Doubts about the legality of the war continue to damage the prospects for peace in Iraq

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The questionable legality of the war in Iraq has dogged all discussion of the military action taken by the United States and Britain, and continues to do so. More than 15 months after the final breakdown of negotiations in the United Nations Security Council and well over a year after President Bush declared victory over Saddam Hussein, the legal debate continues to rage - a compelling illustration of the difficulties that ensue when judicial provisions are stretched to accommodate a scenario for which they were not intended.

The questionable legality of the war in Iraq has dogged all discussion of the military action taken by the United States and Britain, and continues to do so. More than 15 months after the final breakdown of negotiations in the United Nations Security Council and well over a year after President Bush declared victory over Saddam Hussein, the legal debate continues to rage - a compelling illustration of the difficulties that ensue when judicial provisions are stretched to accommodate a scenario for which they were not intended.

Today, The Independent publishes an interview with one of the very few British officials to resign over the Government's decision to go to war. Elizabeth Wilmshurst was a lawyer at the Foreign Office who resigned, discreetly, before the military action began because her judgement was that the Government was breaking the law by taking military action. In this, she dissented from the view of the Government's chief law officer, Lord Goldsmith, who argued - narrowly - that the war would be legal. At least, this is what the summary of his opinion said, as it was presented to Parliament. Despite pressure from MPs and the media, the Attorney General's ruling has never been released in full.

There can be little doubt that failure to level completely with MPs and the public over the legal justification for war has handicapped the Government in arguing its case. Quite simply, the public has never been thoroughly convinced. Now, Ms Wilmshurst shows with devastating clarity that the instincts of the sceptics were sound. Legally, she says, decisions about going to war should be based on "facts" and not "assertions" about an imminent threat. Although, for obvious reasons, she does not disclose the legal advice she gave ministers, it is apparent from her decision to resign that she believed the intelligence and other evidence of the danger presented by Iraq was assertion rather than fact. It should be said that her judgement has stood the test of time rather better than that of the Cabinet and its Joint Intelligence Committee.

Ms Wilmshurst also demolishes the notion that President Bush's "war on terror" constitutes a war any more than - in her words - the "war on obesity" is a war. She discredits, too, the whole concept of "pre-emptive self-defence" as illegal under international law. There was even a case, she argues, for designating the use of force in Iraq as "aggression".

Such forthright condemnation is not something that the British Government will be happy to hear. It means at very least that expert lawyers in Britain differed about the legality of the military action before it took place. And if the legality of the war is open to question, then so is the legality of the occupation and pretty much everything else, including the taking of prisoners, the way they have been treated and their continued detention.

Nor, if the early evidence is anything to go by, has the transfer of sovereignty to an interim Iraqi government done much to defuse the legal questions. Saddam Hussein was supposed to have been transferred to Iraqi jurisdiction. Yet he appeared in a court from which Iraqi reporters were banned, where proceedings were stage-managed - and censored, then "spun" - by the Americans. The precise meaning of the "full sovereignty" that was promised to Iraq was always in doubt, but the court appearance of Saddam must have shattered many Iraqi hopes - in the very first week.

Ms Wilmshurst is one of a highly select band of officials and specialists who resigned secure public service positions in protest against a policy that they could not support. They included at least three US State Department officials, one White House official and one of Australia's most senior intelligence analysts.

Many months later, they have the satisfaction of seeing their judgement vindicated. But it is a scandal that the knowledge and perspicacity that led these dissidents to voice their warnings in such categorical fashion were not paid due respect at the time. It is a tragedy, too.

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