Government roundly ignored experts' advice on illegality of Iraq war

The testimony of Sir Michael Wood (pictured), chief legal adviser at the Foreign Office, and his deputy, Elizabeth Wilmshurst, to the Chilcot Inquiry into the Iraq War reveals the extent to which the Blair government roundly ignored the legal advice of international law experts, pressuring them to reconsider their views on the illegality of declaring war on Iraq in the absence of a second UN resolution.

Documents declassified on Tuesday and presented to the Chilcot Inquiry, as well as the evidence of Sir Michael Wood and Elizabeth Wilmshurst, paint a damning portrait of a government determined to wage a war against the judgment of experts employed to offer legal advice on courses of action that remain within the law.

The Chilcot Inquiry heard of how the Attorney General, Lord Goldsmith, was leaned on to ‘carefully consider’ the advice he gave government after he had advised that war without a second UN resolution would be illegal. The inquiry also heard of the cavalier attitude of the then Foreign Secretary, Jack Straw, to the advice given by FCO legal experts on the illegality of war and the dangers of the position the government was inclined towards.

The Guardian reports:

‘While Downing Street was pressing Goldsmith hard, and eventually successfully, to come round to the view that a UN resolution would not be necessary, Straw was battling it out with his lawyers in the FO. Sir Michael Wood, Downing Street’s chief legal adviser, wrote to Straw on 24 January 2003 expressing concern about comments Straw had made to then-US vice president, Dick Cheney, in Washington. Straw told Cheney Britain would “prefer” a second resolution but it would be “OK” if they tried and failed to get one “à la Kosovo”.

‘Wood commented that this was “completely wrong from a legal point of view”. He told Straw: “I hope there is no doubt in anyone’s mind that, without a further decision of the [UN security] council, and absent extraordinary circumstances of which at present there is no sign, the UK cannot lawfully use force against Iraq to ensure compliance with its security ­council WMD obligations.” In a memo to Straw, Wood added: “To use force without security council authority would amount to a crime of aggression”. Straw, now justice secretary, replied: “I note your advice but I do not accept it.”

‘Wood 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.”

‘Wood said it was “probably the first and only occasion” that a minister rejected his legal advice in this way. “The problem for the government as a whole was they needed advice even if they didn’t want it,” Wood told the inquiry.’

Elizabeth Wilmshurst, who resigned her post as deputy legal adviser at the FCO over the decision to go to war, described the whole process as ‘lamentable’. She said in a statement:

“I regarded the invasion of Iraq as illegal … 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.”

The consequences of ‘damaging the United Kingdom’s reputation as a state committed to the rule of law in international relations and to the United Nations’ is something being repeated with the Foreign Office’s attempt to repeal universal jurisdiction provisions, to allow Israeli officials to enter the UK free of the fear of facing arrest and prosecution for alleged war crimes.

And news last week of the Home Secretary, Alan Johnson, fighting legal judgments to reverse court decisions on secret evidence and control orders would suggest that his predecessor’s attitude of ‘often be[ing] advised things were unlawful but go[ing] ahead anyway and w[inning] in the courts’ continues to guide ministers’ reactions to legal pronouncements they don’t like.