The Hague, 17 October 1996
The letter of 6 September 1996 from the Minister for Foreign Affairs and the Minister of Defence to the Lower House announced the Government's intention to instruct the Netherlands Institute for War Documentation (RIOD) to investigate events before, during and after the fall of Srebrenica. The Government attaches great importance to a scholarly historical investigation of this kind.
2. Scope of the investigation
The RIOD has been asked to list and classify the relevant factual material. The aim is to use this as a basis for increasing our understanding, from a historical perspective and in both a national and international context, of the causes and events which led to the fall of Srebrenica and the dramatic developments which ensued. The investigation will focus on the events which occurred before, during and after the fall of the enclave, seen as an interconnected whole against the background of political and military developments in Bosnia-Hercegovina and the international consultations on the situation there. It would seem logical for the investigation to cover the following topics: the UN concept of safe areas, the actions and command structure of the UN peacekeeping forces, decision-making within the UN and NATO, decision-making in the Netherlands and parliamentary involvement in that process, the actions of Dutchbat, the deployment of NATO air strike capacity, the blockade and capture of Srebrenica and the actions of the Bosnian Serbs after the fall of the enclave. Within this framework the RIOD will be free to structure the investigation as it sees fit.
3. Access to sources
3.1 The Government will make every effort to ensure that the investigators have access to sources relevant to the investigation. it will make no judgement as to whether a particular source is relevant or not.
3.2 In order to ensure maximum access to sources it may be necessary in certain cases to impose conditions on the use of such sources for publication. The grounds on which these conditions are imposed must always be clearly stated and shall be derived from and comply with obligations under international agreements, national legislation, and the criteria cited in Sections 10 and 11 of the Government Information (Public Access) Act.
3.3 In exceptional circumstances access to sources maybe refused. The grounds for refusal must be based on obligations under international agreements, national legislation or the criteria cited in Sections 10 and 11 of the Government Information (Public Access) Act. In deciding whether or not to refuse access, the Government will allow the interests of the investigation pre-eminent importance, so that these grounds may indeed only be invoked in exceptional circumstances. Before a definitive decision on refusal is reached, the Ministers for General Affairs, for Foreign Affairs, of Defence and of Education, Culture and Science will confer.
3.4 The investigators will be vetted and the RIOD must have adequate security measures in place.
4. Method of operation
4.1 The investigation will be conducted on an independent basis. The RIOD is responsible for structuring the investigative activities, for the results of the investigation and their publication.
4.2 The investigation will be carried out by the Research Division of the RIOD, under the authority of the director and the head of the Division.
4.3 The investigation will begin in November 1996 and will be concluded with the presentation of a report to the Government. The aim is to complete the study as quickly as possible.
5 Publication of the report
5.1 The RIOD will submit a draft report to the Government so that it can be assessed in the light of the criteria listed under point 3.2 regarding the use of sources.
5.2 If after further consultations the RIOD and the Government fail to reach agreement on the draft report, the Government will seek the advice of a committee consisting of the Vice-president of the Council of State and the chairpersons of the Divisions of the Council of State responsible for Foreign Affairs, Defence. and Education, Culture and Science. The committee's recommendations will be confidential and binding on both parties.
5.3 The RIOD will be responsible for publishing the report once the Government has forwarded it to the Lower House or, alternatively, six weeks after the RIOD has presented the report to the Government.
The Government will pay the costs of the investigation on the basis of an estimate submitted by the RIOD. Consultations will take place with the RIOD regarding the way in which such payments are to be made and the amount involved.
Appendix to the instructions to the RIOD: access to sources - clarification of section 3
1. Introductory remarks
The aim is to give the RIOD maximum access to all relevant material which the Government has at its disposal, to enable it to carry out the instructions it has received from the Government. A number of Acts, regulations and agreements have to be taken into account. These notes are intended to explain how this could be done.
It is useful to distinguish between information of international origin (documents emanating from international organisations or other countries) held in Dutch records departments and information of Dutch origin. Access to international sources will in many cases require permission from the organisations in question or foreign governments. Access to national sources will in general be easier and documents will be in principle accessible 'unless ...'.
