Netherlands
Cluster Munition Ban Policy
Summary: State Party the Netherlands ratified the convention on 23 February 2011 and uses its ratification law and other legislation to apply the convention’s provisions. Since 1 January 2016, the Netherlands served as president of the convention’s Sixth Meeting of States Parties to be held in Geneva in September 2016. The Netherlands was a lead sponsor on a UN resolution on the convention in December 2015. It works to universalize the convention and has condemned new use of cluster munitions. The Netherlands has elaborated its views on several important issues for the interpretation and implementation of the convention.
The Netherlands is a former producer of cluster munitions and reportedly exported them. It also imported cluster munitions and in its initial transparency report for the convention provided in 2011, confirmed the destruction of almost all of its stockpile of 193,643 cluster munitions and 25.9 million submunitions before the convention’s entry into force for the Netherlands. It completed destruction of the stockpile in February 2012. The Netherlands has retained 274 cluster munitions and 23,901 submunitions for training purposes.
Policy
The Kingdom of the Netherlands signed the Convention on Cluster Munitions on 3 December 2008, ratified on 23 February 2011, and the convention entered into force for the country on 1 August 2011.
The Netherlands does not see a need for specific implementation legislation as the Convention on Cluster Munitions “can be directly applied.”[1] The 2011 ratification law guides its implementation of the convention’s provisions.[2] It has declared two other laws relevant to its adherence under the ban convention: the Act on Weapons and Munitions (Wet wapens en munitie) of 5 July 1997 and the General Law on Customs (Algemene douanewet) of 3 April 2008.[3]
The Netherlands submitted its initial Article 7 transparency report for the Convention on Cluster Munitions on 1 December 2011 and has provided annual updated reports since then, most recently on 29 April 2016.[4]
The Netherlands actively participated in the Oslo Process that created the Convention on Cluster Munitions and its position shifted significantly to support a comprehensive ban on cluster munitions, in part due to a motion by the lower House of Parliament (Tweede Kamer der Staten-General, or House of Representatives) on 22 May 2008.[5]
The Netherlands engages proactively in the work of the Convention on Cluster Munitions. It participated in the convention’s First Review Conference in Dubrovnik, Croatia in September 2015 and has attended all of the convention’s annual Meetings of States Parties, as well as its intersessional meetings in Geneva in 2011–2015. After States Parties decided to no longer hold intersessional meetings for the convention, the Netherlands in cooperation with the CMC organized an informal meeting for States Parties in Geneva on 17 May 2016 focused on universalization, responses to instances and allegations of use of cluster munitions, and strengthening the norm against the weapon.
At the First Review Conference, States Parties designated the Netherlands’ disarmament representative Ambassador Henk Cor van der Kwast as president of the convention’s Sixth Meeting of States Parties, which will take place at the UN in Geneva on 5–7 September 2016.
The First Review Conference marked the conclusion of the Netherlands serving as co-coordinator of the convention’s work on the general status and operation of the convention, a position it assumed in September 2013. As co-coordinator, the Netherlands played a central role in helping to establish an “Implementation Support Unit” for the convention, including securing agreement on the financial procedures for its operation.[6]
The Netherlands was a lead sponsor on and voted in favor of a UN General Assembly (UNGA) resolution on the convention adopted on 7 December 2015, which urges all states outside the convention to “join as soon as possible.”[7] A total of 139 states voted in favor of the non-binding resolution, including many non-signatories.
In 2015 and first half of 2016, the Netherlands condemned new use of cluster munitions often and repeatedly.
At the Conference on Disarmament on 29 February 2016, the Netherlands Minister of Foreign Affairs Bert Koenders described the Convention on Cluster Munitions as “a successful instrument” and also expressed concern at the “grave harm” cluster munitions cause to civilians “in violation of international humanitarian law and the norms set by the Convention.” Koenders said, “I am appalled by the use of cluster munitions by the Syrian regime…and deeply concerned about reports of the use of cluster munitions in the Yemen conflict. I call on all countries to refrain from using cluster munitions.”[8]
In its role as president of the Convention on Cluster Munitions, the Netherlands issued a statement on 12 January 2016 that expressed deep concern at reported cluster munition use in Yemen.[9]
At the First Review Conference in September 2015, the Netherlands said it is “appalled” by the continued use of cluster munitions in Syria and called on the Syrian government to “immediately stop the further use of cluster munitions.”[10] The Netherlands also said that, “we remain deeply concerned about the alleged use of cluster munitions in Yemen, Ukraine, Libya and Sudan.” The Netherlands called upon “the governments concerned to react to these allegations in a concrete, open and transparent manner and to take any necessary measure to protect citizens from cluster munitions.”
