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A Survey of the Judicial Decisions in Pursuance of the Dutch Participation in the UN Peace-Keeping Force in Lebanon

Published online by Cambridge University Press:  21 May 2009

R.C.R. Siekmann
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Abstract

On 19 December 1978 the Dutch Government was informally requested by the UN Secretary-General to provide an infantry battalion for the UN peace-keeping force in Lebanon within the shortest possible time. France had decided to remove about half its UNIFIL contingent. On 12 January 1979 the Dutch Cabinet decided to inform the Secretary-General that, should he make an official request, the Government was willing to give a positive response.

It was these events that gave rise to a sequence of not less than five judicial decisions on the question whether conscripts could be posted to the Lebanon without their consent. Answering this question involved aspects of municipal as well as international law.

The survey is accompanied with the author's comments if necessary.

Type
Articles
Information
Netherlands International Law Review , Volume 27 , Issue 2 , August 1980 , pp. 194 - 212
Copyright
Copyright © T.M.C. Asser Press 1980

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References

1. UNIFIL was established on 19 March 1978 by Security Council resolution 425. According to this resolution UNIFIL had a threefold task: (a) to confirm the withdrawal of Israeli forces, (b) to restore international peace and security, (c) to assist the Government of Lebanon in ensuring the return of its effective authority in the area. In his report on the implementation of the resolution the UN Secretary-General, then, mentioned two more specific tasks for UNIFIL under the “terms of reference”: (d) to use its best efforts to prevent the recurrence of fighting, (e) to ensure that its area of operation is not utilized for hostile activities of any kind. For that purpose strong checkpoints were to be set up at important and suitable places, observation and patroling by night and day, controling of passers-by etc. had to be carried out. The report also says that the Force would be provided with weapons of a defensive character, and that it should not use force except in self-defence. Self-defence would include resistance to attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council. In performing its functions, the Force would act with complete impartiality. (UN Doc. S/12611 para. 2, 4(d))

2. AB 1979 no. 162 pp. 417–419; Militair Rechtelijk Tijdschrift (MRT) of 03 1979 pp. 192–196.Google Scholar The VVDM is an officially recognized trade union of conscripts in the Dutch Army.

3. Initially, in the new proposals for the amendment of the Constitution in respect of foreign relations, which were submitted to Parliament on 30 May 1978, this provision was not found any longer. However, by Note of Amendment of 6 April 1979, the Government proposed as yet to insert the following Article: “In its foreign policy the Government shall promote the development of the international legal order.” (Bijl. Hand. II 1977/1978Google Scholar – 15049 (R 1100) no. 3 p. 9; 1979/80 no. 7 p. 5).

4. Article 43: “(1) All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. (2) Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. (3) The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory States in accordance with their respective constitutional processes.”

5. Speccli by the Minister of Foreign Affairs in the UN General Assembly on 24 09 1963.Google ScholarDe achttiende Algemene Vergadering van de Verenigde Naties [The eighteenth UN General Assembly], Ministry of Foreign Affairs publication no. 77 (1964) pp. 298–299.Google Scholar The armoured infantry battalion was added to the offer only in his speech of 5 October 1965. De twintigste Algemene Vergadering van de Verenigde Naties [The twentieth UN General Assembly]. Ministry of Foreign Affairs publication no. 81 (1966) p. 329.Google Scholar

6. As appears from a previous consideration, it is the informal consultations by the UN Secretary-General on 19 December 1978 as to whether the Dutch Government was willing to make an armoured infantry battalion available for UNIFIL, that are meant here.

7. Earlier in the judgment the positive response to the request is mentioned.

8. Cf., van Dijk, P., “Deelneming door Nederland aan UNIFIL: een volkenrech telijke verplichting?”Google Scholar[Dutch participation in UNIFIL: an obligation under international law?], NJB of 28 04 1979 pp. 337–340Google Scholar; Siekmann, R.C.R., “Nog enkele volkenrech telijke kanttekeningen naar aanleiding van het UNIFIL-vonnis” [Some additional comments on the UNIFIL case], NJB of 30 06 1979 pp. 532–535.Google Scholar

9. In the Dutch Memorandum of 21 June 1968 concerning the Netherlands stand-by forces for UN peace-keeping operations the words “to keep ready for action”, “to be available”, “to earmark” (cf., also, Art. 45 of the UN Charter: “to hold available”) are used as opposed to “to actually put at the disposal” (cf., also, Art. 44 of the Charter: “to provide”). “To put at the disposal” is used in both meanings in the Memorandum. (UN Doc. A/AC.121/18)

10. On 5 November 1979, the Minister of Foreign Affairs stated during consultations with the Parliamentary Standing Committees for Foreign Affairs and for Development Co-operation, that the UN Secretariat had not been able to formally accept the offer at the time, since it has no mandate to hold troops available as a peace-keeping reserve. (Hand. II 1979/1980 OCV p. 321)Google Scholar

11. Parliamentary approval of such an agreement, however, is probably not necessary in the Netherlands, for it would be concerned with the execution of an approved agreement, i.e., the UN Charter (Art. 43(3)), without any reservations having been made in the Act regulating the approval of the Charter (cf., Art. 62(1)(b) of the Constitution).

