The Protection of Civilians in Armed Conflicts: well-trodden paths and new ways forward

September 27, 2016 - nr.102
Summary

Summary, conclusions and recommendations

The subject of this advisory report is both topical and urgent. Entire societies that until recently were relatively prosperous are being disrupted or destroyed. People are losing their lives, becoming disabled, losing their livelihoods, or being displaced. This causes untold human suffering. States, international organisations and non-governmental organisations irrefutably have a responsibility to protect civilians, including those in third countries, from large-scale violence. In the first place this is the obligation of the state in which these people are located and of the non-state armed groups that are active there. This advisory report is not about their obligations or options as regards protecting the civilian population, but about the means at the disposal of other states, international organisations, and non-governmental organisations to fulfil this moral imperative when states and non-state armed groups prove unwilling or unable to fulfil their duties.

This advisory report has argued that the existing instruments for the protection of the civilian population are insufficiently effective, partly as a result of the changed nature of armed conflicts. The numbers of civilian casualties in armed conflicts are unacceptably high, in spite of the existence of a solid normative framework, consisting of international humanitarian law, human rights law, and refugee law. There is insufficient compliance with international law, which is sometimes intentionally violated and even abused. International missions do not achieve sufficient success in fulfilling their mandates for the protection of civilians. In short, there is a gap between objectives and results achieved. On the one hand, the existing instruments must be improved, while on the other hand new avenues need to be explored to provide better protection to civilians during armed conflicts. This advisory report examines what third countries, international organisations and non-governmental organisations can do to promote the protection of the civilian population in conflict countries. It pays particular attention to prevention and conflict mediation. The report gives examples of ways in which existing instruments can be improved and suggests new ways forward: using social media to alert civilians, implementing the Kigali Principles to improve the fulfilment of international missions’ mandates, and persuading non-state armed groups to agree to be bound by international law by getting them to sign Deeds of Commitment. In addition, the AIV concludes that too little is being invested in the prevention of armed conflicts. In this connection it is important to seek out methods that imply less visible intervention in domestic affairs, creating a better balance between the principle of non-intervention and the responsibilities of states, international organisations and non-governmental organisations to protect the civilian population in third countries.

These actors have a moral imperative to take responsibility for preventing large-scale violence against the civilian population in their own and other countries. International law reflects this moral imperative.

Recommendation 1: The Netherlands should encourage international debate on the need to take responsibility to prevent conflicts, both nationally and internationally.

Definition of protection of the civilian population and demarcation from the Responsibility to Protect

At international level no agreement has yet been reached on a definition of protection of the civilian population. In this advisory report, ‘protection of the civilian population’ is defined as follows: all activities geared towards promoting the safety, physical integrity, and dignity of the civilian population, in particular of vulnerable groups; prevention of war crimes and other acts of violence against civilians; safeguarding humanitarian access, and promoting full respect for the rights of the individual, in accordance with international law, in particular human rights and international humanitarian law. In Chapter II, the concept ‘protection of the civilian population’ is distinguished from the concept of ‘responsibility to protect’.

The present advisory report defines the civilian population as all those who are subject to the jurisdiction of a state, with the exception of combatants during an armed conflict. The distinction between civilians and combatants is essential to international humanitarian law, which applies only during a violent armed conflict. The situation of refugees has not been considered here. The advisory report focuses on the civilian population within conflict areas. A proper consideration of the problem of the protection of refugees would require, and indeed merits, a separate study, which could not be carried out within the scope of this advisory report.

The nature of modern conflicts: complexity and urbanisation
The nature of conflicts has been transformed over the past few decades. Modern conflicts are generally complex domestic conflicts. Nonetheless, they frequently have international dimensions. They are complex because they involve a whole range of different actors and are frequently multi-layered. In addition, conflicts are fought out more and more frequently in and around cities. The distinction between civilians and combatants, which is the organising principle of international humanitarian law, has become blurred as a result of these developments. Sometimes combatants deliberately seek to avoid distinguishing themselves from civilians. Furthermore, compliance with the law is very unsatisfactory, both by states and by movements such as Daesh, for instance, which place themselves outside the legal order or even abuse international law. This limits the effectiveness of the provisions of international law that apply to the protection of civilians in armed conflicts. In addition, these developments exacerbate the vulnerability of civilians. The legal frameworks are not sufficiently attuned to the nature and complexity of the conflicts, and both political efforts and capacity for protection have proven inadequate. There is therefore a considerable gap between the objective of protecting the civilian population and reality. Academics and non-governmental organisations are searching for new ways to promote compliance with international law by non-state armed groups. Analysis of the underlying reasons for attacks on civilians by parties to a conflict will benefit efforts to tackle the problem. In addition, non-governmental organisations are making agreements with non-state armed groups regarding compliance with international law and the monitoring of this compliance.

Given that the causes and symptoms of complex crises are closely interrelated, an integrated approach is essential at every phase of crisis management. For the prevention of conflicts during an armed conflict, and in the post-conflict phase, a range of instruments must be deployed cohesively and simultaneously. States, international organisations and non-governmental organisations each have their own comparative advantages and can therefore supplement each other. The distinction between relations with states and those with armed non-state parties is important. For instance, nongovernmental organisations are subject to fewer political and legal restrictions in their communications with armed non-state actors. They can play a specific role in mediation in all phases of a conflict. This advisory report has named several examples of nongovernmental organisations that fulfil such a role: Geneva Call, PAX, Sant’Egidio, the Carter Center, the Centre for Humanitarian Dialogue and the European Institute of Peace. Dialogue with local civil society and other organisations is key to making an adequate analysis of the conflict and to gaining a good picture of perceptions among the local population regarding international involvement. Which actors and instruments should play a more or less prominent role in this regard will depend on the specific context.

Recommendation 2: The Netherlands should make more use of the comparative advantages of non-governmental organisations and make the necessary funding available to do so. The Netherlands should support organisations that maintain open communication channels with as many parties to a conflict as possible, so as to be able to inform nonstate armed groups of their obligations under international law regarding the protection of the civilian population, to encourage them to pledge to be bound by that international law, and to be able to call them to account for any non-compliance with these norms.

Social media present new opportunities and at the same time create new risks for the protection of civilians. Numerous ad hoc informal partnerships are being set up on social media for this purpose. The Netherlands possesses expertise in information and communications technology, which can be used for this purpose.

Recommendation 3: Where human rights defenders who use social media are subjected to real threats, the Dutch government should support them by actively contributing to the deployment of expertise.

The issue of protecting civilians in armed conflicts is relevant to many other subject areas: refugees, humanitarian aid, military interventions, the causes of conflicts, the role and status of non-state armed groups, and so on. A separate advisory report could be devoted to each one of these areas. The AIV is willing and indeed intends to study a number of these areas in the near future.

