[wvns] Whitehall Lawyers Damn Iraq War

Iraq war was a crime of aggression: The damning verdict of top Whitehall lawyers which No. 10 refused to accept
By James Chapman
27th January 2010
http://www.dailymail.co.uk/news/article-1246312/A-crime-aggression-The-damning-verdict-Whitehall-lawyers-invading-Iraq-ministers-refused-accept.html#ixzz0dqegdRQN

Evidence: Sir Michael Wood arrives at the inquiry yesterday

Tony Blair and Jack Straw brushed aside repeated warnings from Government lawyers that they would not have a 'leg to stand on' if Britain invaded Iraq.

Devastating evidence at the Iraq inquiry yesterday revealed that every senior legal adviser at the Foreign Office believed the conflict was in breach of international law.

Astonishingly, Downing Street asked lawyers to assess what the consequences would be if Britain toppled Saddam Hussein without legal authority. When they received the lawyers' memo, No.10 demanded: 'Why has this been put in writing?'

Sir Michael Wood, then the Foreign Office's senior legal adviser, warned ministers again and again that to go to war without approval from a UN Security Council resolution would constitute a 'crime of aggression' in international law.

He told them it risked turning into a foreign policy disaster on the scale of Britain's ill-fated invasion of Suez in 1956.

Less than two months before the Iraq War began in 2003, Sir Michael told ministers there was 'no doubt' that Britain could not lawfully use force against Iraq because it could not claim it was acting in self-defence, that it was trying to prevent a humanitarian catastrophe or that it had the authorisation of the UN.

A series of secret documents released to the Chilcot inquiry revealed that the lawyer's stance led to an extraordinary stand-off with Jack Straw, then Foreign Secretary.

Mr Straw, now Labour's Justice Secretary, insisted that while at the Home Office he had often been advised policy proposals were unlawful but gone ahead anyway.

Yesterday's revelations leave Attorney General Lord Goldsmith, who is due to appear today, and Mr Blair, who will give evidence on Friday, facing massive pressure.

Newly-declassified Government documents show Lord Goldsmith was initially clear that there was no sufficient legal basis for military action.

He even expressed concern about 'Chinese whispers' being put around Westminster that he took an ' optimistic view' of the legal position, when the opposite was true.

But after being summoned for last-minute talks with Mr Blair and Mr Straw - who warned against overly 'dogmatic' legal advice - he eventually ruled the conflict was lawful.
The secret documents show that Sir Michael, who has never spoken publicly before about the advice he gave the Government, first recorded his concerns in March 2002 as the drumbeat for an invasion grew louder.


Jack Straw (L): Rebuked the Foreign Office law chief for being 'dogmatic' Lord Goldsmith (R): Yielded to pressure to change his mind about legality of war


Dick Cheney (L): Told by Straw that UK would go to war even with no resolution Tony Blair (R): PM's staff demanded to know why legal advice was in writing

In one devastating memo in August of that year, he warned the idea of 'pre-emptive' military action had 'no basis in international law' and said to flagrantly disregard it would 'do lasting damage to the UK's international reputation (cf Suez)'.

Mr Straw's office went on to make an extraordinary request - apparently at Downing Street's behest - for an 'urgent' assessment of what might happen if Britain went to war without legal authority.

Sir Michael told ministers such a step would be 'inconceivable' and would break the duty of ministers to comply with the law, risk offences under the International Criminal Court Act and could leave ministers open to prosecutions for 'misfeasance in public office'.
He told the inquiry the request for advice on the consequences of an illegal war was 'curious', adding: 'I am still not entirely sure what the purpose was. I think it was to send off to Number Ten and it did go to Number Ten who said, "Why has this been put in writing?" is my recollection.'

As late as January 2003 - less than two months before military action was launched - Sir Michael protested at Mr Straw's assertion that it would still be possible to take action, even if the Government failed to get a second resolution authorising war.

'To use force without Security Council authority would amount to a crime of aggression,' he wrote in a memo to Mr Straw.

Mr Straw replied: 'I note your advice but I do not accept it.'
Sir Michael told the inquiry: 'He 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.

'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 told the inquiry that all the lawyers who had looked at the possibility of using UN resolutions from years before to justify military action believed Britain 'wouldn't have a leg to stand on'.