12. Cf., the 1968 Dutch Memorandum containing detailed information about organization and recruitment of the military units, with Art. 43(2) of the Charter.

13. UN Doc. A/AC.121/L.15/Add.1 of 28 April 1972 p. 3. Cf., in this context the last, as to the words between square brackets even wholly conditional, version of the Draft formulae for articles of agreed guidelines for UN peace-keeping operations which were drawn up by the Working Group of the Special Committee on Peace-Keeping Operations – Art. 12: “[To ensure the state of readiness of the United Nations for prompt and effective establishment of peacekeeping operations, the Security Council may take steps to facilitate the conclusion of agreements, whether for forces, assistance, or facilities under Art. 43 or other preparedness arrangements in order fully to develop its peace-keeping capacity.] Such [agreements] [arrangements] may provide that specific contingents can be employed by the Council in a particular operation with the consent of the respective Governments.” (UN Doc. A/32/394 of 2 December 1977 Annex II pp. 2, 7–8).Google Scholar Since the “Committee of 33” was established by resolution 2006 (XIX) of 18 02 1965Google Scholar, the Comprehensive review of the whole question of peace-keeping operations in all their aspects is on the agenda of the UN General Assembly.

14. Lately repeated in a Memorandum to the UN Secretary-General of 27 August 1979, UN Doc. A/AC. 121/30 p. 5.

15. Bijl. Hand. II 1978/1979Google Scholar – 15441 respectively nos. 12 en 10; Hand. II 1978/1979 pp. 3019, 2960, 3023.Google Scholar The Dutch Memorandum of 21 June 1968 states on recruitment (p. 10): “The Netherlands units, earmarked for United Nations peace-keeping operations are composed of regular personnel and conscripts. As far as the Army contingents are concerned it is the aim to enlist as conscripts mainly those who prefer to serve in units earmarked for United Nations peace-keeping tasks.” (italics added) From this wording one cannot but conclude that the Dutch Government never intended to refer to the availability of an insufficient number of volunteers before the UN in a specific case.

16. Bijl. Hand. II 1978/1979 – 15441 no. 7Google Scholar; Hand. II 1978/1979 pp. 2947–2948, 3023.Google Scholar

17. Bijl. Hand. II 1978/1979 – 15519 no. 1 p. 1.Google Scholar The 1968 Dutch Memorandum contained 30 members of the Military Police who were included in the offer in May of that year (pp. 2. 5): “For reasons of logistics, putting this detachment at the disposal of the United Nations is possible only if other Netherlands military units are on United Nations peace-keeping missions in the area concerned.” Originally, the Dutch Government was requested to provide a medical company for the United Nations Transition Assitance Group (UNTAG) in Namibia. The Government's response to that request was, in principle, positive. The subsequent UN requests to provide a military contingent for the peace-keeping force in Lebanon, as well as a number of policemen for the civilian component of the peace-keeping force in Namibia, also received, in principle, positive answers, but with the comment that dispatching a medical company for Namibia as well would be too much of a burden. On the UN side there was complete understanding for this position, whereupon the request for a medical company was withdrawn. (Bijl. Hand. II 1978/1979 – 15519 no. 2 p. 1).Google Scholar A group of 13 members of the Military Police was incorporated with the UNIFIL contingent. (Bijl. Hand. II 1978/1979 – 15441 no. 3 p. 16 para. 53Google Scholar; see for the composition of the medical facilities: idem p. 17 para. 58). This resulted in some 20 or 30 volunteers being recruited from the personnel of state and municipal police for UNTAG. (Bijl. Hand. II 1978/1979 – 15519 no. 1 p. 1)Google Scholar So, the original offer to the UN was exceeded.

