Tuesday, April 26, 2005
WAS THE WAR AGAINST YUGOSLAVIA LEGAL - THE GOVERNMENT WON'T SAY IF THEY EVER ASKED
A month ago I emailed the Lord Chancellor's office asking requesting, under the Freedom of Information Act to know the Attorney General's advice as to the legality of the war. Not the war against Iraq, which has already been asked about, but the war against Yugoslavia. The reply today is pasted below.
At first glance the case that the Yugoslav war was illegal is much stronger than for Iraq. Instead of being in a state of technical ceasefire with Iraq, we were at peace with & legally required to "take no action against the territorial integrity or unity" of Yugoslavia (line 1, clause 1, section 1 of the Helsinki Treaty)(we still are). We knew when we went to war to help them that "On its part, the Kosovo Liberation Army has committed more breaches of the ceasefire, and until this weekend was responsible for more deaths than the security forces" (Foreign Secretary Cook 18/1/99 2 months before going to war to help them). The "this weekend remark was regarding the Racak incident which has since been proven forensically to have been faked & on which the US "discoverer" has, under oath, reversed himself. We knew the KLA's first public act was the mass racial murder of group of unarmed Serb refugees & that they were thus guilty of & committed to genocide. Finally, unlike Iraq we knew Yugoslavia was a state with a democratically elected government, had never been an aggressor & had, in the 1970s, taken a specific decision not to create nuclear or other WMDs.
The astonishing thing about the reply worthy of Sir Humphrey, given under, is not that they didn't answer the question but that they specifically refused to say that the government had ever even asked if this war was legal:
"to disclose that the Law Officers have not advised on an issue might expose the government to criticism for not having consulted them, and hence having failed to give sufficient weight to the issue"
The reason alleged here for refusing to disclose, that it would establish a precedent, is clearly in conflict with other facts since the precedent has already been set in the case of Iraq. The obvious conclusion is that the government refused to take formal legal advice on the legality or otherwise of bombing Yugoslavia, if they were competent because they already knew this was a war crime & if they were not competent, because they didn't care.
I publicly accuse Mr Blair of being guilty of a war crime & of murder on a scale that makes Fred West look like a respectable citizen. I invite him to defend such reputation as he may still have.
Neil Craig
Neil Craig 27 Woodlands Drive Glasgow G4 9DN
26 April 2005
Dear Mr Craig
Legal opinion of the Attorney General and Yugoslavia
T
Thank you for your email of 24 March which, owing to the Bank Holidays, was not received until 29 March. The Department for Constitutional Affairs can neither confirm nor deny that it holds the information you requested as the duty in s.1 (1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of s.35 (1)(c) of that Act. I consider that, in the circumstances of this case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information. However, this should not be taken as conclusive evidence that the information you requested exists or does not exist.
Section 35(1)(c) of the Freedom of Information Act 2000 provides that information is exempt information if it relates to the provision of advice by any of the Law Officers or any request for the provision of such advice. Section 35(3) and section 2(1)(b) together provide that the duty to confirm or deny does not arise in respect of information which is exempt (or would be exempt) under section 35(1) if the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information.
Section 35 is statutory recognition of the public interest in allowing government to have a clear space, immune from exposure to public view, in which it can debate matters internally with candour and free from the pressures of public political debate.
There is a strong public interest in ensuring that a government department is able to act free from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. This strong public interest is reflected in the long-standing convention, observed by successive Governments, that neither the advice of Law Officers, nor the fact that their advice has been sought, is disclosed outside government. This convention is recognised in paragraph 24 of the Ministerial Code. It is also an interest which is recognised by the particular form of words used in section 35(1)(c) (contrast the general provision in relation to legal professional privilege in section 42(1)).
Since the Law Officers are the government’s most senior legal advisers, their advice has a particularly authoritative status within government. However, the need for government to obtain legal advice on a very wide range of matters is such that it would be impossible for such advice to be provided by the Law Officers in every case. Disclosure of the occasions when legal advice has been sought from the Law Officers would therefore have the effect of disclosing those matters which, in the judgment of the government, have a particularly high political priority or are assessed to be of particular legal difficulty. This would be directly counter to the strong public interest which underlies the whole of section 35 (see above). To disclose routinely whether the Law Officers have advised on particular issues would potentially create a two-fold detriment. On the one hand, to disclose that they have advised on an issue could be taken to indicate that particular importance was attached to it or even that the Government was in particular doubt about the strength of its legal position. Even if that impression were unfounded, the risk of creating it might deter the Government from consulting the Law Officers in appropriate cases. On the other hand, to disclose that the Law Officers have not advised on an issue might expose the government to criticism for not having consulted them, and hence having failed to give sufficient weight to the issue or to obtain the “best” advice. Again, even if unfounded this could lead to pressure to consult the Law Officers in inappropriate cases or in an unmanageably large number of cases.
In the circumstances of this case, the public interest in maintaining the exclusion of the duty to confirm or deny and maintaining the current convention outweighs the public interest in disclosing whether or not the Department holds the information requested.
If you are unhappy with the way the Department has handled your request, you may ask for an internal review. Requests for internal review should be addressed to: Access Rights Unit, Department for Constitutional Affairs, 1st floor, Clive House, 70 Petty France, London SW1H 9HD.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
If you have any queries about your request please contact me.