His deputy Elizabeth Wilmshurst, who resigned in protest on the eve of the invasion in March 2003, described the Government's treatment of the legal advice as 'lamentable'.

The prospect of launching an invasion without a second resolution was regarded as a 'nightmare scenario' within the Foreign Office, she told the inquiry. 'All the lawyers dealing with the matter in the Foreign Office were entirely of one view,' she said.

'We were talking about a massive invasion of another country, a change in the government of that country, and in those circumstances it did seem to me that we ought to follow the safest route. But it was clear that the Attorney General was not going to stand in the way of the Government.'

She was scathing about the Government's decision to put off asking Lord Goldsmith for his formal legal opinion on the war until as late as possible.

'For the attorney to have advised that the conflict would have been unlawful without a second resolution would have been very difficult at that stage, I would have thought handing Saddam Hussein a massive public relations advantage,' she said.

'I think the process that was followed in this case was lamentable.'
As well as leaving Mr Blair and Lord Goldsmith facing tough questions, the evidence is hugely damaging for Mr Straw, who is due to appear for a second time at the inquiry next month.

Earlier this month Mr Straw, making his first appearance, suggested that he clashed with Mr Blair over his belief that it was 'self-evidently unlawful' for Britain to oust Saddam Hussein without a UN mandate.

Margaret Beckett, who also gave evidence to the inquiry yesterday, insisted that even dead weapons expert Dr David Kelly believed Saddam was aiming to build up chemical and nuclear weapons stockpiles.
Labour's former foreign secretary risked causing offence by citing Dr Kelly in her argument that military action had been launched in good faith.

'I know that many people, of whom if I recall correctly Dr David Kelly was one, were of the view that while Saddam remained in power he would take any opportunity to rebuild his stockpiles, and indeed to go on to develop the nuclear weapons to which at that point he did not have access,' she told the inquiry.

Dr Kelly, a Government weapons adviser, was found dead after being exposed as the source of BBC claims that Downing Street 'sexed up' the case for war.

Mrs Beckett told the inquiry: 'I recognise with considerable regret that somehow the dialogue has moved in a direction where there are a lot of people who think nobody was acting in any kind of good faith. Well, I can say to you it never felt like that to me. We may have been wrong, but we were trying to do what was right.'

Labour MP John McDonnell said: 'The net is clearly closing in on those who took us in to the illegal and immoral war. The time is coming when the Crown Prosecution Service will be forced to consider the prosecution of those who perpetrated this act of unjust aggression.'

Liberal Democrat foreign affairs spokesman Ed Davey said: 'Michael Wood's statement is the final nail in the coffin of the case for a legal war.'

THE DAMNING DOCUMENTS

Dramatic evidence - including a series of classified documents --emerged at the inquiry, showing how ministers brushed aside warnings from chief Foreign Office lawyer Sir Michael Wood and Attorney General Lord Goldsmith. Here Political Editor JAMES CHAPMAN tells how Tony Blair and Foreign Secretary Jack Straw pushed ahead despite being told they risked a calamity on the scale of the Suez invasion in 1956.

MARCH 26, 2002

As the drumbeat for an invasion of Iraq grows louder, Mr Straw tells U.S. Secretary of State Colin Powell he feels 'entirely comfortable' making the case for war to deal with Iraq's weapons of mass destruction.

Sir Michael gives the first of many warnings against such glib assurances. In a confidential memo to Mr Straw's senior aides he says: 'In order for military action to be justifiable under international law, there must be an acceptable legal basis. In the case of military action in relation to Iraq's WMD, this must be either selfdefence or [United Nations] Security Council authorisation.'

The aftermath of Iraq: People gather in front of a police crime lab after a car bomb exploded in central Baghdad yesterday where dozens were killed or injured

Continual unrest: Iraqis inspect the damage after a co-ordinated bomb blast near the Hamra Hotel in Jadriyah. Three huge minibus bombs targeted hotels used by foreigners in Baghdad on Monday, killing at least 36 people

AUGUST 15, 2002

In a devastating communique, Sir Michael warns categorically that an invasion would be illegal and risks turning into a Suez-style disaster.

The idea of 'pre-emptive' military action 'has no basis in international law' and regime change is not a 'lawful objective', he says.