The legal framework
The legal framework for individual states and (other) warring parties to protect the civilian population that is subject to their jurisdiction is clear and is scarcely disputed, despite the serious shortcomings in compliance. This framework is made up of international humanitarian law, refugee law and human rights law. International humanitarian law centres on the distinction between military targets on the one hand and civilians and civilian objects on the other. Non-state armed groups, private military companies and other companies also have an obligation to avoid harm to the civilian population during hostilities and to respect human rights, although the relevant legal framework for these actors is less well-developed than for states. International humanitarian law applies during an armed conflict. Human rights law and refugee law also apply during the latent-conflict and post-conflict phases.

The protection of the civilian population is in the first place the obligation of the state in which they are located. Where this state is unwilling or unable to provide the necessary protection, there is a wide range of instruments that other actors can deploy to exhort or support the state, to put it under pressure or threaten it, or to compel the state to protect civilians. Furthermore, a number of these instruments can be used for the same objectives vis-à-vis non-state armed groups and leaders. The deployment of these instruments is subject to two main legal restrictions. States may not interfere in the internal affairs of another state, although states may remind each other of the obligations they have entered into, for instance in the framework of human rights conventions. Furthermore, states can call each other to account regarding their obligation to protect the civilian population, given that this is an aspect of sovereignty. The second restriction is that the use of force is admissible only in exceptional cases. The UN Security Council is competent to authorise exceptions to both these restrictions. These restrictions aside, states and other actors have considerable legal licence to exhort or support states, to put them under pressure or threaten them, or to compel them to protect the civilian population. If the parties to a conflict remain unable or unwilling to protect the civilian population, other states, international organisations or non-state actors can themselves take initiatives to protect the civilian population. Resolution 1325 of the UN Security Council contains guidelines for the role that women can play in the activities developed by states to prevent, control and resolve conflicts.

Recommendation 4: Violence against the civilian population is often encouraged, committed or permitted by leaders of parties to an armed conflict. In all phases of a conflict, international bodies (the UN, the Human Rights Council, the EU, the Council of Europe, the OSCE, the African Union) should do more to remind the leaders of parties to armed conflicts of their responsibilities under international law regarding the protection of the civilian population and to warn them that they may be called to account for their actions in due course, whether at national level or before the International Criminal Court or another international tribunal. The Netherlands should set an example in this regard.

Latent conflicts
To prevent a latent conflict erupting into violence, gathering intelligence on events on the ground is essential. There is generally no lack of information; rather, information is dispersed among many sources and actors. There are many public sources from which signals can be picked up regarding latent conflicts, such as the local population, refugees in the diaspora, local media, reports issued by local and other civil society organisations, and documents issued by the Human Rights Council. Social media play an ever greater role in modern conflicts and thus contain a wealth of information that could be exploited to better effect. Flows of displaced people and refugees are also a clear indicator of growing tensions. In addition, states have embassies and intelligence services at their disposal that fulfil this information-gathering role. International organisations are dependent on member states to gather secret information. It is important to dismantle existing barriers that hamper exchanges of available information among partners. Existing databases maintained by academic institutions and nongovernmental organisations can be used to create an annual monitor of latent conflicts. The European Commission could ask a number of institutions to contribute to the preparation of an annual monitor for the Foreign Affairs Council. In practice, latent conflicts are not always placed on the agendas of such bodies, and an annual monitor could help to institutionalise such inclusion. Within the EU, this could assume a form comparable to that of the financial-economic semester. This would emphasise the urgency of these issues and create political pressure for international involvement. Efforts could likewise be made to achieve the systematic inclusion of latent conflicts on the agenda within the UN.

Recommendation 5: The Netherlands, together with other countries, should encourage international organisations and non-governmental organisations to keep existing databases of latent conflicts up to date and exploit them to maximum effect as a basis for a cohesive strategy to prevent latent conflicts erupting into full-scale violence. Following on from this, the Netherlands should promote the systematic inclusion of latent conflicts on the agenda within the EU and the UN.

Many regional organisations and non-governmental organisations develop capabilities for conflict prevention. Prevention can ward off a great deal of human suffering and is considerably less costly than deploying an international mission during an armed conflict. The scope for influencing parties to a conflict is greatest when the conflict has not yet erupted into full-scale violence. The AIV believes that more effort should be invested in preventive diplomacy and conflict prevention.

Preventive diplomacy seeks to forge agreement in the short term between parties to a dispute or conflict, with a view to preventing the outbreak of violent conflict. Conflict prevention is about reducing or eliminating risks that could lead to the outbreak of a violent conflict.

During a latent conflict, there is a tension between the protection of the civilian population on the one hand and the principle of non-intervention in domestic affairs (sovereignty) on the other. The threats to the civilian population often relate to domestic tensions, and so the involvement of foreign actors will almost always amount to interference in domestic affairs.

Because of this tension, preventive diplomacy is at its most effective when it takes place confidentially, behind the scenes. It is therefore advisable to leave such activities to mediators acting on behalf of an international organisation. Specific preventive activities should preferably not feature on the agenda of an international organisation, since this would be a breach of confidentiality. Most international organisations’ instruments for preventive diplomacy are as yet underdeveloped and underfunded. Maintaining open communication channels with the warring parties is essential to effective efforts in this area. Preventive diplomacy is contingent on the long-term commitment of highly qualified negotiators.

Conflict prevention may assume many forms, such as development cooperation, the preventive deployment of a military mission, arbitration, coercive measures (e.g. an arms embargo), the prosecution of perpetrators, the strengthening of the rule of law, and security sector reform. Climate change and trade in illegal small arms are factors that can aggravate conflict. Efforts to combat them can support conflict prevention.

Recommendation 6: The Netherlands should encourage international organisations to make a larger share of their regular financial resources available to develop autonomous initiatives for preventive diplomacy and conflict prevention. In addition, the Netherlands should itself help shape this emphasis on preventive diplomacy and conflict prevention by making contributions to international organisations and non-governmental organisations that are earmarked for this specific purpose.

Manifest conflicts
If a conflict erupts into violence, efforts to achieve peace enjoy the highest priority. The warring parties must be brought together as soon as possible with the aim of achieving a ceasefire and making agreements about humanitarian access and the protection of the civilian population. In this phase, the warring parties can be put under pressure, for instance by cutting off their financing or by imposing an arms embargo.

In a violent conflict it is imperative to consider not only the (limited) resources of governments but also the independent role of civil society. Non-governmental organisations in the Netherlands and in conflict regions work in close partnership, particularly in times of conflict. Local groups work together with Dutch organisations to move population groups rapidly to places of safety (as happened in Burundi, Libya, Yemen and Syria, for instance), to launch negotiations with the warring parties, and to safeguard local communications structures. Here too, the integrated approach is crucial: civil society organisations play an important role in the protection of civilians.

