Netherlands

The Netherlands signed Additional Protocol I (AP I; the Protocol) on 12 December 1977 and ratified it on 26 June 1987.

The Advisory Commission on International Law and Conventional Weapons Use (the Commission) was established by the Minister of Defence in 1978 to implement the review requirements set forth in Article 36 of the Protocol. The Commission has been periodically reorganised and modernised and is currently governed by the Ministerial Decision of 5 June 2014.

In the period between 1978 and 2004, very few reviews were carried out, as the Netherlands only procured weapons and ammunition already in use by States which had carried out their own legal reviews. At the time, this was considered sufficient. When the Commission was re-established in 2007, it completed a retrospective review of the weapons and ammunition introduced into use by the Netherlands Armed Forces after 1 January 2000. This date was used as the threshold for defining ‘new’ weapons under Article 36 of AP I. A summary review was also conducted to assess the nature and types of weapons, ammunition, and other means of warfare in the arsenal as a whole, without being limited by this date. However, this review did not identify any need for an in-depth assessment of the weapons, ammunition, or other means of warfare in use at that time.

The Commission was established by Ministerial Decision, published in the official gazette in the Netherlands in the same way as legislation and derivative regulations. Additionally, submitting new means and methods of warfare for review is a mandatory element for all procurement within the Ministry of Defence (including the armed forces) on the basis of an internal directive issued by the Chief of Defence which is binding on the armed forces, on the Materiel and IT Command and on the Support Services Command.

Review authority

As set forth in the Ministerial Decision, the review is undertaken by a Commission and a subordinate Working Group. The Commission consists of the Chief of Defence (chair), the Director of Legal Affairs (deputy chair), the Director-General of Policy, the Chief Medical Authority of the Defence Medical and Health Care Organisation and the chairman of the Working Group as secretary of the Commission. The Working Group consists of the Deputy Director of Legal Affairs (chair) and representatives of the Directorate-General of Policy, the Defence Staff, the Defence Materiel Organisation, the Defence Medical and Health Care Organisation, the Royal Netherlands Navy, the Royal Netherlands Army, the Royal Netherlands Air Force and the Royal Netherlands Marechaussee (military police). Additionally, the Working Group may invite other parties, including external or non-governmental experts, to provide advice.

Scope of review

The Netherlands, and therefore the Commission, does not follow a strict definition of the terms ‘means and methods of warfare’ in the context of IHL, including the Article 36 of AP I obligations. The Commission reviews any instrument intended to cause harm or damage, regardless of the anticipated degree of harm or damage. To date, the Commission has carried out only one review of ‘methods of warfare’ and is unlikely to conduct legal reviews of methods regularly. In the view of the Netherlands Ministry of Defence, ‘methods’ can be broadly divided into two categories. Ad-hoc command decisions regarding specific tactics or methods to be applied in a given operation are typically advised on by the military legal adviser deployed with the unit or force in question. It would seem impractical, if not downright impossible, to subject such decisions to formal review by the Commission during an on-going operation. When in doubt, the deployed military legal adviser can contact the Directorate of Legal Affairs of the Ministry, which can be reached on a 24/7 basis. Methods of warfare intended for long-term or structural application are more likely to be reviewed as doctrine in the Ministry of Defence’s specific doctrine review process. Legal advice is integrated into the doctrine review through the input by the Directorate of Legal Affairs; but the Commission itself is not involved in this process. The one method of warfare reviewed by the Commission addressed the use of cyber technology as a method of generating effects against a target (as opposed to specific cyber ‘weapons’, which would be reviewed as ‘means of warfare’) and is documented in the framework advisory opinion No 12 (Advies 12 Kaderadvies Cyber).

Platforms (for example, ships, aircraft, or vehicles intended for military use) are not reviewed in the Article 36 review process, except as an element in the review of any weapons or other means of warfare that are dependent on, or form an integral part of, the platform in question and cannot be properly evaluated without including the platform in the process.

Targeting systems have been reviewed by the Commission but may be subject to a summary evaluation if they do not form an integral part of a specific weapon system.

Modifications to previously approved weapons and means of warfare are subject to review by the Commission if the modification alters the function or the effect of the means of warfare.

Weapons and ammunition intended exclusively for domestic law enforcement are not reviewed by the Commission, but by a weapons review board within the Ministry of Justice and Security (the Domestic Review Board). Weapons and ammunition intended for use by the Royal Marechaussee (the military police and border security force in the Netherlands) are, however, reviewed by both the Domestic Review Board and the Commission, since those units have full military status and can be deployed alongside the armed forces as well as in a domestic law enforcement capacity (the Royal Marechaussee have full law enforcement authority). The Commission and the Domestic Review Board maintain a close working relationship and assessments and advisory opinions can be exchanged between the two bodies to assist in reviews.

