A Politician Should Not Rule on the Legality of War 150


Tomorrow morning, Sir Michael Wood, former Foreign and Commonwealth Office Legal Adviser, gives evidence to the Chilcott Inquiry. To my mind, this is the most important evidence to be given so far. Michael’s then deputy, Elizabeth Wilmshurst, who resigned over the war of aggression, will give evidence in the afternoon, I believe speaking in public for the first time since her resignation.

The Legal Adviser at the Foreign Office is a very grand person indeed. You should understand it is a full time position. The FCO has a big department, named Legal Advisers. It is staffed by the cream of public international lawyers. There are assistant and deputy legal advisers,serving in the FCO in London and sometimes being posted to large Embassies abroad. Then there is THE Legal Adviser, who is a very grand personage indeed, with a palatial office overlooking St James’ Park.

I have no doubt at all that both Wood and Wilmshurst will rebuke Starw’s appalling lie that UNSCR 1441 was considered sufficient to justify an invasion, at the time that it was adopted. Wilmshurst’s resignation letter made it perfectly plain that was not true.

http://www.craigmurray.org.uk/archives/2010/01/jack_straws_big.html#comments

But the question is, whether the Committee will manage to hide that truth by leading the lawyers away from it in their questioning. I have previously described their method as obscuring all the key points in a comfortable fog of chuminess. Expect every possible use of the lateral tangent, the chairman’s intervention and the friendly assumption.

I am very sorry that until now Sir Michael Wood has perhaps been best known to a wider public as the man that the FCO wheeled in to tell me that it was perfectly legal to obtain intelligence from torture, as long as somebody else did the torture.

http://www.craigmurray.org.uk/documents/Wood.pdf

As I explain in Murder in Samarkand I was shocked by this because I knew Michael and he is a nice man. Even though he made a point in the meeting of indicating moral disapproval of a policy of using torture, it seems to me there should be a limit to which a lawyer is prepared to advise what the government can get away with.

I am hoping that Michael will redeem himself in the eyes of decent people tomorrow, and I believe that he will.

One of the most important structural questions that the Chilcott Inquiry must ask, is this:

Why does the Attorney General have the power to overrule the Legal Adviser on a point of international law?

The answer is not that the Attorney General has a democratic mandate. Nobody has ever voted for Lord Goldsmith. His only qualification was that he was a buddy of Tony and Cherie Blair.

Here is a select list of some of Sir Michael Wood’s internationally accepted publications on international law:

“The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents”, 23 International and Comparative Law Quarterly (1974)

“The European Convention on the Suppression of Terrorism”, 1 Yearbook of European Law (1981)

“The Legal Status of Berlin” (1987, with I. D. Hendry)

“Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties”, 1 Max Planck Yearbook of United Nations Law (1997)

“The Interpretation of Security Council Resolutions”, 2 Max Planck Yearbook of United Nations Law (1998)

“International Seabed Authority: the First Four Years”, 3 Max Planck Yearbook of United Nations Law (1999)

“Northern and Western European Maritime Boundaries”, in: Colson/Smith, International Maritime Boundaries, Vol. V (2005)

“Towards New Circumstances in which the Use of Force may be Authorized? The Cases of Humanitarian Intervention, Counter-terrorism, and Weapons of Mass Destruction”, in: The Security Council and the Use of Force: Theory and Reality – A Need for Change? (eds. N. Blokker/N. Schrijver, 2005)

“The United Kingdom’s Acceptance of the Compulsory Jurisdiction of the International Court of Justice”, in: Festskrift til Carl August Fleischer (eds. O Fauchald/H Jakhelln/A Syse, 2006)

“N?cessit? et l?gitime d?fense dans la lutte contre le terrorisme: quelle est la pertinence de l’affaire de la Caroline aujourd’hui?”, in: La n?cessit? en droit international Soci?t? fran?aise pour le droit international, Colloque de Grenoble, 2006

“The International Tribunal for the Law of the Sea and General International Law”, 22 International Journal of Marine and Coastal Law (2007)

“The Selection of Candidates for International Judicial Office: Recent Practice”, in: Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (eds. T M Ndiaye/R Wolfrum, 2007)

