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Netherlands Yearbook of International Law 2011 pp 139–175Cite as

Forging International Order: Inquiring the Dutch Support of the Iraq Invasion

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Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 42))

Abstract

This article analyzes the Iraq inquiry in The Netherlands as presented by the Davids Committee (Rapport Commissie van onderzoek besluitvorming Irak. Boom, Amsterdam, 2010). It discusses the so-called corpus theory that informed the Dutch position that the invasion in Iraq was in accordance with international law, and its deconstruction by the Davids Committee. However, this article also argues that the corpus theory was only part of the story. In the search for justifying its political support of the war, the corpus theory interacted with two other claims for legitimacy put forward by the Dutch government. These alternative strands of legitimacy moved beyond positive law to include extra-Charter values (notably with regard to state roguery in the New World Order) on the one hand, and to circumvent the politics within the Security Council (legitimacy through defiance), on the other hand. The analysis discloses how any legal argumentation and bids for legitimacy are based on a particular vision of the international society and how to safeguard law, peace, and freedom in the contemporary international order. Together this leads to a more nuanced view, which does not alter the conclusion that the Iraq war was illegal, but which does show that it can be deceptive to reduce international policy-making to a zero-sum choice between law and politics narrowly defined.

The author would like to thank Jean d’Aspremont and the editors for their comments.

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Notes

  1. 1.

    However, it decided against an official investigation by the Parliament itself or the even heavier parliamentary ‘enquête’, in which case all hearings are public and under oath, and continuous refusal to testify can lead to prosecution.

  2. 2.

    Officially, the government provided political but not military support. The distinction is not always clear and not maintained by the US government, Davids Committee 2010, pp. 106–110, 426, conclusion no. 11. Moreover, political support can have legal consequences too, as international law obligates all states to end violations of fundamental norms, such as the nonuse of force, Nollkaemper 2010, p. 149.

  3. 3.

    Joost Oranje, ‘Buitenlandse Zaken hield kritisch Irak-advies achter’, NRC Handelsblad, 17 January 2009; ‘Memorandum DJZ/IR/2003/158’, NRC Handelsblad, 26 January 2009. In his letter the Minister President more generally refers to the lists of questions raised in Parliament in the preceding weeks, Letter, 2 February 2009, Kamerstukken II, 31847/1; Davids Committee 2010, pp. 17–18.

  4. 4.

    Instellingsbesluit, 6 March 2009, nr. 3075101, Davids Committee 2010, Appendix A.

  5. 5.

    Davids Committee 2010. See http://www.rijksoverheid.nl/onderwerpen/irak/commissie-davids. The 551 page report is published in Dutch, but the conclusions and summary are available in English on the official website. Chap. 8, on the legal foundation, was translated and published ad verbatim in the Netherlands International Law Review (NILR 2010, pp. 81–137). All translations are by this author; quotes from Chap. 8 are taken from the translation by the NILR.

  6. 6.

    Koskenniemi 2006 [1989], p. 570.

  7. 7.

    Nollkaemper 2010.

  8. 8.

    Davids Committee 2010, pp. 22, 263, 271–272.

  9. 9.

    Berman 2005. He distinguishes three justification strands: (i) innovation through violation; (ii) legitimacy through competing coherence, which can entail either teleological interpretation or synergy; and (iii) legitimacy through defiance.

  10. 10.

    Nollkaemper 2010, p. 145.

  11. 11.

    Koskenniemi 2007.

  12. 12.

    Unlike the Chilcot inquiry in the United Kingdom, the hearings of the Davids Committee have not been made public. Hence apart from the Davids Report itself, this analysis relies on letters and transcripts of parliamentary debates, and other documents, all of which are available at https://zoek.officielebekendmakingen.nl/. All translations are by the author.

  13. 13.

    Cf. HandelingenII, 30 January 2003 (38/2821–2849), p. 2839; Davids Committee 2010, section 8.2.

  14. 14.

    Article 42 reads: ‘[s]hould the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.’.

  15. 15.

    The P5 are United States, United Kingdom, France, Russia, and China. Whereas art 27(3) UN Charter demands a positive vote of the P5, in practice it is interpreted in a broader sense (i.e., no negative vote from the P5) so that they have the option of abstaining without blocking the decision-making procedure all together.

  16. 16.

