July 5, 2004
By Marie Woolf, Chief Political Correspondent
At Westminster, among Labour and Liberal Democrat MPs, the name Elizabeth Wilmshurst has become something of a byword for principle and pluck.
Ms Wilmshurst was the lawyer who defied her political masters at the Foreign Office and told them they would violate international law if they joined the American invasion of Iraq. Her political masters ignored her advice, preferring to listen to the Attorney General's conclusion that war would be legal.
Weeks after the first tanks rolled across the Iraqi border, Ms Wilmshurst resigned, ending a distinguished 29-year Whitehall career. Fifteen months on, she sits in a London hotel sipping a mix of Earl Grey and Indian tea and, true to her lawyer's training, chooses her words carefully as she explains her concerns about the occupation.
In her first newspaper interview since her resignation, the words "worrying", "uncomfortable" and "unexpected" crop up with alarming regularity as she describes the legal basis of the occupation.
It is clear, in spite of her fastidious phrasing, that she, like many international lawyers, has serious reservations about the powers retained by the Americans and the protection offered to Iraqi civilians.
The immunity granted to UK and US troops and civilians in Iraq, including armed security personnel, is without precedent, she says, and means that ordinary Iraqis have little comeback if they are maimed, abused or even swindled during the occupation.
Multinational troops are given immunity from prosecution or from any civil claim in Iraq. They have tax and customs exemption and they are not required to hold driving licences. "It's huge," Ms Wilmshurst says.
The powers, granted before the handover under Order 17, an agreement signed by the Coalition Provisional Authority, are "very, very wide" and "not what you would expect" in law. They could even exempt contractors from prosecution if the water supply they were working on poisoned an entire village.
"A host state, certainly so far as I know, has never given such wide immunities," she said. "Contractors have immunity in respect of anything done under their contracts.
"So if they have a very large contract to build a hospital and there is an argument as to whether they have dropped a brick on a passing Iraqi, or they are driving their vehicles around Iraq in the course of their duties and they run somebody over or they default with the money they cannot be prosecuted or claimed against in the civil courts for such actions."
Ms Wilmshurst is now head of international law at the think- tank Chatham House, and is reluctant to revisit the episode that led to her resignation, saying that she now wants to move on. But she denies that she has been gagged by ministers or "threatened with the Official Secrets Act".
"It is a personal decision based on fairly obvious duties of confidentiality to the client and a spot of the Official Secrets Act here and there," she said.
Ms Wilmshurst does believe, however, that "it could be alleged that the use of force in Iraq was aggression".
But Britain would not face prosecution in the International Criminal Court (ICC) because its members could not agree on the definition of aggression. And while "the kinds of abusive treatment of Iraqi prisoners that have been alleged could amount to war crimes", British troops would also not face action in the ICC unless the UK authorities fail to investigate such abuses themselves.
Ms Wilmshurst also expressed deep concern about America's policy of pre-emptive self-defence, which she said was illegal under international law. Any legal basis for war had to be based on "the facts", she said, in what will be interpreted as a thinly veiled reference to weapons of mass destruction, the basis for war against Iraq.
"What people are worried about is just assertions that there is an imminent threat," she said. She said this was a dangerous precedent, adding: "But since when did we not think the US isn't dangerous?"
She questioned the continued presence in Iraq after the handover of so many US and UK diplomats."One obviously wants to know what these embassies will be doing particularly this huge American embassy," she said. "One can only think that the Americans are going to be having let's say quite an advisory role."
President Bush's claim that Iraq now has full sovereignty is tested by the "unclear" powers of detention the US still has over Iraqi civilians. "The whole question of their powers of detention is an interesting one. You wouldn't normally expect them to have that," she said.
She also accused the US of breaking the Geneva Conventions by detaining Afghans in Guantanamo Bay without a formal assessment of their status to see if they are prisoners of war, and questioned whether members of the Taliban could be classified as illegal combatants or detained indefinitely.
Sir Menzies Campbell, the deputy Liberal Democrat leader, also a senior lawyer, told The Independent yesterday that Ms Wilmshurst's views should "be taken very seriously indeed".
© 2004 Independent Digital (UK) Ltd