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Volume 6

November 2010

scientia   IZ mundus

Number 3

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

Casualties of War
Including Civilians, Truth, and the Rule of Law

"...among the calamities of war may be jointly numbered the diminution of the love of truth, by the falsehoods which interest dictates and credulity encourages".
                       Samuel Johnson, The Idler, November 11th 1758.

There is some debate as to who first coined the celebrated phrase "truth is the first casualty of war". It may have been coined by Republican Senator Hiram William Johnson (probably not related to Dr. Samuel) in a speech he delivered in 1918. The first written source would appear to be the 1928 book Falsehood in Wartime: Propaganda Lies of the First World War by British M.P. Arthur Ponsonby. Others claim that it was coined by the classic Greek dramatist Aeschylus (525-456 BCE). Be all this as it may, Dr. Johnson, as usual, was the first to identify the necessary elements to give us the whole picture. Falsehoods arise because it is in the interests of some to spread them. And it is also true-most unfortunately-that large sections of the general public are indeed credulous when it comes to accepting official information at face value. As Ponsonby was to say 150 years later: "It is, indeed, because of human credulity that lies flourish". This is perhaps particularly so when "the nation is at war" (another phrase that does not bear too much close examination), when conniving at official lies appears to be raised to the level of a patriotic duty (cf. Dr. Johnson: "patriotism is the last refuge of the scoundrel".).

The Australian journalist (and scourge of the establishment in all its pious manifestations) John Pilger takes a slightly different view. In his article "The Real First Casualty of War" published in the New Statesman in 2006, he claimed that the said first casualty was in fact journalism, through the coopting of journalists through embedding, or restricting access to information (or the means of discovering the truth) thereby forcing the media to rely on official sources or print absolutely nothing at all. Pilger's article begins with a most revealing quote from the Czech novelist Zdenek Urbánek, something he said to Pilger during the 1970s, when his country was well and truly under the thumb of the Soviet Union: "In one respect, we are more fortunate than you in the West. We believe nothing of what we read in the newspapers and watch on television, nothing of the official truth. Unlike you, we have learned to read between the lines, because real truth is always subversive." What he is saying, in effect, is that you lazy westerners are stupid to believe the official line: Dr. Johnson was perfectly correct-people are, for one reason or another, overly credulous.

In light of yet another further release of classified US military information by WikiLeaks (October 23 2010) , this time focussing on the deployment, not to mention documents which have come to light in Britain either through or because of the Hutton Inquiry, credulity must surely also rank among the refuges of scoundrels. Indeed, when a country is facing a crisis of one sort or another, the need for citizen vigilance, a free media, and an independent judiciary, is necessary as never before. It is precisely in circumstances of stress that resolution and independent thinking is required. For those who doubt this, the shocking revelations on both sides of the Atlantic over the appalling mess in Iraq, the staggering cost in terms of deaths and injuries, physical and psychological, the enormous expenditure of money, the extraordinary damage done to the standing of a number of the countries concerned-much of this can be laid at the door of credulity masking as some sort of vague patriotic sentiment. In fact, as I hope to demonstrate, it is nothing of the sort. Abnegating the responsibilities of the citizen is an act of cowardice, not loyalty.

In what follows I am going to summarize some of the findings that have emerged from the WikiLeaks publications, and key documents previously secret which have now been released in the United Kingdom. I will finish by trying to tease out some lessons from what we have learnt from this unedifying and ultimately tragic saga.