Three lectures on “The UN Security Council and International Law” (2006), available on the website of the Lauterpacht Centre for Intenrational Law, University of Cambridge. An expanded version of these lectures will be published in due course by Cambridge University Press as a book within the Hersch Lauterpacht Memorial Lectures series

“The Law on the Use of Force: Current Challenges”, 11 Singapore Yearbook of International Law (2007)

“The Security Council and International Criminal Law”, 5 Romanian Journal of International Law/Revista Rom?na de Drept International (2007)

“The International Seabed Authority: Fifth to Twelfth Sessions (1999-2006)”, 11 Max Planck Yearbook of United Nations Law (2007)

“The General Assembly and the International Law Commission: What Happens to the Commission’s Work and Why?”, in: I Buffard, J Crawford, A Pellet, S Wittich (eds.), International Law Between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner (2008)

“The Principle of Non-Intervention” (with Maziar Jamnejad), 29 Leiden Journal of International Law (2009)

“Detention during International Military Operations: Article 103 of the Charter and the Al-Jedda case”, 47 Revue de Droit Militaire et de Droit de la Guerre/The Military Law and the Law of War Review (2009)

Entries in R Wolfrum (ed.), Max Planck “Encyclopedia of Public International Law” (online edition 2008), including:

Committee of Legal Advisers on Public International Law (CAHDI) International Courts and Tribunals, Discontinuance of Cases Final Act International Seabed Authority Legal Advisers Macedonia Peace, Breach of State Practice Teachings of the Most Highly Qualified Publicists United Nations Administrative Tribunal, Applications for Review (Advisory Opinions) United Nations Charter, Enemy State Clauses United Nations Security Council Use of Force, Prohibition of Threat

Here is the complete list of all of Lord Goldsmith’s internationally accepted publications on international law

NOTHING

Which is why the Legal Adviser is paid more than the Attorney General.

So the government spends a very great deal of public money on employing a whole cadre of the best public international lawyers in the world, but takes its legal advice on matters of war and peace from a shifty barrister mate of Tony Blair.

The decision whether to go to war is a political question. But the legal advice should come from the most qualified source, not the source most likely to agree with the Prime Minister.

Even that commonsense observation is going to be much too radical for the stuffed Establishment shirts of the Chilcott Committee.


150 thoughts on “A Politician Should Not Rule on the Legality of War

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  • Mark Golding - Children of Iraq

    Charles Crawford,

    On torture as revealed below, I have a fundamental problem. I happen to put enormous faith in British justice – I believe it is the best in the world. Again as mentioned by me many times here and elsewhere, why put ‘friendship’ and collaboration with the United States before British justice? It is wrong, it devalues Britain and I believe is against the wishes of the majority. Our honour has been fractured by the Iraq war, so why make the gap wider by this incessant need to bend to US pressure under threat of a break in intelligence sharing?

    Alan Johnson and David Miliband admitted the Government could not guarantee that information used by the security services was not obtained through torture.

    Telegraph 10th August 2009

    ..the British government and intelligence services knew about his torture and provided personal information about him ?” unrelated to terrorism ?” that was used by the Americans? proxy torturers in Morocco.

    Binyam Mohamed 10.5.08

    Lord Justice Thomas and Mr. Justice Lloyd Jones, bowed to pressure from the foreign secretary, David Miliband, not to make public a summary of the evidence because the US government had threatened to re-evaluate its intelligence sharing relationship with the UK, which ?could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.?

    judiciary.gov.uk/docs/judgments_guidance/mohamed-judgment4-04022009.pdf

    LONDON ?” A lawyer for the British government argued Monday that two judges acted irresponsibly when they ordered officials to disclose confidential documents relating to the alleged torture of a former Guantanamo detainee.

    Britain?s Foreign Office is fighting a case brought by Ethiopian-born Binyan Mohamed. Mohamed, a British resident, claims he was tortured in Pakistan and Morocco and he wants Britain to release U.S. intelligence material about his detention ?” documents he claims proves Britain?s complicity in his alleged torture.