In principle, the only way to legitimise intervention by other states and actors in a conflict country is to obtain a mandate from the UN Security Council. In practice, there are many obstacles to obtaining such a mandate and translating it into the effective protection of the civilian population. These include geopolitical considerations, the need for the consent of the conflict country, a lack of willingness to call conflict countries to account for violations of international humanitarian law, the limited capacity of military missions, differences between troop-contributing countries in their willingness to use force for the protection of the civilian population or to place themselves at risk, and the impact on the peace process. The Kigali Principles, to which the Netherlands is one of the signatory countries, were formulated to overcome these obstacles.

International military missions are modest in size compared with the size of conflict countries and their populations. It is not feasible, either politically or financially, to deploy enough troops to give adequate protection to the entire civilian population in all conflict regions. Troop-contributing countries can increase the effectiveness of their efforts by training and conducting exercises together. In addition, political opinion is divided as to the ways in which mandates should be translated into the protection of the civilian population on the ground. International military missions must use force with restraint. Besides stepping up financial and political efforts in the areas of preventive diplomacy and conflict prevention, it is also imperative to actively explore what new concepts, instruments and flexible partnerships could be used to protect the civilian population during modern conflicts.

The three traditional principles for the deployment of UN peace missions are: the consent of the warring parties, impartiality and the limited use of force. These principles are difficult to apply in complex domestic conflicts, but various troop-contributing countries nonetheless adhere to them. This results in unclear mandates, differences of opinion concerning the definition of ‘protection of the civilian population’ and a reluctance to take action to protect civilians. It should be noted that a shift can be traced in the practice of UN peace missions over the past 15 to 20 years away from typical Chapter VI operations towards operations based on so-called mixed mandates (Chapters VI and VII). Operations under Chapter VII permit more robust military action.

The needs of the local population should serve as a key point of departure when planning activities relating to the physical protection of the civilian population on the ground. To this end, consultations must be held with the local population (including vulnerable groups, since they will have specific needs). Holding such consultations will increase the effectiveness of protection and will create realistic expectations among the local population.

The advisory report notes that military doctrines for the protection of the civilian population are as yet poorly developed, that mandates and rules of engagement provide sufficient scope for the protection of the civilian population, but that the capacity of international missions is generally insufficient for the proper performance of all the tasks in their mandates. The Kigali Principles call on countries to make the necessary resources available to bridge the gap between mandate and resources. The AIV wholeheartedly supports the pioneering role that the Netherlands and Rwanda have taken in this regard. Another way of bridging the gap between mandate and resources is by adopting sequenced mandates to make them less ambitious. In practice, the leadership of mission commanders plays a crucial role.

Recommendation 7: The Netherlands should provide active support to troop-contributing countries, where necessary or desirable, to ensure that they are well prepared before taking part in military missions seeking to protect the civilian population. This could take the form of offering training sessions for military commanders and if necessary also for other members of international missions. The effective deployment of military assets could be further improved by troop-contributing countries undertaking joint training and exercises. The Netherlands should play a leading role in promoting this.

Post-conflict phase
In this phase, attention will focus inter alia on removing the causes of the conflict, demobilising and reintegrating troops, reforming the security sector, undertaking efforts to achieve reconciliation and bringing war criminals to justice.

After a peace agreement or ceasefire has been concluded, the hostilities should come to an end. In practice, however, the violence of war continues to pose a risk to the civilian population in the post-conflict phase. The state’s monopoly on the use of force often continues to be challenged and institutions are weak. If government troops are among those guilty of violating the physical and mental integrity of the civilian population, an international mission will find itself faced with tension between the task of protecting the civilian population and the task of reforming and strengthening the local police and armed forces. After all, the latter efforts could actually increase the capacity of the local police and armed forces to violate the physical and mental integrity of the civilian population. Against this background, the long-term presence of international missions is desirable to simultaneously strengthen institutions, to help establish the state’s monopoly on the use of force and to promote respect for human rights. Inadequate efforts on the part of states and of international and non-governmental organisations increase the risk of a country sliding back into armed conflict.

Recommendation 8: The Netherlands should undertake a longer-term commitment in postconflict phases, especially in cases in which the Netherlands was involved in brokering the end to a violent armed conflict.

One aspect that frequently receives too little attention in post-conflict situations is the matter of remedial measures for victims of violations of international humanitarian law and human rights. This is an area of international law that is as yet poorly developed. Such reparations may take different forms, such as compensation for lost property or the restoration of property that has been seized, political leaders offering their apologies in recognition of the suffering that has been caused, bringing perpetrators to justice, or truth-finding. Reparations may be material and/or symbolic. The precise form that is chosen will necessarily depend on the context and on the victims’ wishes. Although the norm that victims have a right to reparations from states, companies or international organisations is gradually gaining acceptance, the practical scope for victims to actually obtain such reparations is very limited.

Recommendation 9: The Netherlands should encourage troop-contributing countries to acknowledge their liability for any violations of international law that may be committed by members of their missions under the flag of an international organisation. The Netherlands should urge them to provide transparency and to develop policy for remedial measures.

The use of force with the aim of protecting civilians in conflict regions may unintentionally lead to casualties among the civilian population. Military commanders sometimes have to make a difficult choice between preventing future violence against civilians inflicted by the warring parties and the possibility of civilian casualties being caused by the mission’s own actions (collateral damage). Such collateral damage must be distinguished from the above-mentioned violations of international law. The United States has announced its intention to provide transparency, to accept its responsibility and to offer ex gratia payments to victims or their next of kin.

Recommendation 10: The Netherlands should encourage countries taking part in military missions under the flag of an international organisation of which the Netherlands is a member to provide transparency regarding collateral damage, accept responsibility and make (financial) reparations to victims or their next of kin.

Membership of the UN Security Council
In 2018 the Netherlands will be a member of the UN Security Council. The Netherlands will hold the Presidency for the period of one month. This presents a special opportunity to launch initiatives.

Recommendation 11: The Netherlands can exploit the opportunity afforded by its membership of the UN Security Council by drawing attention to one or more of the following themes, for instance by placing them on the agenda of one of the UN Security Council’s meetings: ways of enforcing compliance with international humanitarian law; the selection and training of troops to be sent on a mission; the role of social media in early warning mechanisms and during violent conflicts; and the moral imperative of states, non-governmental organisations and international organisations to take responsibility for preventing conflicts.

Advice request

Professor Jaap de Hoop Scheffer
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague

Date     12 November 2015
Re        Request for advice on civilian protection in armed conflicts

Dear Professor De Hoop Scheffer,

In late October 2015, the Secretary-General of the UN and Peter Maurer, President of the International Committee of the Red Cross, warned of the enormous impact of conflicts on civilians. In a joint press statement entitled ‘World at a Turning Point’ they called on states to take measures to improve the protection of civilians (POC) in armed conflict. The number of people fleeing their homes as a result of conflict and violence is now the highest since the Second World War: approximately 60 million.

