'Iraq memo' opens door to possible government inquiry

A confidential memorandum from the Dutch minstry of foreign affairs which NRC Handelsblad made public last weekend begs the question as to what the "sufficient legal grounds" were for the Dutch government's support for the Iraq invasion in 2003.

With the publication of a secret memorandum obtained by NRC Handelsblad from the department of legal affairs of the foreign ministry, a long-standing debate is being revived over the necessity of holding an Iraq inquiry. Namely, to investigate what the background was for the political support given by the Dutch government for the American-British invasion of Iraq in 2003. The government at the time chose to support the war, but not send troops. The official reasoning behind the Netherlands' approval for the invasion was that Saddam Hussein had broken UN resolutions, not that he was thought to possess weapons of mass destruction.

While political leaders in Britain and the United States have admitted mistakes were made in the build up to the war, Dutch prime minister Jan Peter Balkenende refuses to open the archives that could shed light on the motives behind the political support for the invasion in 2003.

Coalition government

Several weeks ago the controversy seemed to have faded away. A long-standing wish from a number of political parties, including Labour (PvdA) - one of the ruling parties in the current coalition - to investigate the background to the invasion had dissolved, after years of discussion.

When Labour and CDA teamed up to form a coalition government in 2007, prime minister Balkenende made sure the governing agreement said no inquiry would take place. Labour chose to swallow the bitter pill of defeat after it had failed to attain a majority vote in either house of parliament.

In December the situation suddenly changed, when the right-wing liberal party (VVD) in the senate altered its position on the issue. The liberals turned around after they felt questions on the matter which were fired at the government by members of the senate were answered extremely slowly and unsatisfactorily. Political pressure for an inquiry only intensified after NRC Handelsblad published 'the Iraq memo' from the department of legal affairs of the foreign affairs ministry, written only weeks after the invasion in 2003.

The content of the document is the main reason the inquiry is back in the limelight. In the memo, meant for the minister of foreign affairs at the time (Jaap de Hoop Scheffer, now Nato’s secretary general), lawyers who specialised in international law laid out their analysis of why - in their view - there was no proper legal basis for providing political support for the invasion. There was no UN Security Council resolution which authorised the use of force. The lawyers concluded that "the Netherlands would lose any case brought before the International Court of Justice."

Outright critique

This point of view is hardly news. As early as 2004 lawyers from both the ministry of foreign affairs and the defence department leaked documents that showed their doubts about the legality of the war before it started. The later memo is very strong in its wording. Notably, the memorandum is not 'general advice’ to the minister of the department, but an outright critique aimed at the very heart of the legal reasoning of the government.

The government's justification at the time, in short, was that the use of force in Iraq without a specific UN resolution was acceptable. Ministers claimed previous resolutions, from the time of the 1991 Gulf War, implicitly supported or even legitimised this view. Furthermore, a precedent had been set when force was used in Kosovo without an explicit resolution. Both these examples were debunked in the memo from the foreign ministry’s legal department.

The government did have the power to make its own decisions despite this legal advise. But that begs the pressing question, what did Jan Peter Balkenende mean when he said the Dutch government had "sufficient legal grounds" at the time? Who delivered the arguments therefor and how was this determination reached exactly? It is the question that advocates for the inquiry have been asking all along.

Subordinate role

In addition to the content, the motive behind it the memo’s existence raises questions. The lawyers write that they were requested to provide "the best possible legal support for the Dutch point of view." But if they had simply confined themselves to this, the then-foreign minister would have been "insufficiently informed", they wrote. Even as bombs were already falling on Bagdad, the lawyers felt the urge to stress and back up their concerns.

The department of legal affairs emphasised that their "warning function" to the Dutch government to delineate the limits of international law was "threatened to be exceeded." It was apparent that the lawyers felt their legal opinions had played but a subordinate role.

That frustration manifested itself in the commentary of one of the legal affairs officials, who wrote on the document before the then-secretary general dispatched it to the archive. "The audite et alteram partem (fair hearing for the opposition) apparently does not apply here," the note on the memo reads.

Formal channels

That highlights a third remarkable element: the state of affairs in the department at the time. The memo never reached the minister, at least not via the formal channels. Why that did not occur, and whether the minister was informed of the content, remains unclear. The department chooses not not comment.

There are two possibilities. First, that minister De Hoop Scheffer was well aware of both the content of the memo and the reasons it was written. That raises the question as to what was done with the opinions of the lawyers, and why it was never reported to parliament that there were fundamental legal objections raised by international law experts at the ministry of foreign affairs - against the Dutch point of view.

Or, the second possibility, was that minister De Hoop Scheffer knew nothing of the memo, and thus was also ignorant of the frustrations of those in his department of legal affairs over the eventual course of the decision-making process. In that case, the question is whether the government took all the international legal aspects into account when making its decision to support the war.

Issue revived

The politicians in The Hague are now waiting on further clarification from the government. The question is, whether thereafter an Iraq inquiry will actually come to pass. The governing parties are holding to their coalition agreement that such an inquiry is unnecessary and undesirable. Whether the leaked memo contains previously unknown facts important enough for some of the political parties to change their positions, remains to be seen.

Meanwhile, senators are likely demand new answers from the government. If those, once again, are considered to be unsatisfactory, the probability for an inquiry in the senate mounts. It seems that the Iraq issue, which appeared to be on life support a few weeks ago, has suddenly been revived.