Dutch Ministry of Defence memorandum ‘Procedure minimalizing/reporting civilian casualties’

In 2014, The Netherlands joined the international United States-led coalition ‘Combined Joint Task Force’ established to dispel IS from Syria and Iraq by carrying out air strikes. This (partly redacted) internal memorandum (in Dutch), prepared by the Dutch Ministry of Defence, describes the targeting process in air bombardments, intended to prevent or limit civilian casualties as far as possible. Civilian casualties are described as ‘the worst kind of collateral damage’. If they nevertheless occur, the memo outlines the process of information-sharing between the coalition parties and how and when investigations into the unintended deaths are initiated.

The memo affirms that an air strike is assessed in compliance with international humanitarian law (IHL) prior to, during and after the attack. Before launching an attack, a collateral damage assessment is made, the outcome of which must be in conformity with the IHL principle of proportionality. This means that the expected civilian harm must not be excessive in relation to the concrete and direct military advantage anticipated. Targets must be identified – on the basis of intelligence from several parties including the host state – to be legitimate military objects (IHL principle of distinction). Eliminating the targeted person(s) or location must be aimed at weakening or defeating the enemy (IHL principle of military necessity). Therefore, an assessment is made of civilian presence in the area (IHL principle of precaution in attack). The After Action Report (AAR), includes information about (potential) civilian harm and, in hindsight, re-assesses whether the attack was conducted in conformity with IHL rules.

Compensation arrangements

Notably, the memo’s reference to ‘collateral damage’ signifies civilian casualties originating from lawful combat action. Since no legal obligation for the payment of compensation ensues from lawful military action, the memo, when referring to compensation for civilian casualties, is presumably referring to ex gratia payments. In (only) one sentence, the possibility is introduced that the Dutch state may be held civilly liable for the harm ensuing from Dutch bombardments. However, the conditions for such liability and the victims’ possible right to access to justice and reparations, are not elaborated on. The memo also flags the absence of a treaty between The Netherlands and Iraq regulating compensation claims.

The memo indicates that it is up to the Dutch government to decide to pay ex gratia payments,  depending on ‘the circumstances in which the harm is suffered’ and ‘the situation on the ground.’ In a cover letter to this memorandum (in Dutch) addressed to the House of Representatives, the Dutch minister of defence spells out that a balance must be struck between – on the one hand – making access to any voluntary compensation payments as easy as possible for victims and/or their communities, and – on the other hand – ensuring to the extent possible that the payments will indeed accrue to those injured.

Iraqi victims of (alleged) Dutch bombardments conducted in Hawija and near Mosul and Sinjar turned to a Dutch court, seeking clarification about the Dutch State’s involvement in the airstrikes. The Nuhanovic Foundation supports their cases and contributes to the costs of the proceedings.