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The Davids Commission - and what we still need to know about Iraq

25 November 2009

The Davids Commission - and what we still need to know about Iraq

At the beginning of September the Davids Commission realised that it needed more time before it could present its findings on the Netherlands' involvement in the war on Iraq. It is costing the commission a great deal of time to study all public and reliable information, some of it new, while various whistleblowers have announced that they still wish to be heard.

Arjan Vliegenthart is a lecturer in International Relations at the Free University of Amsterdam (VUA) and a member of the Senate for the SP.

The need for additional time represents a knock-out blow to the earlier statement by Premier Jan Peter Balkenende to the effect that everything about the affair was already known, This is one result of the enquiry, at least, that we now, at the end of this year or at the latest the beginning of next year, can expect. Although the war is already more than half a decade old, new data continue to surface which demand closer inspection. The subject is not allowing the Dutch political elite off the hook. And that's a good thing, because opting to involve our country in war belongs to the most important of decisions. It is therefore not to be wondered at that the Dutch parliament and media are following the activities of the Davids Commission closely. Will this commission supply the missing information with which Dutch politicians can reconstruct the decision-making process and draw lessons for the future? To supply a sensible answer to this question, it would be good to have clarity as to just what we now want from the Davids Commission. What are the sorts of questions that more than five years ago went unanswered and what knowledge do we have, as things stand, regarding these questions?

This article deals with three subjects about which there remains, at the present time – speaking cautiously – insufficiently clarity. First of all there is the relationship between the war and international law. The Dutch government is of the opinion that the war against Iraq had an adequate mandate under international law. This position is, however, controversial, and there appear to be more experts who disagree with the government on this matter than support it. Secondly, there is still a great deal which is unclear regarding the question of how the Netherlands determined its line at the time compared to its allies. The government has always declared that it did its very best to prevent a war, but just what these efforts amounted to is unclear. Nor do we know if our country was kept well-informed by our allies. Finally, questions persist in regard to the matter of how the intelligence services functioned in the runup to the war. Who dreamed up the weapons of mass destruction, which Iraq turned out not to have? Were all of the security services as one on this or was their intelligence misrepresented or ignored, and what can we learn from this?

The war against Iraq in international law

One of the most important questions which the Davids Commission will have to answer involves the international legal aspect of the invasion of Iraq. The war against Iraq has from the start attracted a great deal of criticism on the grounds that no clear mandate had been given by the United Nations. True, the Security Council had condemned Iraq on various occasions for its failure to cooperate with the weapons inspectors, who were charged with ensuring that the country would no longer produce chemical and biological weapons, but it was very much in question whether these resolutions gave permission for an armed invasion. In the runup to the war, United Nations Secretary General Kofi Annan made it clear that such an invasion could not count on any international legal basis. The Dutch government, however, was and is of the opinion that these existing resolutions provided sufficient grounds for an invasion. The Netherlands' support for the war against Iraq was the result of the fact that Saddam Hussein refused to conform to what was demanded in the resolution of the UN Security Council and demonstrate that he no longer had recourse to weapons of mass destruction.

Precisely because international law is not unambiguous, it is important at least to have clarity with regard to the manner in which the Dutch government comes to an assessment. As things stand this is, however, still constantly shrouded in mystery and it would be good if the Davids Commission could shed some light on this so that we might be able to draw lessons when it comes to future UN resolutions and so that the Netherlands can contribute to a clearer and less ambiguous international law. This question appears so much more acute now that it turns out that different views on this issue existed within the Ministry of Foreign Affairs. As the daily newspaper NRC Handelsblad discovered at the beginning of 2009, a memorandum exists in which it is demonstrated that the Dutch standpoint in relation to Iraq would not be tenable under international law. This memorandum created in addition the impression that an independent assessment had never been carried out. Such a procedure is unprecedented in a democracy and for this reason it must also be made clear precisely how the Dutch position was arrived at and whether it is truly the case that advice on international law was delivered to order. To what extent have we, in the decision-making process, had to contend with tunnel vision, with government ministers listening to only one set of views while arguments from the other side were never heeded? Such processes could easily occur again in the future. We live in a dangerous world. It would be good to learn from this experience and organise procedures in such a way that both sides are listened to.

