The UK is currently holding public hearings on the legality of their invasion of Iraq with the U.S. coalition. Was it legal to invade a sovereign nation without a resolution from the United Nations Security Council? Since I doubt we will ever have such an opportunity in the United States, I find it important to see what the Brits learn and what’s revealed as documents about the decision-making process are declassified.
Recently, Elizabeth Wilmshurst testified before the Chilcot Inquiry. She was the deputy legal adviser at the Foreign Office in the run up to the Iraq invasion in 2003. She was the only U.K. public official to publicly resign in protest after both she and Sir Michael Wood, the senior legal advisor at the Foreign Office, told the Attorney General Lord Goldsmith, that invading Iraq without UN support would be a breach of international law and Goldsmith advised Defense Minister Jack Straw and Prime Minister Tony Blair that it would not.
Her resignation letter was simple, but clear: “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.
Goldsmith had flip-flopped on the issue. At first he agreed with Wilmshurst and Wood, but then changed his mind. In Wilmhurst’s testimony to the Chilcot Inquiry this week she explains his decision-making process. Here’s an excerpt:
SIR RODERIC LYNE: But then, on 7 March, [former UK attorney general Lord Goldsmith] came out with a different view [on whether the UK could invade Iraq without the permission of the UN Security Council], in which he stated that — he accepted that there was a reasonable case that could be made in favour of the revival argument. How did you see that position that he had adopted?
MS ELIZABETH WILMSHURST: Well, of course, I was sorry because I then had to consider my own position. But there were — there were two things that struck me about it. First, that he had relied, and he said he had relied, on the views of the negotiators of the resolution to change the provisional view that he had previously had, and the issue really is: how do you interpret a resolution or a treaty in international law and is it sufficient to go to individual negotiators, but not all negotiators, and ask them for their perceptions of private conversations, or does an international resolution or treaty have to be accessible to everyone so that you can take an objective view from the wording itself and from published records of the preparatory work? I mean, it must be the second. The means of interpretation has to be accessible to all. But the Attorney had relied on private conversations of what the UK negotiators or the US had said that the French had said. Of course, he hadn’t asked the French of their perception of those conversations. That was one point that I thought actually was unfortunate in the way that he had reached his decision, and the other point that struck me was that he did say that the safest route was to ask for a second resolution. We were talking about the massive invasion of another country, changing the government and the occupation of that country, and, in those circumstances, it did seem to me that we ought to follow the safest route. But it was clear that the Attorney General was not going to stand in the way of the government going into conflict.
In Wilmhurst’s written statement before the Chilcot Inquiry, she wrote:
I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post. I would have been required to support and maintain the Government’s position in international fora. The rules of international law on the use of force by States are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the Charter of the United Nations. Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom’s reputation as a State committed to the rule of law in international relations and to the United Nations.
These testimonies read like the best of the battles between the biblical prophets. I’d liken Elizabeth Wilmshurst to Micaiah in 1 Kings 22:
Then the king of Israel gathered the prophets together, about four hundred men, and said unto them, Shall I go against Ramothgilead to battle, or shall I forbear? And they said, Go up; for the LORD shall deliver it into the hand of the king. And Jehoshaphat said, Is there not here a prophet of the LORD besides, that we might enquire of him? And the king of Israel said unto Jehoshaphat, There is yet one, Micaiah the son of Imlah, by whom we may enquire of the LORD: but I hate him; for he doth not prophesy good concerning me, but evil. … So he came to the king. And the king said unto him, Micaiah, shall we go against Ramothgilead to battle, or shall we forbear? And he answered him, Go, and prosper: for the LORD shall deliver it into the hand of the king. And the king said unto him, How many times shall I adjure thee that thou tell me nothing but that which is true in the name of the LORD? And Macaiah said, I saw all Israel scattered upon the hills, as sheep that have not a shepherd: and the LORD said, These have no master: let them return every man to his house in peace. And the king of Israel said unto Jehoshaphat, Did I not tell thee that he would prophesy no good concerning me, but evil?
But read the whole story for yourself, it’s breathtakingly current.