Dutch Inquiry on the legality of the war

This is a translation of key parts of section 8 of the report of the Davids Commission, which looked at the Dutch government’s political support for the Iraq war and reported in January 2010.

Section 8 is titled “The international legal basis for military intervention in Iraq” and covers the legality of the war itself, not just the involvement of the Netherlands.

8.1 Introduction

During the period 2002-2003 an intense debate raged over the question of legal basis for military intervention in Iraq. This is one of the subtopics for research stated in the Commission’s mandate, and this chapter deals with this issue. Firstly, the the current international law on use of force is outlined, especially within the Charter of the United Nations. The chapter then addresses the series of Security Council resolutions during the 1990s, to the extent to which they are directly or indirectly important in terms of the possible use of force against Iraq. An extensive package of sanctions against Iraq had long been in force, but a growing range of exceptions were created, known as “oil for food”. The next section addresses the shortcomings of the sanctions regime, and the impact it had on the decision on the possible deployment of military force in the period 2002-2003.

There has been much debate, internationally and in the Netherlands, about the legal necessity or purely political desirability of a “second resolution”, ie a further Security Council resolution, explicitly to authorize the use of force against Iraq. Paragraph 8.6 puts under the microscope the key issue of the interpretation of the substance and meaning of Resolution 1441 of November 8, 2002. Based on the views of the Cabinet and the debate in the House, Paragraph 8.7 analyzes the conduct of political debate in the Netherlands on the legal grounds for military intervention in Iraq. It also examines particularly, the development of policy especially in the Ministries of Foreign Affairs, and of Defence.

Paragraph 8.8 deals with international legal advice from Lord Goldsmith of the British Government; and paragraph 8.9 of the Netherlands military support to stabilization and reconstruction Iraq after the US-British military intervention. The political debate on the lessons learned, resulted in a coalition agreement by the fourth Balkenende administration on the need for an “appropriate international law mandate “, which is discussed briefly in paragraphs 8.10. Paragraphs 8.11 ends with a retrospect.

8.2 The UN Legal Framework on the use of Force

In 1945, the founders intended that United Nations would establish a system of collective security; a cornerstone for the responsibility for peaceful resolution, and the prohibition of violence in international relations. Forbidding the conduct of a war of aggressive has been widely regarded as a peremptory norm of general international law. The Charter of the United Nations recognizes two exceptions to the prohibition of violence. Thus, under article 51, a State that is the victim of an armed attack, has the “inherent right” to self-defence, conducted independently or collectively.

However, an attacked State must immediately report the the armed attack to the Security Council, and actions in self-defence cease when the Security Council has taken collective measures to restore peace and security. This right to armed self-defence extends, under certain strict conditions, to anticipatory (also known as “pre-emptive”) self-defence, where a state is the target of an imminent armed attack. At the very least, it should be demonstrable, that an armed attack might occur any time, and that an armed, pre-emptive self-defence action is necessary and proportionate. In addition, such self-defence actions must be carried out in compliance with international humanitarian law.

The second exception to the prohibition of violence, is a decision by the Security Council, acting under Chapter VII of the Charter, that coercive, military action is needed to maintain or restore international peace and security. Even regional organizations are not permitted to undertake military action without the approval of the Security Council, as stated in Article 53, paragraph 1 of the Charter.

Procedurally, a valid decision of the Security Council requires a vote in favour of a majority of at least nine of the fifteen members of the Security Council, with none of the five permanent members voting against (a veto). This was designed, in 1945, as a safety valve to prevent a majority of the council taking collective coercive action unjustly against a permanent member of the Security Council or a state.

During the Cold War, such an authorization was granted only in one case, namely the call by the Security Council in 1950, for the US, under the UN flag, to join South Korea, in helping reverse the military aggression of North Korea. The Security Council also authorized the United Nations (not member states) to use force if necessary to prevent an escalation of the civil war in the Congo. Finally, the Security Council gave the United Kingdom authorization to employ appropriate force, to enforce the trade embargo against Southern Rhodesia, against ocean tankers suspected of transporting oil destined for the white minority regime of Ian Smith.

After the end of the Cold War, the Security Council granted several authorizations to use force, based on the finding that there was a threat to, or disturbance of the peace. The legal practice has evolved, since 1990, whereby the Security Council has developed a consistent policy that such a resolution explicitly mandates the use of all necessary measures (and also sometimes all necessary means), which is diplomatic jargon for the use of military violence. Examples include Resolutions concerning the restoration of the sovereignty and territorial integrity of Kuwait (Resolution 678, 1990); enforcing a flight ban over Bosnia-Herzegovina (resolution 816, 1993), and protecting the ‘safe areas’ in that country (Resolution 836, 1993); the mandate for France to use force in the humanitarian “Operation Turqoise” at the time of the civil war in Rwanda (Resolution 929, 1994); the mandate for a multinational force led by Australia, to restore peace and security in East Timor (Resolution 1264, 2001); international assistance from ISAF to ensure stability in Afghanistan (resolution 1386, 2001); the stabilization force in Iraq after the fall of the regime of Saddam Hussein (Resolution 1511, 2003); the mandate for the use of force by the European Union Force (EUFOR) in the Democratic Republic of Congo (resolution 1671, 2006); for the operation of
the European Union in Chad (resolution 1778, 2007); and the mandate for any armed force against piracy in the waters around Somalia and including Somali territory (Resolutions 1816 and 1851, 2008).

This not-exhaustive list of relevant and representative examples demonstrates that in authorising a mandate to use force, the Security Council acts consistently under Chapter 7. On the basis of Article 39 of the Charter, the Security Council determines that a threat to peace or a breach has occurred. The Council then grants to certain countries or to a UN-mandated peace operation, the right to use force, expressed as “the use of all necessary measures”.

[A Table follows repeating the above examples and showing the consistent use of the words “all necessary measures”]

Besides these two exceptions (to the prohibition on the use of force), a legal development can be seen in for the use of force where warranted by exceptional humanitarian emergency conditions, where the Security Council can reach agreement. It must refer to massive and flagrant violations of human rights, that seriously threaten the lives of large groups of people, or the right to existence of a particular ethnic group ( ‘ethnic cleansing’). Examples of humanitarian interventions include Operation Provide Comfort in Iraq in April 1991 to protect Kurds and Shiites respectively in northern and southern Iraq; and the Kosovo action of ten NATO countries in 1999 against Yugoslavia under President Slobodan Milošević. The legality of a humanitarian intervention in such emergency conditions is not uncontroversial. The United Nations has, to date, failed to reach agreement on the criteria for a humanitarian intervention. But this underlying principle of responsibility to protect (the vulnerable) hasincreasingly been acknowledged, including during the World Summit in September 2005 on the occasion of the celebration of the sixtieth anniversary of the United Nations. The recognition of the responsibility to protect is coupled with the responsibility of the Security Council ‘to take collective action in a timely and decisive manner’. The Treaty to establish the African Union includes a commitment to humanitarian intervention in a State where there are serious international crimes such as genocide are being perpetrated.

The ban on the use of force applies to any other exceptions, including pro-democracy intervention, international military support to national liberation wars or military action against the proliferation of weapons of mass destruction, unless they can be justified by the right to self defence. Such claims are highly controversial, and the required international law has yet to take root.

Finally, a defence on the basis of international law, is not the only basis to provide a justification for the international action of member states. Compliance with the rules of international law rules is very important, but is not always definitive. Sometimes in an international conflict, the involved issues are of such importance that member states may feel compelled to act even when such action does not comply with applicable international law. However, these are exceptional situations involving for very urgent moral principles. While the legal adage advises: “necessity knows law “and even given a state’s legal concept of necessity, safety valves have to be found. It is striking that the debate on the possible justification for the Iraq war has not followed these paths.

8.3 Security Council Resolutions on Iraq in the 1990s

In the period since Iraq’s invasion of Kuwait, Iraq has been the subject of a large number of Security Council a resolutions. Almost all of these resolutions utilise’Chapter VII’ of the UN Charter. As discussed in Chapter 3, the Security Council, condemnation of the invasion of Kuwait Iraqi troops on the day of the invasion, was almost unanimous (Yemen did not participate in the vote) and identified this act as a breach of international peace and safety. In this way, the Security Council immediately opened the door to taking coercive measures under Chapter VII of the UN Charter. As a provisional measure, under Article 40, the Council demanded that Iraq immediately and unconditionally withdraw from Kuwait, and called on parties to begin negotiations immediately to solve their disputes, for example with the assistance of the Arab League (Resolution 660,1990). Within a few days following that, the Security Council took another strong step by imposing, under Article 41, comprehensive package of economic sanctions against Iraq’s occupation of Kuwait, binding on all Member States(Resolution 661, 1990). The measures included a trade embargo, a freeze on all financial transactions, and a requirement that member states ensure that anyone under its jurisdiction (including vessels sailing under its flag) was adhering strictly to the orders of the Security Council. Only for medical and food supplies were made a necessary exception on humanitarian grounds.