Situations like those in Syria, South Sudan, Yemen and Nigeria are characterised by shocking forms of violence, attacks targeting civilians and a total lack of respect for life and human dignity. In addition, specific groups of civilians (religious minorities, women and girls, LGBTI people and journalists) are the target of sexual and other forms of violence, torture, kidnapping, forced displacement and recruitment into armed groups. The widespread and visible impunity associated with violations of civilians’ rights in conflict situations contributes to the spiral of violence and instability. And in most situations the international community does not succeed in protecting civilians effectively. In the Netherlands we are experiencing the consequences of this directly, as evidenced by the sharp increase in the number of refugees since the summer of 2015.

POC has its basis in international humanitarian law, refugee law and human rights law. Primary responsibility for POC rests with the national authorities of the country concerned. However, non-state parties to conflict also have responsibilities under international law, including customary international law. Where those parties are unwilling or unable to protect civilians, international actors have a role to play. The UN has the broadest mandate in this respect, stretching from conflict prevention to tackling impunity for crimes against civilians during conflict.

UNSC and UNSG

The UN Security Council (UNSC) addresses POC in the framework of various country situations on its agenda, for instance where POC is included in a peace mission’s mandate. However, it is clear that conflicting interests in the UNSC regularly impede rapid action. Syria is one of the most glaring examples of this.

The UN Department for Peacekeeping Operations distinguishes three possible ways of implementing POC: through dialogue, protection against physical violence and the creation of a ‘protective environment’.

In his 18-monthly reports to the UNSC, the Secretary-General of the UN (UNSG) discusses the five core challenges in POC: reinforcing compliance and accountability with regard to international law (especially during combat), engaging more systematically with non-state armed groups, reinforcing the role of peace operations in POC, improving humanitarian access and strengthening accountability for violations. 

Three UN reports: a new direction?

At the request of the UNSG, a High-level Independent Panel chaired by former Timorese President José Ramos-Horta issued a report in June 2015 on the future of UN peace operations. One of the report’s key messages is that far more should be invested in tools such as conflict prevention and mediation, in order to resolve the problems that lead to conflicts. The question is what implications this recommendation has for the situations mentioned in this context and for Dutch policy on POC and human rights. An expert advisory group also issued a report this year on the UN peacebuilding architecture at the request of the UN member states, and a report was released on the implementation of UNSC resolution 1325 on women, peace and security (2000).

Dutch policy and efforts

The Netherlands underscores the importance of POC. This commitment follows from article 90 of the Dutch Constitution and is reflected in Dutch foreign policy as a whole. POC lies at the interface of human rights and security, as indicated in the 2012 policy memorandum ‘Protection of Civilians in Armed Conflict’, the 2013 International Security Strategy and the 2013 letter to parliament on human rights, ‘Justice and Respect for All’. Among other points, the POC policy memorandum addresses the Netherlands’ priorities in this area: conflict prevention, joint action with partners, the integrated approach, gender and ensuring sufficient capacity. The Netherlands has embedded POC in the assessment framework for constitutionally mandated letters to parliament on the deployment of military units abroad (‘article 100 letters’). The Netherlands also plays an active role in conflict areas with respect to its human rights priorities. It has identified POC as a policy priority, is a major donor of humanitarian aid and has endorsed the Kigali Principles on the Protection of Civilians.

Although a solid normative framework for POC has been put in place and the Netherlands is making good progress with its own integrated approach, the Dutch government has noted that in various parts of the world implementation is lagging far behind.

The government therefore requires further analysis of POC in a variety of situations around the world, and recommendations with regard to the added value of Dutch policy and efforts. With regard to the spectrum of conflict, the government is specifically interested in the conflict prevention phase.

This analysis should address the following individual questions:

How can Dutch policy on POC in relation to conflict prevention be fleshed out further?
How can the integrated approach be applied and improved to better address POC, with a special focus on the conflict prevention phase?
Which instruments and channels can the Netherlands utilise to this end, in terms not only of bilateral support and initiatives but also of multilateral and multi-stakeholder cooperation?
How can the Netherlands contribute to a better response, based on early warning mechanisms, for instance in the framework of the ‘Responsibility to Protect’ (R2P), both at intergovernmental level and in specific situations in the field?
If elected to a non-permanent seat on the UNSC, in what way could the Netherlands add value in the area of POC during its term?

I look forward to receiving your report.

Yours sincerely,


Bert Koenders
Minister of Foreign Affairs of the Kingdom of the Netherlands

Government reactions

To the chair of the Advisory Council on International Affairs
Professor J.G. de Hoop Scheffer
Postbus 20061
2500 EB  The Hague

Date     6 February 2017
Re        Government response to the AIV’s advisory report ‘The Protection of Civilians in Armed Conflicts’

Introduction

The government hereby presents its response to advisory report no. 102 of 27 July 2016 by the Advisory Council on International Affairs (AIV) entitled ‘The Protection of Civilians in Armed Conflicts: Well-trodden Paths and New Ways Forward’.

On 12 November 2015 the Minister of Foreign Affairs asked the AIV for advice on the protection of civilians in armed conflicts. The request for advice was prompted by news reports of shocking forms of violence, attacks that targeted civilians and a total lack of respect for life and human dignity. The questions put to the AIV concerned the details of Dutch policy in this area and the use and effectiveness of the instruments available to the Netherlands as part of its integrated approach to peace and security. In particular, the minister requested advice on preventing violence against civilians and on the Dutch contribution to a better response based on early-warning mechanisms.

The government would like to thank the AIV for its advisory report. The report is in keeping with the government’s efforts in many areas and offers useful points of departure for the further development and strengthening of Dutch policy on protecting civilians, partly with a view to the Netherlands’ membership of the UN Security Council in 2018. The government’s response to the AIV’s conclusions and recommendations is set out below.

General remarks

Regrettably, the subject addressed by the advisory opinion remains as topical as ever. The most recent and shocking cases include attacks on civilians, hospitals, physicians and emergency workers in Syria, South Sudan and Yemen. The AIV rightly notes that states, international organisations and NGOs have a moral imperative to take responsibility for preventing large-scale violence against the civilian population in their own and other countries.

Unfortunately, in practice states have often proved to be insufficiently willing or able to protect civilians in conflict zones. The complexity of modern conflicts makes it difficult for international organisations like the UN and the International Committee of the Red Cross (ICRC) to offer civilians effective protection against flagrant violations of international law.

When it comes to protecting civilians, the Netherlands plays an active international role in getting the issue on the agenda, developing policy, participating in missions and training troops. It has worked, for example, with the US and Rwanda in advocating the Kigali Principles, which call for the effective implementation of UN mandates for the protection of civilians. The number of countries that have endorsed these principles has now risen to 39. The Kingdom of the Netherlands will make the protection of civilians in armed conflicts a central issue during its membership of the UN Security Council.