    Foreign Secretary David Miliband has argued that the seven-paragraph summary of U.S intelligence files should not be released.

    blog.taragana.com/law/2009/12/14/british-government-appeals-court-decision-over-alleged-torture-of-guantanamo-detainee-18635/

    David Miliband commented on the High Court judgment in the Binyam Mohamed case during a statement to the House of Commons on Monday 19 October, stating that the UK will appeal against the judgment in the ‘strongest possible terms.’

    Read the statement

    On Friday 16 October, the High Court handed down its fifth judgment in the Binyam Mohamed case. We are deeply disappointed by the judgment, which concludes that a summary of US intelligence material, prepared by the Judges, should be put into the public domain against the clear and express wishes of the United States. We will be appealing in the strongest possible terms.

    Since we secured the release of the material at issue to Mr Mohamed?s lawyers by the US Government last October, for use in his defence before the US military commission, the only remaining issue for the Court was whether they should order public disclosure of seven summary paragraphs of intelligence material received from the US about his treatment whilst in Pakistan in 2002.

    ukinusa.fco.gov.uk/en/newsroom/?view=PressS&id=21048812

  • eddie

    Craig, I know you believe passionately in free speech, but I don’t know if you read some of the abuse that passes for comment on these boards, and if you do are you happy to host it? Here are just some of the ad-hominem attacks on me in the last day from Jaded and Sam (who are probably the same person).

    “You are a vile, disgusting, little weasel.”

    “Not jumped ship yet you disgusting little weasel? Won’t be long now, won’t be long… You will undoubtedly be one of the first turncoats once the leaks become unpluggable. You aren’t worthy of licking turd from my boots. Go and crawl back in your dirty little hole you foul specimen. The forum air has a rank odour to it!”

    “Q. What do you call Tony’s stools?

    A. Eddie”

    If you want people to engage on these boards (and I assume that you do) then I suggest that you deal with this problem.

  • ingo

    MI5/MI6 agents are taught to smear, denigrate, belittle, abuse, destroy. But then it can be quite positive knowing that there are so many of them festering around the blog. The blog must not only be very influential but feared.

    Posted by: Ruth at January 25, 2010 9:33 PM

    Ruth. That is one of the funniest things I’ve read on here. Well done.

    Posted by: eddie at January 25, 2010 9:41 PM

    Isn’t it amazing eddie what one can transmit with a little humour, you should take heed of that, something they have not taught you, or it has somehwat escaped on your last visit to the shooting range.

    Charles crawford. If I understand you rightly, you say it is perfectly fine/possible to have two conclusive but directly opposing views from legal advisers, because they are assigned to different departments?

    Well, that might be so, but when taking such important decisions, where was the coordinating aspect, why was there none?

    All this isolation between departments and their legal beagles has to stop, not only is such behaviour wastefull and disorganised, it smacks of bigger boys importing their public school habits into their professional life.

    How would you think such bad relations could be reformed? We cannot possibly have two or three differing legal views advising the general public and their representatives when it comes to assessing reasoning and responses to a possible war situation. Do you think the legal confusions should be tackled with a bill of rights and responsibilities?

  • eddie

    Ingo

    If you feel that there is any kind of moral equivalence between my ribbing of Ruth and the examples of abuse that I have posted above then I fear that your moral compass is seriously askew.

  • Mark Golding - Children of Iraq

    Watching a British fire-department search & rescue dig out a young girl from the rubble of a collapsed kinder-garten in Haiti reminds me of Iraq.

    Many children in Baghdad, Iraq died in buildings bought down by cruise and cluster bombs. They could not saved because of ‘war’ conditions and probably suffocated after screaming for their mothers.

  • Vronsky

    The link given by George Dutton above notes ways of avoiding the trap with MS Word, basically by not using a Word document. But if you absolutely *must* have a Word document (e.g. submitting a CV where the employer so specifies) you can strip revision history by importing to OpenOffice, the open source (i.e. free) competitor to MS Office, then saving from there in MS Word format.

  • MJ

    “you can strip revision history by importing to OpenOffice”

    Alternatively, when you’ve you’ve finished composing and revising, you can simply copy and paste all the text into a new Word document and send that instead.