Within resolution 661, the Security Council also established a sanctions committee comprising all members of the council. This committee was initially responsible for reports to the Secretary-General of the United Nations on the implementation of the economic embargo, and for obtaining information from member states on the measures they taken to support the resolution. Member states could also ask the Committee to further explain the application of the sanctions resolutions. In this manner, in early 1990, the Netherlands asked the sanctions committee whether the provision of dredging and consultancy services in Iraq fell under the scope Resolution 661, which was answered affirmatively.

A number of further resolutions both strengthened the sanctions regime (including an air embargo resolution 670), and also extended the exceptions (notably for food supplies, other essential goods, and humanitarian aid). The sanctions and sanctions committee continued ito 2003. The failures of the sanctions regime and the work of the sanctions committee are fully addressed in the next section of this chapter.

[This treatment of the sanctions regime is omitted at present as being somewhat outside of our current focus]

8.4.4 Beginning of the End

In the autumn of 2000 it became increasingly clear that the sanctions regime was on its last legs. Sanctions carried out by member states were increasingly incomplete or not respected, and it became increasingly difficult to find anyone in New York willing to defend the principle of the system. Then on November 7, 2000, with George W. Bush elected President, the majority of those respomsible for the enforcement of the sanctions regime were responsible, simply assumed that the new US administration would sooner or later “check out” Saddam Hussein, and many of them had no regrets.

(Final sanctions resolutions omitted)

From November 8, 2002, (international) attention was given almost exclusively to the interpretation of Resolution 1441 as is still apparent now. The acceptance of that resolution was greeted with relief in most capitals. What was particularly welcomed was the fact that the resolution was adopted unanimously. There was indeed a striking difference between the resolutions 1284 (1999) and 1441 (2002). Resolution 1284 of December 17, 1999, which created UNMOVIC, was adopted only after difficult negotiations, and abstentions by China, France, and Russia (three of the five permanent members) and was immediately rejected by Iraq, since the withdrawal of UNSCOM and IAEA weapons inspectors in December 1998 had been safeguarded. In strong opposition to Iraq, the Security Council unanimous adoption of Resolution 1441 was accepted by Iraq some days later, and on November 27, the weapons inspectors (now,UNMOVIC) could resume their work in Iraq.

The contrast obviously reflected another difference: Resolution 1284 was adopted under the Clinton administration’s “containment policy”, whereas Resolution 1441 was adopted under Bush’s the regime change framework. Had the issue been the US deployment of troops, 1441 would not have been unanimously adopted or accepted by Saddam. But the resolution aimed simply to put the inspectors back to work and give them more time for their task. The only problem was Iraq’s willingness to cooperate with the inspectors, and also that the delay in the deployment of US troops would not be continued indefinitely…………………………………………..

8.5 A Second Resolution: Desirable or Necessary?

The issue of so-called “second resolution”, that the use of force required an explicit mandate, played out over two different periods of the Iraq question, namely before (1991-2002), and following acceptance of resolution 1441 on November 8, 2002. The wording, goals, and purpose of especially resolutions 678 (1990) and 687 (1991) were of great importance for the first period; and obviously of Resolution 1441 (2002), for the second period.

Resolution 678, adopted on November 29th, 1990, is a relatively short resolution that fits in well with the UN Charter’s provisions for collective security. Indeed, in the first place, the Security Council had clearly determined, under Article 39 of chapter VII of the Charter, that by the invasion of Kuwait, Iraq had breached international peace and security; and under Article 40, provisional measures were being taken (Resolution 660). When even this did not result in a withdrawal of Iraq from Kuwait, the Council gave the green light to military action to restore the territorial integrity and sovereignty of Kuwait in January 16, 1991 (Resolution 678). Resolution 678 was thus a solid legal basis for military action to liberate Kuwait.

After the success of operation Desert Storm, the Security Council adopted Resolution 686 on March 2, 1991, announcing a provisional cease-fire and the intent of the member states that supported Kuwait “to bring their military presence in Iraq to an end as soon as possible, consistent with achieving the objectives of the resolution.” The council demanded that Iraq continue to accept and implement all previous resolutions, and in addition dropping its previous official plans to annex Kuwait, the release of prisoners from Kuwait and third countries, and the return of seized goods. This resolution 686 maintained in section 4 the explicit option of using force to remain valid during the period over which Iraq was required to meet the requirements of this resolution, to satisfy “the provisions of paragraph 2 of resolution 678 (1990).

The omnibus resolution 687, one month later, is a substantially more complicated resolution, but not so much in terms of the mandate to use force. This resolution formally cemented the cease-fire in its penultimate section, as follows: “Declares that, upon official notification by Iraq to the Secretary-General and to The Security Council of its acceptance of the above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States Cooperating with Kuwait in accordance with resolution 678 (1990). ” As noted above, Iraq was formally notified on April 6, 1991, and the President of the Security Council declared that cease-fire was officially in force.

For completeness, it should be noted that paragraph 4 of resolution 687 includes the words “use of all necessary measures” in the context of protecting the Security Council’s guarantees for the inviolability of international borders between two countries. In several decisions [ resolutions 773 (1992), 806 (1992) and 833 (1993)], the Council reiterated this guarantee, but always in relation to ensuring the inviolability of the border between Kuwait and Iraq. In addition, from the wording it also follows that the purpose of Resolution 687 was to bring an end to military actions.

Many resolutions on Iraq would follow, in the context of the cat-and-mouse game between Iraq and the Security Council on the weapons inspections, sanctions, and the oil-for-food program. None of these resolutions included a revived mandate to use force, even for a clear material breach by Iraq in its disarmament obligations, the suspension of cooperation with the Special Commission UNSCOM and IAEA weapons inspectors, or Iraq failing to cooperate with UNSCOM (under the terms of Resolution 1205, November 5, 1998). The same applies to the resolutions that threatened Iraq with “serious consequences”, as in Resolutions 688 (1991) and 1194 (1998).

As is the practice of the Security Council, the term “serious consequences” was used as an indication that the members of the Security Council begin to lose their patience, and that in the case of continued non-compliance of the resolutions, the Council would seriously consider a mandate to use force as Chapter VII of the UN Charter provides.

It has been argued that the overall objective of Resolution 678, “to restore international peace and security in the area”, could be interpreted as a general mandate to use force, and that that resolution is de-linked from applying to the period 1990-1991 (where the use of force applied ) to specific situation between Kuwait and Iraq. The terms are indeed so general that it could not include the threat to international peace and security which the presumption of WMD’s in Iraq could present. From the history of Resolution 678, it follows that this phrase refers mainly to the desire of the Security Council to see peace and security in the broader Middle East. After the Gulf War, the shuttle diplomacy of U.S. Secretary of State James Baker attempted to breathe new life into the peace process between Israel and the Arab world, through an international Middle East conference Initially the approach at the Madrid Summit and in the Oslo Accords also appeared to have some success. Even despite the fact that the UN Charter provides for a system of collective peace and security, it is difficult for member states to interpret “to restore international peace and security in the area” as an unlimited mandate to use force at a particular time and location. It is true that the limited use of force against Iraq, that periodically took place, was apparently approved by with agreement of several, if not a majority of the Members of the Security Council, in response to the continuing non-compliance by Iraq of its obligations.

8.6 Resolution 1441 of 8/11/2002 under the magnifying glass

Chapters 3 and 7 describe the international political situation from mid September 2002, including the momentum to seek a new Security Council resolution. This was firstly a response to the continuing problems between the weapons inspectors and Iraq on the modalities of the weapons inspections, and the failure of the sanctions regime against Iraq. In the post September ’11 situation this led to a determination, especially the United States, to bring Iraq to its knees. In addition, these diplomatic efforts to obtain a new resolution, also resulted from the announcement by President Bush, partly as the result of strong British insistence, during his speech on September 12, 2002 for the General Assembly of the United Nations, that he would pursue an approach to Iraq through the Security Council. President Bush stated that the UN stood at “a difficult and defining moment”. ‘Are Security Council resolutions to be honoured and enforced or cast aside without consequence? Will the United Nations serve the purpose of its founding, or will it be irrelevant?’ The president signalled his willingness to cooperate with the Security Council, but also left no doubts about America’s resolve. “The Security Council resolutions will be enforced (…) or actions will be unavoidable, and a regime that has lost its legitimacy will also lose its power. “.

Kofi Annan, UN Secretary General, made clear, shortly before on the opening day of the General Assembly: : “(…) when States decide to use force to deal with broader threats to international peace and security, there is no substitute for the unique legitimacy provided by the United Nations.”

After weeks of intense negotiations among the five permanent members on three draft resolutions prepared by the United States, the United Kingdom, Russia and France, the Security Council adopted resolution 1441 on November 8 with a remarkable level of consensus. It stated in strong terms that Iraq was in default for its failure to comply with disarmament obligations, and demanded immediate, unconditional and unrestricted access for inspections by UNMOVIC and IAEA. Iraq was also accused by the council of not maintaining a clear enough distance from terrorism to satisfy the demands in Resolution 687. Moreover, the Council criticized the continued repression of the civilian population in violation of Resolution 688.