Through our military, political and civilian contributions to missions such as the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) and the United Nations Mission in the Republic of South Sudan (UNMISS), the Netherlands has made an essential contribution to the protection of civilians (POC). In Mali, the intelligence reports produced in part by Dutch personnel and the POC expert provided by the Netherlands played a key role in developing POC policy at the mission’s headquarters in Bamako. Last autumn, the Netherlands, Rwanda and the US organised the first POC training course for UN peacekeepers. The Netherlands is drawing on this experience to provide input for the new UN POC training curriculum being developed by the UN Institute for Training and Research.

The government is grateful for the recommendations formulated by the AIV in its advisory report and regards them as endorsing current policy while also encouraging the development of further policy, for instance on using social media more effectively to alert civilians and developing digital and other instruments to protect human rights defenders.

Responses to conclusions and recommendations

Recommendation 1: The Netherlands should encourage international debate on the need to take responsibility to prevent conflicts, both nationally and internationally.

The AIV rightly concludes that too little effort is being made to prevent armed conflicts. The notion that preventing conflicts is just as important as maintaining peace, since prevention is better than cure, is now gaining wider international support. In 2015 the United Nations Security Council and General Assembly adopted substantively identical resolutions on sustaining peace. These resolutions called for greater efforts to be made to prevent conflicts and sustain peace. The ‘diplomacy for peace’ vision of the new UN Secretary-General, António Guterres, is closely aligned with these resolutions. Preventing violence against civilians must be the central focus.

The government agrees with this recommendation. In recent years the Netherlands has consistently advocated conflict prevention and the protection of civilians in multilateral forums like the UN. The government has actively supported follow-up action on both ‘sustaining peace’ resolutions, for instance during the open debate on them at the UN Security Council in May 2016, and at an open debate on conflict prevention and sustaining peace at the Security Council on 10 January 2017. In the run-up to and during its Security Council membership in 2018, the Netherlands will continue these efforts.

The Netherlands believes in a three-pronged approach to conflict prevention: (1) early action to tackle structural factors that exacerbate the risk of armed conflict; (2) preventing short-term escalations of violence; (3) building sustainable peace after conflicts. The third of those elements is crucial because it has been shown that a history of unresolved conflict is one of the most clearly identifiable causes of renewed outbreaks of violence. Sustaining peace must therefore also include a process of accountability for the victims and perpetrators of violence.  

Within the UN and the EU, the Netherlands has argued that states and international organisations should take greater responsibility for conflict prevention and make available the necessary financial resources. This was one of the reasons why, in February 2015, the Netherlands hosted a regional conference entitled ‘Delivering Peace & Protection: The Convening Power of UN Peacekeeping’, the principal aim of which was to encourage European countries to contribute more to UN peace missions. This was the first of a series of regional conferences held in the run-up to the ‘Obama summit’ on UN peacekeeping operations at the UN General Assembly in September 2015. These meetings led to an increase in Western countries’ contributions of both financial resources and troops to UN peace missions. The increase in these military contributions has significantly raised the standard of personnel and equipment on the missions to which these countries have contributed.

The Netherlands is shouldering its responsibility for peacebuilding and peacekeeping by making a significant contribution to EU, UN and NATO missions aimed at stabilising fragile states. The Netherlands’ efforts are also helping to improve the safety of the civilian population in those countries. This applies not just to the UN missions in which the Netherlands has participated, but also to the NATO training mission Resolute Support in Afghanistan and the EULEX mission in the Western Balkans.

The government’s efforts also aim to enhance the conflict prevention capacity of the international community as a whole. The Netherlands is pursuing this aim through active partnerships with non-governmental organisations, the UN, the World Bank, regional development banks, the Permanent Court of Arbitration, the EU, regional organisations and bilateral partners. With an annual contribution of €1.25 million, the Netherlands is one of the biggest donors to the UN’s Department of Political Affairs (DPA), which works specifically to prevent and end armed conflicts. Most of the DPA’s conflict prevention activities take place behind the scenes. Nigeria’s peacefully conducted elections in 2015 and the support provided by the UN Special Coordinator for Lebanon (UNSCOL) are examples of successful conflict prevention by the DPA and others.

The government is also working to improve international coordination to enable a more effective response where there is a threat of violent conflict or human rights violations. The Netherlands is actively collaborating with UN organisations such as the United Nations Development Programme (UNDP) which are developing innovative early warning systems. These include the Framework of Analysis for Atrocity Crimes developed by the UN’s Special Advisers on the Prevention of Genocide and on the Responsibility to Protect. The Netherlands also provides support to important initiatives under the auspices of the UN Secretary-General, for instance Human Rights Up Front. This internal mechanism was established following analysis of the UN’s failures at the time of the 2009 crisis in Sri Lanka. It is intended to ensure that in future the UN can respond more quickly and effectively to indications of an imminent conflict that could claim large numbers of civilian casualties. In the case of Burundi for example, the situation was put on the agenda of the Human Rights Council and the Security Council in good time. In November 2015 the Security Council was given a unique joint briefing by the head of the Department of Political Affairs, the UN High Commissioner for Human Rights and the Special Adviser of the Secretary-General on the Prevention of Genocide. The UN Secretary-General then set to work on securing a Security Council mandate for a police component in Burundi, which was achieved in the spring of 2016.

The Netherlands believes that the UN Security Council too needs to focus greater attention on – and give greater political support to – prevention initiatives, for instance by working more closely with the DPA, the UN’s Office of the High Commissioner for Human Rights (OHCHR) and other UN organisations that operate in this field. Where possible, the Kingdom of the Netherlands will raise this subject in the Security Council in 2018. It will also urge that the Security Council be briefed by relevant experts, for instance the UN High Commissioner on Human Rights and the Special Adviser to the Secretary-General on the Prevention of Genocide, so that the Council is made aware in good time of situations with a high risk of escalation.

Within the EU, the Netherlands is part of a group of countries pressing for better cooperation to identify conflict risks at an earlier stage and to translate warning signals into concrete prevention strategies. These proposals for proactive action should be on the agenda of the EU’s Political and Security Committee (PSC) and if necessary the Foreign Affairs Council. The EU recently established an extensive Conflict Early Warning System, which identifies and designates 20 ‘at risk’ countries every six months. However, it is now necessary to move from early warning to early action. At EU level the Netherlands is therefore urging greater alignment between these early warning priorities and the available EU financing instruments for peace, security and stability. The run-up to elections in Kenya in 2013 showed that choosing to invest in prevention, including at political level, could help avoid a repetition of the violence that accompanied the elections of 2007 and 2008. In 2015 the EU and the UN jointly mediated between government and opposition parties in Guinea, which ensured that rising tensions and violent incidents that accompanied the presidential elections did not escalate into widespread violence against civilians.