    This paradigm was referred to by the Security Council for the first time in its Resolutions 1674 (2006), and 1894 (2009) on the Protection of Civilians in Armed Conflicts, and explicitly invoked in the context of the situation in a particular country in Resolution 1706 (2006) on the conflict in Darfur, and Resolutions 1970 (2011) and 1973 (2011) regarding the crisis in Libya, and Resolution 1975 (2011) on the situation on Côte d’Ivoire. On its legal status, see inter alia Stahn 2007.

  17. 17.

    See also Davids Committee 2010, para 8.3.

  18. 18.

    See also Davids Committee 2010, pp. 43–44, 225–229. In total there were 59 UNSC resolutions regarding Iraq in 1990 (S/RES/660) until 2002 (S/RES/1409), the majority of which was issued under Chapter VII and hence had a binding character. See Letter of the MoFA, 25 September 2002, Kamerstukken II, 28618/5.

  19. 19.

    In the resolution itself reference is made to the preceding UNSC Resolutions 661(1990), 662(1990), 664(1990), 665(1990), 666(1990), 667(1990), 669(1990) 670(1990), 674(1990), 677(1990).

  20. 20.

    Being a signatory of the Nuclear Non-Proliferation Treaty (1970) and Biological Weapons Convention (1972), Iraq was already forbidden to possess nuclear and biological weapons, as the Resolution also states. The Chemical Weapons Convention only came into force in 1997, and was entered by Iraq in 2009.

  21. 21.

    In a subsequent resolution (UNSC 688), the Security Council condemned the oppression of Iraqi civilians as a threat to international peace and security. However, it did not invoke the Chapter VII procedure and authorizing the use of force to restore the peace. Nevertheless, the Security Council also refrained from condemning the following forceful humanitarian intervention (operation Provide comfort) led by the US. This was one of the first operations of a series of unilateral and multilateral humanitarian interventions in the 1990s.

  22. 22.

    Davids Committee 2010, pp. 57–58, 155.

  23. 23.

    State of the Union address by President George W. Bush, 29 January 2002 (available at http://www.washingtonpost.com/wp-srv/onpolitics/transcripts/sou012902.htm). In reaction to this speech Iraq stated to be willing to discuss the return of the UN weapon inspectors. See Verslag van een Algemeen Overleg d.d. 7 Februari 2002, Kamerstukken II, 21501/02.

  24. 24.

    See the speech delivered by President George W. Bush to the UN General Assembly, 12 September 2002, Meeting Records A/57/PV.2.

  25. 25.

    This was also the language used in inter alia Resolutions 688 (1991) and 1194 (1998). See Davids Committee 2010, p. 238. The Davids Committee discusses Resolution 1441 in paragraph 8.6 of the report.

  26. 26.

    Cf. HandelingenII, 5 September 2002, 95/5648–5671. See also Letter of the MoFA, 4 September 2002, Kamerstukken II, 23432/56; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  27. 27.

    This had been the repeated demand of several resolutions since 1998, most recently UNSC Resolution 1284 of 17 December 1999. For a comparison of Resolutions 1284 and 1441, see Davids Committee 2010, p. 236.

  28. 28.

    HandelingenII, 5 September 2002, 95/5648–5671, p. 5665.

  29. 29.

    Verslag van een Algemeen Overleg d.d. 1 October 2002, Kamerstukken II, 23432/61; Letter of the MoFA, 31 October 2002, Kamerstukken II, 23432/62.

  30. 30.

    HandelingenII, 5 September 2002, 95/5648–5671; HandelingenII, 30 January 2003, 38/2821–2849; HandelingenII, 12 February 2003, 43/2992–3038; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94. See also Davids Committee 2010, pp. 116, 246, 263. The full explanation of the alleged relationship between the different resolutions, was provided by the government at the Parliamentary debate of 18 March 2003, see Handelingen II, 18 March 2003, 50/3275–3327.

  31. 31.

    HandelingenII, 5 September 2002, 95/5648–5671, pp. 5665, 5666 and 5668. Further legal advice by the Commissie van Advies inzake Volkenrechtelijke Vraagstukken (Advisory Commission on Public International law) was deemed unnecessary, as the MoFA replied to a question of MoP Koenders, 26 September 2002. See also Davids Committee 2010, p. 247. On the role of legal advisors in the decision-making leading to the invasion in Iraq, see Manusama 2011.

  32. 32.

    See also Handelingen II, 18 March 2003, 50/3275–3327.

  33. 33.

    Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94. In this letter the MoFA gives an update on the international situation and the position of the Dutch government once it became clear that Iraq would not comply with Resolution 1441 and the Security Council was divided on the interpretation of the expression ‘serious consequences’ in the resolution text.

  34. 34.

    Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66; see also Davids Committee 2010, pp. 259–260.

  35. 35.

    HandelingenII, 18 March 2003, 50/3275–3327; Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66; Appendix to the letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94; see also Davids Committee 2010, p. 262.

  36. 36.

    Letter of the MoFA, 11 November 2002, Kamerstukken II, 23432/63; Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66. In a later debate in parliament the MoFA identified this as a ‘very clear passage’, Handelingen II, 30 January 2003, 38/2821–2849, pp. 2834, 2839. See also Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94. In the US line of argumentation, that Berman analyses, the term ‘serious consequences’ amounts to another strand of justification as the US administration linked it to extra-Charter values (which are not further specified in the analysis). As such it illustrates a synergy argument. The Dutch interpretation of ‘serious consequences’, however, remains within the parameters of the Charter framework and hence falls under the justification through legality, even though this legal argumentation ultimately was not valid.

  37. 37.

    ‘Nowhere in 1441 it says … that the Security Council has to take a decision about what should follow after that resolution. If that would have been the case, the resolution would have stated that the Security Council “would decide what needed to be done to restore international peace and security”. It does not say so, but it does say that the Security Council “will consider the matter”. From this it can be derived that no further decision is necessary.’ Handelingen II, 18 March 2003, 50/3275–3327, pp. 3309–3310. See also Handelingen II, 30 January 2003, 38/2821–2849. This differed from what was discussed in the Council of Ministers on the eve of the adoption of Resolution 1441, see Davids Committee 2010, pp. 256, 262. This issue of wording was also discussed the British Chilcot Inquiry on the invasion in Iraq. In his testimony before the Inquiry, Lord Goldsmith, Attorney General at the time, used the same line of argumentation as the Dutch MoFA: ‘[i]n one sense, the wording is crystal clear, because these members of the Security Council, who know the difference between the word “decide” and “consider the situation”, chose, I believe quite deliberately to use the words “consider the situation”, and they could have said “decide” if that’s what they meant.’ Rt Hon Lord Goldsmith QC, Oral Evidence for the Iraq Inquiry, 27 January 2010, p. 49, available at www.iraqinquiry.org.uk/media/45317/20100127goldsmith-final.pdf.

  38. 38.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding SC Resolution 276, Advisory Opinion, ICJ Reports 16, 1971.

  39. 39.

    HandelingenII, 18 March 2003, 50/3275–3327, p. 3310. See also the explanation by Lord Goldsmith, infra, note 52.

  40. 40.

    HandelingenII, 18 March 2003, 50/3275–3327, pp. 3298, 3310. See also Handelingen II, 5 September 2002, 95/5648–5671, p. 5665; Handelingen 2002–2003, Aanhangsel nr. 910; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94; Davids Committee 2010, pp. 53–54, 228 and 261.

  41. 41.

    HandelingenII, 18 March 2003, 50/3275–3327, p. 3298.

  42. 42.

    HandelingenII, 18 March 2003, 50/3275–3327, p. 3299; Kamerstukken II, 23 432/171, appendix. See also Davids Committee 2010, pp. 263–265, 272. As turned out later, this was only a summary of a larger and more cautious memo sent by Lord Goldsmith to Tony Blair on 7 March 2003, in which the Attorney General concluded that a further decision by the Security Council was warranted as legal ground for the intervention. This secret memo (which only was made public by Tony Blair after its leaking in Spring 2005) was never sent to the Dutch Government, who only received the summary. As the Davids Committee also notes, the role of the Attorney General in the course of the events changed from an independent legal advisor to an advocate for the government. Davids Committee 2010, p. 264. See also Manusama 2012; and Ralph 2011. See also the records of Lord Goldsmith’s testimony in front of the UK Iraq Inquiry, on 27 January 2010, available at www.iraqinquiry.org.uk/transcripts/oralevidence-bydate/100127.aspx. The memo of 7 March 2010 is available at www.ico.gov.uk/upload/documents/library/freedom_of_information/notices/annex_a_-_attorney_general’s_advice_070303.pdf.

  43. 43.

    In a later paragraph it is stated that ‘the international community [should] take an extremely critical position towards a dictator who enslaves his population, possesses weapons of mass destruction and has shown to be prepared and use these weapons.’ Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66.

  44. 44.

    Berman 2005, pp. 106, 109.

