Wednesday, January 27, 2010

Invade and be damned: Foreign Office lawyers say advice on legality of war was ignored.

Both Elizabeth Wilmshurst and Sir Michael Wood (Video and transcript by clicking on the link) have appeared in front of the Chilcot Inquiry and stated that they believed the Iraq war was illegal and that their legal advice was ignored, with Sir Michael stating that this was the "first and only occasion" in his 30 years at the Foreign Office that his legal advice had not been accepted.

"I considered that the use of force against Iraq in March 2003 was contrary to international law," Sir Michael told the inquiry. "In my opinion, that use of force had not been authorised by the [United Nations] Security Council, and had no other basis in international law."

Ms Wilmshurst, who was given a standing ovation after her evidence yesterday, said lawyers within the Foreign Office were "entirely of one view" that the invasion would need to be authorised by the UN to be lawful, while the prospect of committing troops without the UN's explicit approval was treated as a "nightmare scenario". She said Mr Blair's team had treated legal clearance for launching the invasion as "simply an impediment that had to be got over before the policy could be implemented".

So, finally, we hear what we all suspected: Blair was determined to invade Iraq and viewed international law as, "an impediment that had to be got over before the policy could be implemented".

And it is also striking to find that Jack Straw refused to accept the unanimous legal advice which he was being given, stating that he did not believe the advice he was being given was correct.

In a letter to Mr Straw on 24 January 2003, two months before the war, Sir Michael warned him: "I hope that there's no doubt in anyone's mind that without a further decision of the council... the United Kingdom cannot lawfully use force against Iraq." He told the inquiry that he had written the note because Mr Straw's views were "so completely wrong from a legal point of view". He added that lawyers within the Foreign Office believed it was "pretty straightforward" that there was no legal basis for an invasion. However, Mr Straw fired a memo back, saying he did not accept Sir Michael's legal judgment, adding that international law was an "uncertain field".

This would appear, to me, to be the end of the argument. Many of us have long argued that, without a second UN resolution, the Iraq war was clearly illegal. It was not a war based on self defence, as Iraq had not attacked either of the country's invading it, and there was no clear UN resolution using the phrase "any necessary means" which is the universal term for war.

It now transpires that lawyers within the Foreign Office were "entirely of one view" and, in fact, considered this matter under international law to be "pretty straightforward".

And it will be much harder now for Blair and his team to argue that they were only following legal advice, when it is now abundantly clear that they were seeking very specific legal advice and ignoring all advice which did not accord with their own views.

Which brings us to the most striking U-turn in the whole build up to the war; that of the Attorney General, Lord Goldsmith:

Secret documents, published for the first time yesterday, also revealed that Lord Goldsmith told No 10 that he had continuing doubts over the war's legality without explicit permission from the UN. Resolution 1441, agreed in November 2002 and designed to put further pressure on Iraq, was used by Mr Blair and the Bush administration as the legal basis for the invasion. But declassified documents showed that Lord Goldsmith told Mr Blair's team he was "pessimistic" that resolution 1441 could legally justify Saddam's removal.

Lord Goldsmith made the comments in a telephone call with Jonathan Powell, Mr Blair's chief of staff. He said that he had heard "Chinese whispers" that No 10 was planning to use a breach of the resolution as the legal basis for military action. During the call, Mr Powell admitted that Mr Blair was "under no illusion as to the attorney's views on the issue". However, just days before the invasion took place, Lord Goldsmith concluded that resolution 1441 did give legal cover for the invasion after being asked by Mr Blair to make a final ruling.

Wilmshurst did appear to have a modicum of sympathy for the "lamentable" position which Blair had placed the Attorney General in by seeking legal advice so late in the process.

"We were talking about the massive invasion of another country, the change in the government and the occupation of the country, and in those circumstances it did seem to me that we should follow the safest route," she said. "It was clear that the Attorney General was not going to stand in the way of the Government."

Goldsmith will argue today that he was not unduly influenced by Tony Blair and that he stands by the legal opinion which he gave at the time.

It will make for interesting viewing. For his U-turn is simply undeniable and was clearly at odds with every single other legal opinion emanating from the Foreign Office, including his own previous conclusions.

The picture emerging is as bad as we ever suspected. The government did not actually care about the legality of what they were doing and ignored all advice which warned them that what they were proposing was illegal.
Lord Goldsmith initially told Mr Blair's chief of staff, Jonathan Powell, that he was "pessimistic" that the legal basis existed for military action. But Mr Straw argued for a legal interpretation "which coincides with our policy intention".
Straw argued that international law was an "uncertain field". Jack Straw, however, as Wilmshurst pointed out to much laughter from the Inquiry, is not an international lawyer. Not that he let that small matter stand in his way.


The Independent focus today on just how important Goldsmith's advice was in the end:

If nothing else came out of the Iraq inquiry yesterday, the importance of the legal advice given by the Attorney General, Lord Goldsmith, in the run-up to war was made abundantly clear. There were hints of how central this was at the time, in all the rumours and delays around what sometimes appeared an unseemly scrabbling around for any legal justification. There were indications afterwards in the adamant refusal of the then Prime Minister and Downing Street to release the full text of the Attorney General's ruling. And there were subsequent claims, in the run-up to this inquiry, that the Attorney General was "bullied" into the ruling he was eventually to give.

What yesterday's testimony added was precisely why it was so essential that he rule as he did. Quite simply, the legality of the whole enterprise hung on it, because the advice provided until that point had gone unambiguously the other way. The two senior lawyers at the Foreign Office had concluded that going to war without UN authorisation would be illegal. Both Sir Michael Wood and his deputy, Elizabeth Wilmshurst, had advised, in fact, that invading Iraq without a specific UN resolution would be nothing less than "the crime of aggression".

With senior military commanders concerned that they could put themselves on the wrong side of the law if they sent troops to Iraq in such circumstances, and with the legality of the war a key weapon in the armoury of the growing number of protesters, lack of legal authorisation – if exposed – had the capacity to halt the whole enterprise in its tracks.

Suddenly, the whole legal shenanigans which took place before the war - and Blair's reticence to ever publish Goldsmith's legal advice after the war - begins to make perfect sense.

Goldsmith was, literally, all they had to go on.


Here is how this is being reported over here.

Rifkind's point is the strongest. It is not unheard of for ministers to override advice, but it is unheard of for ministers to override legal advice, especially when that advice tells you that you are on the verge of engaging in a crime.

Click here for full article.

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