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Netherlands

  • State
  • is a Non-Endorsing state

The Netherlands has acknowledged the harm caused by the use of explosive weapons in populated areas (EWIPA) on several occasions and committed to action against it.

Statements 

At an informal expert meeting on strengthening the protection of civilians from the use of EWIPA held in Oslo in 2014,[1] the Netherlands said that additional norms are not necessary and states should instead reinforce issues of compliance and universalisation of international humanitarian law (IHL) norms, and those stemming from treaties on landmines and cluster munitions.

The Netherlands addressed EWIPA over many years at the UN General Assembly First Committee, in 2014,[2] in 2015,[3] in 2016,[4] and in 2017.[5] In all of these statements, the Netherlands welcomed a focus on concrete and practical measures to limit casualties and damage from EWIPA, stressing that much will depend on the exact circumstances and context in which weapons are used.

The Netherlands reiterated its position on EWIPA during the Review Conference of the Convention on Certain Conventional Weapons, held in December 2016.|6]

The Netherlands participated in the Vienna Conference on the Protection of Civilians in Urban Warfare in 2019,[7] where it highlighted that “armed conflict, rather than explosive weapons, is at the root of these tragedies.”

The Netherlands also addressed the topic of EWIPA in many joint statements.

As a member of the European Union (EU), the Netherlands acknowledged the harm caused by the use of EWIPA on occasions such as at the UN Security Council Open Debate on the Protection of Civilians in Armed Conflict in the years of 2011,[8] 2012,[9] and 2013.[10] At the UN Security Council Open Debate War in Cities: Protection of Civilians in Urban Settings on 25 January 2022, the EU expressed concern with the indiscriminate use of EWIPA, including near hospitals, schools, and universities.[11]

The Netherlands aligned with World Humanitarian Summit Core Commitments to ‘Uphold the Norms that Safeguard Humanity’ in its national capacity and as an EU member state in May 2016. This included the commitment “to promote and enhance the protection of civilians and civilian objects, especially in the conduct of hostilities, for instance by working to prevent civilian harm resulting from the use of wide-area explosive weapons in populated areas, and by sparing civilian infrastructure from military use in the conduct of military operations.”[12]

In the same event, EU states recognised “the challenges associated with the use of explosive weapons and munitions in densely populated areas and their potential impact on civilians and call on all parties to armed conflict to fully comply with International Humanitarian Law.”[13]

The Netherlands endorsed the joint statement on EWIPA during the 74th UN General Assembly First Committee in October 2019.[14] The statement, delivered by Ireland, encouraged states to participate in international efforts to address the impacts of the use of EWIPA on civilians, including by working towards the creation of an international political declaration on this issue.[15]

At the UN Security Council Open Debate War in Cities: Protection of Civilians in Urban Settings on 25 January 2022, the Group of Friends of the Protection of Civilians in Armed Conflict, of which the Netherlands is a member, called on states to enhance the protection of civilians, including from the use of EWIPA, and took note of the ongoing consultations to develop a political declaration on this subject.[16]

Political declaration

The Netherlands participated in all three meetings regarding a political declaration on the use of EWIPA in the years of 2019, 2020 and 2021. In its statement at the 2019 meeting, the Netherlands raised the following points:

  • The declaration should stress that existing IHL provides a sufficient framework to address the problem of EWIPA and that IHL principles must be implemented in a holistic manner and advised against selectivity and listing of specific rules of IHL only.
  • Regarding the limitations on types of conventional weapons, it argued that the focus on a wide range of weapons differing in effects and radius under a “catch-all term” would run the risk of losing sight of the “real objectives”.
  • The declaration should encourage states to minimise civilian harm in military operations, which can be ensured by strict adherence to IHL.
  • It expressed support for better data collection.
  • It said that the growing threat of non-state actors and state actors who knowingly violate IHL cannot be ignored and expressed concern at the impacts of the use of Improvised Explosive Devices (IEDs) on civilians;
  • It argued that the following key points be included in the declaration: 1. Underline that the requirements set by existing IHL are binding on all actors in armed conflict; 2. Recognise that existing IHL provides the primary framework to protect civilians in urban warfare; 3. Underline the need to ensure full and universal respect for existing IHL; 4. Any political declaration should not lead to additional norms or the reinterpretation of  existing IHL, or highlight selective elements of IHL; 5. The declaration should encourage states to share information and good practices how explosive  weapons can be used in an IHL-compliant manner; 6. It should encourage states that have not yet done so to develop operational policies and  procedures that will minimise the civilian harm in operations; 7. It should contribute to enhancing transparency on the underlying causes of the civilian harm caused by operations in urban areas by supporting efforts on data collection.[17]

