Back through the looking-glass


by Conor Foley    
3:18 pm - October 12th 2009

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On 17 March 2003, the British Attorney General published a short statement, in response to a parliamentary question, claiming that the forthcoming invasion of Iraq was legal under international law. This legal opinion was sufficient to head off a major rebellion within the British government against the war.

It was also enough for Sir Admiral Michael Boyce, the Chief of Defence, who had demanded a clear assurance of the war’s legality to ensure military chiefs and their soldiers would not be “put through the mill” at the International Criminal Court (ICC).

Ten days before his opinion was published the Attorney General had sent a longer, private and secret, memorandum to the Prime Minister setting out the legal arguments in more detail.

This was shared with the Foreign Office and Defence Chiefs and appears to have been what alarmed Boyce into demanding the clarification. In it he noted that the three legal grounds for the use of force were “a) self-defence (which may include collective self-defence); b) exceptionally to avert overwhelming humanitarian catastrophe; and c) authorisation by the Security Council acting under Chapter VII of the UN Charter.” He stated that he did not believe that the invasion could be justified on either of the first two grounds, but that an arguable case could be made for it on the third.

The subsequent failure to find any WMD in Iraq obviously removed the only legal justification for the invasion that the Attorney General was prepared to support. But, for the purposes of a debate that I am having with Norman Geras, have another look at point (b). This is what is known as the doctrine of humanitarian intervention. The UK Government cited it as part of the justification for the establishment of the safe haven in Northern Iraq in 1991 (which was backed by a UN Security Council resolution, but not a Chapter VII one) and for NATO’s action in Kosovo (which did not have UN authorisation). It is a legal doctrine that anyone with any knowledge of international law will be familiar with. In his first post on the subject Norm refers to it as the view of ‘generations of writers on international law who have held that in certain extreme circumstances intervention on humanitarian grounds is justified.’

Blair never described the invasion of Iraq as a ‘humanitarian intervention’ because he knows that it would not fit the generally accepted legal criteria for one, so he, and his supporters took to calling it a ‘liberal intervention’; a phrase whose meaning has never been clarified. Since it has no legal definition I suppose that anyone can use it to mean practically anything they want. Norm says he uses the phrases liberal intervention and humanitarian intervention inter-changeably and so, according to him, if the first concept is dumped then there is no future legal basis for intervening to prevent another genocide in a Rwanda-type situation. But, of course, this is not true, because such an intervention could be justified on humanitarian grounds.

The rest of Norm’s latest post seems to be an ‘I said, you said, but I said’ type of discussion, which it does not seem worth responding to in much detail. It is common ground between us that there is an overlap between the concepts of ‘humanitarian’ and ‘liberal’ interventions. I also accept Norm has the right to assign whatever meaning he wants to the term ‘liberal intervention’ (since it is a legally meaningless phrase) and if the meaning that he chooses to give it coincides with the one that everyone else uses to describe a humanitarian intervention then we would have no quarrel. However Norm has, in the past argued for a quite different threshold for the legal grounds on which countries should be permitted to invade one another, so I am genuinely interested if he has changed his position on this point.

Norm’s suspicions about me wanting to having another debate about the rights and wrongs about the invasion of Iraq are, however, entirely unfounded. I have long been disabused of the possibility that there is any hope of debating such a sensitive (and for me very painful) topic by my experiences at websites like Harry’s Place. Too many of my friends and colleagues have lost their lives in conflict zones in recent years for me to want to waste my time descending to the puerile abusive tone of Norm’s last post.

There is, though, a serious debate going on about the future of international humanitarian interventions. I have just come back from a very interesting discussion on how the International Criminal Court is going to deal with the crime of aggression in the future. Last month I sat with senior diplomats, soldiers, UN staff and aid workers comparing and contrasting our experiences in Afghanistan and Haiti.

Norm co-authored a manifesto calling for a reform of international law in this area. At the time I thought the manifesto was interesting, if a little confused, and wrote a few articles pointing out areas which I thought need to be clarified. I would still be interested to return to this at some point.

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About the author
Conor Foley is a regular contributor and humanitarian aid worker who has worked for a variety of organisations including Liberty, Amnesty International and the UN High Commissioner for Refugees. He currently lives and works in Brazil and is a research fellow at the Human Rights Law Centre at the University of Nottingham. His books include Combating Torture: a manual for judges and prosecutors and A Guide to Property Law in Afghanistan. Also at: Guardian CIF
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Story Filed Under: Blog ,Foreign affairs ,Middle East ,Realpolitik


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Reader comments


1. Jimmy Sands

One modest, and absolutely minimal reform must be that no PM should ever again have the right to withhold the AG’s unexpurgated advice from cabinet.

2. Larry Teabag

I also accept Norm has the right to assign whatever meaning he wants to the term ‘liberal intervention’

Yes, but it does not follow that he has the right to interpret other people’s statements about ‘liberal intervention’ however he likes.

If someone (me, for example) says “I think liberal intervention should be consigned to the nearest skip”, Norm is not entitled to interpret that according to whatever definition of ‘liberal intervention’ he fancies today (or, equally relevantly in this discussion, according to the least charitable meaning of “consign [a doctrine] to the skip” that he can muster).

