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The importance of competence

|Written By Joanna Harrington
The importance of competence

“He is not an international lawyer.”

With those words, Elizabeth Wilmshurst, the polite but firm, former No. 2 lawyer at the British Foreign Office, put some teeth into her testimony last month before Britain’s inquiry into the Iraq war.

When asked about the reception given to the legal advice provided by government lawyers to then-foreign secretary (and now justice secretary) Jack Straw, Wilmshurst addressed the point directly. Straw, a qualified lawyer but longtime politician, has no expertise in international law. Wilmshurst’s testimony goes to the very heart of the issues before the Iraq inquiry. But for lawyers, her testimony also brings to the fore a current issue of professional responsibility and ethical practice, namely the need for subject-matter competence when giving advice in an increasingly more complex legal world.

Britain established this inquiry in July 2009 to identify the lessons to be learned from the Iraq conflict. The terms of reference for the five-member inquiry, chaired by retired senior civil servant Sir John Chilcot, require the panel to consider the U.K.’s involvement in Iraq, “including the way decisions were made and actions were taken.”

Naturally, this has led to much consideration of the question of the very legality of the war itself as well as the question of whether then-prime minister Tony Blair and his cabinet colleagues considered fully the legal position before authorizing the deployment of troops.

After all, most experts in international law (and every taxi driver I’ve encountered within the vicinity of the United Nations) will tell you that a specific resolution was needed from the Security Council to authorize the use of force and avoid the conclusion that Britain and the United States were engaged in an act of aggression.

Although the inquiry began its hearings before Christmas, there was little media interest until Blair’s recent testimony. Wilmshurst, however, has become the reluctant star of the inquiry.

By all accounts, Wilmshurst is an excellent lawyer, now working for Chatham House, the well-respected think-tank on matters of international affairs. She is well-spoken, completely versed in international law, and she did what a civil servant is supposed to do: she spoke truth to power.

She gave the advice that her training, knowledge, and experience required, and she was not pliable. Her views also reflected the views of all lawyers in the Foreign Office, who remained skeptical about the legal basis for the Iraq war until the very end, but ministers would not listen.

At the helm of the Foreign Office was Straw, a man with a law degree who practised briefly before becoming a political adviser and then a member of parliament from 1979 on.

Straw had not specialized in international law during his university studies, nor had he gained much experience in practice with international law. Nevertheless, he chose to dismiss the advice provided by the lawyers within his department, perhaps as the result of some misguided and outdated assumption that international law is not really law, and in any event, rather vague.

Eventually, when former U.K. attorney general Lord Goldsmith was called in to change the advice from illegal to legal to provide cover for the imminent invasion, Wilmshurst resigned. In doing so, she respected the code of honour and stayed silent as to her reasons, although her letter of resignation later became public as the result of a Freedom of Information Act request.

Clearly, this was a lawyer for whom the law provided a right and a wrong answer — an approach that is refreshing at a time when so many lawyers view the law as a malleable tool to be interpreted to serve their particular ends.

For Wilmshurst, there were no shades of grey. A review of the rules within the UN Charter, combined with a review of the applicable precedents, bolstered a clear conclusion that the invasion of Iraq was illegal, and she stuck to this position.

Her approach illustrates the value to be gained when a lawyer sticks to her area of competence and legal expertise, with legal doctrine providing the best prospect for stopping this war, if only those in power had been inclined to follow the legal rules.

The topicality of this discussion for lawyers is obvious, with torture memos provoking similar discussions about the professional responsibilities of government lawyers in the U.S. and Australia. The recent Cole inquiry into payments made by Australian companies to Iraq in breach of UN sanctions has stirred discussions about the role of lawyers who advise such companies.

Clearly, this is not the time to profess that international law is not really law, or just too vague to be law, when the Security Council, since the end of the Cold War, has proven its ability to create new courts, appoint judges, issue travel bans, order asset freezes, and ban the trade in certain goods, particularly those that can be used to make weapons of mass destruction.

While I do not profess that those elected to public office should follow blindly the advice given by government lawyers, I do wish to emphasize the importance of competence for those who profess to give advice within a particular field of law.

Those in positions of power who hold law degrees must still show some degree of appreciation and respect for the views expressed by their legal advisers who have developed the very subject-matter expertise they lack. After all, we cannot be experts in every field of law, and yet some lawyers (and yes, some non-lawyers as well) see no boundaries with respect to the legal issues on which they will opine.

There also appears a need for members of the legal profession, whether in Britain, the U.S., Australia, or Canada, to develop a greater appreciation of the basic rules of international law and the institutions in which these rules now play out.

While it may help if more law students took a course in public international law to at least recognize when a problem of jurisdiction or sanctions arises, a more useful and pragmatic approach might be for lawyers to recognize that questions of international law, like other areas of the law, may require the application of specific legal knowledge. After all, as the Canadian Bar Association’s Code of Professional Conduct makes clear, competence in a legal field is also an ethical consideration for lawyers in practice.

Would we be so dismissive of advice provided by lawyers with expertise in bankruptcy law?

To follow the Iraq inquiry, visit iraqinquiry.org.uk.

Joanna Harrington is a professor of international law at the University of Alberta and has served as a legal adviser within the legal affairs bureau of Canada’s Department of Foreign Affairs.


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