The distinguished Nollkaemper is also external Legal Advisor to the Minister of Foreign Affairs of the Netherlands, Member of the Permanent Court of Arbitration, President of the European Society of International Law and Member of the Royal Netherlands Academy of Arts and Sciences.
In his judgment, which he sent to the Lower House on Wednesday evening, he writes that the support to armed Syrian “moderate” rebels may have been at odds with international law.
The government never asked for advice, but members of the Lower House asked him afterwards for his advice on the so-called NLA or “non-lethal assistance program”.
Nollkaemper told Dutch daily Trouw and political news programme Nieuwsuur: “I think there are more facts to be put the table, but on the basis of what there is now, my preliminary opinion is that the Netherlands went too far in providing support to groups, in which the goods have been used in a way that is contrary to international law. On the basis of the facts I now know, based on the UN reports that have also been published, I would also have had serious doubts in 2015 about whether there were groups that we could have supported.
“The nature and agenda of the different groups were not clear, nor it was clear whether they leaned towards terrorism or towards battling Assad,” says Nollkaemper.
Nollkaemper regards the Syrian conflict as a “legal minefield”. The fact that the Netherlands supplied “non-lethal” goods to the jihadists is, according to Nollkaemper, “not decisive”. But he added: “The question is whether they were used in the context of armed operations. And that seems to have happened.”
“In my opinion, the principle that we were not allowed to deliver goods against the Assad government is the most fundamental,” says Nollkaemper. “It is one thing to support moderate groups that are part of a political process. It is different to deliver goods that are part of armed action against Assad.
“International law makes a very sharp distinction, and with good grounds. We also do not want Russia to support opposition groups in Ukraine to overthrow the government there or to seize territory. If you go that way, the world will become a very unsafe place.”
Political pundits have recently argued in the Dutch daily NRC that in a war you end up with “getting your hands dirty”. But Nollkaemper finds this reasoning “dangerous” he says. “We have all committed ourselves to the rule of law. The rule of law applies in the Netherlands, but also for our foreign policy. It is very dangerous to ignore the law if matters become difficult. Here in the Netherlands, we also do not say, if it is useful for the prosecution of suspects, that we will just ignore the legal safeguards. Are we committed to the rule of law, or not?”
The Ministry of Foreign Affairs asked for advice from its own lawyers regarding the support program, but Nollkaemper was not asked for advice.
The Rutte government still does not want to make public the legal grounds on which it thought it would be able to implement the NLA programme. Lawmakers were only informed confidentially, and are therefore not allowed to speak about it publicly.
Nollkaemper would prefer to see it differently: “I think the confidentiality that is now being enforced is a problem. The Middle East is a matter of great social and political importance, and that calls for an open debate in which justice also participates fully. If you choose to only disclose the legal arguments for confidentiality, you will keep hidden a very important part of the debate.”
Nollkaemper has given his written opinion to the House. “My advise is that the system, as it was conceived, did not work adequately in this case,” he writes.
The establishment of an external international adviser was intended to provide the government with sound legal advice on “important foreign issues”, and according to Nollkaemper there is “no doubt about it” that the support programme for Syria was an “important foreign issue”. And despite that, the government never asked him for advice.
The Dutch government was aware – in detail – of the crimes committed by the Syrian rebel movement Jabhat al-Shamiya. This is evident from an email exchange from 2016 between Amnesty International and Foreign Affairs, which has been reviewed by Trouw and Nieuwsuur.
In 1999, Nollkaemper established the Amsterdam Center for International Law (ACIL), which has become a centre of excellence at the University of Amsterdam and ranks amongst the top institutions for international law in the Netherlands.
His practical experience includes cases before the European Court on Human Rights, the Special Court for Sierra Leone, the International Criminal Tribunal for the Former Yugoslavia, the Extraordinary Chambers in the Courts of Cambodia, courts of the Netherlands and consultancy for a variety of international and national organisations.