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Netherlands
Cluster Munition Ban Policy
Commitment to the Convention on Cluster Munitions
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Convention on Cluster Munitions status |
State Party |
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National implementation legislation |
Existing laws apply including Act on Weapons and Munitions (1997) and General Law on Customs (2008) |
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Stockpile destruction |
Completed destruction in February 2012 |
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Participation in Convention on Cluster Munitions meetings |
Attended Fourth Meeting of States Parties in Lusaka in September 2013 and intersessional meetings in Geneva in April 2014 |
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Key developments |
Expressed concern over cluster munition use in South Sudan and Syria, provided an updated transparency report in April 2014 |
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] The Netherlands 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 provided annual updated reports in 2012, 2013, and on 30 April 2014.[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 has continued to engage actively with the work of the Convention on Cluster Munitions since 2008. It has participated in all of the convention’s Meetings of States Parties, including the Fourth Meeting of States Parties in Lusaka, Zambia in September 2013. The Netherlands has attended all of the convention’s intersessional meetings in Geneva, including in April 2014.
In September 2013, the Netherlands became co-coordinator of the convention’s work on the general status and operation of the convention, together with Costa Rica
The Netherlands has continued to urge greater efforts to universalize the Convention on Cluster Munitions. In September 2013, it observed that “A big responsibility weighs on us, states parties, to continue to reach out and convince those more skeptical that indeed rules of law are progressively changing and improving…Let our plea to accede to this convention carry across the African plains, across the Indian Ocean and resound in Asia, let our plea cross the Atlantic and be heard in the Americas. And let our message be heard along the Mediterranean, both in the Middle East and in Europe.”[6]
Minister of Foreign Affairs Frans Timmermans reaffirmed the government’s commitment to the universalization and implementation of the convention in the Dutch parliament on 7 October 2013, emphasizing the importance of close cooperation with NGOs because “those who pull on the same side of the rope must pull together.”[7]
At the UN General Assembly (UNGA) First Committee on Disarmament and International Security in October 2013, the Netherlands appealed to all states not party to accede to the Convention on Cluster Munitions, emphasizing that the treaty has placed cluster munitions “under a widely accepted and respected ban.”[8]
The Netherlands first condemned Syria’s cluster munition use in October 2012 and continued to express concern in 2013 and the first half of 2014.[9] At the UNGA First Committee on Disarmament and International Security in October 2013, the Netherlands stated that “the use of cluster munitions by states not-party to the Convention on Cluster Munitions, such as Syria, deserves the strongest condemnation.”[10] In April 2014, the Netherlands repeated its condemnation of Syria’s use of cluster munitions and said that users of this weapon should be held accountable for this violation of international law.[11]
In April 2014, the Netherlands said it was “appalled” by allegations of recent cluster munitions use in South Sudan.[12] On 13 March 2014, in response to a parliamentary question the Minister of Defense Jeanine Hennis-Plasschaert described the allegations a “very serious matter.”[13]
The Netherlands has voted in favor of UNGA resolutions condemning the Syrian government’s use of cluster munitions, including Resolution 68/182 on 18 December 2013, which expressed “outrage” at Syria’s “continued widespread and systematic gross violations of human rights…including those involving the use of…cluster munitions.”[14]
The Netherlands has continued to seek accountability and investigation into the death of Dutch journalist Stan Storimans, who was killed by a Russian cluster munition strike in Georgia in August 2008. 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.[15] After years of effort to engage Russian authorities on the matter, in July 2013 President Vladimir Putin stated that Russia considers “the book closed now” and does not intend to conduct an investigation.[16]
Following this statement, the case was brought to the European Court of Human Rights with the full support of the government of the Netherlands. In October 2013, Minister for Foreign Affairs Timmermans expressed the Netherlands’ commitment to follow-up and said that Russia’s obligations to the European Convention on Human Rights require that it cooperate.[17]
Interpretive issues
The Netherlands has expressed its views on a number of issues important to the interpretation and implementation of the convention.
