Policy Recommendations to Meaningfully Mitigate Civilian Harm in Military Operations: A View from the Netherlands (Part II)

[Megan Karlshøj-Pedersen is a Policy Specialist at Airwars, working across the U.K., U.S., the Netherlands and other European countries. Jessica Dorsey is an Assistant Professor of International and European Law at Utrecht University and the Managing Editor of Opinio Juris. Both authors are part of the civil society and academic consortium advising the Dutch Ministry of Defence described in this two-part post. Part I can be found here.]

As outlined in Part I of this post, over the last four years, a consortium of academic experts and civil society organisations has been engaging with the Dutch Ministry of Defence (MoD) to improve Dutch mitigation of harm to civilians from its own actions in warfare in the so-called Roadmap Process. Earlier this week, we released 16 Recommendations for the MoD. Part I of this post examines the first four of our selected recommendations and this contribution will cover the other four before offering concluding thoughts on the way forward for civilian harm mitigation and response (CHMR) both by the Dutch MoD and by other countries’ Ministries of Defence that recognise the strategic importance of CHMR for their own institutions. 

Selected Recommendations, continued

Release detailed statistics at least monthly on lethal force practices. 

These statistics should include data on both the munitions used and the impact on people affected, including the number of weapons released, broken down by geographic location; weapons platforms; and type of munition utilised in strikes, as well as the sex, age, identity and/or affiliation of those killed and injured. We recommend the MoD publish this information as open data that is technologically, legally, and substantively ready for reuse by monitoring organisations, NGOs, media and others, to ensure accountability. When operating within coalitions, we recommend the MoD encourage other coalition members to do the same. In exceptional cases and with the consent of Parliament, the MoD should establish sunset clauses for information being withheld. 

This recommendation is directly related to the notion of transparency, which mandates the provision of adequate, accurate, freely available, directly accessible (timely) and easily understandable information. Transparency is crucial in understanding and evaluating a State’s use of force, promoting meaningful and democratic debate, ensuring truth for those affected by a State’s use of force, and links integrally into accountability in a broad sense, playing a key role in informing lessons learned for future military actions. Most importantly, meaningful transparency feeding into accountability broadly defined is integral to ensuring the legitimacy of military operations.

Of course, it is imperative to recognise that there are limitations on transparency, but in a democratic society, these limitations must be specifically justified. The Global Principles on National Security and the Right to Information offer guidance on this issue. As noted in the preambular text to these Principles: 

“striking the appropriate balance between the disclosure and withholding of information is vital to a democratic society and essential for its security, progress, development, and welfare, and the full enjoyment of human rights and fundamental freedoms.” 

In particular, Principle 3 underscores that the right to information cannot be restricted unless such a restriction is prescribed by law, necessary in a democratic society to protect a legitimate national security interest and that same law also provides safeguards against abuse. In striking the right balance regarding incidents involving civilian harm, the information outlined above must be provided in order to contribute to a meaningful accounting for military action. 

During the consortium’s consultations with the MoD, on the 23rd of March 2023, the MoD released a database of its weapons deployment by Dutch F-16s during its contribution to Operation Inherent Resolve (the anti-ISIS coalition air campaign in Syria and Iraq) between 2014-2018. This spreadsheet includes information about approximately 2,200 weapons deployments from around 3,000 missions, and was released, according to the MoD, “to be as transparent as possible about weapons deployment” during Dutch participation in the fight against ISIS. The data include date, time, latitude and longitude coordinates of strikes, nearby towns and province locations, weather, terrain information and whether there was an indication of a “possible CDE (collateral damage estimate) issue.” 

The Dutch should be commended for releasing this information as it provides a platform for comparison and discussion based on information gathered by NGOs, civil society, academia and other stakeholders. However, there has been no indication publicly on whether this release is a one-off release in the context of media attention, or an indication of a new system for the regular, timely, and accurate release of data; it therefore remains unclear if the data released for the OIR strikes is the same data that will be gathered and released for ongoing and future Dutch military efforts. An ad-hoc approach to data collection and release on the impact of Dutch strikes on the ground risks an inconsistent and incomplete methodology, and will make it more difficult for third party organisations to reconcile the data with their own research. In the data released in March for instance, the location of strikes was not described in a consistent manner according to a shared methodology, making it more difficult for those affected to understand what transpired (especially as the database was also released only in English and not Arabic), and for the Dutch military itself to analyse and understand lessons on the harm it is causing, as does the timing of the release several years after the incidents. Additionally, the data released is only focused only on the strikes conducted by the Dutch military, and not the impact on civilians, and the type of munition deployed is not listed (like it is, for example, by the UK MoD), making it difficult to learn lessons about the impact of certain weapons. We urge ministries of defence to be as transparent as possible as close to the occurrence of weapons deployment as possible in order to contribute to meaningful transparency and accountability in a broad sense.  