Resolution 1441 stated that Iraq was in material breach of its committed obligations due to its failure to cooperate with UN inspectors and IAEA. In response, the Council decided, however, that Iraq has a “final opportunity” to voluntarily dispose of its WMDs and long-range missiles under Resolution 687 (1991). For this purpose the Council established a rigorous and comprehensive inspection regime. The terms of the increased and strengthened inspections, were stated as a binding resolution on Iraq by Hans Blix of UNMOVIC and Mohammed El Baradei of IAEA, were sent in a joint letter to Iraq on October 8, 2002. The letter was attached to the resolution, making it part of this binding resolution. UNMOVIC and IAEA were to have access to anywhere in the country, and could conduct inspections at any place, including in presidential palaces. Iraq also had within thirty days after the adoption of a resolution to complete and submit accurate reports on all aspects of its programs field of chemical, biological and nuclear weapons, including related programmes of resource transfers, not directly concerned with weapons.

The Security Council stated that false statements or inaccuracies in the reports would constitute “a further material breach” of Iraq’s obligations and would be reported to the Council (paragraph 4). Also UNMOVIC and the IAEA would immediately leave Iraq if the inspection activities were hinder or Iraq fail to meet its disarmament obligations (paragraph 11). The final paragraphs announced that the Council would meet immediately after receiving a report referred to in these paragraphs 4 and 11, assess the situation and need for full compliance with all relevant resolutions of the Council, to review whether the goal of international peace and security has been compromised. The Council reminded Iraq that it had continuously been warned of the serious consequences it would suffer as a result of the continued violations of its obligations (section 12).

The resolution was adopted under Chapter VII of the UN Charter and placed on Iraq a large number of specific obligations, as well as ensuring full and unhindered cooperation with inspections. The language used by the Council in this resolution can undoubtedly be considered as binding and threatening. This is reflected in the specific references in the resolution’s opening section (the preamble) to the earlier resolutions 678 and 687, and specifically in reminder that resolution 678 gave member states permission to use force, and that Resolution 687 stated further obligations which Iraq had to fulfil in terms of the cease-fire resolution.

While Resolution 1441 clearly stated that Iraq had violated obligations and was in “material breach” (paragraph 1), it also stated that the country had a “final opportunity” to meet its obligations. If that opportunity were not seized, then the Resolution provided that the issue would be submitted to the Security Council for review ( “will be reported to the Council for assessment “, section 4) and that the Council would “consider the situation and the need for full compliance”, section 12), which clearly stated Iraq ‘serious consequences’ and what could constitute the ‘serious consequences’, paragraph 13).

As discussed in the previous section, the term ‘serious consequences’ was used with some regularity by the Council in resolutions on Iraq, with the intention to pressure Iraq to conduct and threatening to further enforcement action, but without permitting the conclusion to be drawn that this concept is synonymous with “use of all necessary means” . As Blix reported in his conversation with the Commission: ‘I remember that Condoleezza Rice would come with a bunch of interpretations, she said that “after all, we were upholding the authority of the Security Council”. How can you possibly say that when you cannot get a majority for it? Your action is against the will of the majority of the Council saying you are upholding the authority against your will. It is smart, politically.”

The final text of an amendment that aimed to make clear that in the case of violation the Security Council would have to come together again to take a decision, was not included. Both in politics and in diplomacy it is not unusual to use deliberately ambiguous formulations to facilitate keeping on board as many stakeholders as possible. This and some other ambiguities in the resolution (as the explicit recall in the preamble of Resolution 678), do not preclude the responsibility of the Security Council to reach judgments and decisions on follow-up action to be delegated to individual countries. An objective interpretation of the text of Resolution 1441, in the context of the Iraq debate in the autumn of 2002, and in the light of its objective and purpose, can therefore only lead to the conclusion that individual States were not authorized, without further decision of the Security Council, to proceed by using force. This also follows from the law and also practice of the Security Council as discussed in this chapter.

Moreover, this interpretation was confirmed in the explanations of virtually all members of the Security Council, including the United States, which they gave to the adoption of Resolution 1441 on November 8 2002. US Ambassador Negroponte stated that ‘this resolution contains no “hidden triggers” and no “automaticity” with respect to the use of force’. He added, however : “If the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security. ‘ British Ambassador Greenstock said the same, albeit a little more ‘packaged’: “There is no” automaticity “in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. (…) We would expect the Security Council to meet its responsibilities.’ Ambassador Levitte welcomed on behalf of France that “all ambiguity on this point and all elements of automaticity have disappeared from the resolution “, restating that “all of France’s diplomatic efforts in recent weeks were directed towards giving peace a chance “. Russian Ambassador Lavrov emphasised that Paragraphs 4, 11, and 12 clearly assign to the Security Council any action consequent on a report of material breach. . He said:'(…) the resolution just adopted contains no provisions for the automatic use of force “, and “What is most important is that the resolution deflects the direct threat of war and that it opens the road towards further work in the interests of a political diplomatic settlement. “The Chinese ambassador noted:” The text no longer includes automaticity for authorization of the use of force. ” The non-permanent members took similar positions. The Irish Ambassador Ryan explained that: “(…) We have carefully noted the assurances given by the sponsors that their purpose in presenting this resolution was to achieve disarmament through inspection, and not to Establish a basis for the use of military force. “Mexico said: ‘(…) This resolution also constitutes progress, as it eliminates the concept of automaticity in the use of force in response to a serious violation without the explicit agreement of the Council.” Syria had also voted for the resolution, ‘having received assurances (…) that it would not be used as a pretext for striking against Iraq and does not constitute a basis for any automatic strikes against Iraq (…). It reaffirms the central role of the Security Council in addressing all phases of the Iraqi issue.’

The attempt of the American-British-Spanish to provide a sufficient argument in the spring of 2003 for a “second resolution” re-shaped key wording to interpret a mandate for the use of force in paragraph 2 of resolution 678 (1990). Because of these efforts, as explained earlier in this report, (the US, Spain, and Britain) lost a majority of the members of the Security Council, who wanted to give inspections more time as requested by the Chairman of UNMOVIC, Hans Blix.

8.7 Netherlands & Security Council Resolutions on Iraq

This section examines firstly, the establishment, at department level, of the positions on international law and the legitimacy of military intervention in Iraq. Archival research has shown that the Ministries of Foreign Affairs Defence and engaged in activity. Virtually no attention was given to the issues related to international law in Departments of General Affairs and Justice. Then we consider the discussion of the international law issue at ministerial level. As this issue hardly played a role in the structures below Ministerial level, we will focus on the discussions at the level of Ministers. Finally, the Government took a position, as described in the letters and debates in the House.

8.7.1 The discord within the Ministry of Foreign Affairs

The legal issues to be determined by the Ministry of Foreign Affairs, had been handled by the Legal Affairs Department (DJZ). The State Almanac 2002 and 2003 (the years of the Commission’s study period) described the role of the DJZ as “pursuing the development of international law”. DJZ was in 2002/3 a supposedly central service, not integrated under one Directorate-General. If a DJZ opinion to a Minister had a political dimension, the hierarchical line went through the Directorate-General for Political Business (DGPZ) and the Secretary-General (SG). Indeed, DGPZ was responsible for issues with political dimensions for all departments. . DJZ consisted of a number sections, divided into several jurisdictions. The International Division law (DJZ / IR) was concerned with public health issues, involved in both jus ad bellum (right to war) and jus in bello (humanitarian law) . The Commission ordered the investigation of the archives of the Ministry of Foreign Affairs to discover how the legal underpinnings of the government’s position from the department was establish. The Commission has also examined how the DJZ position was received within the department, and how the final position of the department was formed.

Opinions on the law in the 1990s

Even in the 1990’s, according to the archives of DJZ, legal advice was being given on possible military intervention in Iraq. In early 1992, the Director of Political Affairs (DPZ) to the Legal Adviser (JURA) stated that compliance on Security Council Resolution 687 on Iraq could not be enforced by military means. The assistant of JURA replied on July 28, 1992 that the authorization of force in resolution 678 was limited to the termination of the illegal occupation of Kuwait by Iraq. Section 34 of Resolution 687 stated that it was the Security Council that would decide on any measures concerning the implementation of the resolution. New military action would require a new decision by the Security Council.

In 1996, the Deputy DGPZ was asked for a an opinion on the legal basis of the air operations conducted by the US in Iraq for protection of the Kurdish population. JURA replied in a memorandum to the Minister that once again Resolution 678 covered only securing the withdrawal of Iraqi troops from Kuwait. Resolution 687 and 688 did indeed refer to humanitarian needs, but not did not authorize the use of force. JURA therefore suggested that the reasoning given by the US seemed ‘paper thin’.

