Sir Michael Wood confirmed today that the consistent advice from the FCO’s Legal Advisers was that it was illegal in international law to invade Iraq without a second Security Council Resolution following UNSCR 1441. He also made plain that he consistently over two years advised both Blair and Straw direct that the war would be illegal.
Everything Sir Michael Wood said was 100% consistent with my contention that Straw was lying throughout his testimony on the key point of whether it was believed in the FCO that UNSCR 1441 made the war legal. As I stated, every one of the scores of telegrams of instructions to posts between UNSCR 1441 and just before the March invasion clearly was predicated on a second resolution being necessary, and we were telling security council members in asking them to vote for UNSCR 1441 that it conained “No automatic triggers”. Michael Wood confirmed that too.
Yesterday I wrote this querying why a political appointee mate of Blair can overrule our foremost expert on international law:
A Politician Should Not Rule on the Legality of War
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.
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.
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
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.
Last week I published this on Straw’s testimony. Michael Wood’s testimony absolutely confirms that I was telling the truth and Straw was lying:
Jack Straw’s Biggest Lie
I was a British Ambassador at the time of the events covered by the Iraq Inquiry. I know many of the witnesses and a great deal of the background. I can therefore see right through the smooth presentation. Jack Straw was the smoothest of all – but he told lie after lie.
Straw’s biggest and most important lie goes right to the heart of the question of whether the war was legal. Did UN Security Council Resolution 1441 provide a legal basis for the invasion, or would a second resolution specifically authorising military action have been required? The UK certainly put a massive amount of diplomatic effort into obtaining a second resolution.
Here is Straw’s argument that the invasion was legal without a second resolution:
SIR LAWRENCE FREEDMAN: Then you make a point very strongly in your statement and this has been confirmed by Sir Jeremy Greenstock that you did not believe that military action thereafter, in the event of noncompliance, would depend on a second resolution. It would be desirable but it wasn’t dependent on that. We are not, today, going into the legal arguments on that. Sir Jeremy’s basic contention was that he had got the Americans and British into a comparable position as before Desert Fox in December 1998. So I think that’s quite important, that your understanding, at least of the position, was that it wasn’t absolutely essential to have a second resolution.
RT HON JACK STRAW: I was not in any doubt about that and neither was Jeremy Greenstock, and for very good reasons, which is that there had been talk by the French and Germans of a draft which would have required a second resolution, but they never tabled it. We tabled a draft, which, as I set out in this memorandum, and which Sir Jeremy Greenstock confirms in his memorandum, was aimed to be selfcontained, in the sense that, if very important conditions were met through failures by the Saddam regime, that of itself would provide sufficient authority for military action, and no doubt the next time we will get into the wording of the resolution, which, as I say in this memorandum, I can virtually recite in my sleep, but there are reasons why in OP12 we use the language that we do, and serious consequences are mentioned in OP13 and so on. For sure, we wanted a second resolution after that and well, again, I set out
SIR LAWRENCE FREEDMAN: We will come on to that in a moment.
As Ambassador in an Islamic country, I was copied all or nearly all of the telegrams of instruction on the diplomatic efforts to secure a second resolution. I can tell you these facts as an eye-witness.
Straw argues that the proof that no second resolution was needed is that
I was not in any doubt about that and neither was Jeremy Greenstock, and for very good reasons, which is that there had been talk by the French and Germans of a draft which would have required a second resolution, but they never tabled it.
But they did not table it because we gave assurances to the French and Germans (and Russians and Chinese) that our draft of UNSCR 1441 did not authorise military action. The instructions were to inform those governments that UNSCR 1441 contained “no automatic trigger” which would lead to military action. I remember the phrase precisely “no automatic trigger”. Rod Lyne on the committee must remember it too, because he was one of the people, as Ambassador in Moscow, instructed to give that message.
It is the most perverse of lies by Straw to argue that the fact that the Germans and French did not table their draft proved that 1441 authorised war, when we had told them not to table their draft because 1441 did not authorise war.
I read with enormous care and in real time every single word of the scores of telegrams on the effort to secure the second resolution. Not one word gave any hint at all that a second resolution might not be necessary to authorise war. There was absolutely no mention in telegrams to Embassies of the notion that UNSCR 1441 was a sufficient basis for war, and no second resolution needed, until many weeks after 1441 was passed, just before the invasion.
STOP PRESS ADDITION
In response to New Labour hacks questioning my word, I can offer you irrefutable evidence to back up my own evidence that all the FCO material at the time of the adoption of UNSCR 1441 and for weeks afterwards right up until March, took the view that UNSCR 1441 did not provide legal grounds for the invasion.
It is the resignation letter of Deputy FCO Legal Adviser Elizabeth Wilmshurst in which she stated:
“I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it.
My views accord with the advice that has been given consistently in this office before and after the adoption of UN security council resolution 1441 and with what the attorney general gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.) ”
All FCO instructions in the period to which I refer would have had to be in line with the view expressed by FCO legal advisers at that time. That view was precisely as I have stated it above.
This part of Straw’s evidence is therefore a huge lie.
There were numerous other minor lies from Straw. It is completely untrue that we had persuaded the three African security council members to support a second resolution authorising war. Baroness’ Amos mission to Francophone states we had ignored for years was a miserable failure. That was clear from reporting telegrams from posts.
It’s a small point, but Straw’s lie that upset me most personally was:
I don’t in the least mind people disagreeing with me, indeed I encourage it, but I do ask them to be loyal, because, otherwise, you can’t operate any kind of governmental system.
I disagreed with Straw, over the issue of the use of torture to gain intelligence in the “War on Terror”. I was very loyal. I kep my disagreement entirely internal and argued it in top secret telegrams and internal policy meetings. As a result of my disagreeing, Straw attempted to have me framed on false charges, destroying my health in the process and leaking false accusations to the tabloids to ruin my reputation too. When my name was finally cleared, they had to give me six year’s salary to settle.
I defy anyone to read Murder in Samarkand and say Straw is not a liar.