As committed to in December 2023, establish an accessible civilian harm reporting mechanism, and sufficiently promote its existence.

The Dutch MoD must ensure that civilians affected and third-party actors, such as civil society groups, are able to report allegations of civilian harm through an accessible civilian harm reporting mechanism. Modern warfare, which often unfolds in populated areas, often has dozens, sometimes hundreds, of witnesses, many of whom have the ability to document evidence through phones and access to the internet. Yet without a reporting mechanism, it is often difficult for civilians to report their testimony – and to seek accountability for the harm caused. Beyond the moral implication of this, as PAX, one of the consortium partners, has previously written;

“[l]ack of transparency, lack of acknowledgement and the absence of a system of fair compensation or amends may feed hostile sentiments, create space for misinformation and propaganda by other actors, and can lead to a loss of legitimacy of a security actor in the eyes of the population.”

While only a handful of militaries have civilian harm reporting mechanisms in place, there are lessons that the Netherlands should take on board as they build their own reporting mechanism. Notably, many of the existing reporting mechanisms are not designed with the end user in mind (e.g. it does not include options for reporting in the local language), and there have been little to no efforts to disseminate knowledge about the mechanisms among local populations. Without these aspects, the reporting mechanism cannot be a useful tool. Additionally, research by PAX has found that not all reporting mechanisms have systems for follow-ups. 

When working with states on the creation of civilian harm reporting mechanisms, we are often told that they are difficult tools to use for good because they are flooded with made-up allegations by adversaries. This is a valid concern and it has been a challenge for some existing mechanisms, e.g. AMISOM’s reporting mechanism. Yet it is not a challenge without a solution; it is possible for a relatively small team to investigate even large numbers of allegations to identify those which are substantiated and require follow-ups. Airwars, which monitors all allegations of civilian conflict across several major conflicts, has become a trusted source of allegations for several militaries, including the US DOD, operating with a small team and a limited budget. 

It is vital that a civilian harm reporting mechanism is not seen as an end in itself; it should lead to follow-up investigations, ultimately resulting in a response from the military involved. This leads to the following recommendation. 

Create and sufficiently resource an operational CHMR Cell that tracks, investigates and analyses information about potential civilian harm caused by Dutch use of force.

The Dutch MoD should make it a priority to establish and resource a team that is able to effectively and rigorously track and investigate allegations of harm to civilians. The purpose of this should be for the MOD to hold itself accountable for harm to civilians, respond as required, and to inform operational changes that reduce civilian harm and to recommend (the Commander and/or MoD) how to respond to civilian harm that has occurred, thereby contributing positively to military-strategic objectives.

In gathering information on allegations of harm, the civilian harm tracking cell should combine information from the reporting mechanism, open source intelligence (such as photos and other evidence uploaded by witnesses to social media), external sources and military intelligence with field investigations wherever possible. There are significant lessons to be shared across militaries on best practice when it comes to such investigations, in addition to lessons from NGOs such as those in our consortium, many of whom have decades of experience in tracking and investigating allegations of harm. 

It is vital that the CHMR cell has a centralised repository for data related to CHMR, including incident-specific information. This is the only way to ensure that lessons are learned on trends of harm, and to ensure that a standardised approach to information gathering is built and improved as more allegations emerge. The Netherlands is unlikely to ever face allegations of harm from hundreds of incidents, yet no state should treat incidents of civilian harm as one-off ‘unlucky’ events. A strong data gathering, analysis, and reporting system will allow the Netherlands to respond effectively when allegations of harm do occur, and to more effectively identify patterns of harm that can be addressed to better protect civilians. For this reason, the CHMR cell should also collaborate closely with the MOD POC team to ensure lessons are analysed – and learned – centrally. 

