A lot of people have said a lot of foolish things about the war in Iraq, and now it's my turn. I am very interested in the language people employed in the debate about Iraq. Often reference was made to "the decision to go to war in Iraq", and this phrase captures the distinction between whether the policy of war was a good idea, and whether this policy was adopted properly. It's obviously possible to adopt a wrongheaded policy by improper means, and many critiques of the Government's behaviour do not actually rely on whether the war was right or wrong: the Government broke the rules, and that is bad enough, they say. So, was the war "legal"? Was it justified? And whatever the answer, was the decision to pursue it properly taken?
Under the rules embodied in the UK's customary constitution, the government doesn't really need anyone's permission to go to war. This war was unusual in that Parliament formally approved military action ahead of the event. This was a political necessity for Tony Blair's leadership of the Labour Party and the Labour Party's continuance as the party of government, and may well lead to all future major military action politically requiring Parliamentary approval. As a matter of UK constitutional law, the war was fine. If Parliament was misled to secure its support, it doesn't render the war illegal, even if it is now a requirement that Parliament approve wars.
The position that seems to be emerging was that Parliament was unwittingly misled. The politicians believed what was coming out of the intelligence community, and the information they received now appears to have been incorrect.
Intelligence assessments, we are told, tend to be presented in probabilistic terms, rather than as black-and-white certainties. People in the intelligence services stood to gain from providing politicians with persuasive information, and many of these "mights" and "maybes" will have been hardened to "wills" and "cans" to please political masters. The elected politicians must take the responsibility for suffering the intelligence services to operate in this fashion. The evidence to the Hutton enquiry (whose principal outcome may transpire to be more openness about intelligence matters) strongly suggested that the intelligence services were too close to the political decision-makers. Hutton himself put his finger on the insidious nature of the nexus between the political and the secret: John Scarlett might have been "subconsciously" influenced to take the PM's obviously preferred outcomes into account.
The sources of the raw intelligence were also suspect. Why do people like Ahmed Chalabi's organisation slip information to MI6? What do they hope to gain? What effect does any potential gain have on the content of the intelligence they pass on?
As has already been said, intelligence material should be used to implement a policy, not to justify it. Apparently this makes good practical sense, as well as avoiding the dependence of public policy on secret information which cannot be evaluated by parliamentarians and their constituents.
In summary, the formal decision-making procedure for adopting the policy of war in Iraq was legally spotless but politically flawed: legal sanction through Parliamentary approval was secured on the basis of false information. This information was presented as being from an impartial source (the intelligence services), but those doing the presenting (senior ministers) were also the people let the source become corrupted in the first place.
For me the ends don't justify the means, so even if the war were justified, it would matter to me that the decision to approve going to war were taken properly. I think it was legally more than proper (you don't need Parliamentary approval at all) and politically rather dubious. But was it morally justifiable? Was the underlying policy right?
Of course, people disagree about moral principles and how they should be applied. In particular, there are unintended and unforeseen consequences of morally justifiable decisions. Some of the people involved in the debate about Iraq looked more to who made the decisions rather than what the decisions were. I got the strong impression that latent in the reasoning of some people there was the following move: "America is a bad country, so what America does is bad". It works the other way too if you think America a jolly good thing. I remember a spooky vox pop in one of the papers where people thought "Martha Stewart is someone who's done a lot of good for the public, so she shouldn't be prosecuted". It's just putting the horse before the cart to say that the rules are wrong if "good" people break them.
Anyway, I don't agree with the Aretaic nonsense about an action being justified by who takes it. What if some pleasant country like Finland had invaded nasty old Iraq - would that have justified the war? Of course not.
