Denmark Establishes a Commission of Inquiry into the Wars in Iraq and Afghanistan

Jacques Hartmann is Assistant Professor, Department of Law, University of Southern Denmark and Fellow at the European Inter-University Centre for Human Rights and Democratisation, Venice, Italy.

The Danish Government has decided to appoint a Commission of Inquiry on the Danish involvement in the wars in Iraq and Afghanistan. The terms of agreement for the Commission were sent to the Danish Parliament on 11 April 2012 (available here, in Danish). According to the terms, which are still to be negotiated with the relevant Parliamentary Committee, the Commission has to examine both the legal basis for going to war as well as the conduct of Danish forces on the ground.

The Danish decision to participate in the  in the Iraq war was taken by the Danish Parliament in 2003, but there have long been accusations that information was withheld from Parliament; even that it was misled. The Commission is called upon to  to examine whether the information provided to Parliament was ‘accurate and complete’. It also has to consider the previous Government’s assessment on the legality and the procedure leading up to the decision of going to war. As such, it resembles the Dutch Committee of Inquiry, which was established in March 2009 and the British (Chilcot) enquiry launched in July that same year (discussed, here, here and here)

The Danish Government’s main legal argument for the legality of going to war was the so-called ‘revival argument’ (explained here). In 2010 this argument was dented by the Dutch Inquiry, which found that the relevant Security Council resolutions did not “constitute a mandate for… intervention in 2003” (see full report, in Dutch, here but with conclusions in English from p. 527. Note paras 18-20 of conclusions dealing with international law).

In addition to the basis for going to war, the Commission also has to examine the practice of detention and transfers of prisoners by Danish forces. Detention has long been a source of contention in Danish politics. In December 2006, the Government issued a report on transfers of prisoners in Afghanistan (available here, again in Danish). The report refuted allegations that the Government had misinformed Parliament about the number of persons detained by Danish forces or that Denmark violated its international obligations by transferring detainees to US custody in Afghanistan. A recent report by the Afghanistan Independent Human Rights Commission has rekindled the issue with allegations of torture (see here).

The taking of prisoners in Iraq has also given rise to a debate in Denmark. It has recently been reported that a former Minister of Defence continuously misrepresented the number of prisoners taken in Iraq. In 2007, the then Minister of Defence informed Parliament that a total 198 prisoners had been taken during the four-year campaign in Iraq. It was recently revealed that the real number was far higher, some say more than 500. One reason for the confusion is that Danish forces used a procedure that has been nicknamed the ‘British Trick’. The trick was quite simply that Danish forces would operate with a British soldier (or sometimes Iraqi security forces) who would then be ‘responsible’ for any arrest or detention.

Some of these issues have already been heard by Danish courts (see here). More cases are expected, and the Commission will therefore have five years to report its findings. As is evident from above, the three members of the Committee – a judge, advocate and an academic, all still to be appointed – will have their work cut out.