THE ILLEGALITY OF THE IRAQ WAR

War post mortem checking for blood on the hands of lawyers

January 29, 2010, Richard Ackland, SMH

Iraq backflip by top UK lawyer

The British government's former top lawyer gives evidence at an inquiry into the 2003 invasion of Iraq.

Lawyers are incredibly keen on preening themselves about their ''independence''. Little crests with mottos abound: Without fear or favour; Servants of all, yet of none; All are equal under the law.

Frequently it helps if these little warrior calls are in Latin.

We shouldn't get too misty eyed. The Chilcot inquiry in London comes as a handy reminder, if we needed one, that beside all the nifty mission statements in which the law wraps itself, there's another overriding one: he who pays the piper plays the tune.

The Chilcot inquiry is examining Britain's involvement in the invasion of Iraq, the events that preceded the invasion and the conduct of the war.

What has been the subject of its most immediate concentration is the legal advice about the legality or illegality of the war.

This week has seen evidence from three key British lawyers. Lord Goldsmith, former Labour attorney-general, former president of the English and Welsh bar, former deputy High Court judge and previously known as Pete Goldsmith from Liverpool; Sir Michael Wood, the most senior lawyer in the Foreign Office at the time of the invasion; and Elizabeth Wilmshurst, deputy to Wood at the FO.

It has been nothing short of fascinating. All three at various points in the preparation for the war advised the Government that an invasion of Iraq without a specific UN Security Council resolution to that end would be unlawful.

The civil service lawyers could be ignored by the politicians, and they were. Goldsmith as attorney-general was a different kettle of fish. He was the Government's most senior and theoretically independent legal adviser. Wilmshurst was asked by Sir John Chilcot whether it made any difference that her views were rejected by the foreign secretary Jack Straw, himself a lawyer. ''He's not an international lawyer,'' she shot back.

Elizabeth Wilmshurst resigned from the Foreign Office because she believed that what the Government was embarking upon was utterly devoid of any legitimacy.

Lord Boyce, chief of the defence staff, asked for a clear ''unequivocal'' legal position about the war.

From telling Tony Blair two months before the invasion that its lawfulness was questionable, Goldsmith subsequently saw the light - this war would be legal. And he explained it all in one page.

He had the advantage of a trip to Washington where various of Bush's rogue lawyers got him in a headlock. He came back refreshed and with a new independent opinion. Straw and Blair's people were also applying the thumbscrews to the first law officer. Like a good barrister, Goldsmith had the law coming out of both sides of his mouth.

Why is this important at all? Most people in the pubs couldn't give a fig about it. The short answer is that the military made it clear that to go to war on the basis of equivocal advice was untenable. It needed ''certainty''. To that extent, as the London barrister Philippe Sands, QC, has written: ''The attorney-general had his finger on the trigger.''

Not an insignificant position to be in, considering the vast amount of national treasure to be lavished, the countless lives to be spent and the pending waste and destruction.

Importantly, it enabled prime minister John Howard to wave a bit of paper, Chamberlain-like, and say Australia's participation in the coalition of the willing was entirely ''valid''. He told Parliament on March 18, 2003: ''Our legal advice . . . is unequivocal . . . This legal advice is consistent with that provided to the British Government by its attorney-general.''

Howard claquers in the media were also beating out the message, ''This war is legal''.

Whereas the politicians in Britain were ignoring the critical advice of the civil service lawyers, in Australia the opinion of legal people in the relevant departments was being warmly embraced.

The key advice the Government relied on came from Bill Campbell, QC, first assistant secretary, office of international law in the Attorney-General's Department, and Chris Moraitis, senior legal adviser, Department of Foreign Affairs.

It was essentially predicated on the view that an earlier UN Security Council resolution dealing with Iraq's invasion of Kuwait in 1990 and a more recent resolution giving Saddam the nudge to comply with previous resolutions were the basis for legitimising the invasion.

At the time the opinion was torn apart by other authorities. The former solicitor-general, Gavan Griffith, said the advice was ''fanciful . . . an Alice in Wonderland inversion of meaning of plain words in the resolutions themselves. It is unsupportable. The authors are making it up.''

The vast preponderance of legal advice was clearly of the view that for war to be legitimised there had to be a specific and clear resolution of the Security Council. The US opposed going to an extra resolution. That was the end of it.

The law had to fit the exigencies and importantly the politicians had to find lawyers with suitable honorifics to sprinkle holy water on their position.

It has got to the point now where there are judicial rulings that the laws of war don't apply to war.

The president has to decide what is appropriately legal in these circumstances.

Likewise, as Jonathan Freedland said, writing in The Guardian: ''The war was legal - because Tony Blair said it was legal.''

One foot down the corridor of a dark place leads to other compromises: black hole prisons, illegal detention and ''trial'', plus liberal applications of torture - to mention a few.

justinian@lawpress.com.au