Ministers warned of Iraq legal risk

By Ian Dunt

Ministers were warned before the invasion of Iraq that the war was legally risky, according to new documents released today.

The revelation came as the Iraq inquiry underwent what may become the most explosive day of evidence so far, as the Foreign Office’s advice on the legality of the war came into the spotlight.

In a dramatic moment, the inquiry was temporarily suspended when new documentation was suddenly declassified. The inquiry retired for ten minutes to consider the new documents.

Sir Michael Wood, who was one of the Foreign Office’s most senior lawyers, told the inquiry he believed the war was contrary to international law.

A witness statement from Sir Michael, released as today’s session began, contained the sentence: “I considered that the use of force against Iraq in March 2003 was contrary to international law.”

The disclosure of the documents triggered immediate reactions across the political spectrum as opponents of the war demanded more answers.

Liberal Democrat foreign affairs spokesman Edward Davey said: “Michael Wood’s statement is the final nail in the coffin of the case for a legal war. We need to know just who saw this advice. Did it reach Tony Blair and Gordon Brown? And if not, why not?

“This startling revelation suggests Tony Blair, Jack Straw and probably Gordon Brown knew the war was illegal and may have deliberately and knowingly misled parliament and the public. This puts Labour’s leadership squarely in the dock.”

The Scottish National party’s Westminster leader and foreign affairs spokesman Angus Robertson said: “Today we’ve heard that Sir Michael – the government’s top legal chief – repeatedly made clear that the Iraq invasion was illegal on many levels.

“This is damning evidence indeed and absolutely vindicates the SNP’s efforts to impeach Tony Blair.”

The session revealed Sir Michael’s thoughts on the war throughout the build-up to the conflict.

“On the information available in the summer of 2002, there was no basis for the UK to exercise the right of self-defence against Iraq,” he said.

“It is important to stress, that even where the use of force has a sound legal basis, the extent of the use of force is crucial to its lawfulness. Force may only be used if and to the extent that it is necessary and proportionate to achieve the objective for which the legal basis exists, in the present case, to ensure compliance with the WMD provisions of the [security council resolutions].”

Further correspondence also released today shows concern at the height of government about the legal implications of military action against Iraq.

Then-foreign secretary Jack Straw asked for an urgent note “about the practical consequences of the UK’s acting without international legal authority in using force against Iraq”.

Would government or military personnel “be vulnerable in the UK or other courts relating to unlawful use of force and would the issue of the legality of our actions therefore be determined in our domestic courts?” Mr Straw asked.

Later in the evidence session, Sir Michael told the inquiry Mr Straw told him he thought international law was “pretty vague” and that he was being dogmatic in his opposition.

The comments came after Sir Michael responded firmly to a conversation Mr Straw had had with vice president Dick Cheney.

Mr Straw told Mr Cheney that the UK prefered a second resolution but it would be “OK” to try and fail “a la Kosovo”.

This was “completely wrong from a legal point of view”, Sir Michael said.

He wrote in a letter to Mr Straw: “I hope there is no doubt in anyone’s mind that, without a further decision of the 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 resolution.”

Speaking to yesterday, Rose Gentle, whose son died in the war, urged the inquiry to release the documents.

“The document should be produced as evidence,” she said.

“They all keep saying they’ve got these letters or a document, so produce them and let everyone see them.”

Sir Michael’s deputy at the time, Elizabeth Wilmshurst, is currently giving evidence.

As the only civil servant to resign over the war, her testimony is far more forthright than that of many of the witnesses who came before her.

Asked why he did not resign as Ms Wilmshurst did, given that he had the same objections, Sir Michael said: “People react differently to different circumstances.

“I may have briefly considered the matter – certainly I did when Elizabeth resigned, but my view was I should carry on.

“I did not find myself having to defend this legal decision at great length. We quickly moved on to other matters… Questions of conscience are very individual questions.”

Ms Wilmshurst was asked about Jack Straw’s argument that international law was uncertain, to which she replied: “Because there aren’t courts [to decide these issues] ought to make you more careful about keeping within the law, not less.”

Policy experts in the Foreign Office believed that going to war without a second UN resolution would constitute a “nightmare scenario”, she argued.

Legal arguments before the war centred around whether UN security council resolution 1441, which related to ceasefire obligations from the first Gulf war, gave legitimacy to further military action.

Many legal observers believe the consensus that it did not validate later action was so strong America and Britain were forced into frantic attempts to secure a second resolution at the UN.

Those efforts eventually came to nothing, leaving many observers with the impression the war was an illegal act of aggression.

Any suggestion the war was illegal is likely to make tomorrow’s evidence session with Lord Goldsmith, former attorney general, particularly interesting.

Ms Wilmhurst has accused Lord Goldsmith of changing his view on the legality of war.

That accusation joins the chorus of criticism aimed at Lord Goldsmith when it appeared his final advice on the legality of the war contained none of the caveats contained in his previous memo.

While Lord Goldsmith’s previous advice had said resolution 1441 was capable “in principle” of reviving military authorisation, he conceded that “a court might well conclude that operative paragraphs four and 12 do require a further council decision in order to revive the authorisation”.

He also wrote that the authorisation of force would only be “sustainable” if there were strong factual grounds for concluding that Iraq had failed to take every opportunity to disarm.

“In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation,” he wrote.

His final advice contained none of these caveats, triggering suspicions that he had been leant on by Downing Street.

Today, Sir Michael said his formal advice should have been given considerably earlier.

“It was unfortunate that the advice was not given at a different stage,” he said.

“The attorney general should have been asked at an earlier stage and given rolling advice as the situation developed.

“His formal advice came very late. His views were known pretty much throughout the period – known to the prime minister and others.”

Ms Wilmshurst agreed with that point, saying the late request for the attorney general’s advice made it look “as if it was an impediment that simply had to be got over before the policy could implemented”.

She recieved a round of applause after her session – the first time the audience at the inquiry clapped anyone.