At the UNGA First Committee on Disarmament and International Security in October 2015, the Netherlands said, “we are deeply concerned about recent reports about the use of cluster munitions in Syria, Yemen, Ukraine and South Sudan. We call upon all governments to react to allegations in an open and transparent manner and take any necessary measures to protect its citizens from cluster munitions.” It also said, “we call upon all states that are currently participating in military actions in Iraq and Syria to refrain from using cluster munitions.”[11] The Netherlands has voted in favor of UNGA resolutions condemning the use of cluster munitions in Syria, most recently in December 2015.[12]
The Netherlands sought accountability and an investigation into the death of Dutch journalist Stan Storimans, who was killed by a Russian cluster munition strike in Georgia in August 2008.[13] After years of effort to engage Russian authorities on the matter, in July 2013, President Vladimir Putin stated that Russia considered “the book closed now” and said it did not intend to investigate.[14] The case was subsequently brought to the European Court of Human Rights with the support of the government of the Netherlands.[15]
The Netherlands is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.
Interpretive issues
The Netherlands has elaborated its views on several important issues relating to the convention’s interpretation and implementation.
Transit and foreign stockpiling
In 2009 and 2010, the Ministry of Foreign Affairs expressed its view that “the transit across Dutch territory of cluster munitions that remain the property of the third party in question is not prohibited under the Convention.”[16] In 2010, the Ministers of Foreign Affairs and Defence told parliament that the convention “does not contain a ban on transit, but only on transfer…[the] treaty determines specifically that transfer refers to both physical movement as well as transfer of ownership. Transit is only physical movement, not transfer of ownership. Transit of cluster munitions over Dutch territory that remains property of allies are not subject to the provisions of the convention.”[17]
In January 2011, the Minister of Foreign Affairs stated that the Netherlands would “in principle” not allow for the transit of cluster munitions through its territory.[18] An official subsequently clarified that the Dutch government would not prohibit transit, but would in principle refuse to provide permits for transit of cluster munitions, with the exception of existing alliance agreements, calling this a de facto prohibition on transit, except in the case of Dutch military allies.[19] In May 2011, the government confirmed its view that a de facto prohibition on transit exists, but an exception would be made specifically for NATO allies based on the obligations of the NATO Status of Forces Agreement.[20] A Senate committee emphasized the need to make its commitments under the Convention on Cluster Munitions and policy known through diplomatic channels and communicate that the Netherlands does not “appreciate” the transport of cluster munitions through Dutch territory by NATO allies.[21]
On 1 July 2012, the Regulations on General Transit Permits NL008 on the issuing of general transit permits for military goods from allied countries entered into force. Articles 3 and 4 of the regulations state that cluster munitions and antipersonnel mines are excluded from general transit permits, meaning that an individual transit permit is required for both types of weapons.[22]
On the matter of stockpiling of foreign cluster munitions on Dutch territory, in 2010, the Ministers of Defence and Foreign Affairs stated that no cluster munitions owned by a third party are stored on the territory of the Netherlands and said the storage of cluster munitions by states not party on the territory of States Parties is not prohibited by the convention as long as the cluster munitions remain under the ownership of the state not party.[23]
Interoperability
On the issue of the prohibition on assistance with prohibited acts during joint military operations (interoperability), in 2011 the Ministers of Foreign Affairs and Defence stated the Netherlands would encourage states not party to join the ban convention and discourage them from using cluster munitions in accordance with Article 21 of the Convention on Cluster Munitions.[24] However, the Ministry of Foreign Affairs has stated that “military cooperation with States not Party is still permitted, including operations where the use of cluster munitions cannot be ruled out.”[25] In 2010, the Ministers of Foreign Affairs and Defence told parliament that the Netherlands would urge military partners from states not party to the convention to not use cluster munitions. In situations during joint military operations with states not party where the rules of engagement permit the use of cluster munitions, they said the Dutch government would provide national reservations or “caveats.”[26] The Minister of Defence said these “caveats” would be presented to parliament for confidential review in cases where the Netherlands planned to send troops.[27]
Disinvestment
In 2008–2010, the Ministry of Foreign Affairs stated on many occasions that investments in the production of cluster munitions run counter to the spirit of, but are not banned by, the Convention on Cluster Munitions.[28] It also said that the convention cannot be applied to private institutions or persons, and that an additional law banning investments in cluster munitions was not necessary.[29]
The first motion calling on the Dutch government to prohibit investments in cluster munitions was adopted by parliament in 2009.[30] However, in 2010 the Minister of Finance decided not to carry out the motion.[31] The government maintained its position that a legal prohibition on investment would be counterproductive to efforts by financial institutions under the corporate social responsibility regime, and unenforceable.[32] In 2011, more motions were adopted in the Senate and House of Representatives calling for the government to enact a legal prohibition on “demonstrable direct investment” in cluster munition production.[33] At the time the Minister of Finance said the government considered direct investment to be prohibited when the Dutch state acts as a private actor.[34]