He is particularly not entitled to do that when his chosen definitions would imply that I hold other opinions that I don’t, such as opposition to all humanitarian intervention, or a compulsive desire to appease genocidal tyrants wherever I can find them.

In this letter to the Guardian on 7 March 2003, almost a fortnight prior to the invasion of Iraq and the beginning of hostilities, these eminent academic teachers of international law had no doubts about whether the war would be illegal or not:
http://www.guardian.co.uk/letters/story/0,3604,909275,00.html

If you read the Attorney General’s private legal advice, you can see he had serious doubts about it as well

http://downingstreetmemo.com/docs/goldsmithlegal.pdf

I could also have explored the parallel that Norm draws between ‘interventions’ and ‘imprisonment’ According to Norm, I am implying that ‘two people who specify different justifying thresholds for humanitarian intervention must be defining the term in different ways. That’s like saying that I define ‘imprisonment’ differently from the way you do because we have different views about what justifies putting someone behind bars.’

What I am actually saying is that there is a clear difference between the concepts of ‘lawful’ and ‘arbitrary’ imprisonment. There is obviously a clear overlap between them, but I don’t think I need to explain why they should not be used interchangeably.

Ok I’ve just trawled through all (what is it, 7 pages?) of this debate and the object of dispute seems transparently straightforward:

Norm: If you don’t want to throw out humanitarian intervention [invasion to stop humanitarian crisis] you’d better not throw out (the whole category of) liberal intervention [invasion on any broadly liberal grounds; including humanitarian intervention].

Conor: We should obviously throw out liberal intervention [invasion for regime change and improving human rights pace Bush/Blair] but obviously shouldn’t throw out humanitarian intervention [intervention on suitable humanitarian grounds]!

Perhaps some-one else has already made a similar comment, or perhaps I’m missing something. Thereagain we philosophers talk past each other often enough, so perhaps I shouldn’t be surprised…

6. dreamingspire

One’s character is often moulded by the experiences at university, particularly in the days when only 5% went to university. Norm’s Wiki entry says Pembroke, Oxford, 62-65, reading PPE. That period was very nearly cataclysmic in global terms, and included JFK’s assassination and Harold Wilson’s general election win. It was also a period when the British Empire was rapidly shrinking. Its not surprising to me that Norm agues the way that he does, because in those formative years in the early 1960s it seemed that there were no longer any global certainties, but also so many possibilities.

“Conor: We should obviously throw out liberal intervention [invasion for regime change and improving human rights pace Bush/Blair] but obviously shouldn’t throw out humanitarian intervention [intervention on suitable humanitarian grounds]!”

Why not preserve the principle of “liberal intervention” but subject to an international agreement, through the UN, to restrict cases to instances sanctioned by the UN Security Council?

It was Tony Blair who said in a keynote speech in Chicago in April 1999:

“If we want a world ruled by law and by international co-operation then we have to support the UN as its central pillar.”
http://www.number-10.gov.uk/output/Page1297.asp

The fact is that Tony Blair took us to war on 20 March 2003, with all that would entail, when he knew the claims made about Iraq’s weapons of mass destruction were, at the very best, flimsy.

Try this Secret memo of 23 July 2002, which circulated among senior ministers and civil servants about the forthcoming war with Iraq and which somehow got leaked and published in the Sunday Times – a Murdoch newspaper – just before the 2005 election:
http://www.timesonline.co.uk/tol/news/uk/article387374.ece

Quote:

“C [that's the head of MI6, Britain's Secret Intelligence Service] reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”

The final sentence is absolutely damning: “the intelligence and facts were being fixed around the policy”

This letter of 8 July 2003 from Dr Jones to the Deputy Chief of Defence Intelligence was sumitted to the Hutton inquiry:
http://www.the-hutton-inquiry.org.uk/content/mod/mod_4_0011.pdf

The letter includes this passage:

“Your records will show that as [blanked out] and probably the most senior and experienced intelligence community official working on ‘WMD,’ I was so concerned about the manner in which intelligence assessment for which I had some responsibility were being presented in the dossier of 24 September 2002, that I was moved to write formally to your predecessor, Tony Crag, recording and explaining my reservations.”

In 2002, Dr Brian Jones was the head of the branch of the Defence Intelligence Service, in the MOD, tasked with assessing incoming intelligence on weapons of mass destruction.

For readers who need a refresher, this was the government’s dossier on Iraq’s Weapons of Mass Destruction presented to a special, recalled session of Parliament on 24 September 2002:
http://www.archive2.official-documents.co.uk/document/reps/iraq/iraqdossier.pdf

The dossier includes a signed forward by Blair and includes no less than four references to a claim that Iraq’s weapons of mass destruction can be used within 45 minutes of a command from Saddam Hussein.

No weapons of mass destruction were found in Iraq after the invasion.

For all that, Blair rejected calls for an official inquiry into the government’s claims about Iraq’s weapons of mass destruction.