18. Cf., p. 8 infra.

19. NJ 1979 no. 499 pp. 1597–1600; AB 1979 no. 423 pp. 1089–1090; MRT of 10/11 1979 pp. 562–567.Google Scholar

20. Thus, in Art. 33(1)(c) the words “special circumstances” are used.

21. Art. 24: “In 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.” Art. 25: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

22. Act of 10 July 1952 (Stb. 408). Art. 1: “(2). In case of an armed conflict, that cannot be qualified as war and in which the Netherlands is involved … to the restoration of international peace and security etc.”

23. Act of 4 July 1963 (Stb. 295). Art. 71 reads, inter alia: “As soon as part of the armed forces has been notified that it is assigned for the maintenance or restoration of international peace and security, a “time of war” is deemed to exist for that unit until the end of the mission, and persons against whom force of arms is or may be used, are assimilated to the enemy.” The Explanatory Memorandum to the Bill in question contained the following passage: “The enumeration of cases in which a “time of war” may be declared for part of the armed forces, is no longer in conformity with the present state of affairs. This enumeration will have to be extended. For that purpose reference is made to Art. 107a of the Code of Criminal Law (inserted by the Act on Penal Law in Times of War). The analogy with Art. 107a of the Code of Criminal Law, however, cannot be pushed so far as to allow Art. 71 of the Code of Military Criminal Law only to be applicable when such a conflict is threatening and, therefore, some military action is taken, such as actions for the maintenance of a ‘status quo’ as in Korea and Indo-China. In the Bill, therefore, the term ‘armed conflict’ has been replaced by ‘any action’. This term is to allow for an extensive interpretation. Not only armed actions, but also the taking up of defensive positions, the watching of territories to prevent their infiltration etc. are though of.” (Bijl. Hand. II 1957/1958 – 5169 (R 112) no. 5 p. 29)Google Scholar

The Minister of Defence, indeed, considered, but finally did not decide to declare a “time of war” in accordance with Art. 71 of the Code of Military Criminal Law for the Dutch UNIFIL contingent. On 9 March 1979 he informed Parliament that, after taking the advice of the Minister of Justice, he had taken a negative decision, weighing all the prevailing circumstances and resultant (legal) consequences, and having regard to the nature of the task to be performed in Lebanon and, on te other hand, the degree of discipline and motivation of the members of the contingent. That decision would have to be reconsidered in the case of a fundamental change of circumstances. (Bijl. II 1978/1979 – 15441 no. 13Google Scholar; see also, Aanh. Hand. II 1978/1979 no. 993 p. 1989)Google Scholar

24. Bijl. Hand. II 1978/1979 – 15411 no. 16 p. 2Google Scholar; Stc. no. 157 of 15 August 1979 no. 2. By Royal Decree of 13 August 1979 (Stb. 450; AB 1979 no. 497 p. 1257; MRT of 09 1979 pp. 514–515)Google Scholar the Crown, in view of Art. 33(1)(c) of the Compulsory Military Service Act, gave the authorization to dispatch conscripts for service in Lebanon for the benefit of the Dutch contribution to UNIFIL. Cf., in this context also, the Wijziging Vrijwilligersaan wijzingsbeschikking Vredesdetachement UNIFIL [Amendment of the Decree on the Dispatch of Volunteers for the UNIFIL contingent] of 13 September 1979 in which phrases occur like “in view of a recent judicial decision” and “In case the action of the Ministers?) is declared illegal by any judicial decision …” (Stc. no. 180Z of 15 September 1979 p. 1). It is not conscripts that are meant here, but volunteers in the general sense.

On 11 September 1979 the Second Chamber rejected a motion for the withdrawal of this Royal Decree. (Bijl. Hand. II 1978/1979Google Scholar – 15441 no. 20; Hand. II 1978/1979 pp. 6128, 6164).Google Scholar

25. Cf., Siekmann, R.C.R., “UNIFIL: op zoek naar een rechtsgrondslag voor de onvrijwillige uitzending van dienstplichtige militairen”Google Scholar [UNIFIL: a search for a legal basis for the enforced dispatch of conscripts], NJB of 5 01 1980 pp. 1–9.Google Scholar

26. Of the positive response to the informal consultations by the UN Secretary-General Parliament was informed by a letter of the Ministers of Foreign Affairs and of Defence of 12 January 1979. (Bijl. Hand. II 1978/1979 – 15441 no. 1)Google Scholar

27. In any case, both exceptions of non-publication in Arts. 6 and 7 of the executive Act of 22 June 1961 (Stb. 207) would not have been applicable.