Transit and foreign stockpiling
In 2009 and 2010, the Ministry of Foreign Affairs stated 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.”[18] In 2010, the then-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.”[19]
In January 2011, the Minister of Foreign Affairs at the time stated that the Netherlands would “in principle” not allow for the transit of cluster munitions through its territory.[20] The Secretary of State for Economic Affairs, Agriculture, and Innovation clarified that while the Dutch government would not prohibit transit, it would on principle refuse to give permits for transit of cluster munitions, with the exception of existing alliance agreements. The Secretary of State called this a de facto prohibition on transit, except in the case of Dutch military allies.[21] 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.[22]
In May 2011, the then-Minister of Foreign Affairs confirmed that a de facto prohibition on transit existed, but an exception would be made specifically for NATO allies based on the obligations of the NATO Status of Forces Agreement. On the question of whether or not the obligation to allow NATO allies to transit their own material through Dutch territory conflicted with the prohibition on transfer in the Convention on Cluster Munitions, the Minister stated that this is not the case, as transit is not explicitly forbidden by the convention.[23] In a written response, the Senate (Eerste Kamer der Staten-General) Committee on Foreign Affairs, Defense and Development Cooperation (Commissie voor Buitenlandse Zaken, Defensie en Ontwikkelingssamenwerking) emphasized the Netherlands’ broader commitments under the Convention on Cluster Munitions and policy to make known through diplomatic channels that the Netherlands does not “appreciate” the transport of cluster munitions through Dutch territory by NATO allies.[24]
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.[25]
On the issue of stockpiling of foreign cluster munitions on Dutch territory, in 2010, the then-Ministers of Defence and Foreign Affairs stated that they do not consider the storage of cluster munitions by states not party on the territory of States Parties to be prohibited under the convention, provided that the cluster munitions remain under the ownership of the state not party. They noted that no cluster munitions owned by a third party are stored on the territory of the Netherlands.[26]
Interoperability
On the issue of the prohibition on assistance with prohibited acts during joint military operations (interoperability), in 2011 the then-Ministers of Foreign Affairs and Defence wrote that 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.[27] 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.”[28] In 2010, the Ministers of Foreign Affairs and Defence informed parliament that, in accordance with its obligations under the convention, the Netherlands would urge military partners from states not party to the convention not to use cluster munitions. In situations during joint military operations with states not party where the rules of engagement permit the use of cluster munitions, certain national reservations or “caveats” would be made by the Dutch government.[29] The Minister of Defence stated these “caveats” would be presented to parliament for confidential inspection in the case that the Netherlands would be sending troops.[30]
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.[31] 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.[32]
The first motion calling on the Dutch government to prohibit investments in cluster munitions was adopted by parliament in 2009.[33] However, in 2010 the Minister of Finance decided not to carry out the motion.[34] 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.[35]
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.[36] The Minister of Finance at the time declared that, under Article 1(1)c of the Convention on Cluster Munitions concerning the prohibition on assistance with prohibited acts, the government considered direct investment to be prohibited when the Dutch state acts as a private actor.[37] The Minister of Finance stated that a company’s investment policy on cluster munitions would be taken into consideration for future public tenders concerning payment transfers.[38]
In 2012, the then-Minister of Finance announced to 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.[39]
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.[40]
In April 2012, the Council of State of the Netherlands (Raad van State) stated that the prohibition was “limited in its effectiveness” as it applies only to Dutch financial institutions.[41] 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.[42]
On 20 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.[43] The list will be periodically updated by the financial sector, facilitated by the AFM.[44] The indicative list was updated at the end of 2013 but, as of 1 July 2014, had not been made publically available. However, previously 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.[45] In February 2013, the government reiterated its position that enforcement of the prohibition lies with the Ministry of Foreign Affairs, but the responsibility of compliance lies with the financial sector.[46]
CMC co-founder and member PAX (formerly IKV Pax Christi) and Belgian CMC member FairFin (formerly Netwerk Vlaanderen) have led the CMC’s Stop Explosive Investments Campaign since it began in 2009.[47] In December 2013, PAX launched an update of a report on the status of global investment in cluster munition producers.[48] The report identified 24 Dutch financial organizations as having guidelines on prohibiting investment in cluster munitions.[49] In April 2014, PAX released a report on positive examples from legal prohibitions on investments in cluster munitions.[50]
The Netherlands is a State Party to the Mine Ban Treaty. It is also party to the Convention on Conventional Weapons.
