The Dutch in Iraq: To Shoot or Not To Shoot

Those 1,260 Dutch soldiers now serving in Iraq – are they allowed to shoot if necessary, or not? Surprisingly, especially at this late point (after all, Dutch troops were sent to help out the Coalition forces there late last July), there has seemed to be some confusion on this point for a while now, which finally prompted the predominant house of the Dutch legislature – the Tweede Kamer – actually to interrupt its pre-Spring vacation yesterday to stage a debate on the matter, starring several of the key ministers involved.

That debate, and the affair generally, is covered well both in Het Parool (Troops in Iraq May Shoot) and the NRC Handelsblad (lead article: Chamber Swallows Ministers’ Explanation). Fortunately, it is still true (knock-on-wood) that there have yet been no Dutch casualties in Iraq. On the other hand, there has indeed been one case of those Dutch forces inflicting a casualty (and you truly get the impression that creating victims, for the Dutch, causes just as much shock and horror as becoming them themselves). That was back on 27 December of last year, when sergeant-majoor Erik O. shot an Iraqi looter in the back and killed him – so this was no ordinary trooper, as sergeant-majoor (just as the American sergeant-major) is the highest Dutch army enlisted rank. Sergeant-majoor “O.” was shipped back to the Netherlands and incarcerated there on 1 January – put at freedom a week later, though still under charges.

NO SHOOTING PLEASE: WE’RE JUST HERE TO HELP

Oho – so you shoot somebody over there, and you get a free trip back to the old country and (temporarily) a jail cell, is that it, then? Exactly right, was the answer, at least according to the Dutch Openbaar Ministerie (or “OM”) – essentially equivalent to the Department of Justice, and thus charged under Dutch law with conducting prosecutions, including against members of the military. That this attitude was held came to light in a recently-leaked letter from J. de Wijkerslooth, head of the college of prosecutors within the OM, which supported the OM’s intentions to charge “O.” with manslaughter. In that letter, De Wijkerslooth argued that the international “Rules of Engagement” in effect in Iraq – which require no warning shot in the case of looting before the application of deadly force, and thus which would tend to support the actions of sergeant-majoor “O.” – actually don’t apply to Dutch forces in such situations. No, because the Dutch are formally not part of the “occupation forces” (they’re just sort of helpers, I guess) they operate under more-restrictive rules that indeed would have required at least a warning shot first. A British soldier – from a true “occupation force” – could have shot that looter dead on sight; a Dutch soldier, according to De Wijkerslooth, may not.

Most of the members of the Tweede Kamer did not like the sound of that, especially after receiving word in a letter earlier this past week from the Dutch minister of defense (Henk Kamp), minister of foreign affairs (Ben Bot; we’ve discussed him before), and minister of justice (Piet Hein Donner) that Dutch soldiers in Iraq operate under the same Rules of Engagement as the British, and that the Cabinet and the OM are perfectly in agreement on this. That was not the impression they got from De Wijkerslooth’s letter; so the Tweede Kamer collectively decided that coming in from vacation and having a session to clear this whole matter up was called for. Point at issue, according to a NRC background article, “The Military in Iraq Is Not There On Safari”: whether Dutch troops are “being left in the lurch in an especially dangerous mission.”

WHAT WERE THOSE RULES, AGAIN?

As yet another NRC background article on this matter makes clear (OM Asked About Force Instructions After-The-Fact), the whole thing was handled sloppily within the government. As you can infer from that article’s title, the OM did not even inquire about what the rules were supposed to be for the use of force by Dutch soldiers serving in Iraq until after Erik O.’s December 27 incident made the whole matter an affair of practical importance. But the OM should not have had to have inquired, then or at any other time: the OM (again, charged among other things with criminal prosecutions of Dutch military personnel) should have been informed about these rules as a matter of course when the Dutch soldiers were deployed to Iraq last year in the first place. But that didn’t happen, and it’s clear it was this bureaucratic blunder that has largely caused all the confusion. What’s more, those Rules of Engagement are really not supposed to be public knowledge – it’s not good to make it clear to your enemy just what your soldiers are allowed and not allowed to do, it’s better to keep him guessing – and in the parliamentary debate minister Kamp in particular expressed his regret that that had happened.

Still, that Not on Safari article, that covers yesterday’s parliament-chamber debate in most detail, makes it clear that it was Justice Minister Donner who came in for the most pointed criticism on the occasion from legislators, essentially taking the heat for what now seems to be De Wijkerslooth’s mistake. But Donner stayed cool. He also took a page out of the Bill Clinton playbook in defending De Wijkerslooth: it’s clear that the head prosecutor was not speaking about the general Rules of Engagement, but only about the particular case of Erik O., because the leaked letter featured the verb “was,” not “is.” (These verbs, by the way, have the same meaning and spelling in Dutch as the same words in English.) So it comes down to whether your definition of “is” turns out to be “was,” apparently. Donner also promised personally to write a letter to all justice officers, clarifying just what the rules are, that will be perfectly clear and understandable ook bij het uitlekken – “even if that one leaks, too.”

That’s all very fine, but sergeant-majoor “O.” still has a legal cloud over his head. From all that we have heard, wasn’t he just following the rules to stop an outbreak of looting? Then how come, although he is out free now, he still faces potential prosecution?

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