Relations between the Netherlands and its allies

Similarly to the international legal mandate, relations between the Netherlands and its allies, with the United States and Great Britain, raise a number of questions. When tensions around Iraq mounted at the end of 2002 and the beginning of 2003, the Netherlands would, according to then Minister of Foreign Affairs Jaap de Hoop Scheffer, have been consulted during the United States' decision-making process. Whether this really happened and how precisely the process worked is as yet unclear, however. You might go so far as to say that the procedure raised many questions. Take the enquiry which the American journalist Bob Woodward conducted into the decision-making process surrounding the war on Iraq. Woodward, who earned his spurs in the famous Watergate scandal, spoke after the war with numerous US policy makers, including authoritative members of the government such as Donald Rumsfeld. His book State of Denial: Bush at War gives a profound insight into how the United States came to its decision. No such enquiry has been conducted in the Netherlands, but a number of Woodward's findings appear to sit badly alongside what we do know about our own country's decision-making process.

In his book, Woodward states that the US decision to attack Iraq was definitive by 13th January 2003. This conflicts with the Dutch government's assertions that all options were open until March of that year and that this was also true for the allies. On 19th February 2003, Minister of Defence Henk Kamp stated this forcefully to Parliament, claiming that “neither the US nor the international community is preparing for war.” When the Senate questioned the government on this point, their answer was that not until 17th March did they know for certain that the United States would carry through its plans to attack Iraq. According to Woodward, that is more than two months after, the decision had been taken. In addition there is a contradiction between the information provided by the government and information from other sources and it would be good were we to have more clarity in relation to this. Was the Dutch government informed in good time about US plans and did they handle this information adequately?

The Netherlands and the intelligence services

A third question which awaits an answer concerns the role played by the intelligence services in the realisation of the Dutch decision. It is clear that the Dutch secret service, in common with many other intelligence services internationally, was wrong about the danger that Saddam Hussein represented for the rest of the world. This was food for cynics: Saddam Hussein was unjustly accused of being a danger to the world, while the fact that he was certainly an enormous danger to his own people was never a reason for the international community to intervene. In order in the future to arrive at a better way of reaching decisions, it is important to determine how the Dutch intelligence service, along with others, can have got things so badly wrong in the runup to the war. Was it really the case that the AIVD, the Netherlands' General Intelligence and Security Service, simply copied the reports from foreign intelligence services and in doing so set the Dutch government on the wrong course, as the national daily newspaper De Telegraaf concluded on the basis of its own enquiry? And was the conclusion arrived at by Joost Oranje, a journalist on NRC Handelsblad, correct, that some of the things which Dutch government ministers had said were less nuanced than the findings of the MIVD, the Military Intelligence and Security Service? Was he also correct in his assertion that the MIVD regularly came to conclusions that were far more nuanced than those presented by US and British leaders? Or is Dutch Premier Balkenende correct when he says that information is always "carefully tested and considered"? In either case, however, there is every reason to take another look at how the other services came to their conclusions and how this process might be improved in future.

That foreign intelligence played a major role in the reports from the Dutch intelligence services is in itself not so surprising. The Netherlands is after all a small country and lacks the resources to conduct thoroughgoing independent investigations on every subject or every country, certainly if what's at issue is information which other countries would prefer to keep secret. But this dependence on foreign information is of course no reason not to regard such information in a critical light. What has become clear from investigations in Great Britain and the United States is that their security services regularly – sometimes deliberately, sometimes unconsciously – mislead or make mistakes. Such an analysis is also of major importance in the Dutch context. Security services which function properly, and which produce reliable analyses and do not allow themselves to be misled by false information from others, are indispensable. Those which function badly are a disaster. The war against Iraq teaches us that in relation to this problem serious progress must be achieved. For the same reason it is also of the greatest importance that the Davids Commission brings into clear view what went wrong and how these mistakes can be avoided in the future.

In conclusion

In addition to these three topics there are other subjects in relation to which the necessary questions remain unanswered. One of the rumours that continues stubbornly to nag has it that Dutch support for the war against Iraq was connected to the candidature of Jaap de Hoop Scheffer for the post of Secretary-General of NATO. In addition, it is said that the Netherlands not only lent political support, but also contributed secretly to actual military operations. These rumours are difficult to disprove.

It is good that the Davids Commission will cast a clearer light on the business of Iraq. That the Commission needs more time is acceptable. Quality should come before rapidity. The Commission is faced with the difficult task of bringing clarity to an affair on which, for the last few years, the lid has not been raised, or scarcely. It is good that the Commission is taking its work seriously and bringing so much difficult information to light, information which could answer the questions above, because only then will Dutch politicians and the Dutch public be able to begin to take a second important step, the drawing of lessons. Acquainting oneself with what happened is not enough. It is rather a matter of being ready for the future. In an uncertain and often dangerous world, learning what happened in the past is not a luxury, it is truly necessary.

This article first appeared, in Dutch, in the November 2009 edition of the Internationale Spectator.

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