Use, production, and transfer
In the past, the Netherlands used, produced, imported, and reportedly exported cluster munitions. It acquired cluster munitions from the United Kingdom and the United States (US) in addition to producing them.
The Royal Netherlands Air Force dropped 173 CBU-87 cluster bombs (with 202 bomblets each) during the 1999 NATO air campaign in the former Yugoslavia.[51]
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.[52]
In January 2006, the Ministry of Defence announced a transfer of 18 multiple launch rocket system (MLRS) launchers to Finland.[53]
Stockpile destruction
The Netherlands once stockpiled more than 193,643 cluster munitions containing approximately 26 million submunitions. The vast majority of the stockpile was destroyed prior to the convention’s 1 August 2011 entry into force for the Netherlands.[54] In the initial Article 7 report provided in May 2012, the Netherlands declared a stockpile of 2,143 cluster munitions of three different types and 82,558 submunitions, which had been destroyed.[55]
In September 2012, the Netherlands announced the completion of the destruction of its stockpile of cluster munitions, seven years in advance of its 1 August 2019 deadline under Article 3 of the Convention on Cluster Munitions.[56]
Cluster munitions stockpiles declared destroyed by the Netherlands[57]
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Type |
Quantity of munitions |
Quantity of submunitions |
|
155mm M483 projectiles containing M46/M42 submunitions |
42,711 |
3,758,568 |
|
CBU-87 bombs containing BLU-97 submunitions |
297 |
59,994 |
|
Mk-20 Rockeye bombs containing Mk-118 submunitions |
25 |
6,175 |
|
M261 rocket warheads containing M73 submunitions |
1,821 |
16,389 |
|
Total |
44,854 |
3,841,126 |
The 155mm M483 artillery projectiles were destroyed by Esplodenti Sabino in Casalbordino, Italy prior to the entry into force of the convention for the Netherlands.[58] In November–December 2011, the remaining stockpile was shipped to Norway, where it was destroyed by Nammo NAD AS at a location south of Trondheim. The M261 rocket warheads were destroyed by 29 February 2012, while the CBU-87 cluster bombs and Mk-20 Rockeye bombs were destroyed by 31 January 2012.[59]
Retention
In its 2014 Article 7 report, the Netherlands declared the retention of 276 cluster munitions and 24,347 explosive submunitions.[60] This includes four 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.[61]
Cluster munitions retained by the Netherlands (as of 31 December 2013) [62]
|
Type |
Quantity of munitions |
Quantity of submunitions |
|
M483 projectiles containing M42 and M46 submunitions |
200 |
12,800 M42, 4,800 M46, 524 M46 w/out fuzes, 1,402 M42 w/out fuzes |
|
M261 Hydra rocket warheads containing M73 submunitions |
58 |
522 |
|
Mk-20 Rockeye bombs containing Mk-118 submunitions |
7 |
1,902 |
|
CBU-87 bombs containing BLU-97 submunitions |
11 |
2,222 |
|
Mk1 submunitions from BL755 bombs |
- |
175 |
|
Total |
276 |
24,347 |
The Netherlands has stated that the retained munitions are for “purposes of the ‘Defense Explosive Ordnance Disposal Service,’” which train the armed forces.[63]
[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), and on 30 April 2014 (for calendar year 2013). 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] Statement of the Netherlands, Convention on Cluster Munitions Fourth Meeting of States Parties, Lusaka, 10 September 2013.