In 1998, this issue was raised again when the US threatened military action in Iraq. On 12 February 1998, DJZ/IR wrote an analysis of the legal grounds on behalf of the Minister for Foreign Affairs, to submit to the Council of Ministers. DJZ / IR noted that Iraq had indeed breached its obligations arising from Resolution 687. This led to the questions of when, under what conditions, and how member states could respond to this violation. DJZ / IR replied: ‘ Legal intervention when Iraq fails to fulfil a Security Council resolution, requires an ultimatum to Iraq, and states may then intervene in the absence of Iraqi cooperation. What emerged from (discussion on) Resolution 678 was that military intervention in Iraq would not be legal without intervention of the Security Council. The opinion of DJZ / IR was, based on what was known so far, to reject the justification of the military intervention in Iraq. With the beginning of Operation Desert Fox in early 1999, when asked for a response, DJZ / IR did not recommend the text of a handwritten note by a department by the Gulf States of the Africa Department and Middle East (DAM / JV) that the legal basis for use of force was composed of all Security Council resolutions. It was proposed that while recognising that the (given) grounds were “thin” they could be further clarified. The Commission was not able to see how these legal opinions were viewed within the Ministry of Foreign Affairs. However, the communication with the House showed that the arguments of JURA, and later DJZ, were not accepted

Public Positions on Legal Issues 2002-2003

The earliest opinion in 2002, was a DJZ / IR memo dated May 27, 2002, addressed to DAM / GO. At this time, in response to reports of a possible US military attack at some stage on Iraq, DAM/GO coordinated the formation of policy based on input from all departments concerned with this issue. To DJZ / IR, the question was posed as to whether “such an attack under international law would be admissible “.DJZ / IR replied briefly that there were two legal exceptions to the undisputed prohibition of the use of force, namely the right to self defence, and an authorization of the Security Council. A (possible) third exception, force used in the context of humanitarian intervention, was controversial. DJZ /IR predicted in the memo that the United States would be attempt to justify attack on Iraq by ” reference to past Security Council resolutions that would have provide an authorization for military action“.

After a description of these (past) resolutions, DJZ / IR, said that a “thorough disagreement” existed among the members of the Security Council on what the consequences would be of violation of the resolutions by Iraq. DJZ / IR observed that interim resolution 678 which aimed “to restore peace and security in the region”, was almost unlimited. Answering a request for an explanation of what form a Security Council resolution authorizing military force would take, DJZ / IR responded that this was not supported by the development of international law since 1991, neither in terms of individual member state’s practice nor legal doctrine. DJZ / IR stated that it would be downright wrong under international law to engage in a military attack for the purpose of regime change. DJZ / IR noted that the Dutch position in the past, consequent on Operation Desert Fox, support was given the military actions of the U.S. and UK against Iraq. The Dutch Government took the view that it was legitimized by the existing resolutions.

DJZ / IR itself concluded: “If existing Security Council resolutions already provide a legal basis for a future US military action, these grounds are ‘paper thin'”. DJZ / IR also warned about a number of consequences arising from the passing of the Security Council. Consideration should be given to reduced legitimacy for the use of violence, both in terms of precedents created, and the long-term undermining of the principle of the rule of law. Finally it was recommended that the Netherlands should not unquestioningly join a military attack, since such an attack required careful justification.

On July 22, 2002 Hoop Scheffer joined as Minister of Foreign Affairs. As described extensively in section 5.2.2, a brainstorming session on Iraq was held on August 9 for the new minister. On August 9, 2002, DAM / GO presented a policy rolling document ( “note in development”) to the Minister before the brainstorming session, and then to all concerned Departments. The memo from DJZ / IR on May 27, 2002 was included as Annex. This rolling document stated that the grounds for military action should in principle be viewed as a political decision. A legal justification was nevertheless considered important. Earlier, the Netherlands had supported surgical bombing in Desert Fox. DAM / JV identified that an invasion and a subsequent regime change were of a different dimension. Referring to the attached memo from DJZ / IR, it was stated that the legal basis for a such unilateral US military action against Iraq was considered “thin”.

DJZ was invited to the brainstorming session on August 9. The report and attendance record for this session is missing. Lijnzaad represented DJZ / IR at the brainstorming session to present the position of her department. In the absence of a report, and the fact that participants disagree (about what occurred), it is not possible to reconstruct whether a discussion took place on the question of international law, or how it was conducted.

In his interview with the Commission, Hoop Scheffer said: “You’ll know that when I took office, I was aware of views within parts of the legal department on the appropriateness and legitimacy (of the use of force), or the lack of it. That was not new to me.” He added: “I was fairly well informed on the range of policy positions (being considered) by BZ. …. The conceptual framework was clear to me.”

Following the brainstorming session, and to prepare for the annual Gymnichoverleg among EU foreign ministers, DAM / JV wrote a memo on August 19 A 2002. This stated that existing resolutions are “sufficient (and incidentally, not controversial) to provide a legal basis” for military action. The balance (of judgment) was not just legal “but also (…) political. A new resolution would be politically desirable, although legally ‘not essential’. The responsible policy advisor characterized the assessment of DAM after brainstorming session as follows: “. thin thickness is perhaps enough for us to go with.”

On August 19, 2002 asked the Minister for Foreign Affairs was asked by the Deputy of DGPZ DJZ to respond to an article published on the same day in the Financial Times by AP van Walsum, formerly of DGPZ, and former Dutch representative on the Security Council. In their response on August 26, 2002 DJZ / IR rejected an assertion by Van Walsum that the NATO intervention in the Kosovo conflict in 1999, had demonstrated that there was no need for a special Resolution if a threat arose because previous Resolutions were being systematically violated. According to DJZ / IR an exceptional threat could provide a reason to apply Article 51 of the UN Charter. . But DJZ / IR stated that the “mere possession” of WMDs did not provide a justification to use force in self-defence. According to DJZ / IR, international law did not allow the systematic violation of Security Council Resolutions to be made a generalised justification for the use of force. Van Walsum’s Kosovo references were inapplicable because the situation involved a humanitarian intervention. DJZ / IR could not currently conclude that there was evidence of imminent widespread serious violations of fundamental human rights. DJZ / IR concluded that the Security Council decisions regarding the NATO operation in Kosovo, did not provide general license for military action without the explicit approval of the Security Council.

After reading this memo, Deputy DGPZ Schaper reported writing to DJZ that while the Security Council was the highest body in matters of international law on peace and security, the Council primarily a political body and did not make legal judgements. It was the opinion of the Deputy DGPZ that all discussions about the legal implications of (Security Council) Resolutions involved, by definition, a strong, sometimes dominant political perspective. After reading the memorandum, the minister sent it “returned, with thanks” to DJZ / IR.

DAM/GO then worked on the Cabinet letter of September 4, 2002. The reasoning related to international law was taken from the August 19 the memo from DAM / JV. DJZ / IR was not involved in the preparation of the letter, nor in the Parliamentary debate the following day. In a note in the dossier of the Minister for Foreign Affairs prepared for the emergency debate on September 5, DAM / GO said that DJZ / IR’s observation that the legal justification was ‘thin’ applied to the legal grounds for regime change through military action. According to this note, DJZ / IR believed that interim Resolution 678 provided almost limitless scope for the goals pursued. In this way, it was determined that the legal foundation could be found in the existing resolutions.

On September 12, 2002, Member of Parliament Koenders (PvdA) asked the Minister of Foreign Affairs if he was prepared to ask for emergency advice from the Advisory Commission on Public International Legal Issues (CAVV) in the light of possible military action against Iraq. This opinion could review whether the scope of existing resolutions on Iraq provided a was the right to self defence and the concept of pre-emptive attacks, and how a possible new resolution could be drafted. In an initial draft response, DJZ / IR recommended approval of this request for emergency advice. A few days later however, DJZ / IR advised, at the request of the department management, that in the light of the position stated by the Minister on Iraq, an urgent opinion from CAVV was not necessary.

The Commission found that from October 2002 until March 2003, DJZ / IR provided no other written international legal opinions concerning the threat of military action in Iraq. The inquiries made by the Commission shows that the department contributed (only) to spoken discussions with the Ministry on the Iraq issue.

On March 13, 2003, in a memo to the Minister at the request of DGPZ Siblesz, DJZ commented on the legal basis for using force against Iraq without a second Security Council resolution (Part A). In addition to the arguments in favour, DJZ also looked at the international legal arguments against (Part B). The foundation in Section A referred to the broad authorization of Resolution 678 ( “to restore international peace and security in the area “) and the absence of a time limit in this Resolution. In addition, it was found in successive resolutions (now including 1441) that cease-fire demands to Iraq had not observed. The new inspection regime of Resolution 1441 gave Iraq one last chance to cooperate. Neither did Resolution 1441 state that force could only be used after a new resolution, but provided only that the Security Council would meet to discuss the reports. DJZ made a comparison with the NATO bombing in the Kosovo conflict in 1999, and the armed intervention in Liberia in 1990. In both of these cases there had not been a prior authorization, while in the case of Iraq there was Resolution 678. For completeness, DJZ discussed, in Part B of the memo, also almost unanimous international legal opinion against the Netherlands government position. The core of DJZ arguments against the claim that Resolution 678 provided grounds, was that it was related to the situation in 1991 after the Iraqi invasion of Kuwait. Since 1991, the United States and United Kingdom had received little support in the Security Council for their view that Resolution 678 after the liberation of Kuwait, could still provide a legal justification for the use of force against Iraq. Even Secretary-General Kofi Annan of the United Nations said that military action taken without involvement of the Security Council would be in conflict with the UN Charter. DJZ said it was not inconceivable that on this justification, the Netherlands would a hearing before the International Court.