  45. 45.

    Davids Commitee 2010, pp. 271–272.

  46. 46.

    Davids Commitee 2010, p. 236; translation in NILR 2010, p. 135. With regard to the claim of its prior legitimacy in 1998, the Davids Committee refers to a similar practice of creative readings of Resolutions 678 and 687, neglecting the context of their drafting, as well as parallel attempts to obtain Security Council authorization via an additional resolution. Davids Committee 2010, pp. 228, 249.

  47. 47.

    This position was developed by the government in August 2002 and maintained over the course of the months leading to the invasion in March 2003.

  48. 48.

    Verslag van een Rondetafelgesprek d.d. 19 January 2010, Kamerstukken II, 31847/17, pp. 14, 16.

  49. 49.

    Davids Committee 2010, p. 272. Tellingly, the draft resolution submitted by the United States, the United Kingdom and Spain was modelled after Resolution 678 (1991).

  50. 50.

    The other exception to the prohibition of the use of force (self-defence) does not apply either, and indeed was not invoked.

  51. 51.

    Davids Committee 2010, pp. 238, 240–241.

  52. 52.

    Meeting records S/PV.4644, 8 November 2002. (All records of Security Council meetings and decisions are available at www.un.org/Depts/dhl/resguide/scact.htm). See also Davids Committee 2010, pp. 241–242. MoFA in fact also refers to the context of the drafting to support his reading of Resolution 1441. However, he does not further specify this. See Handelingen II, 18 March 2003, 50/3275–3327, p. 3310. In his oral evidence to the Chilcot inquiry Lord Goldsmith also refers to the history of the drafting to substantiate his interpretation of the expressions ‘consider’ and ‘serious consequences’. However, rather than focusing on France’s objection and potential veto of any ‘hidden triggers’, he argues that from the context and history of the drafting it was clear that in fact the US would veto any reference to further decision-making for authorisation—that was a ‘red line’ for the US, and if it would be crossed they would have gone ahead without any Resolution whatsoever. Rt Hon Lord Goldsmith QC, Oral Evidence for the Iraq Inquiry, 27 January 2010, pp. 87, 111, 114 and 142, available at www.iraqinquiry.org.uk/media/45317/20100127goldsmith-final.pdf. In other words, ‘serious consequences’ was as much a compromise to satisfy France, as it was to keep the US on board. Seen in this light, all members knew what they would get by accepting serious consequences, or so Goldsmith argues.

  53. 53.

    Statement by the US ambassador to the UN, Mr. Negroponte. He finishes the paragraph by stating that the resolution does not constrain the right to self-defense, and—more controversially—‘constrain any Member State from acting … to enforce relevant United Nations resolutions and protect world peace and security.’ S/PV.4644, p. 3. He also recalls the different opinions about the ‘shape and language’ of the resolution. Ibid., p. 4.

  54. 54.

    Statement by the UK ambassador to the UN, Sir Jeremy Greenstock, S/PV.4644, p. 5. He too anticipates that the UK will take further action, with or without the other members of the Security Council, without relying on the current text as a legal ground or specifying the action for that matter (‘the United Kingdom –together we trust, with other Members of the Security Council—will ensure that the task of disarmament required by the resolutions is completed’).

  55. 55.

    Statement by the French Ambassador to the UN, Mr. Levitte, S/PV.4644, p. 5.

  56. 56.

    Davids Committee 2010, pp. 237–238.

  57. 57.

    Davids Committee 2010, pp. 241, 426, conclusions nos. 18 and 20.

  58. 58.

    Meeting records S/PV.4721, 19 March 2003; cf. US statement in the Security Council meeting of March 24 2003, S/PV.4726.

  59. 59.

    Koskenniemi 2006 [1989], p. 570.

  60. 60.

    Davids Committee 2010, p. 268; translation in NILR 2010, p. 132.

  61. 61.

    Gong 1984; Anghie 2005.

  62. 62.

    In IR theory, the international society is distinguished from a mere international system of regular interaction between states, on the basis of a shared conception among its members ‘to be bound by a common set of rules in their relations with one another, and share in the working of common institutions’. This means that ‘[m]ost states at most times pay some respect to the basic rules of coexistence in international society, such as mutual respect for sovereignty, the rule that agreements should be kept, and rules limiting resort to violence’. These include both formal principles having the status of international law, as well as rules of morality, custom, etiquette, or operational rules of the game. Bull 1995 [1977], pp. 13, 40 and 52.

