Deployment of the Armed Forces: Interaction between National and International Decision-Making

August 1, 2007 - nr.56
Summary

 Chapter VIII    Summary and conclusions

 

General

 

This request for advice by the Ministers of Foreign Affairs and Defence was prompted by the report Inzet met instemming (Deployment with consent), produced by a working group of the House of Representatives chaired by MP Hans van Baalen. This parliamentary report proposes amending Article 100 of the Constitution so that parliamentary consent would be required for the deployment of Dutch military units outside the Netherlands. It also proposes tightening up existing arrangements on the provision of information to the States General (the Dutch parliament) pending this constitutional amendment. The government’s request for advice of 27 December 2006 asks the AIV to examine the implications of these proposals more closely and to comment on them, in preparation for the government’s response to the working group’s report.

 

Experience with the procedure based on Article 100 of the Constitution

 

The AIV first considered whether the present arrangement shows shortcomings that could be remedied by amending the Constitution or by some other means. It was found that current procedures, based on the Article 100 introduced in 2000 and on the revised Assessment Framework from 2001, work well and are evolving in the direction of a substantive right of consent. The intensive debate between the government and parliament prior to the deployment of troops improves the quality of decisions and the care with which they are taken. The AIV therefore believes that Article 100 has achieved its aim.

 

Only two uncertainties have arisen in applying the Article 100 procedure. In the case of the Uruzgan mission, the government presented parliament with an ‘intention’ instead of a firm decision. Jozias van Aartsen and Wouter Bos tabled a motion pointing out that, under the prevailing procedure, the government should present an actual decision to parliament. The government endorsed this interpretation of the Article 100 procedure. In the AIV’s opinion, there can be no further uncertainty on this point.

 

The other uncertainty concerned the deployment of Dutch troops as part of Operation Enduring Freedom, which was launched under Article 51 of the UN Charter (right of self-defence), but gradually assumed the character of a stabilisation operation. In this sense it can be regarded as a borderline case. As stated in advisory report no. 34, the AIV takes the view that the Article 100 procedure should be applied in borderline cases. If the government applies this principle consistently, the second uncertainty will also be eliminated.

Proposed revision of Article 100

 

The report ‘Deployment with consent’ proposes transforming the requirement to provide information, as laid down in Article 100, paragraph 1, into a requirement to obtain consent for every deployment of armed forces ‘abroad’. A central question raised in the government’s request for advice concerned the implications of this proposal, especially for the defence of an ally’s territory. There are several dimensions to this question.


The parliamentary proposal raises a number of complex constitutional issues. A formal right of consent for the House of Representatives alone, as proposed in the report, would introduce a new element to our constitutional system. The right of co-decision enshrined in our Constitution concerns both houses of parliament. Such a right is usually implemented through the passage of a law by both houses. Although a right of co-decision for both houses, exercised through the passage of legislation, would be more in keeping with our constitutional tradition, it may evoke other, more practical objections. A formal debate in both houses of parliament in succession would take a considerable amount of time, and might delay troop deployments. This would make it more difficult, for example, to complete the parliamentary procedure before NATO or the EU takes the final decision to begin an operation, as recommended in chapter VII.

 

When framing Article 100 during the previous amendment of the Constitution, the government sought to comply with parliament’s wishes as far as possible, while also respecting the existing constitutional arrangement, which is based on the principle that the government governs whilst parliament scrutinises. The wording of Article 100 gives the States General the opportunity to determine and make known its position in advance. As a rule, the government will accommodate parliament’s opinion. After all, parliament has the constitutional authority to ensure that its views prevail. In our constitutional system, the States General has the final word.

 

Under Article 100, it is the government that decides on the deployment of troops and therefore bears responsibility for that decision. The States General scrutinises the decision, not only after the mission has taken place but also before it begins. A formal right of co-decision would entail an actual sharing of responsibility. The government’s decision would then assume the character of a proposal to be accepted or rejected – in other words, an intention. Yet in the Van Aartsen-Bos motion, the House of Representatives already expressed its dissatisfaction with an attempt by the government to present parliament with an intention rather than a full-fledged decision. According to the parliamentary proposal, the decision to deploy would essentially be a joint one. Were it to bear part of the responsibility, the House of Representatives would probably feel less free to criticise the course of the military operation and the Netherlands’ role in it. In the AIV’s view, it is therefore questionable whether shared executive responsibility would enhance the performance of government and parliament with regard to military operations. After all, no one wants to see a situation where the government is less able to govern effectively and the States General is less able to subject government decisions to critical scrutiny.

