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Law of the war

Published: 23-Mar-2005
By: Gary Gibbon

Extraordinary new light has been shed on the Attorney General's dramatic and rapid change of heart on the legality of war.

An unprecedented insight from inside the Foreign Office which backs the view that the Attorney General DID change his mind about invading Iraq -- deciding suddenly that it was legal, just when the government needed him to.

The resignation letter of a government law officer who quit on the eve of war is published -- with one key passage blanked out.

The document released by the Foreign Office

A minute dated 18 March 2003 from Elizabeth Wilmshurst (Deputy Legal Adviser) to Michael Wood (The Legal Adviser), copied to the Private Secretary, the Private Secretary to the Permanent Under-Secretary, Alan Charlton (Director Personnel) and Andrew Patrick (Press Office):

  • “1. I regret that 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. [blanked out section]

    I cannot in conscience go along with advice - within the Office or to the public or Parliament - which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.

  • 2. I therefore need to leave the Office: my views on the legitimacy of the action in Iraq would not make it possible for me to continue my role as a Deputy Legal Adviser or my work more generally. For example in the context of the International Criminal Court, negotiations on the crime of aggression begin again this year. I am therefore discussing with Alan Charlton whether I may take approved early retirement. In case that is not possible this letter should be taken as constituting notice of my resignation.

  • 3. I joined the Office in 1974. It has been a privilege to work here. I leave with very great sadness.”

We reveal the missing words and ask why the government didn't want you to see them.

The document was released today under the Freedom of Information Act, with the crucial paragraph - on Lord Goldsmith's changed position – censored. But Channel 4 News has the missing details.

Our political correspondent Gary Gibbon reports:

A senior government lawyer says that the Foreign Office legal team thought - until just before the outbreak of war - that the Attorney General agreed with them - that war was illegal without a second UN resolution.

The evidence emerged after the government decided to publish the resignation letter from the former deputy legal adviser at the foreign office - Elizabeth Wilsmhurst.

Ms Wilmshurst resigned just before the outbreak of war claiming that war without a second UN reoslution was a "crime of aggression" ...

But the government refused to release a key paragraph in the letter - Channel 4 News has obtained the missing section.

In the censored paragrapgh Ms Wilmshurst wrote:

"My views accord with the advice that has been given consistently in this Office (the foreign office legal team 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.)"

The government said it had withheld that key paragraph in the public interest - to protect the privacy of the advice given by the attorney general.

Liberal Democrat Shadow Foreign Secretary Sir Menzies Campbell told Channel 4 News: "The government didn’t withhold it in the public interest, it withheld it in the government’s interest.”

Elizabeth Wilmshurst's resignation letter appears to support a serious and persistent charge against the government - that the Attorney General's legal advice changed dramatically and rapidly just when the government desperately needed it to.

As efforts to get a second resolution were flagging - On 7 March - lord Goldsmith produced a lengthy legal opinion arguing that a case could be made for war without a second reoslution - but - he warned - it could be seriously open to legal challenge.

On 13th March he told ministers war without a second UN resolution was legal - no question.

Former Labour Minister Clare Short, who resigned over the issue of the Iraq war told Channel 4 News: “I think the government had to cover it up because it was so devastating.”

The attorney general's office said it would not comment further on Lord Goldsmith's decision making process.

Today also saw the government's formal response to Lord Butler's inquiry into intelligence on Iraq.

The government reveals the intelligence services have been shaken up with more resources, better checking of sources and more sharing of information between different branches of intelligence.

But there's still been no formal investigation into the political and legal path to war and tonight the government's version of events is yet again being seriously challenged.


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