In the present investigation, of course, this restriction must apply only to those matters which the Government is obliged to keep secret or which are of such importance that they compel secrecy. A decision to refuse access is, as stated under 3.3, exceptional and may be taken only after consultations between the Ministers for General Affairs, of Defence, for Foreign Affairs and of Education, Culture and Science. In such cases a specific effort will be made to see whether access may after all be granted but subject to conditions with regard to publication, which means that the information in question will be governed by the criteria set out under 3.2. With regard to sources over which the Government has no authority, it will try to have the same approach accepted by the parties concerned.
2. International sources
Although much information and many documents originating from international organisations and other countries are kept in Dutch government records departments, this does not mean that the Government 'owns' such information. Consequently, the Netherlands Government is in some cases unable to authorise access to such documents or to make them public.
Many international organisations classify their documents according to the degree of confidentiality they warrant. The Government is currently looking into the question of whether agreements can be made with the relevant organisations as to the category of document which could be made available to the investigation.
NATO classifies its documents and access to them is governed by strict rules, first and foremost the 'need to know' principle. Given NATO's origins as a military organisation, it is only natural that confidentiality is of paramount importance. Any request to NATO for access to NATO documents for a purpose other than a NATO activity will therefore be examined with the greatest care, particularly in the present case, where the documents at issue are recent ones.
With regard to the documents of the UN, another important source, the system is much less complex. However, internal documents emanating from the UN secretariat are indeed regarded as confidential. Discussions will have to be held with the UN to establish which documents will be made available to the investigators. If necessary, access can be made dependent on agreement as to whether and if so, in what manner these documents will be cited in the report.
It will also be necessary to discuss with the governments concerned documents originating from other countries which are not in the public domain. In this context too, cooperation is likely to be greater if agreement is reached on the way the documents are to be used in the report.
Access to various government documents, whether classified or not, is governed by a number of regulations. The Government Information (Public Access) Act is generally applicable, and there are a number of special Acts which impose certain restrictions. These are (i) the Data Protection Act, (ii) the Judicial Records Act and (iii) the Intelligence and Security Services Act.
Some of these Acts contain special provisions on publication and confidentiality which the Government will have to comply with where necessary. The Intelligence and Security Services Act, for example, and this is confirmed by the cases brought under it, stipulates that in certain cases information gathered by the intelligence or security services relating to individuals must be kept secret.
Since what is involved in the present case is an investigation carried out on the instructions of the Government rather than a request from an individual for access to information regarding him or herself, the grounds for refusal contained in the Government Information (Public Access) Act may be invoked only with the greatest caution. Despite the fact that the aim in the present case is to ensure maximum access, certain interests may nevertheless oppose it. However, the grounds for refusal will in the case of the RIOD investigation be applied as leniently as possible: only in the most serious circumstances will information be withheld, since the aim is to provide the greatest possible access, if necessary with conditions imposed regarding the use of the information in the report.
The Government Information (Public Access) Act contains absolute and relative grounds for refusal to allow access or certain types of use. The absolute grounds include the unity of the Crown, state security and confidential data on companies or manufacturing processes. The relative grounds (privacy, relations with other countries and international organisations, disproportionate disadvantage to a person or body involved in the matter at issue) do require consideration of the interests at stake.
The instructions to the RIOD provide for an arbitration procedure should there be an intractable difference of opinion between the RIOD and the Government on the way the report deals with the agreements reached in line with section 3.2 concerning the conditions to be imposed on the use of certain information in the report. Arbitration will apply to the agreements themselves, and the grounds cited by the Government to justify the agreements.
3.2 Persons in Dutch government service
The investigators are of course free to interview people. The Government will ask Dutch government officials to cooperate in the investigation and waive their obligation to maintain confidentiality. The publication of any disclosures they may make will be governed by the same agreements as pertain to documents.
4. Agreements with investigators relating to access
In order to expedite their activities, practical agreements will be made with the investigators which will facilitate access to documents and their use in the report. A group consisting of government officials is to be appointed to liaise with the RIOD.