When operating in coalitions, as the Netherlands tends to do, the Dutch CHMR tracking cell should operate independently as well as contribute to potential coalition-wide tracking efforts and mechanisms, and it will proactively attempt to deconflict its own civilian casualty counts with those of other partners (e.g., UN Missions, monitoring organisations).

Institutionalise timely, context-appropriate and adequate responses to cases where the Netherlands is found to have caused civilian harm

This can be done by developing an overview of, and guidance regarding available and appropriate response options, for instance by establishing a national fund for ex gratia payments. The United States’ CHMR-AP commits to taking steps toward this (see, e.g., Objective 8, including aims to improve this process, but see also critique of how it has been implemented). These approaches can also be adapted for inclusion by other States into their own domestic systems. As it currently stands, there is no formal policy for the issuance of such voluntary compensation in the Netherlands. In a recent article, Major Steven Van de Put indicated possibilities within the Dutch domestic legal system that could be guiding for such an institutionalisation. 

The Dutch system has provided unique opportunities within the civil law context for victims to receive compensation. The most recent example comes from the 2022 Chora case (see reconstruction in English here and further analysis here and here) in which at least 11 civilians were killed as a result of Dutch air strikes in Chora, Afghanistan in 2007. In this case, the Dutch State was unable to refute the Plaintiff’s claims regarding the violation of the IHL principle of distinction and therefore the Court found Plaintiffs had a right to reparation under tort law. Generally, though the Chora case shows how Dutch courts have created a unique position for themselves in allowing a limited avenue to legal accountability, receiving compensation through these avenues is difficult and time-consuming (in the Chora case, more than 15 years passed between the civilian harm incident and the Court’s judgement). Therefore, other schemes for accountability must augment these legal avenues. 

Van de Put illustrates that despite there being no official overarching ex gratia policy from the MoD (until now claims have been handled on a case-by-case basis), there are several possible courses of action within the Dutch domestic legal system for institutionalising responses regarding these payments. The first is through settlement agreements like those indicated within the Chora judgement, at para. 3.25; a second option is to create a policy rule praeter legem, which has the possibility to offer more flexibility in certain situations but also creates (legal) uncertainty; or finally, the third option is to enshrine these payments into a formal law, which can aid in managing expectations and may be the more desirable choice given the definitional clarity offered and ability to provide direction about the reporting mechanism for civilian harm recently announced by the Minister. Ultimately, institutionalising timely and adequate responses with e.g., an official fund for ex gratia payments that provides clarity regarding access for victims of civilian harm incidents will contribute both to legal certainty for military personnel as well as to those harmed.   

Conclusion

The list of recommendations we have analysed above highlights some of the most pressing issues the consortium has identified throughout our engagement with the Ministry of Defence. As demonstrated, the MoD has taken significant steps (e.g., the continued seeking of constructive engagement with civil society, the MoD’s internal PoC task force and carrying out a Baseline Study on CHMR, various developments around Article 100 letters, improvements to transparency and investigation procedures and the announcement of a forthcoming civilian harm reporting mechanism). However, there are still areas where improvement is necessary if CHMR is to become truly institutional, for example by enhancing capabilities to track and investigate a broader rangeof direct and reverberating civilian harm; institutionalising meaningful responses to harm where it occurs; and informing Parliament about the risks to civilian harm in all its military contributions, not just those covered by Article 100 letters. 

The Dutch MoD should absolutely be commended for steps it has taken so far and the commitment it has made to making further improvements, though translating those commitments to operational or concrete actions will also need monitoring. The process undertaken by the Netherlands should be viewed as a starting point, not the final goal. We hope it will inspire other states to follow suit, demonstrating that it is both feasible and essential to be more ambitious in preventing civilian harm and more open to including external actors in the process. The Roadmap Process is set to continue for the foreseeable future, with a renewed focus on implementation of the recommendations outlined here, which bodes positively for mutual interest in CHMR from all stakeholders.

Other States can and should learn from lessons and steps in the Netherlands to translate them to their own strategic planning and operational theatres. In highlighting the importance of centering CHMR, militaries ultimately take steps not only to improve transparency, accountability and compliance with the rule of law, but also toward ensuring legitimacy of their own military operations.