However, in 2012, the Minister of Finance announced in the Senate that the Cabinet had decided to “introduce a legal prohibition on direct investments in cluster munitions by financial institutions” out of concern over the humanitarian impact of cluster munitions.[35] On 1 January 2013, the amended Market Abuse (Financial Supervision Act) Decree entered into force, imposing an obligation that prevents an enterprise from “directly supporting any national or foreign enterprise which produces, sells, or distributes cluster munitions” with a view to restricting as much as possible investments in cluster munition producers. The Netherlands Authority for Financial Markets (AFM) is the primary body responsible for supervising compliance.[36]
In April 2012, the Council of State of the Netherlands (Raad van State) said the prohibition is “limited in its effectiveness” as it applies only to Dutch financial institutions.[37] Consequently, a Member of Parliament from the Socialist Party tabled a parliamentary question asking if the government would draw up a list of manufacturers that fall within the scope of the prohibition on 3 December 2012.[38] In December 2012, the financial sector established an “indicative list” of cluster munition producers to be used as a so-called “risk radar” by the AFM which will start an investigation if investments in any of the identified companies occur. As of July 2015, the list continues to be updated periodically by the financial sector, facilitated by the AFM.[39]
In January 2013, Minister of Finance Jeroen Dijsselbloem stated that government responsibility for the list and ensuring compliance with the prohibition would be at odds with the financial sector’s responsibilities with respect to socially responsible investments.[40] In February 2013, the government reiterated its position that enforcement of the prohibition lies with the Ministry of Foreign Affairs, but responsibility for compliance lies with the financial sector.[41]
CMC co-founder and member PAX has led the CMC’s Stop Explosive Investments Campaign since it began in 2009.[42]
PAX released an annual report detailing positive examples of legal prohibitions on investments in cluster munitions since 2009. The latest report issued in June 2016 identified 28 Dutch financial organizations that have adopted policies prohibiting or limiting investments in cluster munitions producers.[43]
The Netherlands has called on states that have not yet done so to take disinvestment measures and acknowledged the work by PAX, which it said underlines “the impact and importance of...disinvestment measures.”[44]
Use, production, and transfer
In the past, the Netherlands used, produced, and reportedly exported cluster munitions. It imported cluster munitions from the United Kingdom and the United States (US).
The Royal Netherlands Air Force dropped 173 CBU-87 cluster bombs (each containing 202 bomblets) during the 1999 NATO air campaign in the former Yugoslavia.[45]
Until 2002, the company Eurometaal NV produced cluster munitions in the Netherlands. It produced M483A1 and M864 155mm artillery projectiles with dual-purpose improved conventional munition (DPICM) submunitions.[46] In January 2006, the Ministry of Defence announced a transfer of 18 multiple launch rocket system (MLRS) launchers to Finland.[47]
Stockpile destruction
The Netherlands once stockpiled more than 193,643 cluster munitions containing approximately 26 million submunitions, but the vast majority of the stockpile was destroyed prior to the convention’s 1 August 2011 entry into force for the Netherlands.[48] In its Article 7 reports, the Netherlands has declared the destruction of 44,854 cluster munitions of three different types and 3.8 million submunitions, as listed in the following table.[49]
Cluster munitions stockpiles declared destroyed by the Netherlands[50]
|
Type |
Quantity of munitions |
Quantity of submunitions |
|
155mm M483 projectiles, each containing 88 M46/M42 submunitions |
42,711 |
3,758,568 |
|
CBU-87 bombs, each containing 202 BLU-97 submunitions |
297 |
59,994 |
|
Mk-20 Rockeye bombs, each containing 247 Mk-118 submunitions |
25 |
6,175 |
|
M261 rocket warheads, each containing 9 M73 submunitions |
1,821 |
16,389 |
|
Total |
44,854 |
3,841,126 |
The Netherlands announced the completion of the destruction of its stockpile of cluster munitions in September 2012, seven years in advance of the 1 August 2019 deadline required by the Convention on Cluster Munitions.[51]
The 155mm M483 artillery projectiles were transferred to Italy, where they were destroyed by Esplodenti Sabino in Casalbordino prior to the entry into force of the convention for the Netherlands.[52] The remaining stocks of were shipped to Norway at the end of 2011 and destroyed underground by Nammo NAD AS at a location south of Trondheim. The CBU-87 cluster bombs and Mk-20 Rockeye bombs were destroyed by 31 January 2012, while the M261 rocket warheads were destroyed by 29 February 2012, marking the completion of destruction of the stockpile.[53]
Retention
In its 2016 Article 7 report, the Netherlands declared the retention of 274 cluster munitions and 23,901 explosive submunitions, as listed in the following table.
Cluster munitions retained by the Netherlands (as of 31 December 2015)[54]
|
Type |
Quantity of munitions |
Quantity of submunitions |
|
M483 projectiles containing M42 and M46 submunitions |
200 |
12,800 M42, |
|
M261 Hydra rocket warheads containing M73 submunitions |
58 |
522 |
|
Mk-20 Rockeye bombs containing Mk-118 submunitions |
7 |
1,878* |
|
CBU-87 bombs containing BLU-97 submunitions |
9* |
1,818 |
|
Mk1 submunitions from BL755 bombs |
- |
175 |
|
Total |
274 |
23,901 |
During 2015, the Netherlands reduced the number retained down slightly from the previous total of 276 cluster munitions and 24,347 submunitions, a difference of two cluster munitions and 446 submunitions. It used an asterisk in the transparency report to note the difference, stating that the “quantity for 2015 is slightly lower than reported for 2014, without use during reporting period.”[55] According to the Ministry of Foreign Affairs, an annual inventory check to prepare the 2016 Article 7 report identified a lower number of cluster munitions and submunitions. It said that none of the retained cluster munitions were used in calendar year 2015, but likely in a previous calendar year, although the consumption was not reported as such at the time.[56]
Previously, during 2012, the Netherlands slightly reduced the number of cluster munitions retained for training and also said they were not used, indicating that the cluster munitions were not consumed in the course of research or training.[57]
The Netherlands reports that it retained the cluster munitions for the “purposes of the ‘Defense Explosive Ordnance Disposal Service,’” which trains its armed forces.[58] The CMC has asked why the Netherlands sees a need to retain such a high number of cluster munitions, especially when the majority of States Parties to the convention are not retaining any.