As the AIV rightly points out, the principle of the sovereignty of states must be respected in relation to conflict prevention activities. The Netherlands therefore exercises appropriate restraint when conducting conflict prevention activities in third countries. It is not always desirable for the Netherlands to make visible conflict prevention efforts in a particular country; sometimes it is preferable to operate discreetly, through quiet diplomacy and the involvement of third parties, such as specialist NGOs.

Recommendation 2: The Netherlands should make more use of the comparative advantages of non-governmental organisations and make the necessary funding available to do so. The Netherlands should support organisations that maintain open communication channels with as many parties to a conflict as possible, so as to be able to inform non-state armed groups of their obligations under international law regarding the protection of the civilian population, to encourage them to pledge to be bound by that international law, and to be able to call them to account for any non-compliance with these norms.

This recommendation also ties in with the government’s existing efforts. Smart new coalitions with a variety of partners are key to finding solutions for today’s complex conflicts. That is why, as part of its Dialogue and Dissent programme, the government has entered into a number of strategic partnerships with organisations like Pax, Oxfam Novib and the network of grassroots organisations Global Partnership for the Prevention of Armed Conflict (GPPAC), collaborating with them on the basis of their respective roles and responsibilities in working to prevent conflicts and protect civilians.

The Netherlands also provides political and financial support to a variety of non-governmental organisations operating in the field of conflict prevention. One such organisation is the International Crisis Group, which can flag up conflict risks at an early stage and identify opportunities for conflict prevention activities. Like the AIV, the government sees the added value offered by organisations like the ICRC, the Centre for Humanitarian Dialogue, Interpeace and the Kofi Annan Foundation, since they are well placed to maintain open communication channels with as many parties to conflicts as possible, including parties with which the Netherlands is unable to maintain relations (for instance those parties on EU and UN terrorism lists).

In order to contribute to the prevention and peaceful resolution of conflicts, the Netherlands also supports the capacity-building activities of the Netherlands Institute of International Relations ‘Clingendael’, which include negotiation training for groups in conflict. Where possible, these activities also involve providing information and advice on compliance with international law (with an emphasis on international humanitarian law). The Clingendael training courses provided to Syrian women’s networks made an important contribution to the founding of the Syrian Women’s Advisory Board, which advises UN special envoy Staffan de Mistura on the Syrian peace negotiations. Providing Clingendael training courses to parties to a conflict, such as the High Negotiations Committee of the Syrian opposition and the Moro Islamic Liberation Front (MILF) in the Philippines, is another way in which the Netherlands contributes to conflict prevention and peaceful conflict resolution. The Netherlands also makes earmarked contributions to the Crisis Management Initiative, the Democratic Progress Institute and the Dialogue Advisory Group to prevent, mitigate and resolve violent conflicts in specific cases, often on a confidential basis.

Recommendation 3: Where human rights defenders who use social media are subjected to real threats, the Dutch government should support them by actively contributing to the deployment of expertise.

The government endorses the importance the AIV attaches to the digital security of human rights defenders, whether operating in conflict situations or otherwise. In April 2015 the Netherlands hosted a ministerial conference on cyberspace in The Hague, and this was one of the event’s key themes. The Netherlands is working in a variety of ways to protect the rights of internet users. For instance, in 2016 the Human Rights Tulip – an annual prize awarded by the Dutch government to human rights defenders who promote human rights in innovative ways, often at risk to themselves – went to the Pakistani internet activist Nighat Dad.

There is also a special focus on human rights defenders in countries with repressive regimes. The Digital Defenders Partnership channels financial assistance provided by the Netherlands and eight other countries in the Freedom Online Coalition. Free Press Unlimited has developed the StoryMaker app, which offers both professional and citizen journalists a secure and simple way to share their stories. Digital security is an element of many Human Rights Fund (MRF) projects aimed at empowering and protecting human rights defenders. These projects include Shelter City, a programme which offers temporary shelter to activists facing threats. The Netherlands also provides funding to an OHCHR project that uses modern media to document violations of international law and to assess digital material. This project assists fact-finding efforts and helps publicise and ultimately reduce violations.

Recommendation 4: Violence against the civilian population is often encouraged, committed or permitted by leaders of parties to an armed conflict. In all phases of a conflict, international bodies (the UN, the Human Rights Council, the EU, the Council of Europe, the OSCE, the African Union) should do more to remind the leaders of parties to armed conflicts of their responsibilities under international law regarding the protection of the civilian population and to warn them that they may be called to account for their actions in due course, whether at national level or before the International Criminal Court or another international tribunal. The Netherlands should set an example in this regard.

The AIV is right to draw attention to the need to remind the leaders of parties to armed conflicts of their obligations under international law and of the fact that they may be called to account for their actions. All parties to an armed conflict should be held accountable for violations committed against the civil population. Justice for victims restores confidence in the rule of law, which in turn can prevent conflicts from continuing to ‘simmer’ in the background. That is why it is so important that any amnesty arrangements in peace agreements do not encompass international crimes, such as genocide, war crimes and crimes against humanity. Combating impunity for these international crimes ought to be a universal principle. The Netherlands consistently promotes this message in all relevant forums.

The primary responsibility for investigating and prosecuting the perpetrators of international crimes rests with individual states. A properly functioning police force and judiciary are essential to credible efforts to tackle impunity. The Netherlands is therefore working to strengthen national legal systems through capacity building. It does so, for instance, through the bilateral security and rule of law programme in Mali, which is reforming the justice system and investing in local law centres to make it easier for the public to get access to justice. However, if the national authorities are unable or unwilling to pursue a prosecution, it is crucial that there be alternative judicial options to pursue, for instance the jurisdiction of the International Criminal Court (ICC) or an ad hoc tribunal.

The great importance that the Netherlands attaches to these options is illustrated by the fact that we are host state to a variety of international tribunals, including the ICC and the UN International Criminal Tribunal for the former Yugoslavia. The Netherlands also actively supports the work of a number of ad hoc tribunals. For instance, it contributes a considerable amount of funding to the Chambres Africaines Extraordinaires and the Special Tribunal for Lebanon, as well as associated outreach initiatives aimed at informing the local civilian population about the activities and importance of these tribunals.

The International Criminal Court has a unique and essential role to play in combating impunity in situations where there is no real prospect of justice because a country is unwilling or unable to mount a credible investigation or prosecution. The Netherlands will continue its efforts to consolidate and strengthen international support for the ICC. For instance, at the last meeting of the States Parties to the Rome Statute, the Netherlands organised a ministerial meeting, mainly for African ministers, to engage in a constructive dialogue on their criticisms and to tackle negative perceptions of the ICC. The Netherlands also facilitated an incoming visit by journalists from various African countries to promote accurate reporting about the ICC.  