The consequences of the war are too early to tell. Fewer people are being killed annually in Iraq than Saddam Hussein was averaging, according to Human Rights watch, though obviously in 2003 they were being killed by occupation forces, the Iraqi army and myriad paramilitary groups objecting to their country basically being stolen and privatised. We can weigh up all the pros and cons, of which there follows a sampling:
- rogue states in the region are much less likely to try it on
- there's less state funding for terrorism in the region, particularly in Israel
- the autonomy of the Kurds of Irbil and Mosul is likely to come to an abrupt end, with the benefits of their oilfields now being spread amongst, inter alia, their former oppressors
- secularism under the otherwise awful Ba'athists is likely to decline, with negative implications for the status of Iraqi women, if Allied forces depart
- under a majoritarian democracy, Iraq would become like Iran
- Muslim and Arab opinion is inflamed by the attack on a brother nation
- international borders are much less likely to be respected
... and the list goes on. The Ba'athist régime under Saddam was positively awful even after the spin about it has been deducted, and military action has reduced the number killed and tortured. There are some people who believe that all killing, even in self-defence or to protect those who cannot defend themselves, is wrong. I find that view morally very dubious.
Whether the good consequences outweigh the bad ones, and outweigh them enough, may not convince those who feel that the intentions behind the war don't match the consequences. We have the stated intent in the public record, and can make reasonable surmises as to the content of any other private intentions. I think Tony Blair's intention was to stand by the Americans in what he regarded as a morally justifiable war to remove a gruesome dictator, whilst holding his nose when he regarded the Americans' own motivations. The Bush administration seems to have been moved by a desire to give practical effect to its geopolitical ideology, with the convenient but ultimately non-determinative side-effects of gaining a foothold for US bases outside Saudi Arabia and the potential for some tiresome meddling in the petrochemical market.
Leaving aside the side-effects of an pre-emptive attack specifically against Iraq, the neoconservative theory of geopolitics can stand on its own two feet as a moral justification for wars, albeit not one I necessarily agree with. For people who think that blowing away unpleasant régimes is a good thing, neoconservative geopolitics may even seem to be a good reason to start a war. If we say these people are right, we have a few problems: national sovereignty - can it be violated pre-emptively if the dictator lies low, and global governance - given disagreement as to what constitutes unpleasantness, aren't we effectively saying that anyone sufficiently ruthless and well-armed can march into someone else's country and take it over? The winners in that world aren't even the Americans, but the Chinese. Many people wanted this matter formalised through the United Nations. To her credit, my MP resigned over the issue, though I can't say I agree with her particular implied view about the UN.
The "Second UN Resolution" crisis gripped the UK. The Parliamentary debate was watched by millions around the world. I saw repeated on telly in Spain. The uneasy question that underlay the public debate was, for people who did not view it instrumentally as a means of ejecting Blair or Labour from power, if we pragmatically go along with the idea that pre-emptive strikes against dictators are Ok, that basically means the Americans can do whatever they want, so is there some procedural check which can make us feel less powerless in such a world?
The position of the French and German governments was that the proposed war was justifiable, but the timetable was not. More time had to be allowed for inspections to confirm their intelligence assessments. If a vote were forced, they'd oppose, and France's opposition is formally fatal to UN Security Council resolutions. The French veto threat is only good if it doesn't have to be used, but the political situation in Britain necessitated bringing matters to a head. The French veto failed to stop the war, which will reduce its efficacy in the future, and the Americans will now be much harder pressed to secure Security Council "legitimacy" for future adventures.
Some nonsense pushed through my door by the local Liberal Democrats claimed that if the UK and US bought off Security Council members, that would not make the war right. The implication is staggering: if these members made up their minds without Anglo-American arm-twisting, would the war then be right? Would the war then come to be bestowed with that ineffable moral imprimatur which can only flow from the approval of the governments of France, Russian and the People's Republic of China? The terrorists who destroyed the Rainbow Warrior had the approval of the government of France too - were they right? I suspect they meant "right" in some formalistic legal sense, rather than a moral sense. Legal formalism and international politics make unhappy bedfellows, however.
To deal briefly with the question of international "legality". I'm no great believer in public international law. Some people question whether it can even reasonably be said to exist. I think that's not so much the wrong question as a question asked of the wrong audience. Unfortunately, the people to be asked have all been slaughtered whilst supposedly under UN protection in places like Srebrenica.
