Decision-Making and Parliamentary Control for International Military Cyber Operations by the Netherlands Armed Forces

This chapter focuses on the highly pertinent issues of political decision-making, the provision of information to parliament and parliamentary control related to the international ‘deployment’ of military cyber capabilities by the Netherlands armed forces. These military cyber operations will be based on the threefold purpose taken from the Constitution: defending the Kingdom, including collective defence; maintaining and promoting the international legal order; and protecting other (vital) interests of the Kingdom. The chapter’s main conclusions are, first, that in all cases, the deployment of cyber capabilities is a political decision that rests with the government. Therein, the government always takes note of the Chief of Defence’s (CHOD) military advice and the Military Intelligence and Security Service’s (MIVD) assessment. Second, in all cases a proper international legal basis and mandate for the cross-border deployment of cyber capabilities is required. Notwithstanding government’s supreme authority over the armed forces, in all cases the deployment of cyber capabilities by the government is also subject to parliamentary control and oversight, although the way in which it does so differs according to the purpose or core task concerned. The chapter concludes that the decision-making, information procedure and parliamentary control usually adheres to the standard model, based on Article 100 of the Constitution for ‘maintaining and promoting the international legal order’ as the basic modus operandi warranting a normal political control and accountability process. The procedure for deployments related to self-defence formally differs from the so-called Article 100 procedure, but in terms of substance shares many similarities with it. The same applies to the expeditionary protection of other vital interests of the Kingdom. The procedure is different for specific operations in cyberspace that are classified as ‘special operations’ owing to their ‘substantial political and military risks and the need for strict secrecy’. The decision to deploy is made by the Ministerial Core Group on Special Operations (MKSO), which determines when and to what extent to involve or inform the rest of the government. It also decides how and when parliament should be informed. This evidently impacts on the features of parliamentary control. In short, although the government ultimately decides whether or not to commit military cyber capabilities to cross border military operations, its decision is subject to regular parliamentary control and oversight.