This is the essay I wanted to write over a year ago.
Operation Iraqi Freedom has produced, one can’t help noticing, a bit of a kerfuffle in some quarters. It’s all to the good to have a debate, though neither side can claim to have stuck strictly to the facts. Worse, everyone is operating with a different set of unspoken assumptions. Consequently the quality of the debate seemed (and seems) rather low – as though everyone is talking past each other. Part of the problem is that arguments from several different categories are being mixed up, hence the feeling of disconnect.
A clue to what those categories might be can be found in the predominant arguments of the various strands of anti-war opinion. (I say this although this clue came to me rather late in the day: the categories came first, and their applicability to the strands later.) There are three types of anti: the palaeo-conservative, the liberal and the radical. Corresponding (to an extent) with these categories of opposition there are three categories of justification: legal, moral and prudential.
In general, the first category of opposition is represented by Henry Kissinger and the like. They can’t plausibly argue against the policy of regime change on moral or legal grounds, given their own records of Cold War skulduggery, but they can and do call it unwise or imprudent. (Although Douglas Hurd is sufficiently hypocritical to sneer at Paul Bremer about Fallujah, forgetting his own complicity by omission regarding Srebrenica.)
The second category is represented by the liberals in Britain and the USA. They use all three arguments but the one which plays most heavily in their discourse is that the war was illegal. Consider the approach taken by the Independent or by Robin Cook.
These first two categories are basically reasonable and responsible, since once the invasion began they wanted victory, and during the occupation they generally accepted the necessity of keeping forces in place at least until a new government could be formed.
The third category, the radicals or usual suspects, used all three arguments but were happiest playing up the morality of their stand. (They saw no contradiction between their sense of moral superiority and their desire for a Ba’athist and/or Islamist victory.) The Abu Ghraib scandal gave their cause some specious plausibility, although they knew as well as anyone else that the prisoner abuse was vastly less both qualitatively and quantitatively than the good old days: they knew too, or should have, that enthusiasm in torture was formerly not punished but rewarded.
The moral case for the invasion is much the easiest and is the ground on which I feel most secure. It is simply that tyranny is ipso facto immoral and that a tyrannical regime is not entitled to any moral consideration. Therefore its overthrow by any free nation or alliance is legitimate in strictly moral terms, though with a couple of substantial caveats.
Firstly that the law of arms should be applied, which means the sparing of non-combatants and the decent treatment of prisoners. The standard for how not to behave is set here, as usual, by the Nazis, who regarded Russian civilians and prisoners of war as expendable and thought it amusing when they heard of cases of cannibalism in the camps.
The second and more high-level caveat is the linkage between morality and possibility: if one attempts the impossible one will end up doing the immoral. It would have been immoral as well as imprudent to invade the USSR in 1980 since the mission would plainly have been impossible. (In fact the entire history of the USSR is the paradigm case of the immorality of attempting the impossible.) But Iraq was doable, just about.
On a related point, though a side issue, another reason why the argument was confused was the tendency to see the invasion as morally justifiable only in the case of a specific UNSC resolution. This is an error. The UN can be considered a kind of court, like to the medieval English Parliament, which gives decisions that are part political and part legal. It has little to do with morality. It’s a classic problem for undergraduates: can law and morality be coterminous? Most undergraduates conclude that it might be desirable in some sense but anyone can think of a dozen real-world examples that undermine the position.
To conclude: no grown-up human being should subcontract their moral judgement, least of all to a body where a tyranny like China has a veto.
It was awkward for the usual suspects to use the illegality theme (though they did) because the illegality of the invasion was usually presumed on the basis of the absence of a specific UNSC Chapter 7 resolution. This would mean that the war of 1991, which had such backing, was legal – an admission that would stick in the teeth of most of them. Hence the word illegal was just a slogan, like most New Statesman type discourse, a weapon to be flung without caring much about precisely what it means. But the critiques of talented and experienced politicians and commentators such as Robin Cook are more serious.
Of course, Robin Cook defended the Kosovo war of 1999 despite the absence of a chapter 7 resolution in that case. He would argue, in justification, that Kosovo was a case of purely humanitarian intervention which did not split the West. This seems to me a mixture of categories. In this argument he would be claiming that the moral imperative (humanitarian intervention), when seen in the context of Western unity (which meant that one of the prudential concerns re OIF – the damage to the Western alliance - was absent), could render the legal problem moot. To sum up: this argument effectively states that moral and prudential considerations enable an over-ride of purely legal concerns. As a supporter of Operation Allied Force that seems reasonable to me. But the assumption – that only a chapter 7 resolution can justify war in legal terms – is false.