  • eddie

    “…but to actually say that Iraqis will thank him eventually, after the death-toll that has transpired, is really quite breathtaking in its audacity.”

    Jon, that is for Iraqis to judge, not you. The polls are less clearcut than you imagine. But for Blair, Chemical Ali and his ilk would still be committing genocide on Iraqis.

  • Mark Golding - Children of Iraq

    “Tainted touch of america – Depleted uranium weaponry, etc., though no WMD’s, Iraq is now one Willful Mass Destruction Iraq war was illegal, top lawyer will tell Chilcot inquiry

    Iraq littered with high levels of nuclear and dioxin contamination, study finds More than 40 sites across Iraq are contaminated with high levels or radiation and dioxins. Iraq war was illegal, top lawyer will tell Chilcot inquiry Tony Blair?s decision to take Britain to war in Iraq was illegal, the Foreign Office?s former chief legal adviser will tell the Chilcot inquiry this week.

    China?s Internet Controls Here to Stay: Beijing Official China has every right to punish citizens using the Internet to challenge Communist Party power and ethnic policies just as Stalin, Hitler, and Mau had done, a senior official said on Monday, pressing Beijing?s counter-offensive against Google.

    China accuses USA of using cyberwarfare; PEOPLE’S DAILY issues vitriolic editorial…

    70-year gag on Kelly death/murder evidence London Evening Standard | A highly unusual ruling by Lord Hutton, who chaired the inquiry into Dr Kelly?s death/murder, means medical records including the post-mortem report will remain classified until after all those with a direct interest in the case are dead. Scientist admits IPCC used fake data to pressure policy makers

    China paper slams U.S. for cyber role in Iran unrest (Reuters)

    Pentagon backtracks after Gates ?admits? Blackwater operating in Pakistan Raw Story | The Pentagon has gone into damage control mode after Defense Secretary Robert Gates appeared to confirm that security contractor Blackwater is operating in Pakistan.

    Latin American leaders say US occupying Haiti Press TV | Venezuela, Bolivia and Nicaragua say the US is using the international relief operation in Haiti as a cover-up for a military takeover.

    netanayahu: israel to occupy parts of West Bank for eternity ? in effort to keep bloodshed and conflict going ignoring international law and un resolutions?y

    Go to following pages for above links:

    albertpeia.com/currentopics2ndqtr10108.htm albertpeia.com/wallstreetlunacy2ndqtr10108.htm

    albertpeia.com/alresume65393.htm

    (w+w+w.albertpeia.com)

    Taken verbatim from a post by alpeia – Washingtonpost.com

  • mike cobley

    Quoth the Edster:

    “But for Blair, Chemical Ali and his ilk would still be committing genocide on Iraqis.”

    Well, how the hell would you know? Isn’t it remotely conceivable that amongst the hundreds of thousands of people slaughtered during the invasion of Iraq and since there might have been a few people able to organise a revolt or a coup of some kind? Y’see, that’s what you do when you deploy the full panoply of military might against a largely defenseless nation – people die in their thousands, indiscriminately and in horrible agony. And the death of all those human beings equates to the death of possible futures. No, Eddie, I think it would have been entirely possible that Saddam could have been brought down by the Iraqis themselves, if Bush and Blair had not done such diabolical work. The weight of possibility is on this argument, not yours.

  • Vronsky

    @jon

    Blair’s behaviour is so difficult to reconcile with any sort of reason that I have heard it suggested that he acted under duress of some kind – or is that too charitable? There’s an interesting (and relevant?) book review here: tinyurl.com/yg3uxrk

    @Ruth:

    “When a true genius appears in this world, you may know him by this sign, that the dunces are all in confederacy against him.” – Jonathan Swift

  • Charles Crawford

    Craig/All,

    Apologies for a couple of typos which crept in to my earlier comment.

    Ingo asks:

    “Charles crawford. If I understand you rightly, you say it is perfectly fine/possible to have two conclusive but directly opposing views from legal advisers, because they are assigned to different departments?