The memo was coordinated with DAM (the Directorate of UN, International and Financial Institutions) and DWH (the Western Hemisphere Department) through DGPZ Siblesz and SG Major, and submitted to the Minister. The Commission has no evidence that DJZ / IR had been involved in the drafting of the Cabinet Letter of March 18, 2003.

Dissension after March 18, 2003

Nearly one months after the government’s political decision to support the invasion of Iraq, the international legal issues still had momentum in the Ministry of Foreign Affairs. On April 14, through the efforts of DGPZ Siblesz, the SG asked the Minister in a memo for a formal response to the DJZ memo of March 13. DJZ received copies of this request. Siblesz referred to ‘attention given to possible consequences of this issue, but questions of the professional integrity regarding the way the legal basis for military action was determined. Siblesz indicated that he had noticed that in the past, DJZ had not strongly supported the government position. Repeating this warning appeared reasonable, but the way in which it was done was wrong. In the 1990’s, the former legal adviser endorsed military intervention, but with the proviso that the government reasoning of the under international law was “thin”. In the memo, DJZ had departed from this position, but according Siblesz, it contained no proper legal foundation. Siblesz rejected the formal content of debate out of the hand, and argued that the decision itself in the Security Council was political and not legal in nature. The arguments put forward were also not legal but were political in nature. It was Siblesz view that it was also a political question of whether the Netherlands “feels more at home with France, Russia and China, or with the US and the UK “. For Siblesz, this was a relatively easy choice. The political legitimacy for military action had to be sought in terms of the risk posed by Saddam Hussein, and the failure of weapons inspections and sanctions. Siblesz suggested that those who had rejected military action on formal grounds had no answer to this. The Minister responded, after reading in the margin “DGPZ agrees with this argument.” In his interview with the Commission, Siblesz was especially surprised by the structure and contents of the memo of March 13-DJZ. He was “not aware that DJZ had put forward its position on previous occasions”, and DJZ saw the objections to its own words on March 13 for the first time. By March, DJZ was in the view of DGPZ “too strong and too late”.

DJZ then sent a memo of April 29, 2003 to the Minister. It is this leaked DJZ memo that included comments in the margins and on January 26, 2009, it was published by NRC Handelsblad. For reasons of professional integrity and for posterity, but also concerning future situations, DJZ felt obliged to respond to the DGPZ memo. DJZ claimed it saw its duty to provide the Minister with as competent and objective information as possible, which included the contours of international law in a given situation. If the minister did not follow a DJZ opinion on international law, the minister would still expect DJZ ‘naturally’ help to defend the position taken.

DJZ said that they had reached a position essentially different from those of 1998. DJZ in 2002 and 2003 had tried to explain that they had stated that the justification for the legal position was “thin”. DJZ then explained its position in greater detail. The authorization to use force in resolution 678 was focused on the implementation of Resolution 660 and “all subsequent relevant resolutions”. According DJZ these were the resolutions adopted between 660 and Resolution 678.

It was unlikely that it would relate to the resolutions following 678. The Security Council never gave such “ex ante” authorizations. And if that were the case, then according DJZ, resolution 678 was aimed solely at the liberation of Kuwait. The objective “to restore international peace and security in the area” related to this context. The adoption of the cease-fire by Resolution 687, had a terminating character. And this is confirmed in the context of previously adopted resolutions. With Iraq’s acceptance of the conditions specified in Resolution 687, the purpose of Resolution 678 was deemed as having been achieved.

The legal reasoning adopted by the Government was, according to DJZ, shot through with both substantive and procedural deficiencies. The substantive deficiency was that an exception to the fundamental prohibition on the use of force always had to be sufficiently clear. The argument of the government lacked clarity as there is no explicit agreement in the Security Council on the circumstances for the use of force. Also, according to DJZ, the determination of material breach could be made only by the party enforcing the ceasefire with Iraq, namely, the Security Council. DJZ viewed the procedural deficiencies as the Government’s assumption that the Security Council does not necessarily have to rule again on the use of force. The final paragraph of Resolution 687 stated that the Security Council: “Decides to remain seized of the matter and to take further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.” According to DJZ, it was the Security Council that had to determine whether Iraq has fulfilled its disarmament obligations, and to decide whether, and if so, what action should be taken. Legally, Resolution 1441 brought little change here. DJZ pointed out that, since 1998, little support had existed within the Security Council for the unilateral interpretation of the United States and the United Kingdom. Then DJZ explained, according to the memo of August 26, 2002, why the Kosovo issue was of a different nature, and what scope existed for an exception (to use military force) for humanitarian interventions. Finally DJZ pointed to the future importance of the fundamental international legal prohibition of the use of force. DJZ also considered that international opinion, following a military intervention in Iraq was important to the Netherlands.

This DJZ memo had not yet reached the Minister. Secretary-General Major sent the memo back with thanks and agreed to store it in the archive for posterity. He considered this discussion “for the moment closed”. In the interview he gave to the Commission, Major, indicated that ” it was absolutely not essential” at the end of April, when the war in Iraq almost ended formally, to submit this eight pages-and-counting most “ruminant” memo. In the opinion of Major, the minister was, at that time, ” now sufficiently informed about this debate”. De Hoop Scheffer, in his discussion with the Commission, stated: “I fully understood the drift and details of DJZ’s case.”

The Commission notes that in 1992-1998 JURA, and later DJZ, used largely the same reasoning as in 2002-2003. In the 1990s it was even more permissive in its interpretation of Resolution 678.

The conclusion of the DJZ memo of May 27, 2002, was that existing Security Council resolutions gave a flimsy legal basis for military intervention in Iraq. DJZ recognized that Resolution 678 had an almost temporally unlimited goal and scope. The data classified as “thin” by DJZ / IR, was reflected in the description in the first versions of the “rolling document” prepared DAM, that the legal basis was “lean”. It is recognised that the documents disappeared after the brainstorming session.

The legal foundation received by the Minister in the DAM memo of August 19, 2002, regarded the case as sufficient that a new resolution was “legally essential”. The dossier prepared for the Minister for parliamentary debate on September 5, 2002, suggested that DAM/GO incorrectly concluded that DJZ saw no problem in the government’s legal position.

It is crucial to understand that DJZ, in the period from September to mid March, had not given written advice about the legal basis for a possible military intervention in Iraq. The former deputy head DJZ / IR commented about this: “We did not have much to offer. (…) It remains a complicated message, which we could keep repeating, but we had the feeling that everyone already understood. If we found something very essential, we felt it could not be repeat often enough, but you find you end up outside the discussion.”

Letter to the Court of September 4, 2002 required no contribution from DJZ. Also the senior officials in the Ministry had no need for external legal advice, as demonstrated already by Minister’s rejection of the proposal that advice on international law be sought from the CAVV. In conversation with the Commission, Hoop Scheffer suggested: “I think that a government, a minister, should consider the law as an important part of its policy assessment, but not as the sole and exclusive part of its policy consideration. That is the crux of the matter for me, and that is why I am well in the circle (as I have mentioned) of my predecessors that, from the beginning to the end have used that same argument.”

The then ambassador in Washington, Eenennaam, said: “Foreign policy is in first instance a political matter, in which the legal dimension certainly plays an important role.”

Regarding the role of DJZ within the Ministry of Foreign Affairs in 2002-2003, it is important that DJZ had no direct access to the Ministers in the Ministry of Foreign Affairs. Communication with the Minister always went through DGPZ, which strongly emphasized the primacy of the political considerations over legal concerns. The consequence was that some legal issues considered important by DJZ first had to endure the political test of DGPZ. It was clear that within the Department different views existed on the role of DJZ. Was DJZ considered as acting as an in-house lawyer, and independent legal adviser, or both? It is clear from the DJZ memo of March 13, 2003, that it had the two roles to play, but DGPZ deemed only the first appropriate.

8.7.2 Opinions within the Department of Defence

The Commission included in its study an examination of how the international legal basis for war in Iraq was debated at the Department of Defence. The Ministry of Defence had a Legal Affairs Department (DJZ). The State Almanac 2002 and 2003 describes as the primary task of DJZ to “monitor the legal and administrative management of the defence policy.” DJZ was also regarded by the Defence Ministers and the entire organization as supporting, providing legal advice and the legal framework for policy development. DJZ was located in the core structure of the central organization (of the Ministry), the equivalent of the Department of General Policy Affairs (DAB). Contacts from DJZ to the Secretary of Defence, passed through the SG; DAB was often copied. During this period therefore, DJZ in Defence had more direct access to the then DJZ Minister in Foreign Affairs.

