By Otto Spijkers

It seems increasingly likely that there will be a Dutch parliamentary inquiry into the Dutch decision to give political support to the invasion of Iraq in 2003. [UPDATE: Today (2 February 2009), the Dutch Government decided to establish a Commission, chaired by Willibrord Davids, a former Chief Justice of the Dutch Supreme Court who does not seem to have much experience in the field of international law, to look into the Dutch decision to give political support to the invasion of Iraq in 2003.]

Five former Ministers for Foreign Affairs of the Netherlands, Max van der Stoel, Hans van den Broek, Hans van Mierlo, Jozias van Aartsen, and Ben Bot, recently remarked that they believe such an inquiry is necessary (see here for a brief video in Dutch). Peter Kooijmans, who was not only a Foreign Minister but also a Judge at the International Court of Justice, was not among this group of former Ministers. Jaap de Hoop Scheffer, who was Dutch Foreign Minister when the decision to support the invasion was made in 2003, was also not part of that group. As is well known, he is currently the Secretary-General of the North Atlantic Treaty Organization (NATO). Since 2004, NATO is active in Iraq at the request of the Iraqi Government, but NATO never supported the invasion of 2003.

Apart from the political pressure exercised by these five former Ministers, there is another reason why it seems likely that the Dutch Parliament will decide to investigate the ‘political support’ of the Netherlands for the invasion of Iraq, which was led by the United States of America and the United Kingdom. Recently, a memo (in Dutch) was leaked to the press in which three members of the Legal Affairs Department of the Dutch Foreign Ministry, which is the Department that deals with legal matters in all areas of law with which the Ministry is concerned, gave their advice. They essentially advised against providing ‘political support’ (see also here). This memo never reached Jaap de Hoop Scheffer, the Foreign Minister at the time of the invasion.

The memo essentially looks at the legality of the invasion, and concludes that the legal grounds which were the basis for the decision to support the invasion were not persuasive. So what were these legal grounds? The Dutch Government believed that Security Council Resolution 678, 687 and subsequent resolutions authorized the use of force in – and against – Iraq. The Legal Affairs Department explains in the memo that there are only two recognized exceptions to the prohibition on the use of force (as formulated in Article 2(4) of the UN Charter): self-defence (Artice 51 UN Charter) and the use of military force authorized by the Security Council (Chapter VII UN Charter). The memo also refers briefly to humanitarian intervention as a possible third exception, but notes that this concept is ‘highly controversial’ in international law. The only applicable exception in the case of the 2003 Iraq invasion is thus the authorization to use force by the Security Council. But according to the memo, the Security Council resolutions referred to did not authorize the invasion of Iraq in 2003, primarily because these resolutions related to the war between Iraq and Kuwait in the early 1990’s.