 

The practices of the last 20 years have created customary law, which, in conjunction with the revised Article 100, has strengthened the position of the States General when it comes to international troop deployments. This demonstrates that our constitutional law is constantly evolving and adapting to new circumstances. The AIV therefore sees no reason at present for another amendment of the Constitution, with all the complications this entails. It would prefer that the Assessment Framework and the procedures it contains be adjusted at regular intervals in the light of experience. For instance, the rule outlined above – if in doubt, the Article 100 procedure applies – could be laid down in a revised Assessment Framework.

 

The proposals of the parliamentary working group would introduce a new system to replace the distinction that Articles 97 and 100 of the Constitution currently make between three purposes of the armed forces. The proposed new system would extend the scope of Article 100 to include all operations ‘abroad’ (sometimes the equivalent phrase ‘outside the territory of the Kingdom’ is used instead). This would include the defence of NATO allies and also, for example, operations to rescue Dutch citizens from dangerous situations abroad. The AIV believes that these cases embody – even more so than peace operations – core tasks of the executive, namely ensuring national security. This directly affects one of the government’s major responsibilities. In the AIV’s view, the ‘abroad’ criterion is out of step with the age of globalisation, in which ‘far away’ problems can suddenly come close to home. In addition to defending our allies, the armed forces may need to operate outside national borders or territorial waters in order to protect the Kingdom and its citizens. This especially applies to the air force and navy, which nearly always operate outside Dutch airspace or coastal waters even for defensive purposes. The ‘abroad’ criterion may therefore make it more complicated to take prompt defensive action and will lead to more frequent use of the exception clause in Article 100, paragraph 2. In the AIV’s view, all this shows the need to maintain the distinction that the Constitution currently makes between defence and protection of national interests on the one hand and the promotion of the international legal order (through peace operations, for example) on the other.

 

The government’s request for advice asks how the need for prompt, effective military action relates to the new parliamentary consent procedures that have been proposed. It also raises the question of secrecy. In the AIV’s opinion, the national procedures should continue to take account of operations that require strict confidentiality and/or immediate action (‘acute emergencies’ as they were termed in the debates on the earlier constitutional amendment). If a decision were to be made to amend Article 100, it would therefore be necessary to retain the exception clause in paragraph 2. The clause has been used sparingly to date, and this should continue to be the aim in the future.

 

The rapidly changing international environment makes it difficult to predict the precise circumstances in which the armed forces will be deployed in the future. Moreover, decision-making in international organisations will not always follow a fixed pattern. National procedures therefore need to be sufficiently flexible that they can be applied in highly diverse scenarios.

 

National and international decision-making on the deployment of the NATO Response Force and EU Battlegroups

 

The report ‘Deployment with consent’ takes a detailed look at both the NATO Response Force and the EU Battlegroups. The government’s request for advice asks the AIV for its opinion on the conclusions and recommendations contained in the report on these matters, including the proposals for involving the House of Representatives earlier and more closely in the different stages of international decision-making. The request for advice expressed concern that parliamentary approval procedures might delay military deployments, an issue that raises the question of how national parliamentary procedures should be integrated into international decision-making processes.

 

A pledge to allocate Dutch military units to the NRF or the EU Battlegroups is a crucial initial step, which, in the AIV’s opinion, creates a political obligation. Our allies and partners must be able to count on the fact that these units will not be withheld at the last moment, otherwise the Netherlands’ reputation as a reliable ally will be damaged. That is why the AIV advisory report no. 34, published in 2004, emphasises that the commitment of military units to the NRF must be regarded as a key stage in the dialogue between the government and the States General. Withholding previously committed troops at the crucial moment (an opt-out) is only conceivable if exceptionally important national considerations militate against participation.

 

More specifically, the request for advice asks at what point in time parliament should be informed about Dutch military participation in international military operations. The AIV’s recommendations in response to this question apply not only to the deployment of the NRF and Battlegroups, but to all crisis management operations undertaken by NATO or the EU in which the Netherlands participates. A distinction can be made between the early phase of international deliberations and the phase in which the operation is given the green light, nationally and internationally.

 

The parliamentary report mentions several steps in the initial phase of NATO and EU decision-making of which the House of Representatives or both houses should be apprised, e.g. the moment when SACEUR is asked to work out military options. The AIV concludes that one should not attempt to define which information should be provided to the States General (or when it should be provided) on the basis of procedural steps in international fora. The AIV believes that it is better to link the provision of this type of information as much as possible to the initial notification regarding the possible participation of Dutch forces, the first step in the Article 100 procedure. After all, this is when Dutch participation is first mooted. As soon as the prospect of a Dutch contribution arises, the States General should be notified. This initial letter of notification, which to date has tended to be very brief, should provide more information on the stage reached in international deliberations or decision-making. This could include the announcement that military options are being studied by international military staffs as suggested by the parliamentary report, depending on confidentiality requirements. Otherwise, this kind of information can be provided by means of a confidential briefing to the parliamentary committee concerned.