Julian Assange, founder of WikiLeaks, intoned solemnly the ubiquitous abbreviation of Dr. Johnson at the Press Conference he held to announce his latest coup. The documents released online on October 23 number in excess of 400,000. It will obviously take scholars and commentators some time to comb through them, but highlights already identified are more than enough for certain purposes. At or near the head of the list must surely be the realization that US authorities lied when they claim that they did not know, or were not keeping track of, civilian deaths in Iraq. They very clearly were. And the figure is astounding. Between 2003 and 2007 over 100,000 people perished by violence in that country. These are, let it be emphasized, civilian deaths. The blatant lie is bad enough, but what is surely worse is this staggering toll of slaughter. If the purpose of the invasion of Iraq was the removal of Saddam Hussein and his dreadful regime, we cannot simply escape asking whether 100,000 people-60,000 of them civilians-had to die in the process. Indeed, we should surely address ourselves to an even more pressing question: was it necessary to invade Iraq to secure the removal of Saddam? On the day of the invasion an editorial in the New York Times described the action as the worst blunder in US foreign policy since the end of the Second World War. At the time, some of us thought that the war machines on both sides of the Atlantic had been primed and ready, and there was an awful inevitability about what was going to happen. One illustration of this remains in my memory: a commentator in one of Canada's two national newspapers remarked laconically that "...the President will probably get his war...", as if the unleashing of death and destruction was in the cause of the gratification of a single individual. While the comment was entirely accurate, it was not accompanied by any expression of outrage or reservation: "stuff", it appeared, was more or less bound to "happen".

It may be as well to begin by making clear my own point of departure. In company with the vast majority of neutral international lawyers, I have always viewed the Anglo/American intervention in Iraq as illegal. Contemporary international law permits the use of force in one of two situations. First, proportionate self defence (or very possibly anticipatory self defence-striking at your enemy before you yourself sustain injury), or with the clear, and express authorization of the Security Council of the United Nations. By no stretch of the imagination could the United States, the United Kingdom and their allies claim to have been acting in self defence or anticipatory self defence. Furthermore, and this is a point to be discussed further below, there was no clear and express authorization on the part of the Security Council. But what of the purported justification which has to do with the liberation of the Iraqi people from an oppressive dictator? The trouble with this apparently attractive notion is that it is both extremely subjective (who sets the criteria for determining whether a regime is oppressive or not?), and inconsistent. The regime of Saddam Hussein was ghastly and the Iraqi people are well rid of him and it, but he is hardly alone. A list of "repressive" regimes in the world today would be a long one, and could possibly include all Iraq's neighbours. Is it seriously being contended that it is acceptable to launch an unprovoked attack on, say, Saudi Arabia? Er, no.

As always in situations like this, a brief consideration of the applicable history reveals much. It is possible to trace the existence of a sovereign entity taking one form or another and incorporating the word "Iraq" for over 1,000 years. The modern state was created by Britain and France in the aftermath of the First World War. For several centuries preceding this, the Middle East had been part of the Ottoman Empire. This collapsed in the aftermath of defeat, and modern and secular Turkey emerged. Britain and France, as was their wont, took it upon themselves to determine the fate of the old empire's Arab and Palestinian territories (they were League of Nations mandates), and in such a way that ensured-so they thought-their own pre-eminence, particularly with respect to access to oil. One of the leading sheiks was duly installed as king, and the country appeared to make progress politically, economically, and socially, until the coup staged by the army in 1958. The Ba'ath Party took power for nine months in 1963, and were finally entrenched in 1968. Saddam Hussein was a relatively junior player at this point, but quickly emerged as leader, deposing his former mentor in 1979. This was followed by the swift murder of anyone in his party who might conceivably be seen as an opponent, a tactic which was to be a marked feature of his years in power. Saddam has been much vilified, and rightly so, but it is a sobering thought to remember that Western governments, whatever they thought of him personally, recognized the legitimacy of his regime (otherwise they could not have maintained Ambassadors in Baghdad).

Some did more and actively supported him. It is a matter of record that President George Bush Père had a request before congress for loan guarantees for Saddam mere weeks before his invasion of Kuwait of 1990, the act that turned the world against him once and for all. It is also necessary to remind ourselves that Western support did not falter up to that point despite what we knew of the despicable practices of the man and his government, his gassing of the Kurds, and multiple human rights abuses. We may also be perfectly sure that the Iraqi people have not forgotten for one moment that Western countries, for all their purported justification of their actions allegedly for and on behalf of them and not themselves, have not forgotten. One can go further, and ask whether the average Iraqi citizen would think for one moment that Western powers have ever done anything to or for his country which wasn't ultimately in their own interest.