At the second round of consultations in Geneva in February 2020, the Netherlands reiterated the call for a stronger focus on non-state actors and said that the political declaration must not weaken IHL by being selective in references or abbreviating or restating it.[18] In this regard, it supported Norway’s suggestion for a shorter and more concise text by avoiding quotations or paraphrasing IHL provisions.[19] It also argued that the declaration should refer to improvised IEDs, but supported the suggestions to bring text more in line with existing IHL. Regarding data collection, it agreed with the United Kingdom’s statement that data collection in conflict environments is difficult. Therefore, the declaration should say “all practical measures” so as not to impose unreasonable or unrealistic burdens. It also supported the suggestion that, rather than trying to provide an exhaustive list of ways to disaggregate data, it would support a broader reference “disaggregating where appropriate”.[20]

In its written statement from April 2020,[21] the Netherlands stated that “existing International Humanitarian Law (IHL) provides the necessary framework to protect civilians during warfare in all contexts” and therefore “the political declaration should first and foremost address the implementation-deficit of existing IHL”.[22] Regarding the text of the political declaration, it made the following suggestions:

In Section 1:

  • 1.1: It suggested to delete the reference to “increasing” number of civilian casualties, and to add the word “densely” to “populated areas”, in order to provide more clarity in light of a (realistic) scope of application of this Declaration in line with IHL;
  • 1.2: It suggested to use the term “essential urban services”, and to delete the term “urban warfare”;
  • 1.3: It argued that the term “urban armed conflict” does not exist in IHL, therefore it suggests to delete the reference to urban armed conflict;
  • 1.4: In view of the Netherlands, the two examples provided in this paragraph are both violations of existing IHL, which should be clear from the text. In addition, the Netherlands requested the replacement of the word armed groups with actors, which encompasses a broader range of actors than organized armed groups alone;
  • 1.5: It requested to strike out the reference to ‘directing’ because explosive weapons with wide area effects would not be by definition difficult to direct, which mostly dependent on their means of delivery. 
  • 1.6: A commitment to data collection must be realistic, implementable, and must have a clear goal, which is why it suggested a shorter more concise wording;

In Section 2:

  • 2.3: it suggested the following text: “We recall the obligations on all parties to armed conflict to adhere to International Humanitarian Law, including the principles of distinction, precautions in attack. We also recall the obligation under International Humanitarian Law to provide civilians with general protection against dangers arising from military operations.

In Section 3:

  • 3.3: It said that the absence of agreement on the key definitions “explosive weapons”, “wide area effects” and “populated areas” used in the declaration, makes the suggested commitment ambiguous. Therefore, the Netherlands suggests replacing this language with an unambiguous commitment to IHL, such as: “Ensure that our armed forces adopt and implement policies and practices to avoid humanitarian consequences by complying with International Humanitarian. 
  • 3.4: It suggested to delete the term “direct” and “indirect” because there would not be an understating of what it means, and to add the word “feasible” before “mitigation measures” because that would be in line with Additional Protocol I to the Geneva Conventions.