 

Under normal conditions, decision-making in NATO or the EU will involve a whole series of steps, and the supreme bodies of NATO (North Atlantic Council) or the EU (General Affairs and External Relations Council) will discuss a proposed operation several times. The AIV believes that parliamentary procedures should be completed before the NATO Council or the GAERC takes a final decision, i.e. before NATO’s execution directive or the EU’s decision to launch the operation. To say ‘no’ after this stage would create serious problems. It is therefore best to submit the Article 100 letter when military planning has reached such an advanced stage that the expected role of the Netherlands has become clear. After all, the criterion is whether sufficient information is available to consider all the elements of the Assessment Framework.

 

If the operation is of such an urgent nature that the decision is made at a single session of the NATO Council or the GAERC – which would imply a very serious situation indeed – it would be logical for the government to hold preliminary consultations with parliament on the participation of Dutch troops.

 

The Netherlands’ contribution to the NRF and Battlegroups builds on its long-standing, close military cooperation with Germany and the UK in particular. In the framework of the Battlegroups, the Netherlands now works with Finland as well as Germany. Such cooperation thus involves a significant bilateral dimension as well as the multilateral dimension. This especially applies to the fully integrated Dutch-German headquarters. A situation where the Netherlands and Germany were to draw different conclusions on the deployment of the units they had jointly contributed to the NRF or Battlegroup should be avoided. The same applies to the British-Dutch contributions in the form of amphibious forces and the cooperation with Finland in relation to the Battlegroup. In the event of a looming crisis that may lead to military deployment, it will therefore be necessary to engage in close bilateral consultations with relevant partner countries, alongside multilateral consultations.

Advice request

Ministry of Foreign Affairs                                                         Ministry of Defence

Postbus 20061                                                                        Postbus 20701

2500 EB Den Haag                                                                  2500 ES Den Haag

Tel. 070 348 6486                                                                    Tel. 070 318 8188

 

 

Mr F. Korthals Altes

Chairman of the Advisory Council

on International Affairs

Postbus 20061

2500 EB Den Haag

 

 

Date                                                                                      Our ref.

27 December 2006                                                                  DVB-074/06

 

Re: Supplementary request for advice on NATO Response Force

 

 

Dear Mr Korthals Altes,

 

The government would once again request the Advisory Council on International Affairs (AIV) for advice on decision-making regarding Dutch participation in international military operations. This request comes in response to the report of 19 June 2006 by the parliamentary working group on the NATO Response Force (NRF), Inzet met instemming – De rol van de Tweede Kamer bij het uitzenden van militairen (Deployment with consent – the role of parliament in relation to the deployment of military personnel) (Parliamentary Papers 30 162, nos. 2, 3 and 4). The government informed parliament on 18 August 2006 that it would seek advice from both the Council of State and the AIV before responding to the report of the parliamentary working group on NRF, in view of the constitutional and policy-related questions that it raises.

 

The parliamentary NRF working group made two main suggestions. First, it suggests an amendment to Article 100 of the Constitution such that parliamentary consent would be required for the deployment of Dutch armed forces outside the Netherlands (point 4.2.1, NRF working group report). The scope of the NRF working group’s report is so broad that the proposed amendment would also extend to deployment in defence of the Netherlands or its allies. Second, the working group formulated a number of conclusions and recommendations, which it considers to be applicable immediately, in anticipation of the Constitutional amendment. These recommendations would make the right of parliamentary consent effective immediately and include matters such as the scope of Article 100 of the Constitution, ways of deploying Dutch forces, the decision-making procedure and the role of the House of Representatives in it, the provision of information and parliamentary involvement in decision-making about the NRF and EU Battlegroups (point 4.2.2 ff and point 4.3 in the NRF working group report).

 

The NRF working group’s conclusions and recommendations raise new questions about the deployment of armed forces which were not addressed in the previous AIV advisory report ‘The Netherlands and crisis management: three issues of current interest’. The government is now putting these questions before the AIV. The government will ask the Council of State to consider the proposed Constitutional amendment, pursuant to section 18 of the Council of State Act. The government will use the reports of the AIV and the Council of State to draw up its response to the NRF working group’s report.