In This Issue

Further and Deeper
The Future of Deepwater Drilling in the Aftermath of the Deepwater Horizon Disaster
Nick Owen and Clive Schofield

An in-depth discussion of the economic and political implications of the 2010 BP Gulf Oil Spill

Two Forms of Legal Proof and the So-called Blue Bus Problem
S.M. Wexler

UBC law professor Steve Wexler proposes a solution to the Blue Bus Problem.

Somalia Republic's Recall of People's Republic of China Ambassador Infused with Tribalism?
Aweis Issa

Controversy over Somali Republic's decision to bench the Beijing Ambassador in favour of tribal nepotism

Aristotle on Equity, mens rea and actus reus
S.M. Wexler

UBC law professor Steve Wexler writes on "Missing the Mark", "Bad Luck", and how these are related to mens rea and actus reus in the philosophy of Aristotle

Literary Voices
Literary Contributions from Satis Shroff and Boghos L. Artinian

Literary selections from an international cast of writers.

IZ's Commitment to Somalia
Aweis Issa

Somali citizen Aweis Issa writes about the situation on the ground in Somalia.

I make no attempt to assess the impact of the WikiLeaks information on the American public. I suspect that it is thoroughly tired of Iraq and everything to do about it and would like nothing more than, as they say, to "move on". Those who fought there may have other ideas, and it is clear that at least some of the close relatives of those who died are aghast at the notion that the loss they suffered was in vain. But this is the risk of military actions everywhere. One recalls in this connection the story of Australian soldiers picking their way through the makeshift graveyard of many of their compatriots as they prepared to abandon Gallipoli-"let's hope they can't hear us". While conflict-weariness is understandable, and indeed continues through the engagement in Afghanistan, there is a risk of some of the important lessons arising from the debacle being lost. More than this: these lessons are not new, not one of them. They have been learnt painfully before, and then apparently forgotten. Forgotten too is the absurd and sometimes fatuous mood of pre-invasion triumphalism, that the inevitable forces of the West would crush any resistance and (and this was perhaps the greatest illusion of all), the Iraqi population would be delirious with joy and gratitude, "dancing in the streets" as Christopher Hitchens and others confidently predicted. No doubt the thought was of the flower-strewn path that greeted the Allies as they liberated France, the Netherlands and Belgium in 1944, but this was very different. A population that has been subjected to a ferocious aerial bombardment rarely looks with gratitude on those responsible for it. Worse still was the "new millennium" sense that things were different now, that the past had little or nothing to teach, and a new order of some sort or other had been established. In the introduction to his collection of essays and criticism "Reappraisals", the late Tony Judt castigated this short-sighted and self-deluding folly for what it is: a curious mixture of anti-intellectualism, arrogance, and sheer ignorance, the assumption that, through some alchemy or other, most of the world was going to start looking like the western model. These are notions we need to dispense with as quickly as possible, but we also need to be aware that they had a certain currency, and to acknowledge where this led us.

Law and War
Unlike its counterpart in Washington, the British government did attempt to produce a written legal justification for the action in which it was participating in Iraq. This was the infamous memo submitted by the then Attorney-General, Lord Goldsmith, in the form of a written answer to a question in the House of Lords. The argument contained therein can be summarized briefly: after the invasion of Kuwait the Security Council authorized the taking of force against Iraq to force it to withdraw, thus launching Operation Desert Storm. After Iraq withdrew, a series of resolutions ordered disarmament or consequences would follow. Resolution 1441 of 2002 held that Iraq was not in compliance with these demands. Since Iraq had not disarmed, that original threat of the use of force stood, and the United Kingdom, the United States and their allies were acting upon it. This was the legal justification for the invasion and subsequent occupation.

I recall reading this statement with utter disbelief. Was this the best they could do, was this all there was? I asked myself. When one country uses armed force against another, commits, in other words, the ultimate international sin of a violation of its territorial integrity, the legal justification should be crystal clear. There is no doubt as to the international legal justification for the action that liberated Kuwait from Iraq's occupation in 1991. But nothing of the sort was available here, merely this sleight of hand, this legal legerdemain.