[1] Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on 30 May 2008 in Dublin: Note with regard to the report,” 5 March 2010.
[2] “Rijkswet houdende goedkeuring van het Verdrag inzake Clustermunitie” (“Royal Act establishing approval of the Convention on Cluster Munitions”), adopted on 20 January 2011 and published in the Bulletin of Acts and Decrees 2011, 66 (Staatsblad 2011, 66). Convention on Cluster Munitions Article 7 Report, Form A, 1 December 2011.
[3] Convention on Cluster Munitions Article 7 Report, Form A, 1 December 2011. See, Weapons and Ammunitions Act of 5 July 1997 and General Law on Customs of 3 April 2008. The 2011 law approving ratification of the Convention on Cluster Munitions guides the Netherlands’ implementation of the convention’s provisions. In 2010, the government said that specific implementation legislation is not required because the convention “can be directly applied.” See, Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on May 30 2008 in Dublin: Note with regard to the report,” 5 March 2010; and “Rijkswet houdende goedkeuring van het Verdrag inzake Clustermunitie” (“Royal Act establishing approval of the Convention on Cluster Munitions”), adopted on 20 January 2011 and published in the Bulletin of Acts and Decrees 2011, 66 (Staatsblad 2011, 66).
[4] Various time periods are covered by the reports provided on 1 December 2011 (for the period from 1 August 2011 to 30 November 2011), 3 May 2012 (for the period from 1 August 2011 to 31 December 2011), 2013 (for calendar year 2012), 30 April 2014 (for calendar year 2013), 8 May 2015 (for calendar year 2014), and 29 April 2016 (for calendar year 2015). In its second report, the Netherlands stated: “This report supplements the earlier report by the Netherlands over the period 01/08/2011 to 30/11/2011, in order to allow annual reports to be made henceforth following the calendar, starting from 01/01/2012.”
[5] For more details on the Netherlands’ cluster munition policy and practice through early 2009, see Human Rights Watch and Landmine Action, Banning Cluster Munitions: Government Policy and Practice (Ottawa: Mines Action Canada, May 2009), pp. 124–129.
[6] The Netherlands has committed to provide €250,000 over five years to help fund operation of the convention’s Implementation Support Unit. Statement of the Netherlands, UNGA First Committee on Disarmament and International Security, New York, 26 October 2015.
[7] “Implementation of the Convention on Cluster Munitions,” UNGA Resolution 70/54, 7 December 2015.
[8] Statement by Bert Koenders, Minister of Foreign Affairs of the Netherlands, Conference on Disarmament, Geneva, 29 February 2016.
[9] Permanent Representation of the Kingdom of the Netherlands in Geneva, “CCM President expresses concern over the use of cluster munitions in Yemen,” 12 January 2016.
[10] Statement of the Netherlands, Convention on Cluster Munitions First Review Conference, Dubrovnik, 8 September 2015.
[11] Statement of the Netherlands, UNGA First Committee on Disarmament and International Security, New York, 26 October 2015.
[12] “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution A/RES/70/234, 23 December 2015. The Netherlands voted in favor of similar resolutions on 15 May and 18 December 2013, and in 2014.
[13] Later that year, the Dutch government provided Russian authorities with a report by an independent commission that investigated the incident and concluded that a Russian cluster munition strike killed Storimans. “Verslag onderzoeksmissie Storimans” (“Storimans commission of inquiry report”), 24 October 2008.
[14] Jeroen Akkermans, “Het kan Rusland in feite geen barst schelen” (“Russia actually doesn’t give a damn”), RTL Nieuws, 10 July 2013.
[15] “Nederland steunt zaak Storimans bij Hof” (“The Netherlands supports Storimans case at Court”), RTL Nieuws, 10 July 2013; Officiële Bekendmakingen, “Brief van de Minister van Buitenlandse Zaken aan de Tweede Kamer” (Official Notice, “Letter by the Minister for Foreign Affairs to the Parliament”), Kamerstuk (Parliamentary notes) 33750-V nr. 9, 25 October 2013; Officiële Bekendmakingen, “Vaststelling van de begrotingsstaten van het Ministerie van Buitenlandse Zaken (V) voor het jaar 2014” (Official notice, “Adoption of the budget statement of the Ministry of Foreign Affairs (V) for the year 2014”), Kamerstuk (Parliamentary notes) 33750-V nr. 11, 17 October 2013; and Officiële Bekendmakingen, “Vaststelling van de begrotingsstaten van het Ministerie van Buitenlandse Zaken (V) voor het jaar 2014” (Official notice, “Adoption of the budget statement of the Ministry of Foreign Affairs (V) for the year 2014”), Kamerstuk (Parliamentary notes) 33750-V nr. 46, 30 October 2013.
