Deployment of the Armed Forces: Interaction between National and International Decision-MakingAugust 1, 2007 - nr.56
This request for advice by the Ministers of Foreign Affairs and Defence was prompted by the report Inzet met instemming (Deployment with consent), produced by a working group of the House of Representatives chaired by MP Hans van Baalen. This parliamentary report proposes amending Article 100 of the Constitution so that parliamentary consent would be required for the deployment of Dutch military units outside the Netherlands. It also proposes tightening up existing arrangements on the provision of information to the States General (the Dutch parliament) pending this constitutional amendment. The government’s request for advice of 27 December 2006 asks the
Experience with the procedure based on Article 100 of the Constitution
Only two uncertainties have arisen in applying the Article 100 procedure. In the case of the Uruzgan mission, the government presented parliament with an ‘intention’ instead of a firm decision. Jozias van Aartsen and Wouter Bos tabled a motion pointing out that, under the prevailing procedure, the government should present an actual decision to parliament. The government endorsed this interpretation of the Article 100 procedure. In the AIV’s opinion, there can be no further uncertainty on this point.
The other uncertainty concerned the deployment of Dutch troops as part of Operation Enduring Freedom, which was launched under Article 51 of the UN Charter (right of self-defence), but gradually assumed the character of a stabilisation operation. In this sense it can be regarded as a borderline case. As stated in advisory report no. 34, the
Proposed revision of Article 100
The report ‘Deployment with consent’ proposes transforming the requirement to provide information, as laid down in Article 100, paragraph 1, into a requirement to obtain consent for every deployment of armed forces ‘abroad’. A central question raised in the government’s request for advice concerned the implications of this proposal, especially for the defence of an ally’s territory. There are several dimensions to this question.
The parliamentary proposal raises a number of complex constitutional issues. A formal right of consent for the House of Representatives alone, as proposed in the report, would introduce a new element to our constitutional system. The right of co-decision enshrined in our Constitution concerns both houses of parliament. Such a right is usually implemented through the passage of a law by both houses. Although a right of co-decision for both houses, exercised through the passage of legislation, would be more in keeping with our constitutional tradition, it may evoke other, more practical objections. A formal debate in both houses of parliament in succession would take a considerable amount of time, and might delay troop deployments. This would make it more difficult, for example, to complete the parliamentary procedure before NATO or the EU takes the final decision to begin an operation, as recommended in chapter VII.
When framing Article 100 during the previous amendment of the Constitution, the government sought to comply with parliament’s wishes as far as possible, while also respecting the existing constitutional arrangement, which is based on the principle that the government governs whilst parliament scrutinises. The wording of Article 100 gives the States General the opportunity to determine and make known its position in advance. As a rule, the government will accommodate parliament’s opinion. After all, parliament has the constitutional authority to ensure that its views prevail. In our constitutional system, the States General has the final word.
Under Article 100, it is the government that decides on the deployment of troops and therefore bears responsibility for that decision. The States General scrutinises the decision, not only after the mission has taken place but also before it begins. A formal right of co-decision would entail an actual sharing of responsibility. The government’s decision would then assume the character of a proposal to be accepted or rejected – in other words, an intention. Yet in the Van Aartsen-Bos motion, the House of Representatives already expressed its dissatisfaction with an attempt by the government to present parliament with an intention rather than a full-fledged decision. According to the parliamentary proposal, the decision to deploy would essentially be a joint one. Were it to bear part of the responsibility, the House of Representatives would probably feel less free to criticise the course of the military operation and the Netherlands’ role in it. In the
The practices of the last 20 years have created customary law, which, in conjunction with the revised Article 100, has strengthened the position of the States General when it comes to international troop deployments. This demonstrates that our constitutional law is constantly evolving and adapting to new circumstances. The
The proposals of the parliamentary working group would introduce a new system to replace the distinction that Articles 97 and 100 of the Constitution currently make between three purposes of the armed forces. The proposed new system would extend the scope of Article 100 to include all operations ‘abroad’ (sometimes the equivalent phrase ‘outside the territory of the Kingdom’ is used instead). This would include the defence of NATO allies and also, for example, operations to rescue Dutch citizens from dangerous situations abroad. The
The government’s request for advice asks how the need for prompt, effective military action relates to the new parliamentary consent procedures that have been proposed. It also raises the question of secrecy. In the
The rapidly changing international environment makes it difficult to predict the precise circumstances in which the armed forces will be deployed in the future. Moreover, decision-making in international organisations will not always follow a fixed pattern. National procedures therefore need to be sufficiently flexible that they can be applied in highly diverse scenarios.