In Section 4:

  • 4.1: It said that it’s not in a position to support the establishment of a new forum at this stage;

At the third consultation in 2021,[23]  the Netherlands reiterated many of the remarks made previously, such as: to add “densely” for all references to “populated areas”;  to replace the phrase “civilian harm” with “humanitarian consequences” especially in Section 2; to acknowledge that lack of compliance with IHL is primary cause for civilian casualties and harm of civilian infrastructure; to always reference the obligations of “all parties to armed conflict”; and that data collection must be “realistic and implementable”. It also raised concerns about ambiguity in 3.3, and suggested rephrasing the paragraph to focus on avoiding and minimising civilian harm when using EWIPA with  wide area effects, rather than stating a policy regarding when (not) to use these weapons.

Regarding the paragraph 2.3, it suggested a new text with small adjustments from the last version: “We recall the obligations of all parties to armed conflict to comply with IHL when conducting hostilities in populated areas, and recall in particular the obligations of all parties to armed conflict to comply with the rules and principles of IHL, including those of distinction and proportionality, and the obligation to take all feasible precautions.”

Finally, regarding the follow-up process, the Netherlands suggested that it must be voluntary, and so the language of 4.6 should read, “Meet regularly on a voluntary and informal basis,” and raised concerns regarding the inclusion of the “working group” proposed in the second half of 4.6, though it did not object to the actual subject matter or mandate of such a group—just its inclusion in the declaration and as part of the declaration’s follow-up mechanism.

In its written comments to the draft,[24] the Netherlands repeated many of the suggestion made in the previous document, such as that the use of “urban armed conflict” is not in line with IHL and that any policies and practices to avoid or minimize incidental civilian harm should be anchored in existing IHL obligations instead of creating new obligations.

 

[1]  INEW (2014). ‘Informal Expert Meeting on Strengthening the Protection of Civilians from the Use of Explosive Weapons in Populated Areas’. https://dev.inew.org/informal-expert-meeting-on-strengthening-the-protection-of-civilians-from-the-use-of-explosive-weapons-in-populated-areas-2/.

[2] Permanent Mission of the Netherlands to the United Nations (2014). UNGA69 First Committee General Debate Statement’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com14/statements/10Oct_Netherlands.pdf. 

[3] Permanent Mission of the Netherlands to the United Nations (2015). ‘UNGA70 First Committee General Debate Statement’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com15/statements/26October_Netherlands.pdf. 

[4] Permanent Mission of the Netherlands to the United Nations (2016). ‘UNGA71 UN First Committee General Debate Statement’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com16/statements/20Oct_Netherlands.pdf. 

[5] Permanent Mission of the Netherlands to the United Nations (2017). ‘UNGA72 General Assembly First Committee General Debate Statement’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com17/statements/18Oct_Netherlands.pdf. 

[6] Permanent Mission of the Netherlands to the United Nations (2016). ‘Statement to the Review Conference of the Convention on Certain Conventional Weapons’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ccw/2016/RevCon/statements/12Dec_Netherlands.pdf.

[7] Reaching Critical Will (2019). ‘States Commit to Take Political Action on Explosive Weapons at Vienna Conference’., https://reachingcriticalwill.org/news/latest-news/14061-states-commit-to-take-political-action-on-explosive-weapons-at-vienna-conference.

[8] Permanent Mission of the European Union to the United Nations (2011). ‘EU Statement during the May 2011 Security Council Open Debate on the Protection of Civilians in Armed Conflict’. 2011,http://www.peacewomen.org/sites/default/files/eu_poc_11may2011_0.pdf.

[9] Permanent Mission of the European Union to the United Nations (2012). ‘EU Statement during the June 2012 Security Council Open Debate on the Protection of Civilians in Armed Conflict’. http://www.peacewomen.org/security-council/security-council-open-debate-protection-civilians-armed-conflict-june-2012.

[10] Permanent Mission of the European Union to the United Nations (2013). ‘EU Statement during the August 2013 UN Security Council Open Debate on the Protection of Civilians in Armed Conflict’. http://www.peacewomen.org/sites/default/files/european_union_poc_august_2013_debate_0.pdf. 