In this connection, the UN Security Council’s responsibility for combating impunity for international crimes merits attention. The Security Council has a unique competence – and responsibility – to refer situations to the ICC, relying on the power granted to it under chapter VII of the UN Charter (threats to the peace and breaches of the peace). A case in point is the conflict in Syria. UN investigative committees have found that war crimes and crimes against humanity have been committed in the course of this conflict. The Netherlands has long advocated that the Security Council should refer this situation to the ICC, but so far there has been no consensus on this among the Council’s members. However, even if the Council were to refer the situation to the Court, its role would not end there. Effective Security Council supervision of the cooperation of the countries involved in implementing the referral would be essential, particularly if their cooperation with the ICC proves deficient. With a view to the eventual establishment of a prosecution mechanism for the crimes committed in Syria, it is important to prevent the loss of any evidence that could be used in future proceedings. The Netherlands has therefore provided political and financial support for the establishment of an independent international mechanism to collect and document evidence, pursuant to the UN General Assembly Resolution of 21 December 2016. 

Recommendation 5: The Netherlands, together with other countries, should encourage international organisations and non-governmental organisations to keep existing databases of latent conflicts up to date and exploit them to maximum effect as a basis for a cohesive strategy to prevent latent conflicts erupting into full-scale violence. Following on from this, the Netherlands should promote the systematic inclusion of latent conflicts on the agenda within the EU and the UN.

The government agrees entirely with this recommendation. The Netherlands endeavours to promote the exchange and coordination of threat analyses (early warning) and prevention strategies (early action) at bilateral, EU and multilateral level. One factor that limits these cooperative efforts is that many countries prefer not to share this kind of politically sensitive information. Investments are therefore also being made in building national early warning and early action capacity. The most significant latent conflicts are being identified and monitored. The Netherlands is working – in concert with international partners where possible – to prevent the conflicts that pose the greatest threat from escalating into large-scale violence and human rights violations. It is also examining how to make more effective use of existing databases and other public and confidential sources of information. Making more effective and integrated analyses of the great volumes of big data that are available offers unprecedented opportunities for improving early warning systems and may also contribute to preventing conflicts and protecting civilians.

Recommendation 6: The Netherlands should encourage international organisations to make a larger share of their regular financial resources available to develop autonomous initiatives for preventive diplomacy and conflict prevention. In addition, the Netherlands should itself help shape this emphasis on preventive diplomacy and conflict prevention by making contributions to international organisations and non-governmental organisations that are earmarked for this specific purpose.

The government agrees that international organisations need sufficient financial resources for preventive diplomacy and conflict prevention. In this connection, at the UN General Assembly in September 2016 the Netherlands called on UN member states to make sufficient resources available for political missions, mediation and prevention.

UN Special Political Missions (SPMs) are an indispensable preventive instrument for promoting international peace and security. Examples include the UN Assistance Mission in Afghanistan (UNAMA) and the UN Assistance Mission for Iraq (UNAMI). Over the past two decades, the number and size of SPMs and the complexity of their mandates have increased considerably. Nevertheless, like the AIV and the High-level Independent Panel on UN Peace Operations of 2015, the government is aware that these missions often have insufficient budgets and lack adequate expertise and other forms of support. The Netherlands believes it is important to deploy and fund SPMs more effectively and flexibly, so that conflicts can be prevented, managed or resolved more successfully.

The Netherlands also provides direct financial assistance for UN mediation, by supporting the work of the DPA’s Mediation Support Unit. In addition, during the UN General Assembly ministerial week the Netherlands chaired a pledging conference on 21 September 2016 for the UN Peacebuilding Fund, whose objectives are conflict prevention and peacebuilding. In his speech the Minister of Foreign Affairs stressed that peacebuilding is one of the UN’s core tasks and requires long-term funding.

The Netherlands’ conflict prevention efforts also encompass security sector reform (SSR). A well functioning national security sector (i.e. the armed forces, police, justice authorities and prison system) is an essential element of peacebuilding and preventing past conflicts from reigniting. The Netherlands supports SSR in specific countries, with a particular focus on citizen security, through a variety of multilateral, international and non-governmental organisations (e.g. UN, EU, African Union and the General Centre for the Democratic Control of Armed Forces). The preventive aspects of SSR are often given insufficient consideration. The Netherlands has emphasised the importance of prevention in the development of an EU security sector reform framework. This framework will enable EU bodies and member states to work more effectively towards SSR in a particular country, for instance by improving coordination within the EU and with other international players when implementing activities, by making it standard practice to include a security sector analysis, and by drawing up guidelines for monitoring, evaluation and risk management.

Recommendation 7: The Netherlands should provide active support to troop-contributing countries, where necessary or desirable, to ensure that they are well prepared before taking part in military missions seeking to protect the civilian population. This could take the form of offering training sessions for military commanders and if necessary also for other members of international missions. The effective deployment of military assets could be further improved by troop-contributing countries undertaking joint training and exercises. The Netherlands should play a leading role in promoting this.

The AIV rightly points out that troop-contributing countries should be well prepared before taking part in missions. The fact that civilian, military and police personnel of UN missions are not always sufficiently prepared made news in the Cammaert report on shortcomings in the action taken by UNMISS, the UN mission in South Sudan, in response to violence (including sexual violence) committed in Juba by South Sudanese government troops against civilians last year.

Targeted attacks on civilians, in particular an increase in sexual violence, may be a sign that a conflict is at risk of escalating or flaring up again. Many armed parties to conflicts, including terrorist and extremist groups as well as military personnel, are guilty of this kind of violence against civilians. The Netherlands therefore uses civilian expertise on protecting civilians, on gender issues and on combating sexual violence by parties to conflicts in, for instance, MINUSMA and in the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO).

The AIV’s recommendation ties in with the aforementioned Kigali Principles, which call on countries to effectively implement the mandates of UN missions to protect civilians, including by training troops and tackling misconduct by UN peacekeepers, in particular sexual exploitation and abuse (SEA). Abuse of civilians by peacekeepers is contrary to everything that UN peacekeeping and civilian protection stands for. It undermines the legitimacy of UN peacekeeping and thereby ultimately its effectiveness. The Netherlands is a very vocal advocate of a zero tolerance approach to SEA, on the part of both the UN and troop-contributing countries. The previous Secretary-General appointed a special coordinator, Jane Holl Lute, to tackle SEA. Since the summer of 2016 a Dutch expert, Colonel Ben Klappe, has been seconded to her team.

