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Dutch prime minister finally admits to having broken international law in Iraq War

14 January 2010

Dutch prime minister finally admits to having broken international law in Iraq War

Since Wednesday evening the government has been exposed, at last: its support in 2003 for the war in Iraq lacked an adequate mandate under international law. It was forced to alter its position after a commission that investigated the Dutch involvement in the Iraq war had concluded that Balkenende’s support lacked any such mandate. The Davids Report, as it is known, cannot be without consequences for the current Dutch government.

Arjan Vliegenthartby Arjan Vliegenthart, lecturer in International Relations at the Free University of Amsterdam (VUA) and member of the Senate for the SP.

The government now admits, after all, that Article 90 of the Constitution, which enjoins the Netherlands actively to support the international legal order, was, at the time, violated. By its actions the government did not, back then, promote the international legal order, but, on the contrary, obstructed and besmirched it. Bush and Blair waged war illegally and Balkenende gave them his blessing. This constitutes a mortal constitutional sin. But the question is: who should, seven years later, pay the political price?

For me, the answer is - Balkenende's current government. This is the judgement which I intend to pass in my role as senator on the basis of the debates on the matter which have taken place between government and Senate during the last few years. The present government, in its debates with the Senate in 2007 and 2008, knowingly adopted the position taken by Balkenende's previous administration in 2003, to the effect that there had been an adequate mandate under international law. Only since the Davids report came out, has the government distanced itself from its own opinion.

'With hindsight' the government in 2003 acted wrongly, says its current successor. An important observation, one, which appears to show evidence of political guts. On a constitutional level this government is, after all, responsible for what an earlier government did. Wim Kok's second government resigned because of what had, under his first government, gone badly wrong at Srebrenica, That precedent has since then been written off by hardly anyone as having been inappropriate or exaggerated. A prevailing constitutional doctrine, you could say.

Whether the government is in reality so brave as it appears, is, however, open to doubt, now that it has spent the last few days systematically 'forgetting' to mention that the legacy of Balkenende's first administration, which was in power in 2003, has been cheerfully accepted by his current cabinet in the years since it came into office. Not as some kind of hidden fault did this become part of this government's outlook, but on the basis of an inventory, which was well-known.

To recall: in the debate occasioned by the government's declaration concerning the report of the Davids Commission on the Netherlands' involvement in the Iraq war, the impression was given that Balkenende's current administration could do nothing other than live with what his previous government had done. What had happened had happened. This was not a matter of choice, but of facts. That was not, however, the case. As early as 10th July 2007, Foreign Minister Maxime Verhagen, speaking on behalf of the government during a special debate in the Senate on the question of the mandate under international law, declared that all things considered they would not go back on the decision to lend political support at the time to the invasion of Iraq. Verhagen left no room for misunderstanding that there had been, in the view of the present government, an adequate mandate under international law. In answer to a question from myself the minister said that in the future, therefore, comparable situations would be treated in the same manner.

For me this was reason enough to announce that the SP's group in the Senate felt that a follow-up debate was needed. In the months which followed I lodged, together with senators from other groups, a large number of pressing questions to the government, which, in December 2008, once again after months of preparation, received a reaction. Again, the government stuck fast to its position that in 2003 there had been an adequate mandate. The deplorable quality of the answers – which I described at the time as 'a hundred times nothing' – led this month to a decision by the centre-right party, the VVD, to renounce any possible opposition to a parliamentary enquiry by the Senate, saying that too much was missing. What followed is well-known: the debate was opened in the Second Chamber (Parliament's main legislative assembly), the government reacted by establishing the Davids Commission and the Commission has now established that there was indeed in 2003 no adequate mandate for supporting the invasion. After a day full of threatening crisis, the government has at last embraced this conclusion as its own. In doing so it has recognised de facto that the position it had adopted on this question in 2007 en 2008 in the debate with the Senate, had been mistaken. The current government had wrongly, and with the support of ministers from the PvdA (Labour Party) and the Christian Union, neither of which was a member of Balkenende's 2003 ruling coalition, accepted the political legacy of that government and in doing so had transgressed Article 90 of the Constitution.

This means that the present government is not only obliged under the Constitution to take responsibility for the wrongdoing of a previous government, but also that it has erred politically and throughout its entire existence has glossed over the violation of the international legal order. For this reason it would be in the interest of the damaged trust in Dutch politics if this government were also to accept its political responsibility, its responsibility for its own policy, on this point. Balkenende's first government was wrong. Balkenende's current government is just as wrong.

It is now up the Parliament to come to a verdict on the matter. In the Senate we will the debate the issue as soon as the government has officially reacted to the Davids Report, early next month. Now that the government has declared, with retrospective force, the positions it took before the Senate in 2007 and 2008 to be invalid, important conclusions have to be drawn. Not only in relation to the behaviour of the current government, but also with regard to the future. We live in a dangerous world where we are – unfortunately - part of the international game. If we do not learn as much as we can from the past, we are bound to make the same mistakes in the future. This must not be allowed.

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