I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post. I would have been required to support and maintain the Government’s position in international fora. The rules of international law on the use of force by States are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the Charter of the United Nations. Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom’s reputation as a State committed to the rule of law in international relations and to the United Nations.
Elizabeth Wilmshurst, former Deputy Legal Adviser to the FCO
18 January 2010
What an extraordinary session of the Iraq Inquiry. I watched all the testimony of Sir Michael Wood, David Brummell and Elizabeth Wilmshurst. I was struck by much of the evidence, but two statements by Sir Michael Wood stood out.
“He (Straw, who was then Foreign secretary) took the view that I was being very dogmatic and that international law was pretty vague and that he wasn’t used to people taking such a firm position,” said Wood.
“When he had been at the Home Office, he had often been advised things were unlawful but he had gone ahead anyway and won in the courts.”
Sir Michael Wood said this was “probably the first and only occasion” that a minister rejected his legal advice in this way.
The Guardian report gives a flavour of the proceedings: Guardian
While the main event on the legal side will be Lord Goldsmith’s testimony tomorrow it is already clear that the principal legal adviser to the Foreign & Commonwealth Office, Sir Michael Wood, maintained a consistent line of advice that war with Iraq without a second UN resolution was illegal and that he had rejected the government’s argument that resolution 1441 – passed in November 2002 – requiring Saddam Hussein to disarm was a sufficient basis for military action.
It is very clear that this advice was not to Jack Straw’s taste and, equally clear that it was not to the prime minister’s taste. Lord Goldsmith, effectively, had to intervene to say that government lawyers were perfectly entitled to give advice inconsistent with government policy! We know that Lord Goldsmith is believed to have changed his mind, but more particularly, Elizabeth Wilmshurst highlighted the fact that the government seemed to be reluctant to call for formal advice until very late in the run up to the war – when, she suggested, it would then be difficult for the Attorney to have advised the government that the conflict was unlawful without a second resolution at that stage . It would, she said, have handed Saddam a massive PR advantage.
Elizabeth Wilmshurst did state there was no substantive difference between her views and the attorney general’s pre-7 March. I did enjoy Wilmshurt’s response when Sir John Chilcot asked if it made a difference that Jack Straw himself is a qualified lawyer?. Elizabeth Wilmshurt replied…“He is not an International Lawyer”. Rather sums it up, I think?
Note for the “Send Blair to The Hague” brigade
Unfortunately for those who wish to see Tony Blair led away in handcuffs to stand trial – this is unlikely to happen. Elizabeth Wilmshurst stated that while the ICC has jurisdiction now in relations to ‘crimes of aggression’, it cannot be applied retrospectively. [See: #Iraqinquiryblog ]
I am doing a podcast with Carl Gardner, ex government lawyer in Tony Blair’s administration and author of the Head of Legal blog following Lord Goldsmith’s evidence tomorrow.