[16] Letter from Henk Swarttouw, Ministry of Foreign Affairs, 26 February 2009. In June 2010, the Minister of Foreign Affairs reiterated that the convention prohibits the transfer of cluster munitions, but not the “transit” of cluster munitions across the territory of States Parties, due to the necessity of balancing States Parties’ treaty obligations with alliance obligations during military operations with states not party. In the parliamentary debate on the passage of the implementation bill in June 2010, the Minister of Foreign Affairs further stated that if an ally transported cluster munitions over Dutch territory, as long as the cluster munitions remained in the ownership of that ally, the activity would not be prohibited by the convention. The Minister added that due to the immunity of NATO’s armed forces, Dutch national or local law would not have jurisdiction. He argued that a Dutch prohibition on transit would not be enforceable on its allies and would violate alliance agreements under the NATO framework. The Minister added, however, that the Netherlands would communicate to its allies that the Netherlands would not appreciate the transit of cluster munitions across its territory. The Minister rejected a proposal for issuing transit licenses or permits, based on “reasonable doubt” for NATO allies who are not party to the convention. However, in the case of states not party with which no other treaty obligations exist, it could be possible that the Netherlands would prohibit the transit of cluster munitions. Summary of the plenary debate on the “Approval of the Bill on the Convention on Cluster Munitions adopted on 30 May 2008 in Dublin,” 30 June 2010.
[17] Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on May 30 2008 in Dublin: Note with regard to the report,” 5 March 2010. In a November 2010 memorandum to the Senate, Minister of Foreign Affairs Uri Rosenthal and Minister of Defence Hans Hillen reiterated this interpretation. Uri Rosenthal, and Hans Hillen, Minister of Defence, “Memorandum of Reply to the Approval of the Convention on Cluster Munitions (Treaty Series 2009, 45) effected on 30 May 2008,” 30 November 2010.
[18] Summary of the plenary debate on the “Approval of the Bill on the Convention on Cluster Munitions adopted on 30 May in Dublin,” 18 January 2011.
[19] The Secretary of State pledged that it would conduct stronger monitoring of transit for two years; if it is discovered that there was no de facto prohibition in practice, then the enactment of legally binding measures prohibiting transit would be considered. Hank Bleker, Secretary of State for Economic Affairs, Agriculture and Innovation, “Letter regarding the response to the transit motion that was presented about a total prohibition on the transit of cluster munitions,” Parliamentary letter to the Speaker of the Senate, Reference 32187-(R1902), No. I, 31 January 2011.
[20] Uri Rosenthal, Minister of Foreign Affairs, “Parliamentary letter regarding the relation between the obligations of the Convention on Cluster Munitions and the NATO Status of Forces Agreement and the national transport regulation of strategic goods with regard to the transit of cluster munitions,” Parliamentary Letter, Reference: 32187-(R1902) K, 2 May 2011. In response, the Senate’s Committee on Foreign Affairs, Defence and Development Cooperation wrote in June 2011 that the minister had sufficiently clarified the hierarchy between the Convention on Cluster Munitions and the NATO Status of Forces Agreement and the national transport regulation of strategic goods. Letter from the Senate Committee on Foreign Affairs, Defense, and Development Cooperation to Uri Rosenthal, Minister of Foreign Affairs, Reference 147812.07u, 8 June 2011.
[21] (Eerste Kamer der Staten-General) Committee on Foreign Affairs, Defence and Development Cooperation (Commissie voor Buitenlandse Zaken, Defensie en Ontwikkelingssamenwerking). Letter from the Senate Committee on Foreign Affairs, Defense, and Development Cooperation to Uri Rosenthal, Minister of Foreign Affairs, Reference 147812.07u, 8 June 2011.
[22] An explanatory note to the regulations says that cluster munitions and antipersonnel mines are “very sensitive goods for which the Netherlands has committed itself to the obligations stemming from the Convention on Cluster Munitions and the Ottawa Convention. Naturally, these goods are excluded from the scope of the NL008 general transit permits.” Officiële Bekendmakingen, “Regeling van de Staatssecretaris van Economische Zaken, Landbouw en Innovatie van 29 mei 2012, nr. WJZ / 12063076, houdende regels inzake de algemene doorvoervergunning N008 voor militaire goederen met eindbestemming bondgenoten (Regeling algemene doorvoervergunning NL008)” (Official Notice, “Regulation from the Secretary of State of Economic Affairs, Agriculture, and Innovation of 29 May 2012, Kamerstuk (Parliamentary papers) No. WJZ / 12063076, pertaining to rules on general transit permits N008 for military goods where the end destination is an allied country (Regulations on General Transit Permits NL008)”), Staatscourant (Gazette) 2012, 11116, 5 June 2012.
[23] Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on May 30 2008 in Dublin: Note with regard to the report,” 5 March 2010.