National and international decision-making on the deployment of the NATO Response Force and EU Battlegroups
The report ‘Deployment with consent’ takes a detailed look at both the NATO Response Force and the EU Battlegroups. The government’s request for advice asks the
A pledge to allocate Dutch military units to the NRF or the EU Battlegroups is a crucial initial step, which, in the
More specifically, the request for advice asks at what point in time parliament should be informed about Dutch military participation in international military operations. The
The parliamentary report mentions several steps in the initial phase of NATO and EU decision-making of which the House of Representatives or both houses should be apprised, e.g. the moment when SACEUR is asked to work out military options. The
Under normal conditions, decision-making in NATO or the EU will involve a whole series of steps, and the supreme bodies of NATO (North Atlantic Council) or the EU (General Affairs and External Relations Council) will discuss a proposed operation several times. The
If the operation is of such an urgent nature that the decision is made at a single session of the NATO Council or the GAERC – which would imply a very serious situation indeed – it would be logical for the government to hold preliminary consultations with parliament on the participation of Dutch troops.
The Netherlands’ contribution to the NRF and Battlegroups builds on its long-standing, close military cooperation with Germany and the UK in particular. In the framework of the Battlegroups, the Netherlands now works with Finland as well as Germany. Such cooperation thus involves a significant bilateral dimension as well as the multilateral dimension. This especially applies to the fully integrated Dutch-German headquarters. A situation where the Netherlands and Germany were to draw different conclusions on the deployment of the units they had jointly contributed to the NRF or Battlegroup should be avoided. The same applies to the British-Dutch contributions in the form of amphibious forces and the cooperation with Finland in relation to the Battlegroup. In the event of a looming crisis that may lead to military deployment, it will therefore be necessary to engage in close bilateral consultations with relevant partner countries, alongside multilateral consultations.
Ministry of Foreign Affairs Ministry of Defence
Postbus 20061 Postbus 20701
2500 EB Den Haag 2500 ES Den Haag
Tel. 070 348 6486 Tel. 070 318 8188
Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
2500 EB Den Haag
Date Our ref.
27 December 2006 DVB-074/06
Re: Supplementary request for advice on NATO Response Force
Dear Mr Korthals Altes,
The government would once again request the Advisory Council on International Affairs (AIV) for advice on decision-making regarding Dutch participation in international military operations. This request comes in response to the report of 19 June 2006 by the parliamentary working group on the NATO Response Force (NRF), Inzet met instemming – De rol van de Tweede Kamer bij het uitzenden van militairen (Deployment with consent – the role of parliament in relation to the deployment of military personnel) (Parliamentary Papers 30 162, nos. 2, 3 and 4). The government informed parliament on 18 August 2006 that it would seek advice from both the Council of State and the AIV before responding to the report of the parliamentary working group on NRF, in view of the constitutional and policy-related questions that it raises.
The parliamentary NRF working group made two main suggestions. First, it suggests an amendment to Article 100 of the Constitution such that parliamentary consent would be required for the deployment of Dutch armed forces outside the Netherlands (point 4.2.1, NRF working group report). The scope of the NRF working group’s report is so broad that the proposed amendment would also extend to deployment in defence of the Netherlands or its allies. Second, the working group formulated a number of conclusions and recommendations, which it considers to be applicable immediately, in anticipation of the Constitutional amendment. These recommendations would make the right of parliamentary consent effective immediately and include matters such as the scope of Article 100 of the Constitution, ways of deploying Dutch forces, the decision-making procedure and the role of the House of Representatives in it, the provision of information and parliamentary involvement in decision-making about the NRF and EU Battlegroups (point 4.2.2 ff and point 4.3 in the NRF working group report).
The NRF working group’s conclusions and recommendations raise new questions about the deployment of armed forces which were not addressed in the previous AIV advisory report ‘The Netherlands and crisis management: three issues of current interest’. The government is now putting these questions before the AIV. The government will ask the Council of State to consider the proposed Constitutional amendment, pursuant to section 18 of the Council of State Act. The government will use the reports of the AIV and the Council of State to draw up its response to the NRF working group’s report.