[11]  Permanent Mission of the European Union to the United Nations (2013). ‘EU Statement during the August 2013 UN Security Council Open Debate on the Protection of Civilians in Armed Conflict’. http://www.peacewomen.org/sites/default/files/european_union_poc_august_2013_debate_0.pdf. Ray Acheson, Reaching Critical Will (2022). ‘UN Security Council Debates War in Cities and the Protection of Civilians’. https://www.reachingcriticalwill.org/news/latest-news/16009-un-security-council-debates-war-in-cities-and-the-protection-of-civilians.

[12] Agenda for Humanity. ‘Netherlands’. https://agendaforhumanity.org/stakeholders/commitments/223.html. 

[13] Permanent Mission of the European Union to the United Nations (2017). ‘UNGA72 First Committee General Debate Statement’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/1com/1com17/statements/18Oct_EU.pdf. 

[14] INEW (2019). ‘Seventy-one States call for Action on Impact of Explosive Weapons in Joint Statement to UN General Assembly’. https://dev.inew.org/seventy-one-states-call-for-action-on-impact-of-explosive-weapons-in-joint-statement-to-un-general-assembly/.

[15] Permanent Mission of Ireland to the United Nations (2019). ‘UNGA74 First Committee Debate on Conventional Weapons: Joint Statement on Explosive Weapons in Populated Areas Delivered by H.E. Ambassador Geraldine Byrne Nason Permanent Representative of Ireland to the United Nations, 2019, https://article36.org/wp-content/uploads/2019/10/UNGA74-joint-statement-on-explosive-weapons-in-populated-areas.pdf.

[16] Ray Acheson, Reaching Critical Will (2022). ‘UN Security Council Debates War in Cities and the Protection of Civilians’. https://www.reachingcriticalwill.org/news/latest-news/16009-un-security-council-debates-war-in-cities-and-the-protection-of-civilians.

[17] Permanent Mission of the Netherlands to the United Nations (2019). ‘Statement at Geneva Consultation on Protecting Civilians in Urban Warfare Geneva’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/statements/18Nov_Netherlands.pdf.

[18] Ray Acheson, Reaching Critical Will (2020). ‘Impacts, not Intentionality: The Imperative of Focusing on the Effects of Explosive Weapons in a Political Declaration’. https://reachingcriticalwill.org/news/latest-news/14658-impacts-not-intentionality-the-imperative-of-focusing-on-the-effects-of-explosive-weapons-in-a-political-declaration.

[19] Permanent Mission of the Netherlands to the United Nations (2020). ‘Statement on Protecting Civilians in Urban Warfare: Towards a political Declaration to Address the Humanitarian Harm Arising from the Use of Explosive Weapons in Populated Areas’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/statements/10Feb_Netherlands.pdf. 

[20] Ray Acheson, Reaching Critical Will (2020). ‘Impacts, not Intentionality: The Imperative of Focusing on the Effects of Explosive Weapons in a Political Declaration’. https://reachingcriticalwill.org/news/latest-news/14658-impacts-not-intentionality-the-imperative-of-focusing-on-the-effects-of-explosive-weapons-in-a-political-declaration.

[21] Permanent Mission of the Netherlands to the United Nations (2020). ‘Comments on the Draft Political Declaration on Strengthening the Protection of Civilians from Humanitarian Harm Arising From the Use of
Explosive Weapons in Populated Areas’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/documents/Netherlands-March2020.pdf. 

[22] Ibid.

[23] Ray Acheson, Reaching Critical Will (2021). ‘Report on the March 2021 Consultations on a Political Declaration on the Use of Explosive Weapons in Populated Areas’. https://reachingcriticalwill.org/news/latest-news/15213-report-on-the-march-2021-consultations-on-a-political-declaration-on-the-use-of-explosive-weapons-in-populated-areas.

[24]  Permanent Mission of the Netherlands to the United Nations (2021). ‘Comments on the Draft Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences that Can Arise From the Use of Explosive Weapons with Wide Area Effects in Populated Areas’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/documents/Netherlands-March2021.pdf.

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