  63. 63.

    Ikenberry 2009.

  64. 64.

    See the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Resolution 1514 (XV), December 14, 1960 in comparison to Lorimer’s infamous quote about equal and unequal states: ‘[a]ll States are equally entitled to be recognized as States, on the simple ground that they are States; but all States are not entitled to be recognized as equal States, simply because they are not equal States.’ Lorimer 1884, p. 260. From this viewpoint Lorimer derives his infamous tripartite ranking of international society, of (i) civilized, European states which merit full recognition; (ii) barbaric communities that at most warrant a partial recognition of their sovereign status as well as the partial application of international legal rules (this included inter alia Turkey, Japan, and China); and (iii) savage nations, which were not recognized as sovereign entities and as such outside the legal framework in terms of sovereignty and rights/duties.

  65. 65.

    Conditions of Admission of a State to Membership in the United Nations, Advisory Opinion, ICJ Reports 1948, p. 57.

  66. 66.

    ‘All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature… States are juridically equal … Each state enjoys the rights inherent in full sovereignty.’ Declaration on Principle of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Resolution 2625 (XXV), October 24, 1970.

  67. 67.

    For an analysis of states as citizens, see Kustermans 2011b.

  68. 68.

    Terminology adopted from Ikenberry 2009. Liberal internationalism 2.0 is the version operational during the Cold War and not relevant to the argument pursued here.

  69. 69.

    Simpson 2004, Chap. 10.

  70. 70.

    Aalberts and Werner 2008; Aalberts 2012.

  71. 71.

    As formulated by the Princeton Project on U.S. National Security in the 21st Century by The Woodrow Wilson School of Public and International Affairs, Princeton University. Ikenberry and Slaughter 2006, p. 20.

  72. 72.

    Werner 2004; Kustermans 2011b.

  73. 73.

    Aalberts and Werner 2008.

  74. 74.

    In terms of frequency of use, the label rogue states actually belongs to Clinton (who used it to push the ratification of the Chemical Weapons Convention treaty by the US senate) more than to George W. Bush. See Hoyt 2000; O'Reilly 2007.

  75. 75.

    See Letter of the MoFA (then Minister van Aartsen), 19 March 2002, Kamerstukken II, 27925/52. See also Verslag van een Algemeen Overleg d.d. 7 Februari 2002, Kamerstukken II, 21501/02; Handelingen II, 2001/2002, Aanhangsel nr. 868.

  76. 76.

    These terms were used by George Bush senior to introduce the notion of the New World Order in his address to the Congress on September 11, 1990. Address Before a Joint Session of the Congress on the Persian Gulf Crisis and the Federal Budget Deficit, available at http://en.wikisource.org/w/index.php?title=Toward_a_New_World_Order).

  77. 77.

    Madeleine Albright, ‘Remarks at University of South Carolina’, 19 February 1998, available at http://secretary.state.gov/www/statements/1998/980219c.html.

  78. 78.

    Rawls uses the term ‘decent states’ to identify (internally) illiberal states, who nevertheless respect the operational rules of the sovereignty game (such as diplomatic norms and pacta sunt servanda) in their external relations with fellow-states, thus respecting the procedural justice of the international legal order. In his scheme Iraq would qualify as an outlaw state, being both illiberal domestically and aggressive on the international plane. Rawls 1999.

  79. 79.

    Klare 1995; O'Reilly 2007; Kustermans 2011a.

  80. 80.

    Cf. O'Reilly 2007, pp. 307–308.

  81. 81.

    Simpson 2004, p. 281. The post 9/11 securitization discourse also often includes failed states within the same category as rogue regimes, while they allegedly are each other’s negatives in terms of effective sovereignty, as the former UK Foreign Secretary, Jack Straw, proclaims: ‘[f]rom one perspective, totalitarian regimes and failed or failing states are opposite ends of the spectrum. But [in the doctrine of the international community] there are similarities: one is unable to avoid subverting international law; the other is only too willing to flout it. Jack Straw, ‘Principles of a Modern Global Community’, 10 April 2002, quoted by Aalberts and Werner 2008, p. 143.

  82. 82.

    Simpson 2004, pp. 279–282.

  83. 83.

    Within academic discourse this debate is propagated by inter alia Rawls 1999; Slaughter 1995; Téson 1992; Walzer 1977. For a discussion of their different versions of liberal antipluralism see e.g. Simpson 2004; Janse 2006.

  84. 84.