DJZ consisted of several sections, divided into different jurisdictions. The Division of International Legal and Policy Issues held responsibility, according to the State Almanac 2002 and 2003, for activities that included advising on legal and administrative implications of the presence of Dutch forces abroad; and for coordinating and advising on legal and administrative work in the arena of international legal order and security.

Public international law perspectives

On February 12, 1998 DJZ gave advice to the Minister of Defense “in the context of discussions about a possible Dutch participation in military operations against Iraq.” The Minister had been asked whether a new Security Council resolution would be necessary to legitimize a new military action. DJZ said that on numerous occasions, the Security Council had that concluded that Iraq had failed to meet its obligations under the relevant resolutions. Also, the Security Council had announced its intention to undertake appropriate measures if the situation required. DJZ said that, in the absence of a new resolution, the US argument could be accepted. The flagrant violations by Iraq “to accord with the operation of of the cease-fire provisions is suspended; and therefore military action under Resolution 678 was permitted.” DJZ recalled that use of force by the United States against Iraq in 1996 had not trodden on the on the world community, or led to condemnation by the Security Council.

On 3 September 2002, SGI provided the Minister of Defense of a note on the threat of war against Iraq “for the purpose of your meeting with the Minister of Foreign Affairs”. It dealt with the threat posed by Iraq, the likelihood that the United States would move to an attack, and the possible outcome of a war. It also looked into the international legal basis for military intervention. It put forward, with some suggestions, a possible Dutch position. Under the section ‘Basis’, DAB concluded that if the US decided to attack Iraq, it would be a pre-emptive. But such an attack was “problematic” from the perspective of international law. DAB sketched out that there would be strong arguments for the prohibition of a move towards force. It would also be difficult to determine whether the country launching the attack was pursuing hidden objectives, and there remained a risk of arbitrariness. According to DAB, it might be possible to justify a pre-emptive attack three conditions were met, namely that there was:

1. (evidence of) a clear intention to attack the country for nefarious purposes;

2. (evidence of ) a certain degree of active preparations for such an attack;

3. a general situation in which waiting, or doing something other than armed action, does not reduce the threat.

DAB made reference to a classic work in the area of the jus ad bellum by M. Walzer. It was anticipated that the first two conditions could be met, although the United States at that time had not explicitly presented such an argument. The third condition was complicated because there could still be effective alternatives to armed intervention. SGI said that alongside the demand for legality, the question of proportionality also had to be addressed. It should be judged whether the use of (large scale) violence was proportionate to the reason for the intervention. SGI said that it would be preferable to obtain the expressed approval of the Security Council, but added: “Even without explicit approval, the ‘body’ of Security Council resolutions could also provide sufficient basis for action against Iraq’s weapons of mass destruction.”

DAB considered that without a mandate from the Security Council “the international legal basis for a possible attack would be questionable”. They pondered what the consequences of this precedent would have been for conflicts such as those between India and Pakistan, or China and Taiwan.

The then director of DJZ and his assistant could not recall whether he had received a request or been involved in preparing this memo, but considered it unlikely, because the memo was not initially addressed to DJZ . The memo was later forwarded to DJZ, probably from the Office of the SG. The date of the memorandum to the Secretary of Defense, is striking,- September 3, 2002, one day before the Minister of Foreign Affairs’ letter to the House. It seemed unlikely to the Commission that this memorandum influenced the letter. The Ministry of Foreign Affairs had prepared the letter without consulting the Department of Defence. The then DJZ Director and his Assistant told the Commission that until January 28, 2003, their discussions were primarily focused on legal dimensions of the impending attack on Iraq. The Commission has reports of consultations by the Secretary-General with his Directors-General on January 21, 2003, which included only one reference to the issue of international law. In this discussion, the Director of DJZ, Ybema, said that “the Minister of Foreign Affairs has already made statements about the desirability of resolutions, but that a debate in Cabinet had not yet taken place”. Ybema said that in the context of decision making concerning peace operations, the Secretary of Defense has an independent role.

On January 28, 2003 the first memo appeared from DJZ on the legal frameworks of a possible attack on Iraq. The prompt for this memo had been a discussion between Dutch representatives and US authorities in Tampa earlier that month, about a possible Dutch military contribution. DJZ sent the memo to the Minister and the Secretary, through the SG, with copies to the Chief of Defence Staff and DAB. According to the Director, the memo was produced on DJZ’s own initiative. The memo began by saying: “While a thorough legal opinion aims to predict how an act would be judged in a judicial forum, it does not guarantee the absence of other legal or political consequences.”

Then the DJZ described the aspects of the situation at the time that were relevant to determining the legal justification for military action. Article 51 of the Charter of the United Nations described the basis of self-defence DJZ said that, at that time, there was no evidence that Iraq was about to attack any country. According to DJZ, the “fight against terrorism” was not sufficiently concretely linked to Iraq. A further Security Council Resolution could provide a legal mandate. In the view of DJZ, Resolution 1441 contained no mandate for any military action. “Further material breach” (paragraph 4) would lead to an “assessment” by the Security Council (paragraph 12). DJZ said that for some people, the combination of older resolutions was still regarded as providing a legal basis, “because of the very complex links and cross references”. DJZ noted, however, that the Security Council had been focused on Iraq’s withdrawal at the conclusion of the war, and so the shortcoming (of using this as a justification for force) was that non-compliance would have to relate to cease-fire resolution 687. (In which case) the Security Council would then have to determine the consequences. Only that could revive Resolution 678’s mandate for the use of force.

DJZ signalled that it was the view of the Dutch Government that the adoption of a new Security Council resolution mandating force, was desirable but not a requirement. DJZ’s conclusion stated that “viewed from a purely legal perspective, only the adoption now of a new decision by the Security Council could serve as a basis for a legitimate attack on Iraq.”

The Commission has found no document in the archives of the Ministry of Defence which indicates clearly whether and how the memo was received by the recipients. Also from the interviews conducted, the Commission has not discovered the reaction of the political leadership of the Ministry of Defence that followed receipt of the memo.

It is clear that the position of DJZ Defence was substantially different in 1998 than in 2002-2003. The Commission could not find an explanation for this, other than the possibility that the previous war against Iraq had been a complete way with a number of actors.

In January 2003, DJZ released an international law memorandum assessing a possible military attack. This was related to the talks in Tampa and the possibility that the Netherlands would make a military contribution. In the memorandum, DJZ took a similar position to the Ministry of Foreign Affairs.

It is striking that in the period 2002-2003, an international legal debate hardly seems to have taken place in the Department of Defence. It should be mentioned that the Commission was significantly more hindered by the Department of Defence than by Foreign Affairs, concerning oral consultations and e-mails mapping out this issue. The Commission has not revealed any discord within the Department. This probably has to do with the lack of institutional tension between the legal and political Departments, but especially because of the limited role played by the Ministry of Defence in the political process. However, the Ministry felt that it had an independent role in the decisions regarding a potential deployment of Dutch troops.

8.7.3 The Discussions within the Cabinet

In the Cabinet, the international legal dimensions of any military engagement in Iraq, was discussed, for the first time, on September 6, 2002. Minister of Foreign Affairs, Hoop Scheffer, sent a letter on Iraq to the House on September 4, which was debated in the House on September 5. According to the Minister of Foreign Affairs, because of time pressure, the letter had not been submitted for Cabinet approval. The minister hastened to add that the letter contained no new policy. The Minister would not rule out a military intervention, even without new Security Council resolution. If the Iraqi regime continued to refuse to implement the resolutions unconditionally, then military action was on the agenda “with the purpose of imposing compliance with the relevant Security Council resolutions”. The minister indicated: “Preferably, such military action would benefit from the political support obtained by a new Security Council resolution. The position of the Dutch government was not based on an anticipation of a veto in the UN Security Council against a military intervention. In strictly legal terms, a new resolution was not needed for military action. In principle, the existing Security Council resolutions, which Iraq has failed to meet, provides sufficient basis.”

The Minister told the House that he had noted that a new resolution was an expressed condition to support a military intervention for factions within the PvdA and D66. On November 8, the Minister of Foreign Affairs reported that the new resolution in 1441 would soon be adopted by the Security Council. The weapons inspections would then commence shortly. The Minister outlined the following scenario: “Once Iraq appeared not to be supporting the implementation of the resolution, the Security Council would meet on the situation and the resulting requirement to discuss next steps. From that, military action was clearly a possibility.”

On December 8, Iraq was required to provide an exhaustive overview on the state of the WMD program. At the meeting of Ministers on December 6, the Minister of Foreign Affairs concluded that if there were a material breach by Iraq, a debate would would take place in the Security Council. Even if the Security Council were to rule material breach, the Dutch government make its own assessment.

On December 20, the Minister of Foreign Affairs noted that both the United States , as well as UNMOVIC and IAEA, had voiced strong criticism of the statement that Iraq had provided on December 7. The Cabinet had also considered (the circumstances that could result in) the establishment of a material breach of Resolution 1441. It would first be discussed in the Security Council. It was expected that the US Government would reach its decision (about invasion) in the last week of January 2003, not necessarily based on a decision by the Security Council. The Foreign Minister added: “That’s when the Dutch government should decide whether or not to participate in the operation.”