This was bad enough, but we now know that this memorandum was not Goldsmith's original view. That was expressed in a memorandum to Prime Minister Blair written before the invasion, and which has only now come to light thanks to the activities of (even if not directly attributable to) the Hutton enquiry. In a nutshell, Goldsmith's view before the invasion was that there was no causus belli-no legal justification for military action. The copy of the memorandum released by the British Government contains marginalia by a number of those who received it. A Blair aide questions why the memo is necessary at all, especially at this critical juncture. Blair himself comments that "I just do not understand this". It was as if he (a lawyer, let us not forget) expected firm legal backing from his Attorney-General, and was puzzled, to say the least, that he was not receiving it.

Shortly after sending his memo Goldsmith flew to Washington, where his counterparts at the White House appear to have put him right on certain matters, and caused him to change his mind: the invasion was lawful. A facsimile of the memo plus marginalia appears in an excellent dissection of this dreadful period in modern British history by the leading human rights lawyer Philippe Sands, a law professor at University College London, in the October 2010 edition of the London Review of Books. It is very well worth reading for more reasons than one.

The conclusion must be that Tony Blair and Goldsmith were less than open with their cabinet colleagues, parliament, and the British people about all this. We know that popular opposition to the Iraq involvement was much more vociferous in Britain than it was in the United States, but the fact remains that Blair's colleagues and party simply "went along" with what he wanted to do. And the worrying thing is, that it appears that if "the President got his war", then the Prime Minister did too. Is this really what we mean today by responsible government? It seems that that's what we might have, but I am equally sure that we should not have it.

It is probably too soon to assign blame in all the quarters where it might conceivably lie, but on this showing, any theory of where the buck stops must indict George W. Bush and Tony Blair for a dismaying list of crimes and misdemeanours, in which, bringing about the deaths of more than 100,000 people is not the least. Quite what all this tells us about these two men is not for me to say, though one recalls Blair's extraordinary enthusiasm for military action against Serbia during the Kosovo crisis, when his appetite for letting the Serbs have it seemed to be much keener than that of Bill Clinton.

Final Thoughts
There seems no doubt that Washington and London had every expectation of a triumphal reception by the newly liberated Iraqi people in the aftermath of their invasion, followed by willing compliance with whatever the occupiers chose to do. They weren't alone: the broadcast and print media teemed with breezy speculation on the shape that democratic Iraq might take, with the prevalent assumption that some sort of effort to get the house in order and follow a Western model was more or less inevitable. The only voices of dissent came from small corners of government departments and academic units who could be distinguished from the invasion-boosters by one important characteristic: they knew Iraq, and almost everybody else did not. The tragic point is, those who didn't know Iraq did not seem to consider that this lack of knowledge was in any way fatal or problematic. Put simply: why do we need to know about Iraq? We are going to change it!

The only point I would make is that we must all beware of the "instant expert", a point I have made in a previous article. There is no "instant expert". Expertise, by its very nature, requires time, application, and a certain measure of ability. This is where the current tide of anti-intellectualism in many western societies is so dangerous. It pretends that Tea Party simplifications are actually adequate to dealing with domestic and international issues, when it is blindingly obvious that this is very far from being the case. It was this same simplistic philosophy that embroiled the United States and its allies in Iraq in the first place, and appears to be working the same magic in Afghanistan. None of this is to call into question the dedication and bravery of those in uniform in that theatre, but unfortunately there is such a thing, quite literally, as "mission impossible". Iraq, Afghanistan, the occupied territories-I fought in Northern Ireland during my teenage years. People of a certain age simply do not take kindly to being ordered around, patted down, and occasionally humiliated by heavily armed youngsters who may display arrogance, or even genuine fear-it doesn't matter. In circumstances such as these, the conqueror may ensure compliance through the barrel of a gun, but nothing more unless a very great deal of hard work is done to bridge the unbridgeable between them. And we know this can and does happen. The trouble is, it won't happen at checkpoints, and especially after a history-we know this thanks to WikiLeaks-in the case families being gunned down because they did not understand what it was they were supposed to do or not do in a given situation.

In the final analysis, I have no sympathy for those who decry the leaking of documents because they show "our boys" in a bad light. If people in uniform have behaved less than well, and manifestly contrary to their own human instincts, then society must ponder the reasons why they are where they are, and the collective responsibility it bears for this.

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