    Simpson 2004, p. 340; Saunders 2006. See also point 6 of the commentary of the International Law Commission to the now superseded Article 52 of the 1996 Draft Articles on State Responsibility, available at www.lcil.cam.ac.uk/Media/ILCSR/rft/Sr52.rtf.

  85. 85.

    US National Security Strategy 2002, published 20 September 2002, available at http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/index.html. See also Davids Committee 2010, p. 155. For a controversial legal justification of the Iraq war on the basis of anticipatory self-defense see Yoo 2003.

  86. 86.

    1996 Draft Articles on State Responsibility (provisionally adopted by the Commission on the first reading), available at www.lcil.cam.ac.uk/projects/state_responsibility_document_collection.php. In the displaced Article 19(2) it defined crime as a bread of an international obligation ‘so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime’. Draft Article 52 read that the commission of such a crime would deprive the outlaw state of some aspects of its sovereign equality—although the ILC explicitly excluded forfeiting the right to territorial integrity, by forbidding the use of force as a way to restore normalcy.

  87. 87.

    ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001). The category of peremptory norms (ius cogens) is itself underdetermined within international law. Described as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted’ in the 1969 Vienna Convention on the Law of Treaties (Article 53), so far an exclusive list of ius cogens is lacking. Usually the prohibition on use of force, genocide, and slavery are mentioned as examples.

  88. 88.

    The right for countermeasures by both the injured State and States not directly injured is carefully demarcated and for instance does not suspend the prohibition on the use of force (Articles 50–52). See also Crawford 1999, Crawford et al. 2000.

  89. 89.

    Simpson 2004, pp. 291–293.

  90. 90.

    Arend 2002.

  91. 91.

    Letter of the MoFA, 25 September 2002, Kamerstukken II, 28618/5, Handelingen II, 30 January 2003, 38/2821–2849, Handelingen II, 12 February 2003 (43/2992–3038), Handelingen II, 18 March 2003, 50/3275–3327.

  92. 92.

    See Letter of the MoFA, 19 March 2002, Kamerstukken II, 27925/52.

  93. 93.

    Handelingen II, 25 September 2002, 5/284–307. See also Letter of the MoFA, 4 September 2002, Kamerstukken II, 23432/56.

  94. 94.

    Neither did the government play the humanitarian card. When the humanitarian issue was discussed it was in terms of the possible consequences of an invasion, rather than as a justification or rationale for the intervention itself. See, for instance, Letter of the MoFA, 10 February 2003, Kamerstukken II, 23432/76.

  95. 95.

    Cf. Handelingen II, 5 September 2002, 95/5648–5671; Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66; HandelingenII, 30 January 2003, 38/2821–2849; HandelingenII, 12 February 2003, 43/2992–3038; HandelingenII, 19 February 2003, 46/3085–3120; HandelingenII, 18 March 2003, 50/3275–3327.

  96. 96.

    Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  97. 97.

    HandelingenII, 30 January 2003, 38/2821–2849, p. 2837; HandelingenII, 12 February 2003, 43/2992–3038, pp. 3013, 3027.

  98. 98.

    HandelingenII, 30 January 2003, 38/2821–2849, p. 2833.

  99. 99.

    This was explicated by MoFA de Hoop Scheffer through the metaphor that the weapon inspectors should not need to use a torch light looking inside bunkers and shelves; Saddam should turn on the light. Handelingen II, 12 February 2003, 43/2992–3038.

  100. 100.

    PM Balkenende, Handelingen II, 12 February 2003, 43/2992–3038, p. 3027.

  101. 101.

    PM Balkenende, Handelingen II, 19 February 2003, 46/3085–3120, p. 3102. In yet another instance, the PM linked this to the other characteristics of the Iraqi rogue regime: ‘[m]y objection to the discussion is often that it is war or peace. The quintessence, however, is the disarmament of an aggressor who possesses weapons of mass destruction and in any case does not answer the questions that the international community poses. We are dealing with a regime that is responsible for hundred thousands deaths. That is the reality too and that is what we are discussing.’ Handelingen II, 18 March 2003, 50/3275–3327, p. 3326.

  102. 102.

    PM Balkenende, Handelingen II, 19 February 2003 46/3085–3120, p. 3119. PM Balkenende: ‘[i]t is a brutal regime. If Iraq fulfils its obligations [under Resolution 1441 and its predecessors] there will not be any military action. This is in fact the signal.’ Handelingen II, 19 February 2003, 46/3085–3120, p. 3103.

