum from DAB to the minister via the SG, ‘War threat against Iraq’, 3 September 2002, no. D02/716. (IDO)

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  84. Interview with Ybema 14 July 2009, Boddens-Hosang 14 July 2009.

  85. Ibid.

  86. Def/SSA, Minutes of SG/DG-meeting, 21 January 2003. (IDO)

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  87. Def/SSA, memorandum from DLA to the minister via the SG, ‘Iraq’, 28 Januari 2003, no. 2003000311. (IDO)

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  88. Cabinet meeting 6 September 2002, 1g.

  89. Cabinet meeting 8 November 2002, 2e.

  90. Cabinet meeting 6 December 2002, 3d.

  91. Cabinet meeting 20 December 2002, 3d.

  92. Cabinet meeting 24 January 2003, 2d.

  93. Cabinet meeting 7 February 2003, 3c.

  94. Cabinet meeting 28 February 2003, 3b.

  95. A document with the same name would be added as appendix to the letter of 18 March. This was an abbreviated version of the document presented to the Cabinet, Parliamentary documents II 2002/03, 23 432, no. 94. (IDO)

  96. Cabinet meeting, 17 March 2003, 1 and 2.

  97. Cabinet meeting, 18 March 2003, 2.

  98. Balkenende, 7 July 2009.

  99. Reference was made to both the parliamentary reports and the Cabinet documents. The internal discussion of this question in the different ministries was not touched upon in the Previous History. The period after Desert Storm is briefly discussed in sections 8.7.1 and 8.7.2.

  100. Parliamentary documents II 2001/02, 23 432, no. 56, p. 2. (IDO)

  101. Proceedings II 2002/03, no. 95, p. 5666. (IDO)

  102. Ibid., p. 5665.

  103. Ibid., no. 96, p. 5688.

  104. Parliamentary documents II 2002/03, 23 432, no. 61, p. 6. (IDO)

  105. Ibid., no. 63, p. 2.

  106. Ibid., no. 66, p. 5.

  107. Ibid., no. 68, p. 6. This was repeated after the Iraqi overview of its WMD programme had been presented on 7 December: ‘in the first instance, it is the Security Council that makes a judgement on the substance of the Iraqi declaration and the question whether or not there is a material breach.’

  108. Ibid., no. 69, p. 3.

  109. Proceedings II 2002/03, no. 38, p. 2839. (IDO)

  110. Ibid., pp. 2845 and 2849.

  111. Ibid., no. 46, p. 3107.

  112. Parliamentary documents II 2002/03, 23 432, no. 92, p. 4. (IDO)

  113. Ibid., no. 93.

  114. Ibid., no. 94, p. 4.

  115. Proceedings II 2002/03, no. 50, pp. 3275-3328. (IDO)

  116. The prime minister promised to make this report available to parliament. In June 2004, MPs Koenders and Van Bommel brought to the attention of parliament that this had still not happened. Minister of Foreign Affairs Bot subsequently sent the documents related to the report dated 17 March 2003, which were by then in the public domain, to parliament. Parliamentary documents II 2003-2004, 23 432, no. 171, with two appendices. (IDO)

  117. For example, ibid., no. 112, p. 8, no. 124, p. 1; Parliamentary documents I 2004/05, no. 5, p. 191; Parliamentary documents I 2006/07, 30 800 V, no. B, p. 11; Parliamentary documents II 2008/09, 31 700 V, no. D, pp. 11, 12 and 15.

  118. Proceedings I 2006/07, no. 38, p. 1197.

  119. Dutch Parliamentary documents II 2003-2004, 23 432, no. 171 (attachment), p. 1; see also <http://www.publications.parliament.uk>.

  120. Interview Sands, 22 September 2009.

  121. <http://www.ico.gov.uk/upload/documents/library/freedom_of_information/notices/annex_a_-attorney_general’s_advice070303.pdf>.

  122. See for a comparison of both documents P. Sands, Lawless World. The Whistle-blowing Account of how Bush and Blair are taking the law into their own hands (London, Penguin 2005), Chapter 12. See also the analysis by A. Lester QC, ‘The document and what it means’, The Guardian, 28 April 2005, p. 3.