[24] Hans Hillen, Minister of Defence, and Uri Rosenthal, Minister of Foreign Affairs, “Answers to parliamentary questions by Van Bommel, Van Dijk, Timmermans, and Eijsink about the use of munitions with depleted uranium and cluster munitions,” Reference: parliamentary questions 2010–2011, 2432, 3 May 2011.
[25] Letter from Henk Swarttouw, Ministry of Foreign Affairs, to Stephen Goose, Director, Arms Division, Human Rights Watch, 26 February 2009.
[26] Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on May 30 2008 in Dublin, Note with regard to the report,” 5 March 2010. The Ministers further elaborated on the relation between Article 1c and Article 21: “Art 21, 3d paragraph, is an exception to article 1 and the 4th paragraph of art 21 is an exception to the 3d paragraph of art 21. Art 21 3d paragraph prevails above art 1, as long as it meets the criteria as laid out in the 4d paragraph…Art 21 3d paragraph is an exception to art 1, which does not free a state party from the obligation to abide with the core of the treaty.”
[27] Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, Summary of the plenary debate on the “Approval of the Bill on the Convention on Cluster Munitions adopted on 30 May 2008 in Dublin,” 30 June 2010.
[28] House of Representatives, “General Affairs and External Relations, List of Questions and Answers,” 21501-02, No. 846, 2007–2008 Session, 8 September 2008, citing a letter from Minister of Foreign Affairs Maxime Verhagen to the Standing Committees on Foreign Affairs and Defence, 3 September 2008; and letter from Henk Swarttouw, Ministry of Foreign Affairs, 26 February 2009. For more information see, ICBL, Cluster Munition Monitor 2010 (Ottawa: Mines Action Canada, October 2010), pp. 168–169.
[29] House of Representatives, “General Affairs and External Relations, List of Questions and Answers,” 21501-02, No. 846, 2007–2008 Session, 8 September 2008, citing a letter from Ministry of Foreign Affairs Maxime Verhagen to the Standing Committees on Foreign Affairs and Defence, 3 September 2008.
[30] Motion by Van Velzen (Socialist Party)/Van Dam (Labor Party), adopted on 8 December 2009, Reference: Kamerstuk (Parliamentary papers) 22 054, No. 150.
[31] The Minister of Finance said that because of the caretaker status of the government at the time of his decision, he would leave open the possibility for the next government to reconsider the decision. Parliamentary Letter, Reference: FM/2010/3898 M, from Jan Kees de Jager, Minister of Finance, and Piet Hein Donner, Minister of Social Affairs and Employment, “Regeringsstandpunt motie Van Velzen/Van Dam inzake investeringsverbod clustermunitie” (“Government position on the motion Van Velzen/Van Dam regarding cluster munitions”), to the Speaker of the House of Representatives, 31 March 2010.
[32] A parliamentary debate was held on the government’s refusal to carry out the motion on prohibiting investments. Summary of the plenary debate on “The government’s response to the adopted motion by the Members Van Velzen and Van Dam regarding a prohibition for Dutch financial institutions to invest in cluster munitions (22054, Nos. 155 and 158),” 22 September 2010.
[33] On 18 March 2011, the Labor Party proposed a Senate motion calling for a prohibition on “demonstrable direct investments in the production, sale, and distribution of cluster munitions.” The motion was adopted on 29 March 2011. Motion by Haubrich-Gooskens (Labor Party), Reference: Kamerstuk (Parliamentary papers) 32 187-(R1902), letter F, adopted 29 March 2011. On 13 December 2011, the House of Representatives adopted a motion that referred to the disinvestment motion that was adopted by the Senate in March 2011. The motion, among other things, requested the government to “create legislation regarding the prohibition on demonstrable direct investments in the production, sale, and distribution of cluster munitions for all financial institutions as soon as possible.” Motion by Voordewind (Christian Union) and Eijsink (Labor Party), Reference: Kamerstuk (Parliamentary papers) 33000-X, No. 57, adopted on 13 December 2011.
[34] The Senate, “Report of the debate on the motions EK, F and G,” No. 21/4, 22 March 2011, pp. 24–34. Translation by IKV Pax Christi.
[35] Jan Kees de Jager, Minister of Finance, “Letter concerning the status of the implementation of the motion Haubrich-Gooskens concerning a prohibition on direct investments in cluster munitions,” Reference: Kamerstuk (Parliamentary papers) 32187-(R1902) No. M, 21 March 2012. Translation by IKV Pax Christi. On 7 December 2012, the Minister of Finance, Jeroen Dijsselbloem, wrote a letter to parliament explaining that a prohibition on direct and demonstrable investments was being prepared because the Dutch government considers it important to act preventatively against investments in cluster munition production. Officiële Bekendmakingen, “22054 Wapenexportbeleid” (Official Notice, “22054 arms export policy”), Kamerstuk (Parliamentary papers) 22054, No. 206, 7 December 2012.