On January 24, the Foreign Minister revealed that he expected the United States would decide within weeks to deploy military force against Iraq. The Minister considered that the Netherlands would no longer give the United States ‘unqualified support’ if it were proved that Iraq was not in possession of WMD, or if Iraq is regarded as complying with 1441 resolution. If it be found that Iraq violated Resolution 1441, then the Security Council had to reach a conclusion. According to the Minister, the Netherlands had a strong preference for a new resolution, but the government would, after consulting the House, reach its own conclusion. In January, the negotiations on a possible second resolution began. In the Cabinet, the Minister of Foreign Affairs tracked its progress.

At the meeting of the Cabinet on February 7, the Prime Minister said the Dutch Government would reach its own determination, on the basis of the information that the inspectors would deliver.

At the Cabinet meeting on February 28, 2003, the Prime Minister said that he anticipated that decisions on Iraq would be accelerated. Minister of Justice, Donner, questioned the justification if the Netherlands were to support an actual action by the United States and the United Kingdom in the absence of a further resolution. He felt that the facts on which a Dutch assessment would be based, should be more explicitly addressed in the Cabinet. As the head of UNMOVIC, Hans Blix, could not prove the presence of WMDs, it was important to determine on what grounds the Netherlands based its the assertions that Iraq possessed WMD. The Prime Minister responded that the assessment of whether there had been a material breach by Iraq would be the crucial consideration. Minister De Geus of Social Affairs stressed the need for more information, including the literal text of the relevant resolutions, and the reports of UN weapons inspections, in order to come to an opinion. The Foreign Minister promised to provide this information and noted that the Cabinet had taken no decision on the legitimacy of a possible military intervention.

For the Cabinet meeting on March 7, the Minister of Foreign Affairs provided the Cabinet with a statement of the facts Iraq ‘. The Minister of Justice stated that the first question that should be answered was whether the Cabinet considered that there had been a material breach. If this question could be answered, then it prompted the question as to whether the Cabinet considered that a military attack on Iraq was justified. If even this question could be answered, it had to be considered whether the Netherlands wished to support the United States. The Foreign Minister said that, since 1991, Iraq has been guilty of material breach. The minister also stated that Blix acknowledged that Iraq had not complied with Resolution 1441. The body of resolutions prior to Resolution 1441, according to Minister Hoop Scheffer, provided the international legal legitimacy for military action.

In the Cabinet meeting on March 17, the Prime Minister observed that it had now become clear that there would be no second resolution. The United States and the United Kingdom had demonstrated that they would very soon attack Iraq. The moment had come for the Cabinet to also reach a position. The Foreign Minister indicated that other than Syria, no member of the Security Council considered that Iraq was cooperating enough. The question according to was not whether military action might occur, but that it would occur. The Minister of Justice said today that the debate should not focus on the legitimacy of the war, but the question of “whether it is justified that because of the inability of the Security Council to come to a unanimous decision, Saddam would be allowed to continue to follow his course.”

The Cabinet meeting on March 18 coincided with the day when the Cabinet letter would be sent for discussion by the House. The Deputy Premier De Boer wondered why international legal aspect of the argument was not mentioned in the draft letter. Minister Donner of Justice considered it “undesirable that the Cabinet, at this late juncture, engage in a substantive discussion on the international legal legitimacy of military action”.The Foreign Minister said that it had been a deliberate choice to omit the international law issues from the letter omit. Experts disagreed about whether military intervention on the basis of existing resolutions, was legitimate under international law. He added that law was not static, as witnessed, for example, by the military operations in Kosovo. The letter was, as described, a “statement of the facts Iraq” but, he added that attention had been given to the legitimacy of force under international laws governing war.

The Commission notes that at no time in the Cabinet was there a fundamental debate about the validity of the ‘corpus theory’, nor on who determines material breach. In his interview with the Commission, Minister Balkenende said: “Live questions remained from the other Cabinet members, from the House Debates, and from the international debate, but at some point you have come to a particular decision.” But is apparent that the Government was attached to the justification it advanced as to how international law justified military intervention. From the first Cabinet discussion in September 2002, the Minister of Foreign Affairs stated that the position of the Government should not depend on a decision of the Security Council. Then in early March, when it was apparent that there would be no new resolution, the Dutch government believed that further material breach could be established quickly, and that the “the body of resolutions” provided the legitimacy in international law (for armed force). Emphasis was placed on the need for military action. Eventually it was decided that the Cabinet letter itself did not provide a precise consideration of (the meaning of) international legal legitimacy (see also Chapters 5 and 6).

8.7.4 Letters to and the debate in the House

Chapter 3 covers the period from 1991 to 2002, describing and evaluating the use of force against Iraq by the successive governments in different circumstances. The international law considerations were given in letters and during debates in the House, albeit often briefly. However, during 2002-2003, the course taken by international law would be of great importance for the position of the government. The following is how the government, during 2002-2003, argued to the House that force could be used against Iraq under international law.

In his letter of September 4 2002, Minister of Foreign Affairs Hoop Scheffer initiated the case of how the behaviour of Iraq could constitute grounds for military intervention: “The Government considers the continuing refusal of Iraq to admit UN weapons inspectors unconditionally, was not acceptable. It is for Iraq to prove its claims that it was no longer in possession of WMDs, by cooperating with the inspection regime imposed by the international community. If ultimate pressure proves insufficient, I do not, a priori, close out the possibility that indeed military action may be ordered, with the purpose enforcing compliance regarding the relevant UN resolutions.”

On September 5, the House expressed the need for a detailed explanation including the legitimacy of military action on the basis of existing resolutions. The minister responded: “My formal legal argument is that the current collection of Security Council resolutions, as in the case of Desert Fox, and like the case of Kosovo, could provide a legal basis for the use of force. By far my favourite for a last resort is to set up a new Security Council resolution.”

It was the legitimacy of action by the international community for the Minister “nail down the issue of WMD”. The Government regarded a second resolution as an “appropriate” choice, and not a “necessity”, because the government did not want, in advance, to deprive the international community of the opportunity to make the case for the best way forward. This debate also raised the issue of evidence (of WMDs). The Minister of Foreign Affairs claimed to believe that Iraq had WMDs. Under existing resolutions, it was up to Iraq to Iraq to prove the contrary. The MPs Koenders and De Graaf (D66) produced a motion which, inter alia, invited the government to work for a Security Council resolution. This motion was also stated that unilateral preventive action by the United States against Iraq lacked convincing legality, and that any military action should be assessed against criteria of legitimacy, effectiveness and proportionality. This motion was supported by the fractions of the SP, GroenLinks, PvdA and D66. The other groups voted against, resulting in a defeat for the motion.

A month later, on October 1, the issue was raised again in a brief general debate. The Foreign Minister responded: “Violence is and was the last resort; ‘was’ the last resort, because the resolutions 687 and 1284 had legitimized the use of force under stated circumstances.”

Meanwhile the Security Council worked hard to create a new resolution. On November 8, 2002, Resolution 1441 was unanimously adopted. The Foreign Minister attempted to explain the new instrument in his letter of November 11: “ The resolution states that once a further material breach is discovered by the UN weapons inspectors and reported to the UN, the council will meet to consider the situation. The resolution does not address the question of what actions could or should be taken in this case, and all the more the question as to whether new UN resolution would be required to mandate any use of force.”

In the ensuing general debate on November 19 various members of the standing committee on Foreign Affairs asked for the interpretation of the resolution. In response, the minister said that non-compliance with the resolution did not automatically mean that force would then be deployed. On this point, the resolution employed ambiguous terminology, to achieve a unanimous vote through political compromises. But, the Foreign Minister regarded it as clear that the mention of “serious consequences” in the resolution could only be read as “the use of force”. A decision to employ force would require a separate assessment, at the relevant time. The purpose of any military action in such a case would be the detection and destruction of WMDs. The action would hopefully result in the termination of Saddam Hussein’s regime. The minister reiterated the position of the Dutch government that a new resolution was desirable but not necessary to give the use of force international legal legitimacy. Resolution 1441 strengthened the government’s current interpretation because that resolution clearly referred to previous resolutions, including, notably, resolution 678.

On December 3 2002, at a general consultation with the permanent Cabinet Committee for Foreign Affairs and Defence Committees, the Minister of Foreign Affairs responded to the question of how and by whom material breach of Resolution 1441 would be detected. The minister stated that the Security Council would debate whether Iraq had shown “a consistent pattern of non-compliance”. According to the Minister, the Netherlands would make its own, separate assessment.

In his letter of January 30 2003, the Minister offered a pessimistic picture of Iraq’s cooperation with arms inspections. The minister said that Resolution 1441 stipulated that the burden of proof lay with Iraq, not with the weapons inspectors. If material breach was determined, the government had a preference for a new Security Council resolution. This could explicitly sanction further actions against Iraq. The Minister said: “After material breach is detected, the government would, in all circumstances, form an independent opinion and make its own assessment of the steps the government regards as justified, and the way in which the Netherlands would prefer to participate.”