[7] According to the minister, the Netherlands conducted outreach efforts with states not party during the Fourth Meeting of States Parties and would continue its efforts in the UN context, including at the UN General Assembly (UNGA) First Committee on Disarmament and International Security. Statement by Frans Timmermans, Minister of Foreign Affairs, Officiële Bekendmakingen, “Algemene Vergadering der Verenigde Naties. Verslag van een Algemeen Overleg,” (Official Notice, “The United Nations General Assembly. Report of a Plenary Debate,” Kamerstuk (Parliamentary papers) 26150 nr. 133, 7 October 2013.
[8] Statement by Amb. Henk Cor van der Kwast, Permanent Representative of the Kingdom of the Netherlands to the Conference on Disarmament, UNGA First Committee on Disarmament and International Security, New York, 68th Session, 29 October 2013.
[9] Statement of the Netherlands, UNGA First Committee on Disarmament and International Security, New York, 24 October 2012; and statement of the Netherlands, Convention on Cluster Munitions Intersessional Meetings, Geneva, 17 April 2013. Notes by the CMC.
[10] Statement by Amb. van den IJssel, UNGA First Committee on Disarmament and International Security, 68th Session, New York, 28 October 2013.
[11] Statement of the Netherlands, Convention on Cluster Munitions Intersessional Meetings, Geneva, 9 April 2014. Notes by the CMC.
[12] Ibid.
[13] Statement by Jeanine Hennis-Plasschaer, Minister of Defense, Tweede Kamer website, “Conceptverslag van een Algemeen Overleg over: Verlenging Nederlandse bijdrage aan UNMISS Zuid-Soedan” (The Netherlands Parliament website, “Concept report of a Plenary Debate about prolongation of the Netherlands’ contribution to UNMISS South Sudan”), 2014D10660, 13 March 2014.
[14] “Situation of human rights in the Syrian Arab Republic,” UNGA Resolution A/RES/68/182, 18 December 2013. The Netherlands voted in favor of a similar resolution on 15 May 2013.
[15] “Verslag onderzoeksmissie Storimans” (“Storimans commission of inquiry report”), 24 October 2008.
[16] Jeroen Akkermans, “Het kan Rusland in feite geen barst schelen” (“Russia actually doesn’t give a damn”), RTL Nieuws, 10 July 2013.
[17] “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.
[18] 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.
[19] 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.
[20] 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.
[21] 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.
[22] The Secretary of State referred to obligations that stem from Articles 11, 12, and 13 of the NATO Status of Forces Agreement and Article 3 of the transport regulation of strategic goods, saying that this exception would only apply to NATO allies. Summary of the plenary debate on “The Haubrich-Gooskens motion regarding a prohibition on investments in producers of cluster munitions, 32187- (R1902), letter F”; and “The Haubrich-Gooskens motion regarding the reassessment of the government’s position on the transit of cluster munitions through Dutch territory 32187-(R1902), letter G,” 22 March 2011.
[23] 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, Defense 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.
[24] Ibid.
[25] 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.
[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.
[27] 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.
[28] Letter from Henk Swarttouw, Ministry of Foreign Affairs to Stephen Goose, Director, Arms Division, Human Rights Watch, 26 February 2009.
[29] 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.”
[30] 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.
[31] 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 Defense, 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.
[32] 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.
[33] Motion by Van Velzen (Socialist Party)/Van Dam (Labor Party), adopted on 8 December 2009, Reference: Kamerstuk (Parliamentary papers) 22 054, No. 150.
[34] He later offered the explanation that the convention applies only to States Parties and not to individuals or private institutions. “Therefore, the Convention does not prohibit financial institutions to invest in arms industries, nor does it oblige state parties to impose such a prohibition to these institutions.” In his refusal, the Minister of Finance stated that taking into account 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. The ministry stated that the Dutch government would “encourage transparency in companies’ governance policies,” noting that a majority of Dutch financial institutions had already taken steps to prevent investments in controversial arms producers. The ministry concluded that “against this background the question rises what added value a prohibition would provide and if it would not be counterproductive to the purpose.” Letter from Maarten Wammes, Ministry of Foreign Affairs, 20 May 2010.