    Well, that might be so, but when taking such important decisions, where was the coordinating aspect, why was there none?

    All this isolation between departments and their legal beagles has to stop, not only is such behaviour wastefull and disorganised, it smacks of bigger boys importing their public school habits into their professional life.

    How would you think such bad relations could be reformed? … Do you think the legal confusions should be tackled with a bill of rights and responsibilities?”

    I did not give a view on whether the position was fine, perfectly or otherwise. I simply described the position as I see it. Nor do I see what this has to do with public schools.

    There is nothing wrong with the government getting different legal advice from within the system. There are plenty of ways in which that advice can be harmonised as and when necessary, by using formal and informal means (ie a chat on the phone) as necessary. These folk all know each other.

    The key thing is that in the end a definitive view emerges (NB it may not be the ‘correct’ one, ie if the issue ends up in court the government might lose) and is put fairly to the politicians, who then have to decide how to act on it.

    My objection to Craig’s account of Michael Wood’s view is that Michael gave him a measured view on the particular legal point Craig raised, which later was indeed shown to be ‘correct’ by the landmark House of Lords ruling. Craig keeps misrepresenting what was going on here – to cover the fact that he simply lost that argument?

    Most legal views will be less than ‘definite’ on all points – that’s the nature of law and life. So there is invariably an area of discretion, legal and political and presentational. A Bill of Rights won’t affect all this much if at all. It’s just that law is not a closed system, and is invariably open to interpretation.

    The Chilcot exercise is an unprecedented attempt to drill down into a lot of this – this week’s evidence is fraught with policy and operational and moral interest on many levels.

  • Vronsky

    “But for Blair, Chemical Ali and his ilk would still be committing genocide on Iraqis.”

    So you think the UK and US would have continued to supply him with the weapons and the means of delivery? Actually, you’re probably right.

    tinyurl.com/ygrdhcb

  • Charles Crawford

    Just to add that it is well worth reading Michael Wood’s statement to the Chilcot Inquiry as now available on the Web:

    http://www.iraqinquiry.org.uk/media/43477/wood-statement.pdf

    Full of strong good sense and tight legal argument, plus a lot about how it all works in professional practice which demolishes Craig’s febrile posting above.

    Michael makes this point:

    “Another issue is the strength of the legal case that should be required before the Government goes to war. Is a ?reasonable? legal case sufficient? A ?respectable? case? An ?arguable? case? Or should there be a higher degree of legal certainty? This is ultimately a policy question, and one that perhaps cannot be answered in the abstract.”

    Exactly. And maybe Tony Blair will insist that he was using his own professional discretion as given to him by voters before (and indeed again after) the Iraq invasion in what he saw as the national interest…

  • technicolour

    Charles: 22 percent of the electorate voted Labour after the Iraq war; hardly a ringing endorsement.

    Michael Wood may raise these questions in the abstract, but in reality, what kind of legal case do you think it requires to mount an invasion?

  • Mark Golding - Children of Iraq

    “as given to him by voters before (and indeed again after) the Iraq invasion in what he saw as the national interest…”

    Forced home of course by another helping of ‘fear’ and the the ubiquitous ‘war on terror’ but perhaps don’t go there Mark – for now..

    That ‘national interest’ was an illusion – fostered by the main media and poked down the mouths of the British public, who thankfully have seen, absorbed, thoroughly digested and excreted as lies, spin, sinister and bad smelling garbage.

  • tehcnciolour

    By the way, Charles, what’s your view about why the UK had to support the US in this? What would we have lost by refusing to act as its second lieutenant? Could we have refused?

    Otherwise all of this is axiomatic.

  • Jon

    @eddie, I agree that Iraqis should be listened to, though as moral agents, the British people can hardly be asked to keep quiet on the basis that the bombs are not being dropped on their heads. (That reminds me of the primarily American canard of suppressing “doubts” about the war once it has started, in an effort to “support the troops”. Even a patriot is expected to quell his dissent :-).

