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Cyrille Fijnaut
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Joris Larik
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Executive Summary

By Order of 25 April 2019, the Minister of Foreign Affairs, Stef Blok, established the present Expert Group, requesting it to offer its views on the following two questions: on the one hand, lending of political support by the Dutch government to the interstate use of force by other states without a basis in international law; on the other, whether the Netherlands should strive for international acceptance of humanitarian intervention as a possible new legal basis for the use of force between states in exceptional circumstances.

Following the chair’s work plan, which included background research by the secretariat, position papers by the members and a meeting in The Hague on 6–8 October 2019, the Expert Group finalized its report in an expedient manner.

The report recalls the background of the current Dutch position on the matters raised in the questions addressed to the Expert Group and the international context into which the issues at stake have to be situated (see chapter 2). This includes the international legal framework, geopolitical developments, ongoing reform efforts and proposals and the difficulty of defining success when it comes to interstate use of force and humanitarian intervention.

In answer to the question regarding whether the Dutch government should promote the international acceptance of humanitarian intervention as a possible new legal basis for interstate use of force (see chapter 3), the Expert Group considers that existing international law concerning the use of force by states contains only two firmly accepted exceptions to the general prohibition to use force under Article 2, paragraph 4 of the Charter of the United Nations. These are the use of force under the authority of the United Nations Security Council (Articles 39–42 of the UN Charter) and use of force in self-defence (Article 51 of the UN Charter). However, a minority is of the view that in light of the practice of states, it is no longer possible to conclude that forcible action to defend a civilian population in case of a most serious attack is manifestly unlawful if undertaken as a last resort and under strict conditions.

As far as the question as to whether the Dutch government should seek another exception with the view of allowing the use of force by states for ostensibly humanitarian purposes is concerned, the great majority is of the view that it did not seem advisable at present. It does not seem possible or desirable to seek such an exception for both legal and political reasons. Instead, the Expert Group advises that it might be useful if the Dutch government were to take steps to initiate informal consultations, within the context of the European Union and NATO, and with other like-minded and interested countries on ways to deal with humanitarian emergencies. The Expert Group emphasizes the importance of inclusive discussions on this matter at a global level as well.

A minority is of the view that such informal consultations could include an effort to explore whether and how conditions could be formulated under which forcible action in defence of a civilian population under a most serious attack, if undertaken under strict conditions, might not be unlawful even in the absence of authorization by the United Nations Security Council. Those conditions might include the likelihood that forcible action will be successful in avoiding or at least strictly limiting civilian casualties.

In answer to the question regarding the government’s expression of political support for the use of force between states without a basis in international law (see chapter 4), the Expert Group stresses that there is a clear distinction between, on the one hand, offering support, such as troops, arms or logistics, which would trigger state responsibility for the commission of unlawful acts, and, on the other, offering political support in a political forum, which would not. In addition, mere political support by government officials after the commission of an unlawful act by another government does not lead to those officials incurring individual criminal responsibility under the Rome Statute of the International Criminal Court.

Nevertheless, even though a state offering political support does not incur responsibility under international law, the Expert Group is of the view that there are strong legal and political reasons for exercising caution before supporting a military operation which the Netherlands regards as unlawful. Ignoring the applicability of the law by supporting unlawful actions risks the erosion of the international legal order and may encourage future unlawful behaviour.

Having taken the legal and political risks and consequences into account, the government may nonetheless find that there are compelling reasons to offer political support to an intervention even though they regard it as unlawful. The kind of circumstances that may be regarded as meriting such support may relate to extreme humanitarian distress, including the use of chemical weapons with direct danger for civilians.

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