In order to formalize ongoing military actions by individual states against ISIS in Iraq and Syria, the Combined Joint Task Force (CJTF) was established in 2014. As a CJTF member, the Netherlands conducted airstrikes in Iraq between 2014 – 2019, including on 26 January 2015 (para. 2.5).

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The two Iraqi plaintiffs in this case claim that they were bombarded in the Iraqi dessert on 26 January 2015 while fleeing ISIS. Since the CJTF command confirmed coalition air strikes on this date, the plaintiffs find it likely that their harm was caused by these strikes. To no avail, they have repeatedly asked the Dutch State to clarify its role in the bombardments. By means of this Freedom of Information (FOI) request, they ask the Court to order the Dutch State to provide them with information concerning the coalition bombardments on 26 January 2015, and the Dutch bombardments on the same day near Mosul and Sinjar. The Dutch State affirms having carried out bombardments in parts of Iraq on 26 January 2015, but says these actions took place at a location remote from the spot where the plaintiffs were hit. In addition, the Dutch State argues that the plaintiffs’ harm could equally have been caused by bombardments conducted by Iraqi forces, or by other war actions (para 4.9). Finally, the Dutch State claims to have ‘serious reasons’ for precluding publication of information.

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Legal relationship

Under Dutch law, the plaintiffs can only request copies of documents concerning a legal relationship to which they are party. Concretely, this means that they must bring forward specific and concrete facts and circumstances that plausibly show, at least to some extent, that the Dutch State was involved in the airstrikes that hit them. The Court rules that the plaintiffs failed to do so (paras. 4.3-4.5, 4.10).

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State safety outweighs truth finding

The  Dutch State invoked ‘serious reasons’ precluding the publication of documents: publication would harm the Dutch State’s interests and endanger the coalition forces’ safety. Weighing these arguments against the public interest of truth finding, the Court rules in favour of the Dutch State (paras. 4.12-4.13).

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Liability

The Court considers the CJTF’s modus operandi and concludes that, since bombardments are not conducted group-wise but by a single state, the Dutch State cannot be held liable for airstrikes conducted by another CJTF member. Under Dutch tort law, the Dutch State’s liability for the bombardments could only arise if the bombings were a) conducted as a group action, by CJTF members, b] including the participation of the Dutch State, and c] one of the CJTF members had inflicted unlawful harm upon the plaintiffs (para. 4.11).

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The Court rejects the plaintiffs’ FOI request. The plaintiffs will appeal this decision.

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