[35] A parliamentary debate was held on the government’s refusal to carry out the motion on prohibiting investments. During the debate, two motions were presented. The first called for a prohibition on direct investment and an investigation into possibilities to prohibit indirect investments. The second called upon the government to enforce guarantees that banks under state control would not invest in cluster munition producers. Neither of the motions were put to a vote. Motion by El Fassed (Green Left), Reference: Kamerstuk (Parliamentary papers) 22054, No 161, presented on 22 September 2010; and motion by Van Dijk (Socialist Party), Reference: Kamerstuk (Parliamentary papers) 22054, No. 162, presented on 22 September 2010. 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. For the record of the debate on 22 September 2010. See also Uri Rosenthal, Minister of Foreign Affairs, and Hans Hillen, Minster 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.
[36] 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.
[37] The Minister of Finance stated: “It is clear from the convention that investments in cluster munitions are prohibited when the State acts as a private actor, when it is a 100% shareholder of a certain bank, when it has a supervisory interest in a bank or when it has influence through its procurement policy or through its spending…I herewith confirm that we see enough grounds in the convention to conclude that direct investments in cluster munitions are not allowed in those cases.” 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. Direct investment in cluster munition production would therefore be considered a corporate social responsibility criteria for public tenders. The Minister said the Council of State (Raad von State) would be asked to advise if Article 1(1)c applies to States Parties only or to anyone, including individuals, on Dutch territory. The Minister said he would consider the opinion of the Council of State binding, despite the position previously expressed by the government that it considered the prohibition to be applicable only to States Parties. Summary of the plenary debate on “The Haubrich-Gooskens motion regarding a prohibition on investments in producers of cluster munitions, 32187-(R1902), letter F,” and “The Haubrich-Gooskens motion regarding the reassessment of the government’s position on the transit of cluster munitions through Dutch territory, 32187-(R1902), letter G,” 22 March 2011. For the record of the debate on 22 March 2011.
[38] On 27 May 2011 and 15 July 2011, two Members of Parliament from the Green Party sought clarification from the Minister of Finance about the financial involvement of the Dutch state with the Royal Bank of Scotland (RBS) and investments by RBS in companies involved in the production of cluster munitions. See Jan Kees de Jager, Minister of Finance, “Answers to the parliamentary questions by El Fassed and Braakhuis about the banker for the Dutch state the Royal Bank of Scotland,” Reference: parliamentary questions, 2010–2011, 92, 26 September 2011.
[39] 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.
[40] 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.
[41] 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. The note says that it would be almost impossible to monitor the activities of private Dutch investors outside of the Netherlands and that the national supervisory body (the AFM) has no legal competence to monitor whether an autonomous foreign subsidiary of a Dutch financial institution is complying with Dutch law. The note also states that under existing socially responsible investment practices it is the responsibility of the financial institutions to ensure their compliance with the prohibition and recommends that the financial sector collaboratively compile its own exclusion list of cluster munitions producers. 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.
.[42] Officiële Bekendmakingen, “Wijzigingsbesluit financiële markten 2013” (Official Notice, “Public Consultation about the Financial Markets (Amendment) Decree 2013”), 14 April 2012.
[43] The 2013 list included: Aeroteh (Romania), Alliant Techsystems (United States (US)), Aryt Industries (Israel), Ashot Ashkelon (Israel), Hanwha Corporation (South Korea), Kaman Corp. (US), Lockheed Martin Corp. (US), Norinco (China), Poongsan Corporation (South Korea), Singapore Technologies Engineering (Singapore), Splav State Research (Russia), and Textron (US). Eumedion, Corporate Governance Forum, “Newsletter, December 2012 Edition,” December 2012, p. 4.
[44] Autoriteit Financiele Markten, “Cluster munitions” (The Netherlands Authority for Financial Market, “Cluster munitions”).
[45] 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.
[46] 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.
[47] 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 2013 edition, dated December 2013, which is built on the previous editions published in conjunction with FairFin.
[48] CMC, “Over US$24 Billion Invested in Cluster Bomb Producers Worldwide: Financial Institutions and Governments Urged to Stop Explosive Investments,” 12 December 2013; and IKV Pax Christi, “December 2013 Update: Worldwide investments in Cluster Munitions: a shared responsibility,” December 2013.