  103. 103.

    PM Balkenende, Handelingen II, 18 March 2003, 50/3275–3327, p. 3275. See also the statements of US Secretary of State Powell before the Security Council, referred to by the MoFA de Hoop Scheffer in his letter of 10 February 2003, Kamerstukken II, 23432/76.

  104. 104.

    Handelingen II, 19 February 2003, 46/3085–3120, p. 3104.

  105. 105.

    ‘Ik heb gezegd wat het belang is van het spoor van de Verenigde Naties en van een geloofwaardige naleving van de resoluties door Iraq. Men heeft daar tot nu toe steeds een loopje mee genomen.’ Handelingen II, 19 February 2003, 46/3085–3120, p. 3104.

  106. 106.

    Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  107. 107.

    Article 60, Vienna Treaty on the Law of Treaties 1969; Davids Committee 2010, pp. 272–273.

  108. 108.

    Davids Committee 2010, p. 116.

  109. 109.

    In this context ‘international society’ is the normative and institutional context or forum within which states operate (see also the definition supra, note 63); ‘international community’ refers to the (collective) agency.

  110. 110.

    Letter of the MoFA, 25 September 2002, Kamerstukken II, 28618/5; Handelingen II, 5 September 2002, 95/5648–5671; Handelingen II, 25 September 2002, 5/284–307.

  111. 111.

    Handelingen II, 30 January 2003, 38/2821–2849, p. 2835; Verslag van Algemeen Overleg d.d. 18 December 2002, Kamerstukken II, 23432/74. This argument is mentioned by the Davids Committee as part of an advice of the deputy Director General Political Affairs to the MoFA, but is not further analyzed as part of the justification for the political support for the war. Davids Committee 2010, p. 247.

  112. 112.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3302.

  113. 113.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3308 (emphasis added). See also Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  114. 114.

    Handelingen II, 18 March 2003, 50/3275–3327, pp. 3275, 3276, 3299 and 3306.

  115. 115.

    Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  116. 116.

    Verslag van Algemeen Overleg d.d. 3 December 2002, Kamerstukken II, 23432/68; Handelingen II, 18 March 2003, 50/3275–3327.

  117. 117.

    Verslag van Algemeen Overleg d.d. 19 November 2002, Kamerstukken II, 23432/66; Handelingen II, 19 February 2003, 46/3085–3120.

  118. 118.

    Verslag van Algemeen Overleg d.d. 3 December 2002, Kamerstukken II, 23432/68; Letter of the MoFA, 18 February 2003, Kamerstukken II, 23432/85; Handelingen II, 19 February 2003, 46/3085–3120; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  119. 119.

    Handelingen II, 18 March 2003, 50/3275–3327, pp. 3275, 3275, 3299, 3300, 3306 and 3308.

  120. 120.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3300.

  121. 121.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3311.

  122. 122.

    Letter of the MoFA, 18 February 2003, Kamerstukken II, 23432/85.

  123. 123.

    Letter of the MoFA, 30 September 2002, Kamerstukken II, 23432/61, appendix; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94, appendix; Meeting records GA 57th plenary session, A/57/PV.2, available at www.un.org/ga/57/pv.html.

  124. 124.

    Meeting records S/PV4644, 8 November 2002; Verslag van Algemeen Overleg d.d. 3 December 2002, Kamerstukken II, 23432/68.

  125. 125.

    Meeting Records GA 57th SESSION A/57/PV.2, 12 September 2002, p. 9. See also Davids Committee 2010, p. 239. At the Security Council meeting of the adoption of Resolution 1441, Kofi Annan adopted similar phrasing by identifying a time of trial for both Iraq, the United Nations and the international community. Meeting Records, SC session 4644, S/PV4644, 8 November 2002, p. 2.

  126. 126.

    Meeting Records GA 57th SESSION A/57/PV.2, 12 September 2002, p. 8; Berman 2005, p. 110.

  127. 127.

    Verslag van een Algemeen Overleg d.d. 1 October 2002, Kamerstukken II, 23432/61.

  128. 128.

    HandelingenII, 19 February 2003, 46/3085–3120, p. 3101—note that the PM was not taking the distinction between ‘consider’ and ‘decide’ into consideration here.

  129. 129.

    This is indeed how the functions and power of the Council are formulated in the UN Charter. Article 24(1) UN Charter reads: ‘[i]n order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’

  130. 130.