Sir Michael writes to senior officials at the Foreign Office: 'The rule of law is as important internationally as it is at home. To act in flagrant disregard of the law would do lasting damage to the United Kingdom's international reputation (cf Suez). . .
'To advocate the use of force without a proper legal basis is to advocate the commission of the crime of aggression, one of the most serious offences under international law.'

OCTOBER 4, 2002

Mr Straw tells MPs that while it is 'desirable' to get a clear new UN resolution authorising war, there is 'ample power' through previous resolutions.

In a memo to ministers and officials, Sir Michael protests: 'If force is to be used, then some new finding from the Security Council will be needed, unless the facts are such as to justify action in selfdefence. As I have said before, I am aware of no such facts at present. . .

'The law and practice of the UN is quite clear . . . the use of force requires express authorisation.'

OCTOBER 15, 2002

Mr Straw responds to Sir Michael's warnings not by toning down the rhetoric but by making an extraordinary request for an assessment of the potential consequences of going to war illegally.

Simon McDonald, then the Foreign Secretary's private secretary, writes a confidential note to Foreign Office lawyers.

'The Foreign Secretary would be grateful for an urgent note about the practical consequences of the UK's acting without international legal authority in using force against Iraq,' it says.

'Could HMG (Her Majesty's Government) or individual service personnel be vulnerable in the UK or other courts to charges relating to unlawful use of force? Could the ICJ (International Court of Justice) have any role?'

OCTOBER 15, 2002

Sir Michael warns of a potentially dire outcome: 'It would be inconceivable that a Government which has on numerous occasions made clear its intention to comply with international law would order troops into a conflict without justification in international law.'

He goes on: 'The ministerial code notes the duty of ministers to comply with the law, including international law. There are requirements both on ministers and civil servants to be honest in their dealings with Parliament; to act knowingly against international law could not be hidden from Parliament.'

He says there must 'at least be uncertainty' about whether troops involved in an illegal conflict would themselves be committing criminal offences.

'A further area of vulnerability may involve possible offences under the International Criminal Court Act 2002. A further point relates to the crime of aggression. Under international law, use of force of the kind envisaged, if not legally justified by Security Council resolution or as self-defence, would constitute an act of aggression.'

Individual ministers might also be vulnerable to a prosecution for ' misfeasance in public office', he adds.

NOVEMBER 8, 2002

The UN passes resolution 1441, which authorises the resumption of
weapons inspections and promises serious consequences for noncompliance. The Attorney General is not asked for his legal advice in the negotiations. Without specific Security Council authority, Sir Michael still believes this is not enough to form a legal basis for invasion.

NOVEMBER 11, 2002

Lord Goldsmith phones Jonathan Powell, Tony Blair's chief of staff, to complain about 'Chinese whispers' being put around Westminster that he has an 'optimistic view' of the legality of war without a second UN resolution.

He stresses that he is in fact ' pessimistic as to whether there would be a sound legal basis in such a situation for the use of force'.

NOVEMBER 12, 2002

Mr Straw talks to Lord Goldsmith and tells him Iraq has effectively been told 'comply or else'. A note of their conversation reveals the Attorney 'noted this, but again said the question was who was to decide the "or else" . . . the position remained that only the Security Council could decide on whether there had been a material breach (of previous UN resolutions) and/or whether all necessary means were authorised'.

JANUARY 21, 2003

Attorney General submits draft legal advice to Downing Street and Mr Straw. He still argues that invasion would not be legal without a further UN resolution.

JANUARY 24, 2003

In correspondence between London and Washington, Mr Straw tells U.S. Vice President Dick Cheney that Britain would go to war without a second resolution - 'a la Kosovo'.

Sir Michael protests. 'I hope there is no doubt that without a further decision of the Council, and extraordinary circumstances (of which at present there is no sign), the UK cannot lawfully use force against Iraq . . . to use force without Security Council authority would amount to the crime of aggression,' he tells Mr Straw's private secretary and other officials.

Sir Michael told the inquiry that he and Mr Straw also had a face-to-face meeting. 'He 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.

'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.'

It was the first and only occasion in his career that a minister had simply dismissed his legal advice, he added.