To provide sufficient protection to civilians, UN missions must also be willing, as a last resort, to use force. The Netherlands has done so in one case while participating in the MINUSMA in Mali. On 20 January 2015 Dutch MINUSMA units in the vicinity of Tabankort became involved in fighting between armed parties. They then took robust action, in accordance with the applicable Security Council mandate, to protect a nearby UN base, where villagers had sought refuge. After warning shots proved ineffective, Dutch Apache helicopters destroyed a launch installation with a missile. In the following days, Dutch troops facilitated negotiations between the armed parties, and Dutch Chinook helicopters transported a UN delegation to the talks. The Chinooks and an Apache also carried out a medical evacuation, taking 15 injured Malian civilians from Tabankort to Gao. It is not par for the course for UN troops to take such an active approach. Too often, they are overly passive, hesitant and risk averse. Strong leadership and extra training for troops sent on UN missions, as called for by the Kigali Principles, are therefore essential.

The government believes that this recommendation supports its current policy and efforts. The Netherlands pursues a variety of training activities, including cooperation with the US military training programme ACOTA and combined military exercises in the framework of the US programme Flintlock. Since its establishment in 2003, ACOTA has trained almost 300,000 troops from African countries, who have been deployed in UN-mandated peace missions.

In November 2016, the Netherlands worked with US Africa Command and Rwanda to organise training at the Rwandan Peace Academy (RPA) for military and civilian mission personnel at middle management level, including commanders, specifically on the Kigali Principles and protecting civilians. Besides promoting decisiveness and leadership in protecting civilians, the evaluation of these interactive training pilot schemes will be shared with the UN Integrated Training Services (ITS) as input for updating and improving the current ITS training modules.

The Netherlands also advocates more effective EU efforts in training and combined exercises, and played an active role in developing the EU Implementation Plan on Security and Defence as part of the EU Global Strategy. The Netherlands has also helped shape NATO policy on protecting civilians.

Recommendation 8: The Netherlands should undertake a longer-term commitment in post-conflict phases, especially in cases in which the Netherlands was involved in brokering the end to a violent armed conflict.

The AIV rightly concludes that lasting stability requires a longer-term approach. This is consistent with current policy. In part through the EU, the Netherlands will continue to make a long-term commitment in the post-conflict phase in the Western Balkans and Afghanistan, as well as in countries like Rwanda, Burundi and Mozambique. Croatia, the Timor-Leste and Rwanda illustrate that, with a longer-term post-conflict commitment, lasting reconstruction is perfectly feasible.

The government believes that such longer-term commitment is the responsibility of the entire international community. There are a variety of ways to fulfil this responsibility. In countries where the Netherlands has conducted military operations, we take joint responsibility for the reconstruction phase. The Netherlands’ inclusive and integrated approach, which emphasises the links between security, human rights and development, is essential in this respect. It can take decades for reforms to the security sector, rule of law structures and public administration to have an impact. Lasting stability requires cooperation with local actors who take responsibility for the reconstruction process. 

Recommendation 9: The Netherlands should encourage troop-contributing countries to acknowledge their liability for any violations of international law that may be committed by members of their missions under the flag of an international organisation. The Netherlands should urge them to provide transparency and to develop policy for remedial measures.

The AIV rightly asks that attention be paid to the issue of remedial measures for victims of violations of international humanitarian law and human rights in post-conflict situations. Remedial measures are a major element of rendering account for such violations. They may also play a role in preventing conflicts from flaring up again. Where applicable, the government will continue to draw attention to the issue of remedial measures. For instance, the Minister of Foreign Affairs recently called on the Iraqi authorities to offer support to victims of violations of human rights and international humanitarian law in Iraq. Remedial measures are also important in cases in which violations are committed by mission personnel operating under the flag of an international organisation.

In this connection the AIV seems to assume that liability for such violations committed by personnel of a mission led by an international organisation always rests with the troop-contributing countries. The government would stress that it is impossible to give a general answer as to whether liability rests with an international organisation or the troop-contributing states. It all depends on the particular circumstances. However, there is increasing support in international law for the view that liability must rest where effective control is exercised over the actions in question.

Recommendation 10: The Netherlands should encourage countries taking part in military missions under the flag of an international organisation of which the Netherlands is a member to provide transparency regarding collateral damage, accept responsibility and make (financial) reparations to victims or their next of kin.

The government sees the AIV’s recommendation that the Netherlands should encourage countries taking part in military missions under the flag of an international organisation of which the Netherlands is a member to provide transparency regarding collateral damage, accept responsibility and make (financial) reparations to victims or their next of kin, as an endorsement of its current policy. Where applicable, the government will continue to draw attention to the need for transparency and accountability concerning any loss of civilian life when force is used. However, countries’ efforts to provide transparency, accept responsibility and possibly make reparations must always be assessed on a case-by-case basis.

In this connection the government would note that the AIV rightly distinguishes between collateral damage arising from military missions and violations of international law. International humanitarian law takes account of the reality of armed conflict, in which, unfortunately, it is unrealistic to expect civilian casualties to be avoided completely. The law does require that civilian casualties be avoided in so far as is possible, and that each attack must satisfy the principle of proportionality. The principle of proportionality requires that an assessment be made to ensure that the expected collateral damage is not disproportionate in relation to the expected direct and tangible military advantage. The government therefore exercises great restraint in issuing  licences for arms exports to countries that are involved in a conflict, particularly where violations of international humanitarian law or human rights are taking place in that conflict. For example, the government will grant export licences for military goods to Saudi Arabia only if it can be demonstrated indisputably that the goods cannot be used in the conflict in Yemen and cannot be associated with human rights violations in any other way.

Recommendation 11: The Netherlands can exploit the opportunity afforded by its membership of the UN Security Council by drawing attention to one or more of the following themes, for instance by placing them on the agenda of one of the UN Security Council’s meetings: ways of enforcing compliance with international humanitarian law; the selection and training of troops to be sent on a mission; the role of social media in early warning mechanisms and during violent conflicts; and the moral imperative of states, non-governmental organisations and international organisations to take responsibility for preventing conflicts.

There are more than 50 different country situations, peace and political operations and subjects on the agenda of the UN Security Council. In discussing the fulfilment of mandates for peace missions, the Kingdom of the Netherlands will, where necessary, raise the need for adequate training and selection of troops and civilian staff members, in particular in relation to protecting civilians. The Kingdom will also work to ensure that early signs of grave human rights violations and conflict escalations are discussed in the Security Council, for instance through briefings to the Council from the Secretary-General’s Special Advisers, from Commissions of Inquiry, international NGOs and UN country rapporteurs or envoys. As a member of the UN Security Council, the Kingdom will, where applicable, raise the issues of compliance with international humanitarian law and tracking down and prosecuting perpetrators of violations. The Kingdom will also capitalise on its profile as a Security Council member by organising meetings on these subjects extraneous to the Council’s official consultations.

Yours sincerely,


Minister of Foreign Affairs
Bert Koenders

Minister of Defence
Jeanine Hennis-Plasschaert

Minister for Foreign Trade and Development Cooperation
Lilianne Ploumen

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