The government’s primary aim is to meet the need for prompt, effective military action in a multilateral framework, if a decision to this end is made, while also assuring parliament’s involvement in the decision-making process. The working group’s conclusions and recommendations might affect the relationship between government and parliament in matters concerning military deployment. This requires a further examination of the current procedures for decision-making and consulting parliament as they have evolved since the coming into effect of the Assessment Framework for decision-making for the deployment of military units abroad. In view of the above, the government would put the following questions to the AIV:
- In the opinion of the AIV, what would be the consequences of the conclusions and recommendations of the NRF working group for the deployment of Dutch military personnel and for Dutch participation in international military operations coordinated by, for example, the UN, NATO, the EU or other international bodies, in situations which might include the defence of the Netherlands itself or the Netherlands’ duty to assist in the defence of Allied territory as a signatory to the North Atlantic Treaty? In the opinion of the AIV, at what point should parliament be informed about Dutch military participation in such international operations? It must be noted that the NRF working group did not adopt the recommendation of the AIV in ‘The Netherlands and crisis management: three issues of current interest’ to attach more political weight to the phase in which national forces are allocated to the NRF. If a difference of opinion between government and parliament should emerge as regards participation, would that damage the Netherlands’ reputation for reliability with international partners and organisations?
- When deployment of the NRF or EU Battlegroups – and a Dutch military contribution – is being considered, what could be done to ensure that obtaining parliamentary consent does not delay preparations for actual military deployment? Could the requirement of parliamentary consent affect the rapid deployment and effectiveness of NATO or EU units?
- As regards decisions at NATO or EU level concerning, respectively, the deployment of the NRF or the EU Battlegroup, the NRF working group assumes that the government would enter a reservation that it first needs to obtain parliamentary consent for Dutch participation. The working group also states that the government should inform parliament beforehand about the position that it will take at the meeting of the North Atlantic Council or the General Affairs and External Relations Council (GAERC) on the possible deployment of the NRF or EU Battlegroup, respectively. This information should be given at a time that will allow consultation between government and parliament. The working group also recommends that the government provide parliament with information before the North Atlantic Council decides to instruct the Supreme Allied Commander Europe (SACEUR) to develop various strategic options or an operations plan. Likewise, the working group recommends (in point 4.3.5 of its report) that the government provide this information to parliament before the Political and Security Committee (PSC) or the GAERC decides to ask the EU military staff to draw up a Crisis Management Concept. The only information that the government could provide in such an early phase of international consultations would pertain to exploratory studies, rudimentary rather than complete proposals, tentative suggestions and other elements which, taken together, would contribute to an informal, dynamic process of negotiation and consultation, ultimately leading to a decision. It might also be information that is defined as secret or confidential by the rules and regulations of the relevant international organisation. In the opinion of the AIV, if parliament takes a political stance on Dutch participation in a NATO or EU mission on the basis of the information available at that time, what consequences could this have for national and international decision-making? What are the AIV’s thoughts on the working group’s conclusions and recommendations referred to above as regards the provision of information to and the involvement of parliament in the successive stages of NATO and EU decision-making?
The government would appreciate an AIV advisory report on this matter in May 2007. A copy of this request will be sent to the House of Representatives.
Bernard Bot Henk Kamp
Minister of Foreign Affairs Minister of Defence
Ministry of Ministry of Ministry of the Interior
Foreign Affairs Defence and Kingdom Relations
P.O. Box 20061 P.O. Box 20701 P.O. Box 20011
2500 EB The Hague 2500 ES The Hague 2500 EA The Hague
The President of the
House of Representatives of the
The President of the
Senate of the
Your letter Your ref. Our ref. Date
- TK 30 162, nos. 2 ff. DVB-016/08 25 April 2008
Re: Government’s response to the report by the NATO Response Force working group
Madam President of the Senate, Madam President of the House of Representatives,
We are pleased to send you the government’s response to the report by the NATO Response Force working group entitled Inzet met instemming: de rol van de Tweede Kamer bij het uitzenden van militairen (Deployment with consent: the role of the House of Representatives (Second Chamber of parliament) in relation to the deployment of military personnel abroad) and the report by the Advisory Council on International Affairs entitled Inzet van de krijgsmacht: wisselwerking tussen nationale en internationale besluitvorming (Deployment of the armed forces: interaction between national and international decision-making). In its response, the government proposes to submit to parliament updated, broader Terms of Reference for Decision-Making for the Deployment of Military Units Abroad (also known as Review Protocol 2001). It plans to do this by the summer.
Maxime Verhagen Eimert van Middelkoop
Minister of Foreign Affairs Minister of Defence
Guusje ter Horst
Minister of the Interior and Kingdom