"It Takes Two to Tango"

Who knew?

But that's in the title of a recent University of Amsterdam doctoral dissertation by Bas van Hoek. The full title is It Takes Two to Tango: A Legal Analysis of the Dual Oversight Regime Governing the Use of Force by the Netherlands Armed Forces. You can find it online here. The author offers five recommendations:

The assessment of the legal oversight system against the international legal framework shows that parts of the system are inadequately designed, meaning the system’s effectiveness cannot be sufficiently guaranteed. To improve the effectiveness of the legal oversight system with respect to the use of force by the Netherlands armed forces so that it conforms more adequately to the rule of law, considering the obligations and standards set by international law, the following recommendations can be put forth.

• Develop a vision about accountability, in the meaning of legal oversight, in military operations and link it to the concept of command and control. Communicate this vision in education and training, particularly to officers and non-commissioned officers, and set it down in writing. The notion of accountability deserves at least a reintroduction in military doctrine with an explanation what is meant by this.
• Consider revising the policy within the MOD and the PPS of investigating every incident involving civilian casualties. Develop a policy that clarifies the interplay between LOAC and HRL as regards the substantive norms on the use of force and its impact on the obligation to investigate the use of force. This policy should also address how this affects the use of both the military accountability mechanism and the law enforcement mechanism.
• Consider developing a basis in law for the fact-finding investigation conducted by the RMC under the authority of the PPS. Doing so involves establishing rules on the purpose Chapter 7: General conclusions 171 of the investigation, the use of coercive powers, the position of military personnel under investigation, the position of victims or next-of-kin, and the relationship with disciplinary and criminal investigations.
• Examine whether the concept of ‘just culture’ can be applied to the military accountability regime.
• Develop a protocol between the MOD and the PPS on coordination and cooperation in investigations into the use of force.