    This conclusion was not drawn by Kofi Annan, who rather explicitly stated as late as 10 March 2003 at a press conference in The Hague that ‘[i]f the US and others were to go outside the Council and take military action it would not be in conformity with the Charter.’ Available at www.un.org/apps/sg/offthecuff.asp?nid=394. See also Davids Committee 2010, p. 248.

  131. 131.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3307.

  132. 132.

    Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94.

  133. 133.

    Verslag van een Algemeen Overleg d.d. 1 October 2002, Kamerstukken II, 23432/61; Letter of the MoFA, 18 March 2003, Kamerstukken II, 23432/94; Handelingen II, 19 February 2003, 46/3085–3120; Handelingen II, 18 March 2003, 50/3275–3327.

  134. 134.

    Handelingen II, 18 March 2003, 50/3275–3327, p. 3303.

  135. 135.

    Mail regarding telephone call between Bush and MP Balkenende, 28 February 2003, quoted in Davids Committee 2010, p. 101.

  136. 136.

    Verslag van Algemeen Overleg d.d. 3 December 2002, Kamerstukken II, 23432/68.

  137. 137.

    Wheeler and Dunne 1998.

  138. 138.

    Davids Committee 2010, p. 211.

  139. 139.

    March and Olsen 1998. They use these terms to distinguish between policy-making on the basis of rational cost-benefit analysis and material interests and policy-making that incorporates shared values, norms, and ideas as an incentive.

  140. 140.

    Davids Committee 2010, p. 270; translation in NILR 2010, p. 133 (emphasis added).

  141. 141.

    Nollkaemper 2010, pp. 149–150.

  142. 142.

    Davids Committee 2010, conclusion no. 8.

  143. 143.

    Davids Committee 2010, conclusions nos. 14 and 15.

  144. 144.

    At the same time, it did not go so far as to provide military support; yet as this analysis has shown the unilateral enforcement by the US and the UK (as great powers with great responsibilities) was justified in these terms.

  145. 145.

    Also after the publication of the Davids Report it did not explicitly take distance from it. At least two other distinctions with the Kosovo war are of relevance. First, the Kosovo intervention was casted in terms of cosmopolitan ethics against the background of the developing international practice of humanitarian intervention, whereas in the Iraqi case the Dutch government rather pinpointed more conservative communitarian values as the basis of the international society of sovereign states. Moreover, the US government was not successful in its attempt to regularize the defiance rhetoric ex post facto by putting a Security Council imprimatur on the Iraq occupation and transforming it into a Chapter VII operation as happened in the Kosovo case. Berman 2005, p. 116.

  146. 146.

    This is not to say that it would have been more successful had it invoked the argument of ‘illegal legal reform’. See Buchanan 2003. It should only be noted that whereas it claimed consistency over time both in its standpoint toward the 2003 invasion, as in its overall Iraq since the 1990s. See Davids Committee 2010, conclusion 14. The Dutch position was not consistent by and of itself.

  147. 147.

    Davids Committee 2010, p. 268; translation in NILR 2010, p. 132.

  148. 148.

    It should be noted that the Committee itself never uses the word ‘illegal’ but only refers to the ‘lack of a mandate’. For a critique, see Nollkaemper 2010.

  149. 149.

    Video of the press conference by PM Balkenende on 12 January 2002 is available at http://nos.nl/video/128696-reactie-balkenende-op-rapportdavids.html.

  150. 150.

    Press-Barnathan 2004, p. 206.

  151. 151.

    Mertens and van Dinther 2012.

  152. 152.

    Article 90 of the Dutch constitution. Mertens and van Dinther 2012. See also Besselink 2003.

  153. 153.

    To be sure, this is not what the Davids Committee explicitly does in its report, but it does refer to the traditional zero-sum conception of law and politics within both International Relations and International Law.

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  1. Leiden University, Leiden, The Netherlands

    Tanja E. Aalberts

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  1. , Utrecht University, School of Law, Utrecht University, Janskerkhof 3, Utrecht, 3512 BK, Netherlands

    I.F. Dekker

  2. Erasmus University, Burgemeester Oudlaan 50, Rotterdam, 3062 PA, Netherlands

    E. Hey

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Aalberts, T.E. (2012). Forging International Order: Inquiring the Dutch Support of the Iraq Invasion. In: Dekker, I., Hey, E. (eds) Netherlands Yearbook of International Law 2011. Netherlands Yearbook of International Law, vol 42. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-849-1_6

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