[36] Article 21(a) of the Market Abuse (Financial Supervision Act) Decree prohibits a Dutch financial institution from providing loans to a company that produces, sells, or distributes cluster munitions; from acquiring or offering a financial instrument that has been issued by a company engaging in the production, selling, or distribution of cluster munitions; and from acquiring non-marketable holdings in the capital of such a company. It contains provisions to ensure that Article 21(a) cannot be evaded through investment in enterprises which transfer activities related to cluster munition production to a separate, wholly, or partly-owned subsidiary. Officiële Bekendmakingen, “Besluit van 21 december 2012 tot wijziging van het Besluit Gedragstoezicht financiële ondernemingen Wft, het Besluit marktmisbruik Wft, het Besluit prudentiële regels Wft, alsmede enige andere besluiten op het terrein van de financiële markten (Wijzigingsbesluit financiële markten 2013)” (Official Notice, “Decree of 21 December 2012 to amend the Market Conduct Supervision (Financial Institutions) Decree, the Market Abuse (Financial Supervision Act) Decree, the Prudential Rules (Financial Supervision Act) Decree and other decisions in the domain of the financial markets (Financial Markets (Amendment) Decree 2013”), 28 December 2012. A financial institution in violation of Article 21(a) of the Market Abuse (Financial Supervision Act) Decree can be sanctioned with a fine of a set basic amount of €500,000 and a maximum of €1,000,000, or charged under the Public Prosecution Service (Openbaar Ministerie). A fine under Category 2 applies to a financial institution in breach of Article 21(a) of the Market Abuse (Financial Supervision Act) Decree. The set basic amount is €500,000 with a maximum of €1,000,000. The AFM can increase or decrease the basic amount as it sees fit, according to duration and nature of the violation; Autoriteit Financiele Markten, “Cluster munitions” (The Netherlands Authority for the Financial Markets, “Cluster munitions”), undated.
[37] Council of State of the Netherlands, “Advies W06.12.0382/III” (“Advice W06.12.0382/III”), 14 November 2012. An explanatory note to the investment prohibition states that an extension of the scope of the prohibition’s application would limit its enforceability. Officiële Bekendmakingen, “Besluit van 21 december 2012 tot wijziging van het Besluit Gedragstoezicht financiële ondernemingen Wft, het Besluit marktmisbruik Wft, het Besluit prudentiële regels Wft, alsmede enige andere besluiten op het terrein van de financiële markten (Wijzigingsbesluit financiële markten 2013)” (Official Notice, “Decree of 21 December 2012 to amend the Market Conduct Supervision (Financial Institutions) Decree, the Market Abuse (Financial Supervision Act) Decree, the Prudential Rules (Financial Supervision Act) Decree and other decisions in the domain of the financial markets (Financial Markets (Amendment) Decree 2013”), 28 December 2012.
[38] Officiële Bekendmakingen, “Wijzigingsbesluit financiële markten 2013” (Official Notice, “Public Consultation about the Financial Markets (Amendment) Decree 2013”), 14 April 2012.
[39] Autoriteit Financiele Markten, “Cluster munitions” (The Netherlands Authority for Financial Market, “Cluster munitions”), undated.
[40] Officiële Bekendmakingen, “Vaststelling van de begrotingsstaten van het Ministerie van Defensie (X) voor het jaar 2013” (Official Notice, “Adoption of the budget statement of the Ministry of Defence (X) for the year 2013”), Kamerstuk (Parliamentary papers) 33400-X, No. 45, 10 January 2013.
[41] Statement by the Minister of Foreign Affairs, Frans Timmermans, and the Minister of Foreign Aid and Developmental Cooperation, Lilianne Ploumen. Officiële Bekendmakingen, “22054 Wapenexportbeleid” (Official Notice, “22054 arms export policy”), Kamerstuk (Parliamentary papers) 22054, No. 216, 2 April 2013.
[42] In 2013, FairFin and PAX (formerly IKV Pax Christi) ended their cooperation in producing the report entitled “Worldwide Investments in Cluster Munitions: a Shared Responsibility.” PAX published the 2014 edition, dated November 2014, which is built on the previous editions published in conjunction with FairFin.
[43] PAX, Worldwide Investments in Cluster Munitions: a Shared Responsibility (Utreacht, 16 June 2016).
[44] Statement of the Netherlands, Convention on Cluster Munitions Fifth Meeting of States Parties, San José, 2 September 2014.
[45] Parliamentary letter from Maxime Verhagen, Minister of Foreign Affairs, “Parliamentary letter regarding questions on cluster munitions,” 4 September 2008.
[46] Eurometaal NV was licensed by a US manufacturer to produce the DPICM artillery projectiles in its facility in Zaandam. First deliveries were made to the army in 1989. Starting in 1994, Eurometaal NV shared production from the Zaandam plant with the licensed production undertaken by the Turkish company MKEK at its production facility in Kirikale. This production capacity was terminated in 2002. Leland S. Ness and Anthony G. Williams, eds., Jane’s Ammunition Handbook 2007–2008 (Surrey, UK: Jane’s Information Group Limited, 2007), pp. 336–338 and 635–636. The Netherlands did not report on the status and progress for the conversion or decommissioning of production facilities in its Article 7 report as production because ceased before the adoption of the Convention on Cluster Munitions. Convention on Cluster Munitions Article 7 Report, Form E, 1 December 2011.