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  123. http://georgewbush-whitehouse.archives.gov/news/releases/2003/05.20030501-15.html.

  124. Convention on the Laws and Customs of War on Land, 18 October 1907, Trb 1909-231; Geneva Convention on the Protection of Civilians in Wartime, 12 August 1949, Trb 1951-75; Supplementary Protocol to the Geneva Conventions of 12 August 1949 on the protection of victims of international armed conflict (Protocol I, 1977), Trb 1980-87).

  125. Preamble of Security Council resolution 1483, paragraph 15, 22 May 2003.

  126. See the report of the Lower House hearing, Parliamentary documents II 2002/03, 23 432, no. 121.

  127. Ibid. 2002/03, 23 432, no. 115; D.J. van den Berg, 15 June 2009; Lijnzaad, 15 July 2009.

  128. See E. Lijnzaad, ‘How Not to Be an Occupying Power: Some Reflections on UN Security Council Resolution 1483 and the Contemporary Law of Occupation’, in E. Lijnzaad et al., ed., Making the Voice of Humanity Heard: Essays on humanitarian assistance and international humanitarian law in honour of HRH Princess Margriet of the Netherlands (Leiden/Boston 2004). See also Onderzoek ondervragingen in Irak [Inquiry into interrogations in Iraq], Rapport van de Commissie van Onderzoek naar de betrokkenheid van Nederlandse militairen bij mogelijke misstanden bij gesprekken met gedetineerden in Irak (Commissie van den Berg) [Report of the Committee of inquiry on the involvement of Dutch soldiers in possible crimes during interrogation of prisoners in Iraq], 18 June 2007.

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  129. Balkenende IV Government policy agreement, 7 February 2007, <http://www.az.nl>. Italics added. (IDO)

  130. Parliamentary documents II 2006/07, 29 521, no. 39, p. 7. (IDO)

  131. Ibid., no. 41. Also published in Netherlands Yearbook of International Law, vol. 39 (2008), pp. 300-308, with a report on the parliamentary debate at pp. 309-317.

  132. Ibid., no. 41, p. 3.

  133. Ibid.

  134. Parliamentary documents I, no. 38, pp. 1197 and 1203. In reference to Martinus Nijhoff’s ‘Read it; what’s in it, isn’t in it’, the former Minister of Foreign Affairs Kooijmans criticised the argument of the Netherlands government in his contribution, ‘Balkenende IV en de Irak-connectie’, in Thijs Jansen, Janne Nijman and Jan Willem Sap (eds.), Burgers en barbaren. Over oorlog tussen recht en macht (Amsterdam, Boom 2007), pp. 178-184.

  135. See Articles 24 and 25 of the UN Charter.

  136. See Security Council resolution 1540 (2004) that, amongst other things, aims to stop non-state actors making, developing, possessing, transporting or using nuclear, chemical and biological weapons. This resolution, adopted under Chapter VII of the Charter, obliges member states to pass or strengthen existing legislation to achieve this aim.

  137. Interview with Blix, 2 September 2009.

  138. See Security Council resolution 940, 31 July 1994 and 1529, 29 February 2004. See also David M. Malone, Decision making in the UN Security Council: The case of Haiti, 1990–1997 (Oxford, OUP 1998).

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  139. For an explanation of the US position, see the article of the Legal Advisor and the Assistant Legal Advisor of the US State Department, W.H. Taft IV and T.F. Buchwald, ‘Preemption, Iraq and international law’, The American Journal of International Law, vol. 97 (2003), pp. 557–563.

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  140. See draft resolution of 7 March 2003 of the US, the UK and Spain in UN Doc. S/2003/2015.

  141. Interview with Sands, 22 September 2009.

  142. Proceedings II 2002/03, no. 50, 3299. (IDO)

  143. See Article 60 of the Vienna Convention on the Law of Treaties, mentioned above in note 2.

  144. See the report of the visitation commission for Legal Function and Legislation, Met recht verbonden, March 2007, see: <http://www.justitie.nl>. (IDO)

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Documents. Neth Int Law Rev 57, 81–137 (2010). https://doi.org/10.1017/S0165070X10100059

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