The very success of Western diplomacy in 1991 set the bar very high for the future, creating the impression that such a resolution was mandatory. Under that nebulous thing international law, it is hard to say with absolute confidence that something is or is not illegal, with some limited, highly specific exceptions. The illegality of unprovoked aggression against and annexation of another state is one case where one may be basically confident: self-defence against such attack is plainly legal, as is an intervention by third parties against such annexation, if requested by the defender. However, one can say that the UN is not the sole source of international legality. Apart from the rules set by the UN, which one might consider as analogous to statute law, there exists (and existed long before the UN was dreamt of) a body of international law, the jus gentium, which is a type of common law or case law, made not by a sovereign but by judges or nations in the course of dealing with specific cases. For instance, the rule that self-defensive war is intrinsically legal existed long before the UN, therefore cannot derive its legitimacy exclusively from that body. It derives from the jus gentium and the practical application of common sense.
One of the problems dealt with by traditional international law was the ending of wars. When the defeated party does not cease to exist, a war must end with a truce or ceasefire, preferably as a preliminary to a peace treaty. If the defeated party was the originator of the conflict, then its obligation to obey the ceasefire terms is all the stronger. Common law is essentially the application of common sense: if the defeated aggressor breaks the ceasefire terms allowed it there is every reason to think the party incorrigible. It no longer deserves any legal protection against attack.
The applicability of this logic to Iraq is evident. The sixteen (or was it seventeen?) UNSC Chapter 7 resolutions made against Iraq during the period 1991-2002 did not constitute the legal basis in themselves for invasion. They did however make it clear beyond doubt that the Iraqi regime was in breach of the ceasefire terms (even the Guardian admitted as much) - terms it had been grateful to receive in 1991, terms allowed not because of any desert on the regime’s part but (among other reasons, such as the desire not to exceed the terms of the UN mandate) because the Allies were horrified by the effectiveness of their own weapons.
In fact, one can go further than simply saying that the invasion was legal: one might say that it was required. The jus gentium deserves respect. The invasion would have been justified even in 1993, when Baathist agents tried to assassinate Bush I and king Abdullah, and the regime had not changed for the better since. The Allies did not start the war in March 2003: they renewed it, after showing excessive patience towards ceasefire violations, with the aim of finishing it.
The jus gentium is the common law of nations. The idea that the common law is made for the convenience of the powerful is at best half true: it is also very often the best hope of the powerless. Laws that are made for the convenience of the powerful – a military victor, in this case - may turn out to be useful to the weak (a Kurdish torture victim, say). This is a subsidiary point where I will take issue with Damian Counsell: he was ready to accept Roper’s argument to Thomas More that one might cut down law to get after the Devil. There is no need to do so in this case, and it’s just as well, because More’s argument (or rather the argument Robert Bolt puts into his mouth) is perfectly valid.
The prudence of the invasion is the trickiest argument – as usual, it is the conservatives who have the toughest questions to ask (though prudential concerns are certainly present in the discourse of the other opponents of the invasion). This question does not admit of a definitive answer yet or maybe at all, since it is open-ended. It’s a question about consequences, that is, about the future, unlike the other two, which are rooted in past events.
The prudential argument is multi-faceted. It involves consideration of the various ways in which the invasion may have damaged the national interest of the UK (or US). This may include the overthrow of pro-western governments in the region, the possibility that war would “supercharge recruiting for al-Qaeda” (Wesley Clark) and – more distantly – the dangerous effects of success.
The regional instability argument does not appear very clever today, with the Saudi government obstinately in place, though this is giving a huge hostage to fortune – it is quite clear that the transition to constitutional monarchy in Saudi Arabia will be difficult. At present, though, the danger does not seem immediate. (It may just be that al-Qaeda’s recently acquired habit of murdering fellow-Saudis has reduced their popularity.) But in any case, to blame the danger to KSA on OIF is a dodgy assumption – as though the Magic Kingdom were unruffled and unthreatened previously.