The ensuing debate, on January 30, 2003, again focused on the interpretation of Resolution 1441. The minister explained that under Resolution 1441, adopting a new resolution was not necessary to determine serious consequences. It was sufficient if in a Security Council debate on the weapons inspections, it was noted that Iraq was not cooperating, and thus there was material breach. Then, according to the Minister, the determination of serious consequences would automatically force the resolution to lead to an automatic consequence. New MPs Koenders and De Graaf brought a motion requiring the government to work for a new Security Council resolution. The idea behind this motion was that serious consequences should occur only with wide political support in the EU. But, at this time, the support of the members of the SP, GroenLinks, PvdA and D66 were not sufficient to obtain a vote in favour.

On February 19 2003, Prime Minister Balkenende noted in a second parliamentary debate that “the time has started to run out for Iraq.” The Minister of Foreign Affairs said that exactly how much time was left, would be decided in the Security Council. Following the report of the UN weapons inspectors on March 7 2003, there was a lack of agreement over the assessment in the Security Council. The Minister of Foreign Affairs said on March 11: “Now the time has come for Iraq to decide whether to use this final opportunity.”

On March 17, the Minister of Foreign Affairs told the House that the draft (Security Council) resolution on Iraq, which had been worked on over the previous weeks, would not be put to the vote. The Security Council was not able to agree on a statement about the degree of Iraq’s cooperation with the requirements of Resolution 1441.

In the Cabinet Letter of March 18, the Dutch government took the view that the time had come for the Netherlands to start its own assessment. The starting point was that the government had decided over the previous months, that possession of WMD by Iraq was a serious matter which should be addressed by the Security Council. A new Security Council mandate to authorize the use of force was “very desirable, but not strictly necessary”. The Government recalled that at the time of Operation Desert Fox in 1998 there had been no agreement on military action in Iraq. After the Netherlands had concluded that military action was inevitable, the government with parliament’s backing adopted the position that resolutions adopted by the Security Council since 1990, constituted sufficient legal basis for military action. The question was no longer whether military action might be possible but that it was going to happen.

With the exception of Syria, no member of the Security Council considered that Iraq was co-operating enough. The Dutch government concluded that the co-operation of Iraq in implementing Resolution 1441 was inadequate and constituted further material breach. Everything pointed to the conclusion that the Iraqi government still intended to retain its WMD capacity. It did not appear as if sanctions and inspections had put an end to this intention.. Furthermore, the Government believed that the benefits of pressure through military threat could not be continued indefinitely. The upshot was this: “The Government supports the conclusion that the inability of the Security Council to reach a decision, should not result in Saddam Hussein remaining unaffected.” The Netherlands, however, would not make its own active contribution to a military attack.

A number of attachments were added to the Cabinet Letter, including the relevant resolutions and a summary of the weapons inspections. Moreover, the government gave its own view of history in an annex entitled “Iraq Factual Account”. It set out precisely the Government’s position regarding international law. The Government claimed that Resolution 687 imposed the “burden of proof” on disarmament in Iraq, the demand for full revelations of the activities within the WMD programme, and co-operation with the inspections. The mandate for the use of force stated in Resolution 678 as a requirement for ensuring the ceasefire was, according to the Government, recapitulated in Resolution 1441. The 1991 authorization to use force was thus reconfirmed.

In the debate in the House that same day (March 18), several MPs made critical comments on the legal reasoning of the government. The Prime Minister distanced himself from any accusation that the government would have responded frivolous manner or were acting as accomplices in a violation of international law. Balkenende recalled that it had “always been the position of the Dutch government that a breach by Iraq” of the obligations in resolutions 687 and 1441 meant that “the agreed ceasefire would be reversed.” Resolution 678 and the mandate for force “is re-activated”, since the mandate had been issued for an indefinite period. Based on the mandate of Resolution 678, force could be used to ensure compliance with the obligations for Iraq from the other resolutions. The prime minister gave Operation Desert Fox as an example of a previous activation of Resolution 678. That legal argument was conclusive for the Prime Minister, as it was also in the report by the British Attorney General Lord Goldsmith.

The Prime Minister said it was clear that Iraq did not meet the obligations imposed by Resolution 1441. The Security Council had not been able to consider a resolution and consequences would result from this. The Dutch government had to make an independent assessment to determine further material breach. The Foreign Minister added that there was nothing in resolution 1441 that stated what the Security Council had to take to follow on from the resolution. The final text was that the Security Council “will consider the matter”, and that, according to the Minister, did not constitute a decision. The chosen formulation was that if it was necessary, the Security Council “would decide what needed to be done to restore international peace and security,” said the minister. The prime minister stressed that the UN member states were free to take the necessary measures according to the circumstances, to enforce compliance with the relevant resolutions on the basis of resolution 678.

The question of the legal reasoning of the government was raised several times in both houses of the parliament, after the war in Iraq. Continuously, the government claimed that the political support (for the invasion) was given on the basis of years of Iraq’s non-compliance with Security Council resolutions. Foreign Minister Maxime Verhagen said in 2007 in a debate in the Senate, in answering parliamentary questions, that the international law mandate for the war in Iraq was adequate and sufficient, but not without controversy. He added that the Security Council was a political body that chose to employ deliberately vague terms that left room for interpretation. In his view, these words could be understood as “an implicit mandate”.

The Commission notes that, from the first contact with the House (on Iraq) in September 2002 , the Government had propagated the “corpus theory”. Underlying this was the recurring view that a new resolution to force a mandate was “politically desirable, but not legally necessary”. The government showed little inclination in House debates to accept other arguments about the position under international law. The government has also not been clear about the role of the Security Council in determining a material breach and deciding on the “serious consequences”, or the use of “all necessary means”.

8.8 The international legal advice from Lord Goldsmith of the British Government

In a written reply to a question from a British MP on the legal basis for using force against Iraq, Attorney General Lord Goldsmith on March 17, 2003, on the eve of the attack, gave a response of nine points. As mentioned in the previous section, this opinion has played a role in the deliberations in the Cabinet on March 18, and the subsequent debate in the House. In his reply Goldsmith described the three key resolutions: 678, 687 and 1441. In his view 687 had mandated the use of force, and the mandate contained in Resolution 678 had not terminated but had merely been suspended. He considered that a material breach of Resolution 687 could revive the mandate to use force (the revival theory). Resolution 1441 of November 8, 2002 concluded that Iraq was in material breach, but also gave the country “a final opportunity to comply with its obligations” under the warning that otherwise “serious consequences” would ensue. Goldsmith said that it was clear that Iraq had not fulfilled its obligations and therefore was still in material breach. On this basis he concluded that the power to use force under Resolution 678 was again extended ( “the authority to use force under resolution 678 has revived and so continues today”).In his view, the text of Resolution 1441 was not an obstacle. “Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an expressed further decision to authorize force. ” He formulated the ‘corpus theory’ as follows:’.. the authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security. ”

As explained above, the Commission does not endorse these interpretations of Resolutions 678, 687 and 1441. It should be noted that Attorney General Lord Goldsmith was part of the British Government, and as such also had to legally defend the British policy. A few years later it was shown that that Lord Goldsmith originally had taken a nuanced position. It appears that on March 7 he had written a very comprehensive advice to Prime Minister Blair, on the basis of discussions with Minister of Foreign Affairs Straw, with the British UN Ambassador Greenstock, and after a visit to the United States. In this long memorandum, he stated that resolution 1441 was unclear about who (the Security Council or individual states) should provide the last chance that Iraq had not used. For that reason, he repeated his previous position that “the safest legal course would be to secure the adoption of a further resolution to authorize the use of force”. When it was demonstrated that it (a second resolution) was not politically possible, he accepted that “a reasonable case can be made that resolution 1441 is capable in principle of reviving the authority in 678 without a further resolution”.

He added that this argument was sustainable only if the actual evidence for non-compliance by Iraq with its obligations were “nail hard”, and that the reports of UNMOVIC and IAEA Resolution 1441 in this regard would be very important. Therefore he wrote to Prime Minister Blair:’… you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.” Goldsmith also added yet another caveat to that by stating that” a reasonable case” does not mean that “if the matter ever came before a court I would be confident that the court would agree with this view.” Goldsmith said that it could well be, that a court would conclude that paragraphs 4 and 12 of resolution 1441 “do require a further Council decision in order to revive the authority of resolution 678”. Finally Goldsmith stressed that even the legality of military action was determined not only by the question of legal grounds, but also by the way the military action would be implemented. It was required that a military action was proportionate, that is an appropriate response to the objective, to achieve compliance with the disarmament obligations of Iraq, and this (action) would be restricted to what was necessary to attain it. In his closing paragraph he also considered the issue of regime change: “That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.” The Dutch Government had only a concise version, and in various ways it was regarded as a contrary opinion.