28. Read: international organization.

29. Bijl. Hand. II 1951/1952 – 2374 no. 3 p. 5.Google ScholarIdem: Explanatory Memorandum and Memorandum of Reply concerning the current revision of the Constitution in respect of the provisions on foreign relations, Bijl. Hand. II 1977/1978 – 15049 (R 1100) no. 3 p. 7; no. 7 p. 7.Google Scholar

30. Yearbook of the International Law Commission 1974 Vol. II Part One p. 295 para. 2.Google Scholar

31. See, n. 13 supra.

32. On that date the responsibility for the positions of the French battalion was taken over. (Bijl. Hand. II 1978/1979 – 15441 no. 14 p. 2)Google Scholar Meanwhile, the Dutch participation in UNIFIL has been prolonged already twice. The following general statement was made on the part of the Government: “In general, the burden of peace-keeping operations has to be carried by all UN members. Therefore, the Government does not take it for granted that the Netherlands will maintain its contribution as long as UNIFIL exists. Although, in principle, others should be able to take over the Netherlands' task in Lebanon at any time, a decision whether the Dutch contribution should be continued or not, has to be considered also in the light of the prevailing situation in Lebanon and the negative effect that a decision to withdraw the Dutch contingent at this moment would have on the possible or continued participation by the other State Members. These circumstances have to be weighed against the consequences the participation will have for the Netherlands on the organizational, material and financial planes.” (Bijl. Hand. II 1979/1980 – 15441 no. 22 pp. 1–2)Google Scholar

33. UNIFIL is under the command of the United Nations, vested in the Security Council. (UN Doc. S/12611 para. 4(a))

34. Bijl. Hand II 1978/1979 – 15441 no. 3 p. 3 para. 6.Google Scholar

35. UN Doc. S/12611 para. 4(a).

36. Bijl. Hand. II 1978/1979 – 15441 no. 4 p. 8.Google Scholar

37. Hand. II 1978/1979 p. 2992.Google Scholar

38. Hand. II 1978/1979 pp. 2959, 2967, 6126, 6142.Google Scholar

39. Ninth report on the question of treaties concluded between states and international organizations or between two or more international organizations, UN Doc. A/CN.4/327 of 28 February 1980 p. 7 et seq.

40. Cf., for example in this context the Dutch intervention in the Security Council on 30 August 1979: “… It is the conviction of the Netherlands Government that UNIFIL's task cannot be carried out if a state of belligerency persists in and around its area of operations. Let me stress that UNIFIL's role is one of peace-keeping, not one of peace-enforcement. It is not equipped nor was it designed to perform the latter task …” (Stc. no. 171 of 4 September 1979 p. 2).

41. See, n. 9 supra p. 10. The recent Memorandum to the UN Secretary-General (n. 14 supra) contains this concluding paragraph: “It is the understanding of the Netherlands Government that the United Nations will conform to established practices regarding financial arrangements based on relevant General Assembly resolutions and decisions and reimburse the Government accordingly.” A previous statement said that, most probably, additional financial costs will result for the Netherlands from the participation in UNIFIL, in spite of UN reimbursements. (Bijl. Hand. II 1978/1979 – 15441 no. 3 p. 17 para. 59)Google Scholar In 1980 the expenses for UNIFIL are expected to amount to about 25 million guilders. According to the Guidelines for UN troop contributing Governments reimbursements are foreseen to a total amount of about 22 million guilders. Over the first half of 1979 reimbursements have been received to a sum total of 2,8 million guilders. (Bijl. Hand. II 1979/1980 – 15800 X no. 9 p. 23 para. 137)Google Scholar

42. MRT of 01 1980 pp. 49–52Google Scholar. N.B. At this stage the VVDM was absent as a plaintiff, since the Court of Appeal of The Hague had overruled the President of the District Court who in summary proceedings had declared that the union had standing.

43. This is incorrect. The original offer only consisted of marines.

44. AB 1980 no. 159 pp. 376–379; MRT of May 1980 pp. 259–277.

45. Cf., Siekmann, R.C.R., “Naschrift” [Postscript], NJB of 8 03 1980 pp. 207–208.Google Scholar

46. Still unpublished.

47. Bijl. Hand. II 1978/1979 – 15467 (R 1114) no. 3 p. 2.Google Scholar

48. Bijl. Hand. II 1979/1980 – 15467 (R 1114) no. 7 pp. 9–10.Google Scholar

49. Hand. II 1979/1980 p. 4443Google Scholar; cf., also, Hand. II 1979/1980 p. 1832Google Scholar, Bijl. Hand. II 1979/1980 – 15049 (R 1100) no. 19.Google Scholar

50. Bijl. Hand. II 1979/1980 – 15441 no. 23 p. 5.Google Scholar

51. Hand. II 1979/1980 p. 3165.Google Scholar