 

The government’s primary aim is to meet the need for prompt, effective military action in a multilateral framework, if a decision to this end is made, while also assuring parliament’s involvement in the decision-making process. The working group’s conclusions and recommendations might affect the relationship between government and parliament in matters concerning military deployment. This requires a further examination of the current procedures for decision-making and consulting parliament as they have evolved since the coming into effect of the Assessment Framework for decision-making for the deployment of military units abroad. In view of the above, the government would put the following questions to the AIV:

 

  • In the opinion of the AIV, what would be the consequences of the conclusions and recommendations of the NRF working group for the deployment of Dutch military personnel and for Dutch participation in international military operations coordinated by, for example, the UN, NATO, the EU or other international bodies, in situations which might include the defence of the Netherlands itself or the Netherlands’ duty to assist in the defence of Allied territory as a signatory to the North Atlantic Treaty? In the opinion of the AIV, at what point should parliament be informed about Dutch military participation in such international operations? It must be noted that the NRF working group did not adopt the recommendation of the AIV in ‘The Netherlands and crisis management: three issues of current interest’ to attach more political weight to the phase in which national forces are allocated to the NRF. If a difference of opinion between government and parliament should emerge as regards participation, would that damage the Netherlands’ reputation for reliability with international partners and organisations?
  • When deployment of the NRF or EU Battlegroups – and a Dutch military contribution – is being considered, what could be done to ensure that obtaining parliamentary consent does not delay preparations for actual military deployment? Could the requirement of parliamentary consent affect the rapid deployment and effectiveness of NATO or EU units?
  • As regards decisions at NATO or EU level concerning, respectively, the deployment of the NRF or the EU Battlegroup, the NRF working group assumes that the government would enter a reservation that it first needs to obtain parliamentary consent for Dutch participation. The working group also states that the government should inform parliament beforehand about the position that it will take at the meeting of the North Atlantic Council or the General Affairs and External Relations Council (GAERC) on the possible deployment of the NRF or EU Battlegroup, respectively. This information should be given at a time that will allow consultation between government and parliament. The working group also recommends that the government provide parliament with information before the North Atlantic Council decides to instruct the Supreme Allied Commander Europe (SACEUR) to develop various strategic options or an operations plan. Likewise, the working group recommends (in point 4.3.5 of its report) that the government provide this information to parliament before the Political and Security Committee (PSC) or the GAERC decides to ask the EU military staff to draw up a Crisis Management Concept. The only information that the government could provide in such an early phase of international consultations would pertain to exploratory studies, rudimentary rather than complete proposals, tentative suggestions and other elements which, taken together, would contribute to an informal, dynamic process of negotiation and consultation, ultimately leading to a decision. It might also be information that is defined as secret or confidential by the rules and regulations of the relevant international organisation. In the opinion of the AIV, if parliament takes a political stance on Dutch participation in a NATO or EU mission on the basis of the information available at that time, what consequences could this have for national and international decision-making? What are the AIV’s thoughts on the working group’s conclusions and recommendations referred to above as regards the provision of information to and the involvement of parliament in the successive stages of NATO and EU decision-making?

The government would appreciate an AIV advisory report on this matter in May 2007. A copy of this request will be sent to the House of Representatives.

 

 

Yours sincerely,

 

 

(signed)                                                                    (signed)

 

Bernard Bot                                                              Henk Kamp

Minister of Foreign Affairs                                          Minister of Defence

Government reactions

Ministry of                                Ministry of                        Ministry of the Interior

Foreign Affairs                         Defence                            and Kingdom Relations

 

P.O. Box 20061                         P.O. Box 20701                 P.O. Box 20011

2500 EB  The Hague                  2500 ES The Hague           2500 EA The Hague

 

 

To:

The President of the

House of Representatives of the

States General

Binnenhof 4

The Hague

 

The President of the

Senate of the

States General

Binnenhof 22

The Hague

 

 

Your letter                           Your ref.                                    Our ref.                                      Date

-                                TK 30 162, nos. 2 ff.        DVB-016/08                    25 April 2008

                                 AIV-119/07

 

Re: Government’s response to the report by the NATO Response Force working group

 

 

Madam President of the Senate, Madam President of the House of Representatives,

 

We are pleased to send you the government’s response to the report by the NATO Response Force working group entitled Inzet met instemming: de rol van de Tweede Kamer bij het uitzenden van militairen (Deployment with consent: the role of the House of Representatives (Second Chamber of  parliament) in relation to the deployment of military personnel abroad) and the report by the Advisory Council on International Affairs entitled Inzet van de krijgsmacht: wisselwerking tussen nationale en internationale besluitvorming (Deployment of the armed forces: interaction between national and international decision-making). In its response, the government proposes to submit to parliament updated, broader Terms of Reference for Decision-Making for the Deployment of Military Units Abroad (also known as Review Protocol 2001). It plans to do this by the summer.

 

Yours sincerely,

 

[signed]                                                                                  [signed]

 

Maxime Verhagen                                                        Eimert van Middelkoop

Minister of Foreign Affairs                                             Minister of Defence

 

[signed]

 

Guusje ter Horst

Minister of the Interior and Kingdom

Relations

______________________________

 

 Website-reactie-foreword 56(1).pdf

Press releases