“Speaking at the G8 summit in Evian [in June 2003], Mr Blair said he stood ’100%’ by the evidence shown to the public about Iraq’s alleged weapons programmes.”
http://news.bbc.co.uk/1/hi/uk_politics/2955036.stm

Thanks Bob very interesting.

To be fair to Norm, he is a political philosopher and he is probably using the term ‘liberal intervention’ in philosophical terms to mean actions he thinks should be taken in defence of human rights and to end mass atrocities. The problem is that he is entering a debate, which is also defined by law and he has authored a manifesto calling for this law to be reformed.

As I said above, there are three legal grounds in which the use of force can be justified: self-defence, humanitarian intervention and with UN authorisation. There are huge debates to be had about all three: does self-defence mean that you have to wait to be attacked, how do you define ‘overwhelming catastrophe’ and what happens when a ‘rogue state’ defies UN resolutions but the security council fails to act – are just the most obvious.

But where does ‘liberal intervention’ fit into all this? Is it a subset of one of the three above justifications for the use of force in certain circumstances? Does it mean that governments should support a rule-based system of international law? Or does it just mean that the British government should have a foreign policy that includes the promotion of human rights as one of its objectives?

Clearly there is going to be an ‘overlap’ between the concept and some of the above propositions, but it all depends on how you define the term and I think that this is where Norm has got stuck. The worrying thing is that if you read the speeches by Blair and Miliband you can see that they have got stuck in about the same place.

Some web surfers are inclined to continue to speculate about undisclosed motives for the Iraq war:

“(CBS) In the aftermath of Sept. 11, President Bush ordered his then top anti-terrorism adviser to look for a link between Iraq and the attacks, despite being told there didn’t seem to be one. . . Clarke says that as early as the day after the attacks, Secretary of Defense Donald Rumsfeld was pushing for retaliatory strikes on Iraq, even though al Qaeda was based in Afghanistan. Clarke suggests the idea took him so aback, he initally thought Rumsfeld was joking. . . ”
http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml

Mention must be made of the missing billions. There is a choice of relating reports:

“Paul Bremner, former head of the US led civilian administration in Iraq was quizzed by a Congressional committee which is investigating allegations of fraud. Mr Bremner defended his decision to send billions of dollars in cash to Baghdad during the years 2003 to 2004. These funds originally came from Iraqi oil revenue and frozen assets.

“Much of the money sent by Bremner went missing and can still not be tracked to this day. When questioned by Henry Waxman, the democratic Chairman of the House Oversight and Reform Committee, Mr Bremner answered; ‘that he had done his best to kick-start Iraq’s economy.’

“Henry Waxman asked,’ who in their right mind would send 360 tons of cash into a war zone?.’ He added, ‘But that is exactly what our Government did. There is no way of knowing whether the cash which totals $9 billion and flown over on pallets from the US would end up in enemy hands.’”
http://www.associatedcontent.com/article/143983/paul_bremer_sending_billions_of_cash.html

“The Army is discontinuing a controversial multibillion-dollar deal with oil services giant Halliburton Co. to provide logistical support to U.S. troops worldwide, a decision that could cut deeply into the firm’s dominance of government contracting in Iraq.

“The choice comes after several years of attacks from critics who saw the contract as a symbol of politically connected corporations profiteering on the war.”
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071101459_pf.html

Prior to going on the Bush ticket in 2000 as the candidate for VP, Dick Cheney was the CEO of Halliburton.

\@ conor, have you read paul bermans ‘terror and Liberalism’…it is a key text for the ‘pro-lib’ left i.e. norm geras, nick cohen, harrys Place et al…

you can find a critical review of it below:

http://www.nybooks.com/articles/16211

The fundamental issue with the exercise of the principle of “liberal intervention” without UN sanction – or some other binding international arbitration system – is that otherwise the principle is wide open to abuse.

Despotic regimes nurturing territorial ambitions seldom openly admit to aggressive intentions when they invade. Instead, they usually first annex moral highground to justify invasions by claiming an invasion is necessary to “liberate” or “protect” the population in the invaded territory, or some significant part of it, which was precisly the claim made by the Nazi German regime to justify the invasion of Poland on 1 September 1939:
http://ww2db.com/battle_spec.php?battle_id=162

Recall also the invasions by Soviet forces of East Berlin in 1953, Hungary in 1956 and Czecho-Slovakia in 1968.

Do Norman Geras and the other liberal interventionists, including Tony Blair and his acolytes, approve of all that?

Btw with news that house prices in London and the South East are starting to firm up after the slide in prices, now is a good time to buy providing you can raise a mortgage:

“The Royal Institution of Chartered Surveyors confirmed that house prices were firming up, especially in the South of England. . . Demand among home-buyers is still being constrained by a lack of finance, said the Council of Mortgage Lenders.”
http://www.independent.co.uk/news/business/news/uk-faces-another-quarter-of-recession-1801891.html

A news item from last Wednesday, 7 October:

“The Blairs have extended their property portfolio with the purchase of a £1.13 million three-storey mews house, it was reported last night.

“The four-bedroom house in Central London is registered in the names of Cherie Blair and her son Nicky and was bought in September last month without a mortgage.”
http://www.timesonline.co.uk/tol/news/uk/article6864078.ece


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