Former Foreign Secretary Margaret Beckett gives evidence to the Chilcot Inquiry in London, insisted even Dr David Kelly believed Saddam Hussein had WMD

JANUARY 29, 2003

Mr Straw takes the highly unusual step of writing directly to Sir Michael to rebuke him for being 'dogmatic', copying his message to the Attorney General and Sir David Manning, Tony Blair's foreign policy adviser.

'I note your advice, but I do not accept it,' Mr Straw says. 'In the Home Office . . . even on apparently open and shut issues, the originators of the (legal) advice offered to me accepted that there could be a different view, honestly and reasonably held. And so it turned out to be time and time again. I am as committed as anyone to international law and its obligations, but it is an uncertain field.'

FEBRUARY 3, 2003

Lord Goldsmith writes to Mr Straw to defend Sir Michael, insisting: 'If a Government legal adviser genuinely believes that a course of action would be unlawful, then it is his or her right and duty to say so.'

FEBRUARY 6, 2003

Mr Straw writes to Lord Goldsmith after receiving his draft legal advice. He asks him to 'carefully consider my comments before coming to a final conclusion', adding: 'I would appreciate a conservation with you as well.

It goes without saying that a unanimous and express Security Council resolution would be the safest legal basis for use of force against Iraq. But I have doubts about the negotiability of this in current circumstances. We are likely to have to go for something else.'

MARCH 7, 2003

Attorney General submits his formal advice to the PM. He says a reasonable case can be made that the previous UN resolutions justify war but warns this may not hold up in a court of law.

MARCH 11, 2003

Mr Blair, Mr Straw and chief of the defence staff meet Lord Goldsmith in Downing Street. The Attorney General is told he must come up with a 'yes or no' answer about the legality of war.

MARCH 13, 2003

After meeting a senior Treasury lawyer, and his Tory predecessor Lord Mayhew, Lord Goldsmith tells Mr Straw he has come to a 'better view' of the legality of military action and has decided to back the conflict. At 7pm he meets Blair allies Lord Falconer and Baroness Morgan to deliver the same message.

MARCH 17, 2003

Attorney General tells Parliament war is legal thanks to previous UN resolutions.

MARCH 18, 2003

Mr Blair wins Commons vote on going to war. Bombing begins.

PRESSURE FOR A 'YES OR NO' ANSWER

Elizabeth Wilmshurst: The deputy to Sir Michael, pictured giving evidence at the Inquiry, resigned on the eve of war

Lord Goldsmith was told he must deliver a 'yes or no' answer on the legality of war in the days before the conflict was launched, the inquiry was told.

The then Attorney General, the Government's chief legal adviser, was given the ultimatum at a Downing Street summit.

On March 7, 2003, Lord Goldsmith had presented his opinion to Tony Blair in which he argued that a ' reasonable case' could be made for war - but it would be open to challenge in the courts and it would be safer to have a second UN resolution.

But as diplomatic efforts to win UN approval for a resolution crumbled, the Attorney General was called to a meeting on March 11 with Mr Blair, Jack Straw, defence secretary Geoff Hoon and chief of the defence staff Admiral Lord Boyce.

His legal secretary, David Brummell, told the inquiry that he had been told at the meeting that he needed to give a 'clear statement' about the legality of the war.

'Would it be lawful, yes or no?', Mr Brummell said. Two days later, Lord Goldsmith came to a 'better view' that a further resolution was not legally necessary.

Mr Brummell denied that Lord Goldsmith had been pressurised into giving the green light for war.

But yesterday's disclosures leave Lord Goldsmith facing intense pressure to explain why he changed his mind on the legality of war in the days before the conflict began.

The inquiry heard startling evidence that throughout the buildup to war, the Attorney General agreed with Foreign Office lawyers who were warning that military action would be unlawful.

He clashed with Mr Straw over a draft legal opinion which he gave to Mr Blair on January 14.

Foreign Office lawyer Elizabeth Wilmshurst - who saw a copy - told the inquiry: 'His provisional view was that a second resolution was necessary'.

In a letter to Lord Goldsmith dated February 6, Mr Straw demanded a legal interpretation 'which coincides with our firm policy intention'.

He added: 'I have been very forcefully struck by a paradox in the culture of government lawyers, which is that the less certain the law is, the more certain in their views they become.

'In international law, my experience is of advice which is more dogmatic, even though the range of reasonable interpretations is almost always greater than in respect of domestic law.'

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