    You and I are in a state of permanent disagreement about the numbers of excess deaths caused by the war, though I think the UN estimates of the deaths caused by the sanctions are not signficantly contended (1 million, half of them children). I should be interested in genuine research, if you know of any, regarding the numbers of deaths that occured under Saddam’s regime. Its trend line might indicate how many could have died if we’d not invaded, and not taken any other action either. Indeed, I don’t mean that as a challenge to be met by your customary abuse – I think it would be an interesting read for both of us.

    I would be surprised if that figure was able to approach the 1 or 2.x million that have died as a result of our humanitarian intervention.

  • eddie

    Jon

    I don’t accept the figure in your last paragraph obviously. The question is an interesting one. If I had the time to research it I would. The sanctions were not one-sided you know. Saddam merely had to comply with international requirements and they woud have been lifted but he chose to see his people suffer. Would you support or oppose sanctions on a country like Zimbabwe, or say Chile under Pinochet? They are sometimes the only way to make a country see sense short of war, but it is not the dictators who suffer, I agree.

    I don’t accept “customary abuse” either. Look at some of the stuff thathas been slung in my direction and it is pretty vile.

  • Mark Golding - Children of Iraq

    Jon,

    “doubts” about the war once it has started, in an effort to “support the troops”. Even a patriot is expected to quell his dissent :-).

    A very powerful and important point which I’m very glad you mentioned.

    You see we all understand, and I certainly do, that our troops, our young people, are told, that are given an order to deploy and fight (sometimes with insufficient protection). Even in a perceived illegal war, our conscious guides us into support mode for ‘our boys’ as ‘The Sun’ proclaims. Thus no inquiry would ever be considered while ‘at war’ with any state, enclave or country.

    It seems to me therefore that it is important for those of us, with the talents and vision (time?), to ensure that this inquiry accurately and honestly stimulates the public conscious with the failures that lead to the illegal Iraq war, while also stubbornly and consistently dredging the ether as a sort of Tsunami warning system to try and tick the boxes in the hope that awareness can prevent another ‘Iraq’ massacre. Examples: (Iran?) (Pakistan?)(Yemen?).

  • technicolour

    Mr Crawford seems to have left the board? I hope not.

    Eddie. If you did ‘accept the figures’; would your point of view alter?

  • Jon

    @eddie – in terms of the last figure, do you not accept the UN estimates for the numbers of deaths that occured during the sanctions? I’ve not heard these contended before. Still, I guess you can accept what you want: I don’t think the *experts* have overstated the figures, and they’re saying one million.

    I mentioned the humanitarian coordinators who resigned and condemned the sanctions as genocide in another thread, so the point about non-compliance is not the whole question. Surely if our own people resign on principle with such strong condemnation of our own policy, your blaming Iraq for its own suffering is unfair. The issue about weapons compliance was much overstated in any case: don’t forget that the weapons inspectors +wanted+ more time, they were nearly there in terms of signing Iraq off as compliant, but Washington recalled them to make it look like Saddam was not meeting reasonable weapons demands.

    Indeed, one has to be very careful about what exactly we want countries not in the Western orbit to be ‘compliant’ with. My contention on the wider picture is that “compliance with international demands” is a euphemism for “compliance with the Washington Consensus” i.e. neoliberal capitalism, and it is not at all fine to require compliance with that.

    As an example of this, and as has been touched on in other threads, it has been suggested that Saddam’s anti-dollar redenomination of the Iraqi oil trading platform back in 2000 was the straw that broke the camel’s back, providing strong financial impetus for regime change by an America that cannot afford to have oil priced in anything but greenbacks. This was “corrected” in 2003, of course, by the invaders.

  • Richard Robinson

    “Michael Wood may raise these questions in the abstract, but in reality, what kind of legal case do you think it requires to mount an invasion?”

    Worryingly, that would seem to depend on how much legal examination it’s expected to need to stand up to ?

    The ultimate test was always said to be a fair trial, what with the need for justice to be not only done, but seen to be done. Not very much of it has been required to meet any such test, yet ?

  • Mike

    Wilmshurst admitted that she DID authorise force in the 1998 bombings. She is a hypocrite.

    She makes me ashamed to be British. She was a civil servant whose only job was to give advice and then obey the attorney general?s final decision. She has disgraced the civil service.

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