[47] Ministry of Defence press release, “Finland Receives Two MLRS Batteries,” 13 January 2006. It was reported that 400 M26 rockets, each containing 644 M77 DPICM grenades, would be included in the sale for qualification testing and conversion into training rockets. Joris Janssen, “Dutch Plan to Update Cluster Weapons,” Jane’s Defence Weekly, 19 October 2005.
[48] This included at least 173,000 M483 projectiles (15,224,000 submunitions), 16,400 M26 rockets (10,561,600 submunitions), 293 CBU-87 bombs (59,186 submunitions), 1,879 M261 rockets (16,911 submunitions), and an unknown number of BL755 bombs (247 submunitions each) and Mk-20 Rockeye bombs (247 submunitions each). Letter from Henk Swarttouw, Ministry of Foreign Affairs, 26 February 2009; House of Representatives, “Parliamentary record of questions posed by MP Van Velzen and responded to by the Secretary of State for Defence Van Der Knaap,” 2005–2006 Session, Appendix to the Acts, pp. 237–239; and Joris Janssen, “Dutch Plan to Update Cluster Weapons,” Jane’s Defence Weekly, 19 October 2005. The Netherlands has provided various statements on different stockpile destruction efforts prior to 2010, but these were not listed in the Article 7 report so it is not possible to provide a comprehensive overview of the stockpile destruction. In March 2010, it completed destruction of the stockpiled BL-755 cluster bombs. Maxime Verhagen, Minister of Foreign Affairs, and Eimert van Middelkoop, Minister of Defence, “Approval of the Convention on Cluster Munitions adopted on May 30, 2008 in Dublin: Note with regard to the report,” 5 March 2010. In September 2011, the Netherlands said that all of its artillery-delivered DPICM had been destroyed. Statement of the Netherlands, Convention on Cluster Munitions Second Meeting of States Parties, Beirut, 13 September 2011. In 2005, Dutch media reported that 16,000 M26 rockets, each containing 644 M77 DPICM submunitions, would be destroyed. In 2004, the army reportedly had a stockpile of 174,000 M483A1 155mm artillery projectiles containing 15.3 million submunitions. Joris Janssen, “Dutch Plan to Update Cluster Weapons,” Jane’s Defence Weekly, 19 October 2005.
[49] In its initial Article 7 report provided in 2011, the Netherlands declared that it destroyed 42,711 cluster munitions and 3,758,568 submunitions in 2009-2010, before entry-into-force. Convention on Cluster Munitions Article 7 Report, Form B, 1 December 2011. In the 2012 Article 7 report, the Netherlands reported the destruction of 2,143 cluster munitions and 82,558 submunitions. Convention on Cluster Munitions Article 7 Report, Form B, 3 May 2012. Additional stocks of four CBU-87 bombs and 808 BLU-97 submunitions discovered after the 2012 completion of stockpile destruction were retained for training. Convention on Cluster Munitions Article 7 Report Form C, April 2013.
[50] The increase in the stockpile numbers reported in 2012 was due to the addition of 72 cluster munitions and 648 submunitions that the Netherlands initially retained for training, but subsequently decided to destroy. Email from Duco le Clercq, Legal and Policy Advisor, Ministry of Defence, 19 July 2012; Convention on Cluster Munitions Article 7 Report, Form B, 1 December 2011; and Convention on Cluster Munitions Article 7 Report, Form B, undated but April 2013.
[51] Statement of the Netherlands, Convention on Cluster Munitions Third Meeting of States Parties, Oslo, 12 September 2012.
[52] Convention on Cluster Munitions Article 7 Report, Form B, 1 December 2011.
[53] While the stockpile was destroyed by February 2012, the Netherlands did not announce the completion of destruction at the convention’s intersessional meetings in April 2012 or declare it in the May 2012 Article 7 report, but did so in September 2012 at the Third Meeting of States Parties. Convention on Cluster Munitions Article 7 Report, Form B, undated but April 2013.
[54] Convention on Cluster Munitions Article 7 Report, Form C, 29 April 2016. This includes two CBU-87 cluster bombs containing 808 BLU-97 submunitions that were discovered after the completion of stockpile destruction and added to the total stockpile of retained cluster munitions in 2012. It, however, reflects slightly smaller quantities than were reported in 2015, although there was no use during the reporting period. See, Convention on Cluster Munitions Article 7 Reports, Form C, 3 May 2012; May 2015; and 29 April 2016.
[55] Convention on Cluster Munitions Article 7 Report, Form C, 29 April 2016.
[56] Email forwarded by Maaike Beenes, Humanitarian Disarmament Program Officer, PAX, 25 July 2016.
[57] Convention on Cluster Munitions Article 7 Reports, Form C, April 2013; 30 April 2014; May 2015; and 29 April 2016.
[58] Convention on Cluster Munitions Article 7 Reports, Form C, 29 April 2016; May 2015; and 1 December 2011; and statement of the Netherlands, Convention on Cluster Munitions Fourth Meeting of States Parties, Lusaka, 10 September 2013.