Standard of review

The review considers all information and sources deemed necessary by the Working Group and the Commission to assess the weapon or ammunition in question, not just from a legal point of view but also based on political, policy, environmental, and other relevant considerations. As described above, the members of the Working Group and the Commission include a combination of military and civilian personnel, with expertise spanning operational, legal, political, medical and other relevant fields. Where necessary or so desired, external experts are also consulted.

In principle, the requesting party is responsible for having any tests carried out that may be considered necessary. Typically, testing by the Ministry of Defence or by certified independent parties is preferred. In exceptional cases, testing by a manufacturer may be considered if the tests can be carried out to the specifications required by the Ministry of Defence and can be sufficiently documented or witnessed. Not all weapons or other means of warfare are tested, however, as some weapons or other means of warfare can be evaluated on the basis of their basic function or purpose.

In principle, the review only considers lex lata. However,the review process can include anticipated developments in the law if (a) the developments are sufficiently concrete and specific and (b) a prima facie legal or policy estimate indicates that it is likely that the Netherlands will become a party to the instrument under development or will adopt the emerging legal view in question.

The review process also considers known uses of, and experiences with, the means of warfare under review by other States. As regards commercial parties, where weapons are procured from private manufacturers, the technical specifications provided by those manufacturers are taken into account. Whether the review can rely solely on the data provided by the manufacturer depends on the nature of the weapon or ammunition, prior experiences with the manufacturer, and other applicable considerations. Where necessary and feasible, within the constraints of time, resources, and other factors, the Commission might request additional testing by the armed forces or by an independent agency. At the very least, it conducts open source research to corroborate the data presented by the manufacturer as thoroughly as possible. Assessments made by other States can be accepted as reliable if the foreign government is willing to provide substantiation of its assessment, or based on prior experience with the State in question in matters relating to international law and to legal review processes.

Conduct of review

The review process is triggered by a request from the armed forces, from the Directorate of Operational Planning in the Ministry of Defence, or from the Defence Materiel Organisation. Requests are submitted to the secretary of the Commission via email or via internal memorandum.

The chairman of the Working Group conducts a so-called ‘initial review’ and consults such experts as may be necessary to carry it out. At this stage, relevant rules under treaty and customary IHL are considered, most notably weapon-specific prohibitions or restrictions stipulated in treaties to which the Netherlands is a party (such as CCW Protocol IV on blinding laser weapons, or the Ottawa Convention on anti-personnel mines). Such prohibitions and restrictions are typically based on the customary law prohibition to employ weapons of a nature to cause superfluous injury or unnecessary suffering. Whether prohibitions on indiscriminate attacks are included in the analysis, depends on the weapon or ammunition in question; these rules are clearly less relevant when reviewing rifle ammunition than when assessing artillery shells or air-to-ground ammunitions. To conduct the necessary evaluation, the weapon’s effect on the target, principal mechanism of operation, and other relevant factors are analysed.

The draft advisory opinion resulting from the initial review is submitted for approval by the Working Group, which decides on the basis of consensus. Input from the Working Group is incorporated by the chairman into the advisory opinion and then resubmitted to the Working Group for further consideration. Once approved by the Working Group, the draft advisory opinion is submitted to the Commission for approval. Once approved by the Commission by consensus, the advisory opinion is submitted to the Minister of Defence for final and formal approval.

Outcome and effect

The final decision can consist of the means of warfare being

  • unconditionally approved for use by the Netherlands Armed Forces;
  • approved under restrictions or conditions; or
  • rejected.

In the context of the review process, the first option, that is ‘approved unconditionally’ means that the method or means may be used within the normal parameters of applicable law without additional restrictions or reservations specific to the method or means beyond those already outlined in the law. The second option — ‘approved under restrictions or conditions’ — means the weapon or ammunition may only be used subject to the restrictions or conditions specified in the advisory opinion. Such restrictions are to be applied in all military operations and are additional to applicable law. The review procedure does not normally result in a rejection, since in practice negative decisions are communicated to the requesting party at an early stage in the legal review process in order to allow the requesting party to either withdraw the request for review or submit an alternative weapon or type of ammunition for review instead.

Following approval of the advisory opinion by the Minister of Defence, that opinion becomes binding upon the Netherlands Armed Forces as a whole. Advisory opinions can be reconsidered upon request or upon the initiative of the Working Group or the Commission. Advisory opinions can also include, as a condition, a requirement for review after a certain period of time. Reviews and the resulting advisory opinions are recorded and documented by the secretary of the Commission. The advisory opinions are published online on the official government website, but may be redacted as necessary to remove classified or proprietary information. As of 2025, online publication may be omitted for reasons of national security.

References

Key documents

Historical documents

Advisory opinions

The Advisory Commission on International Law and Conventional Weapons Use has published a number of opinions on its website. The unofficial English translations of three advisory opinions are available here:

Further references

Archive of public views
Published: 1 October 2025
Updated: 1 October 2025
Reviewed by: Netherlands Ministry of Defence Communications Directorate