How does international law affect decision-making in the UK? Two mechanisms spring to mind: Nuremberg-style presumptive international jurisdiction for war crimes (the military was apparently disconcerted at the possibility of being hauled up before an international criminal court for participation in the Iraq war). I've always preferred South African-style truth and reconciliation to "justice" imposed by the victors in a parody of a court system. The other mechanism is some sort of universal law, bounding forth no doubt from the global consensus on such matters as those on which humanity has a unanimous view, i.e., nothing. Public international law started out as the common legal heritage of a bunch of European countries, and gradually spread. Back in the days before general membership of the UN by almost all countries, you could argue that a breach of the treaty you signed to join the UN was like a breach of contract rather than a breach of law: we don't say that violating contracts such as employment or sale is "illegal". Maybe now that almost all countries are UN members, a breach of an agreement with all of them is more a matter of offending against the society of nations in general rather than as against the set of UN members collectively, whoever they happen to be.
Many years ago my stepfather pointed out that the Allies had Saddam by the bollocks in 1991, yet they let him go. The Cold War was effectively over, the Soviet Union was busy defederating and pluralising, and the US was the remaining superpower and could do whatever it wanted. If the US had wanted to change the Iraqi régime, it was perfectly possible militarily, and would have been possible politically notwithstanding the limited mandate to restore the territorial integrity of the country Saddam had attacked (which had apparently been sucking oil out from under his border).
Someone in the US determined that it was in the US national interest that Saddam remain in power in 1991. To hold otherwise is to accuse the US of incompetence or an altruism its foreign policy had not exhibited for many years. Did that Someone change his mind? Was he replaced by Someone Else? Or did something about the Iraqi situation change?
This for me is the unanswered question. What changed between 1991 and 2002? I asked Alan Duncan MP, who seems to know a thing or two about Iraq, when I last met him. He clearly enjoyed getting this sort of question, but his answer was troubling. "You know, I really don't know."
This Register article reproduces correspondence that august publication received about the coming EC Directive on the Enforcement of Intellectual Property Rights, which effectively provides for a right of inequality before the law for intellectual property rightholders.
In this correspondence, Adrian McMenamin, European Labour press officer and sometime Linux hacker, clearly knows the system of European legislation only too well. He says Robin Gross (an American lawyer) does not understand our system. Not only can I vouch for the fact that this is untrue, it is not even a reasonable inference to draw from the Register article his letter criticised.
Mr McMenamin claims that the new Directive does not require some of the crackdowns it has been attacked for encouraging. He is quite explicit in blaming individual member states if they go further than required, but it is a simple fact that EC Directives about intellectual property generally result in tougher national legislation than is actually required under their terms, because the procedures for national implementation of EC legislation leave little room for open or democratic debate.
Exaggeration and unjustified scare tactics are to be deplored, and Mr McMenamin is right to decry them, but to tar all opponents of unjust and overprotective IP legislation as supporters of the weakest and most misleading arguments on their side without confronting any of their stronger arguments is to misrepresent the position of many decent and honest concerned citizens. Nowhere in his statement is there any recognition of the arguments or beliefs of any but a numerically insignificant handful of his opponents.
Mr McMenamin argues that Britain already has many laws similar to the requirements of the Directive. This is to ignore the Directive's underlying problem: many tough national IP laws are balanced by other laws or practices in that country. With its emphasis on requiring high standards of intellectual property protection, but only recommending balancing measures, the Directive risks undermining the balance in national law when it comes to be implemented, especially in countries such as Britain where requirements of EC Directives may easily be fast-tracked into statute law, but non-requirements may not.
Computer users of all stripes are affected by intellectual property laws, which are now largely made in places such as Brussels and Geneva, where they are subject to a much lower standard of democratic scrutiny than they would receive in national parliaments. Laws so passed are less likely to serve the public interest, and less likely to inspire the acceptance they need to be effective.
At least there's someone at the Guardian I can agree with. This is of course the the benefit of reading a paper with such a diverse range of viewpoints covered ;).