AWS Legal Review Series – Transparency and the Experience of the Netherlands

This post appears as part of a series on the legal review of autonomous weapon systems. An introductory post by Professors Rain Liivoja and Sean Watts provides an overview of the series.

In 1978, the Netherlands implemented the national review obligations of Article 36 of the First Additional Protocol of 1977 to the Geneva Conventions of 1949 by establishing the Advisory Commission on International Law and Conventional Weapons Use. The most recent Ministerial Decision establishing the Commission dates from 2014, implementing various changes caused by prior reorganizations within the Ministry of Defense. The term “conventional” was inserted into the name of the Commission to correspond with the declaration made by the Netherlands upon ratification of the Additional Protocol. The December 2017 Stockholm International Peace Research Institute (SIPRI) Compendium on Article 36 Reviews included a description of the Commission and the accompanying Working Group.

Until 2019, the Netherlands did not make the advisory opinions of the Commission publicly available. Although the documents were not formally considered to be confidential, they were at least considered “sensitive.” This designation was based on operational concerns as well as on the inclusion of commercially sensitive data in the advisory opinions. The Netherlands was, however, willing to share the work of the Commission with other governments, as the government expressed in its explanation to parliament as regards the review mechanism in the Netherlands.

Actions Speak Louder than Words

In 2017, as part of that year’s session of the Group of Governmental Experts discussing lethal autonomous weapons in the context of the Convention on Certain Conventional Weapons, the Netherlands and Switzerland submitted a working paper explaining the processes and benefits of national legal reviews of new weapons. In that paper, the two States also encouraged—much as the International Committee of the Red Cross had done in 2003—States to cooperate with each other in terms of sharing their experiences with weapon reviews. In 2020, the Netherlands repeated that message and a general call for transparency in weapon reviews in an online seminar hosted by the United Nations Office for Disarmament Affairs. But while the Netherlands, as stated above, was willing to share its experiences in this field with other States, there was, as yet, no general transparency in the Netherlands as regards the work of the Advisory Commission.

Transparency was nonetheless high on the agenda of the Ministry of Defense in order to enhance accountability, legitimacy, and public support for the Defense organization as a whole. A 2018 white paper on Defense and, even more prominently, a 2020 Defence Vision 2035 document expressed this view.

Meanwhile, the Dutch parliament had been working on a new law which was to supplant the Government Information (Public Access) Act (the Netherlands’ version of what is frequently titled the Freedom of Information Act in other States). The new law, the Open Government Act, entered into force on May 1, 2022. While the Act kept a few of the exceptions regarding public access to government information (discussed below), the premise of the law was considerably different. Under the new law, government information is considered public information unless one of the exceptions applies. Furthermore, government agencies are required to make information publicly available proactively as much as possible instead of waiting for a request from the public to do so. In other words, transparency was henceforth to be considered the standard rather than the exception.

While these developments were taking place, the Advisory Commission advised the Minister of Defense in 2019 to initiate a review of all previous advisory opinions by the Commission with a view to making them available to the public. In 2020, at the completion of that review, the minister was advised to release almost all of the previous advisory opinions to the public (redacted where necessary; see below) and henceforth to make all new advisory opinions available to the public proactively whenever possible. Since then, the Advisory Commission’s opinions are available on the government website (in Dutch).

Exceptions to the Rule

Notwithstanding the importance of transparency and its role in relation to accountability and (therefore) legitimacy, there are, of course, limits to that transparency. As regards the present discussion, the relevant limits are those based on national security interests, international relations, legitimate commercial interests, and common sense. The first three categories are also recognized by applicable law, while the final category (common sense) is more a basis for differentiating between proactive transparency and making documents available upon request, as well as being a factor in evaluating the other three categories of exceptions.

Before discussing the criteria applied by the Netherlands in regards to making the advisory opinions on weapon reviews publicly available, it should be noted that making documents publicly available in their entirety and keeping those documents secret are the two outer limits in a continuum that allows greater flexibility. For example, documents may be redacted in such a way that they can still be made publicly available but with sensitive parts (sentences or paragraphs) omitted. In the Netherlands, this approach was applied to a few of the advisory opinions by removing commercially sensitive or proprietary information, as well as information considered sensitive from a national security (e.g military operational capabilities) perspective. In the interaction between the government and parliament, there is the additional option of making documents available under the restriction of confidentiality. This means that the members of parliament may only read the documents on the basis of non-disclosure, including the injunction that they may not refer to the contents of those documents in public debates.

National Security Interests

Confidentiality or non-disclosure based on national security interests is an exception that exists in a variety of legal provisions in the Netherlands, including the provisions in the Constitution of the Kingdom of the Netherlands concerning the obligations of the government in relation to informing parliament (both the general provision in Article 68 and the specific provision related to military deployments in Article 100). This exception is also recognized in the Open Government Act (art. 5.1 (1) (a)).