The supercharging argument is a serious one, though it assumes that recruitment for al-Qaeda is a simple matter – as though there are al-Qaeda recruiting offices on the streets of every Middle Eastern city. In a sense there are, since everyone in Cairo and Riyadh will know which of the mosques and madrassas are pro-al-Qaeda. But that ‘everyone’ includes the police. The danger of supercharged recruitment is vastly less now that Afghanistan is no longer available as a safe haven and training base. Firstly, al-Qaeda will find it more difficult to recruit. They will also be more vulnerable to infiltration. It must be next to impossible to train and indoctrinate recruits as effectively as it could on an Afghan mountain, where there were no distractions from bomb-making lessons and from the pure word of the Leader. The evidence for al-Qaeda’s difficulties: there has been only one terrorist attack in the West since OIF, and that was carried out not by new recruits but by old Afghan hands.
Babykillers should be frank about this: OIF has raised the danger from terrorism. There are that many more young hotheads who are sufficiently annoyed to join the jihad than there would have been absent OIF. Whether the risk is very much higher is a harder call. Furthermore, given the wider objective – democratic reform in the greater Middle East – OIF may be an operation of the Arnhem type: a gamble which offers the chance of shortening a war. When the statue came down in Paradise Square, the Paras took the bridge across the Rhine. XXX Corps are on their way and scheduled to arrive in January. So far as one can tell, the weather is decent enough to let the fighter-bombers fly, and there are no SS Panzer divisions refitting in Fallujah. It is not so unreasonable to think that alienating some people now is a price that has to be paid to reduce the risk for our children’s generation.
Beyond that, there is the risk that Saddam might have sponsored al-Qaeda in the future. He had already sponsored secular-sounding organisations like Islamic Jihad and Ansar al-Islam, so it’s not all that unlikely.
The third argument, the danger of too much success, raised by Matthew Parris, is a real one. States can become institutionally intoxicated on military success: Wilhelmine Germany certainly did. They become too ready to resort to force without adequate justification. All that can be said on this head is that the USA is not likely to go that way: it has historically been unwilling to use force (at least, outside its own hemisphere). The well-known pacific preferences of democracy work against it. Wars are not vote-getters – the electoral rewards for military adventures have been negligible historically - but losing wars certainly will lose you elections.
So my interim assessment is that the invasion was defensible on prudential grounds. Besides, there is also the issue of how prudent it was to continue the same policy. Tim Garden, to choose one name among many, has said that containment was working. That’s true in the sense that Saddam had not invaded Kuwait lately. However, as I suggested here, the status quo of containment was not risk-free, and the antis have been wrong to ignore that fact. If it were possible, they should have been able to suggest alternative ways to escape the quagmire of sanctions (which, as everyone now agrees, were a disaster in several ways), no-fly zones and permanent garrisons in KSA – a policy combination that was already doing wonders for al-Qaeda’s popularity.
But what about the state of Iraq now? Does this not make any claim of prudence ludicrous? It does so only if one assumes that, once Saddam had died in bed (a prospect that should not be taken lightly for anyone who values justice), Iraq would painlessly make the transition to reasonable, decent government. To which the answer is that the most likely scenario would be the final collapse of the Ba’athist regime under the weight of its own incompetence and cruelty and bankruptcy, followed by a scramble for power among various ethnic and sectarian militias, with neighbouring states more or less openly intervening (e.g. Iran backing Sadr, KSA discreetly backing Sunni Islamist factions, Syria backing nationalists or gangsters who found it convenient to pretend nationalist fervour, Turkey invading Kurdistan…). Such a state of affairs would make the Iraq we have today look harmonious, and could not possibly have resulted in a democratic government.
The other alternative can be summed up in two words: Uday Hussein.
Never assume that you’ve seen the worst.
There is, pace Oliver Kamm, a respectable anti-war case. It rests on a genuine pacifist rejection of violence – a Christian conception. It is a noble conception, one worthy of respect, the highest and noblest way of all. But those who claim to uphold it should be clear about its meaning: reflecting on Matthew chapter 27, and what was the common fate of the Apostles. It is not a position that most of us can hold to: most of us are not saints. In my view (with all the baggage of assumptions that statement entails), based on the evidence that is in the public domain, and limited conjectures based thereon, the invasion of Iraq was legal, moral and prudent.