[49] IKV Pax Christi, “December 2013 Update: Worldwide investments in Cluster Munitions: a shared responsibility,” December 2013. Of these, 16 organizations were included in the “Hall of Fame” ranking for institutions with strong policies prohibiting investment in cluster munitions, while eight were cited by the report as “runners up.”
[50] PAX, “Banning Investments in Cluster Munitions Producers; National Legislation,” April 2014.
[51] Parliamentary letter from Maxime Verhagen, Minister of Foreign Affairs, “Parliamentary letter regarding questions on cluster munitions,” 4 September 2008.
[52] 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.
[53] 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.
[54] 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 picture the stockpile destruction. In March 2010, the Ministers of Defense and Foreign Affairs confirmed the completion of the destruction of the stockpile of BL755 aerial 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.
[55] Convention on Cluster Munitions Article 7 Report, Form B, 3 May 2012; and statement of the Netherlands, Convention on Cluster Munitions Intersessional Meetings, Geneva, 8 April 2014.
[56] Statement of the Netherlands, Convention on Cluster Munitions Third Meeting of States Parties, Oslo, 12 September 2012. The last remaining cluster munition stocks were destroyed in February 2012 by the Norwegian company Nammo NAD (Norwegian Ammunition Disposal) AS. Additional stockpiles discovered after reported completion of destruction (four CBU-87 B/B and 808 BLU-97 submunitions) have been retained for training according to the 2013 Article 7 report. The 155mm M483 artillery projectiles were destroyed by Esplodenti Sabino in Casalbordino, Italy prior the entry into force of the convention for the Netherlands. In November–December 2011, the remaining stockpile was shipped to Norway, where it was destroyed at Løkken Verk, south of Trondheim by Nammo NAD AS. The M261 rocket warheads were destroyed by 29 February 2012, while the CBU-87 cluster bombs and Mk-20 Rockeye bombs were destroyed by 31 January 2012. The destruction was done by detonation underground and according to the 2013 Article 7 report, “the explosives have not been recycled for military use.”
[57] 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.
[58] Convention on Cluster Munitions Article 7 Report, Form B, 1 December 2011.
[59] 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.
[60] Convention on Cluster Munitions Article 7 Report, Form C, 30 April 2014.
[61] The Netherland’s 2013 Article 7 report lists 276 cluster munitions and 24,353 submunitions retained for training and research purposes (six additional submunitions). However, this appears to be a calculation error as the individual quantities of submunitions by munition type remain unchanged across the 2012, 2013, and 2014 reports. Convention on Cluster Munitions Article 7 Report, Form C, 3 May 2012; Convention on Cluster Munitions Article 7 Report Form C, undated but April 2013; and Convention on Cluster Munitions Article 7 Report, Form C, 30 April 2014.
[62] Both the 2012 and the 2013 Article 7 reports appear to have a calculation error with respect to the total number of submunitions retained for training. In the 2012 report, the Netherlands reported a total of 19,532 retained for training while the various types add up to a total of 23,545, a difference of 4,013 submunitions. The table in the report contains a subtotal line of 4,013 that appears to have been deducted from the total. Convention on Cluster Munitions Article 7 Report, Form C, 3 May 2012. In the 2013 report, the Netherlands reported the same total of 19,532 retained for training while the various types add up to a total of 24,347, the difference being 4,815. The table in the report contains a subtotal line of 4,821 that appears to have been deducted from the total. Also, the 2013 report lists 1,402 M42 submunitions without fuzes, which is six fewer than reported in the 2012 report. Convention on Cluster Munitions Article 7 Report, Form C, undated but April 2013.
[63] Convention on Cluster Munitions Article 7 Report, Form C, undated but April 2013; and Convention on Cluster Munitions Article 7 Report, Form C, 1 December 2011; and statement of the Netherlands, Convention on Cluster Munitions Fourth Meeting of States Parties, Lusaka, 10 September 2013.
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