Non-disclosure on the basis of national security interests in relation to advisory opinions in the context of weapons reviews must be assessed on the basis of common sense. While it seems tempting to consider everything related to the armaments of the armed forces as inherently confidential, that is clearly not the case. Apart from the simple observation that any visible deployment of armed forces units and personnel will make much of their equipment visible as well, public procurement procedures, press releases by arms and ammunition manufacturers, and articles by specialist media provide significant insight into the weapons and ammunition used by many of the world’s armed forces.

The same observation can be made in terms of weapons or ammunition capabilities and characteristics, with a possible differentiation between the “public version” of such data and the more detailed classified version of those data. Information released to the public by governments or international organizations can be included in weapon reviews’ advisory opinions to be made public, with the classified details either redacted or contained in a classified annex which is not made available to the public. The same approach can be applied to information made publicly available by manufacturers.

Consequently, before applying the national security exception in the context of weapon reviews, it is advisable to perform a preliminary check to ensure that neither the manufacturer nor the armed forces themselves has already disclosed the information in question. Additionally, a choice can be made as to which information to include in the public version of a document and which information to restrict to a classified annex. Moreover, the fact that the armed forces have a certain weapon or ammunition available to them is usually less sensitive or subject to confidentiality than facts related to the specific use or deployment of those weapons or ammunition in a particular operation. Weapons reviews only address the former, not the latter.

International Relations

Non-disclosure of information in the interest of bilateral or multilateral international relations is permitted under the Open Government Act (art. 5.1(2)(a)). This exception applies especially in situations in which the other State or organization has specified that certain information is to remain classified as well as situations subject to certain export restrictions (such as the U.S. International Traffic in Arms Regulations (ITAR)). But here, too, differentiation is possible between applying the non-disclosure to all of the information, or only to those elements of the information that fall under the applicable restriction or agreement. The sale of military equipment itself is, after all, commonly made known to the public. Consequently, the same common-sense check is relevant in this case.

Commercial Interests

In the interest of protecting the commercial (market) position of manufacturers and normal commercial competition, several elements in the exchange of information between manufacturers and government procurement agencies are commonly considered confidential. That includes, as far as relevant to weapon reviews, proprietary or commercially sensitive information regarding manufacturing processes, including ingredients or products used in that process. The exception of commercial information provided to the government on a confidential basis (art. 5.1(1)(c)) and commercial information which can affect the market or competitive position of a manufacturer (art. 5.1(2)(f)) is recognized under the Open Government Act.

Fabrication or substance-related information may be relevant in the context of weapon reviews processes but need not always be so. For example, if the nature or components of a device or ammunition raise environmental concerns, the review process may include an evaluation as to whether the item in question would cause widespread, long-term, and severe damage to the environment. Concerns related to the health and safety of government employees, including military personnel, need not be addressed in weapon reviews in the sense of Article 36 but may, of course, be included if a State so wishes. In the Netherlands, such elements were originally included in weapon reviews but are now subject to a separate review process related to employee health and safety. Consequently, while some of the earlier advisory opinions were redacted to remove proprietary component information prior to being made available to the public, more recent advisory opinions no longer contain such information.

The common-sense evaluation applies to this restriction as well, given that companies are frequently under legal obligations to provide information regarding their products in the interests of consumer safety. Such laws and regulations may be national or regional in nature and have a broad scope. This means that information made publicly available in conformity with such laws and regulations could not, of course, be redacted or kept confidential in this context.

Conclusion

In addition to the benefits of transparency outlined above, transparency in the context of weapon reviews has two additional benefits. First, it can assist States reviewing the same product by comparing their work with the results already reached by other States. While each State must, of course, complete its own review, published reviews can nonetheless assist States in organizing or directing their own research. Second, transparency can assist States that have not yet established their own review process by demonstrating how such a process can work in practice.

There is no obligation under international law to make the outcome of weapon reviews publicly available (but, as is the case in the Netherlands, there may be national obligations to do so) and transparency should not become an impediment or concern in the process of setting up a review mechanism. However, it is the present author’s hope that transparency by those States willing and able to do so can help those States still in the process of establishing their own mechanism by providing examples and clarity. In the experience of the Netherlands, the benefits of transparency in the weapons review process far outweigh any concerns or hesitations.

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Dr J.F.R. Boddens Hosang is the Head of International Law at the Netherlands Ministry of Defense, and Secretary of the Advisory Commission on International Law and Conventional Weapons Use.

Photo credit: Staff Sgt. Jesus Sepulveda Torres