‘THE WAR WAS ILLEGAL!’ – the opinion of all Foreign Office lawyers

Marchers in London in September 2005 against the war on Iraq condemn Bush and Blair as war criminals
Marchers in London in September 2005 against the war on Iraq condemn Bush and Blair as war criminals

ELIZABETH Wilmshurst yesterday, appearing at the Chilcot inquiry, deplored the fact that Lord Goldsmith was asked formally about the legality of the Iraq war just a few days before the war began.

She said that he could hardly have said no, without giving a propaganda coup to Saddam Hussein.

The former Foreign and Commonwealth Office Deputy Legal Adviser said: ‘I think the process followed in this case was lamentable and there should have been greater transparency within government about the evolving legal advice so that it wasn’t left entirely to the Attorney General alone, right at the end.’

Wilmshurst, who resigned on the eve of the invasion of Iraq in March 2003, confirmed what her former boss Michael Wood had told the inquiry yesterday morning (see page two), that all the Foreign Office lawyers considered the invasion of Iraq illegal.

Asked what her views were on the legal position on the use of force against Iraq, she replied: ‘It would be necessary to have a resolution of the Security Council if force against Iraq were to be lawful, that the other lawful reasons for the use of force were not present at that time.’

Asked: ‘Was the Foreign Secretary (Straw) aware of your advice?’

‘Yes, certainly, some of the documents we’ve had disclosed confirm that.’

One of the papers declassified yesterday morning was a note from Straw to chief legal adviser to the foreign office Michael Wood, in which he ‘notes the advice but does not accept it’.

‘Did you see this?’, ‘Yes, I did,’ she replied.

‘Did you see this as a challenge to your role as legal adviser?’

‘Well, it’s rather uncomfortable, when the Secretary of State of a department doesn’t agree with the legal advice given to him or her, so in that sense it’s a challenge.’

She continued: ‘I was not unaware that the advice being given by the Iraq experts in the Foreign Office that going to war without a second resolution would be what they called a nightmare scenario.’

Asked her view of the Attorney General’s claim that the Iraq war was ‘legal but lacked legitimacy’, she replied: ‘I really find it difficult to answer questions about the Attorney General’s view, because it wasn’t mine and my view was that it should be the Security Council who made this determination, rather than asking the prime minister or anyone else within the government . . . .

‘The whole issue, as you know with regard to the interpretation of Resolution 1441 was, was the Council or was it for individual member states to determine whether there was material breach sufficient to justify the use of force, and the position that I took and that the legal advisors took was that it was for the Security Council to make this judgement.

‘He (the Attorney General) did say that the safest route was to ask for a second resolution.

‘We were talking about the massive invasion of another country, the changing of a government and the occupation 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 over going into conflict.’

She added: ‘Our troops are entitled to be able to operate without controversy as to the legality of the conflicts in which they are engaged and so therefore certainly in an ideal world one would want to have a strong case if one is undertaking an operation so major as invading another country.’

‘So you’re suggesting that the legal advice given by the Attorney General did not have that certainty?’

‘Well, he said himself it didn’t,’ she replied.

Asked what went wrong, she replied: ‘The formal advice was not asked until the very last moment, when really it would have been very, very difficult for him (the Attorney General) to give a different view without giving a major public relations advantage to Iraq.’