Yours sincerely
Kevin Fraser
Head of Access Rights Unit
At first glance the case that the Yugoslav war was illegal is much stronger than for Iraq. Instead of being in a state of technical ceasefire with Iraq, we were at peace with & legally required to "take no action against the territorial integrity or unity" of Yugoslavia (line 1, clause 1, section 1 of the Helsinki Treaty)(we still are). We knew when we went to war to help them that "On its part, the Kosovo Liberation Army has committed more breaches of the ceasefire, and until this weekend was responsible for more deaths than the security forces" (Foreign Secretary Cook 18/1/99 2 months before going to war to help them). The "this weekend remark was regarding the Racak incident which has since been proven forensically to have been faked & on which the US "discoverer" has, under oath, reversed himself. We knew the KLA's first public act was the mass racial murder of group of unarmed Serb refugees & that they were thus guilty of & committed to genocide. Finally, unlike Iraq we knew Yugoslavia was a state with a democratically elected government, had never been an aggressor & had, in the 1970s, taken a specific decision not to create nuclear or other WMDs.
The astonishing thing about the reply worthy of Sir Humphrey, given under, is not that they didn't answer the question but that they specifically refused to say that the government had ever even asked if this war was legal:
"to disclose that the Law Officers have not advised on an issue might expose the government to criticism for not having consulted them, and hence having failed to give sufficient weight to the issue"
The reason alleged here for refusing to disclose, that it would establish a precedent, is clearly in conflict with other facts since the precedent has already been set in the case of Iraq. The obvious conclusion is that the government refused to take formal legal advice on the legality or otherwise of bombing Yugoslavia, if they were competent because they already knew this was a war crime & if they were not competent, because they didn't care.
I publicly accuse Mr Blair of being guilty of a war crime & of murder on a scale that makes Fred West look like a respectable citizen. I invite him to defend such reputation as he may still have.
Neil Craig
Neil Craig 27 Woodlands Drive Glasgow G4 9DN
26 April 2005
Dear Mr Craig
Legal opinion of the Attorney General and Yugoslavia
T
Thank you for your email of 24 March which, owing to the Bank Holidays, was not received until 29 March. The Department for Constitutional Affairs can neither confirm nor deny that it holds the information you requested as the duty in s.1 (1)(a) of the Freedom of Information Act 2000 does not apply, by virtue of s.35 (1)(c) of that Act. I consider that, in the circumstances of this case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information. However, this should not be taken as conclusive evidence that the information you requested exists or does not exist.
Section 35(1)(c) of the Freedom of Information Act 2000 provides that information is exempt information if it relates to the provision of advice by any of the Law Officers or any request for the provision of such advice. Section 35(3) and section 2(1)(b) together provide that the duty to confirm or deny does not arise in respect of information which is exempt (or would be exempt) under section 35(1) if the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether or not this Office holds the information.
Section 35 is statutory recognition of the public interest in allowing government to have a clear space, immune from exposure to public view, in which it can debate matters internally with candour and free from the pressures of public political debate.
There is a strong public interest in ensuring that a government department is able to act free from external pressure in deciding what sort of legal advice it obtains, at what stage, from whom, and in particular whether it should seek advice from the Law Officers. This strong public interest is reflected in the long-standing convention, observed by successive Governments, that neither the advice of Law Officers, nor the fact that their advice has been sought, is disclosed outside government. This convention is recognised in paragraph 24 of the Ministerial Code. It is also an interest which is recognised by the particular form of words used in section 35(1)(c) (contrast the general provision in relation to legal professional privilege in section 42(1)).
Since the Law Officers are the government’s most senior legal advisers, their advice has a particularly authoritative status within government. However, the need for government to obtain legal advice on a very wide range of matters is such that it would be impossible for such advice to be provided by the Law Officers in every case. Disclosure of the occasions when legal advice has been sought from the Law Officers would therefore have the effect of disclosing those matters which, in the judgment of the government, have a particularly high political priority or are assessed to be of particular legal difficulty. This would be directly counter to the strong public interest which underlies the whole of section 35 (see above). To disclose routinely whether the Law Officers have advised on particular issues would potentially create a two-fold detriment. On the one hand, to disclose that they have advised on an issue could be taken to indicate that particular importance was attached to it or even that the Government was in particular doubt about the strength of its legal position. Even if that impression were unfounded, the risk of creating it might deter the Government from consulting the Law Officers in appropriate cases. On the other hand, to disclose that the Law Officers have not advised on an issue might expose the government to criticism for not having consulted them, and hence having failed to give sufficient weight to the issue or to obtain the “best” advice. Again, even if unfounded this could lead to pressure to consult the Law Officers in inappropriate cases or in an unmanageably large number of cases.
In the circumstances of this case, the public interest in maintaining the exclusion of the duty to confirm or deny and maintaining the current convention outweighs the public interest in disclosing whether or not the Department holds the information requested.
If you are unhappy with the way the Department has handled your request, you may ask for an internal review. Requests for internal review should be addressed to: Access Rights Unit, Department for Constitutional Affairs, 1st floor, Clive House, 70 Petty France, London SW1H 9HD.
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
If you have any queries about your request please contact me.
Yours sincerely
Kevin Fraser
Head of Access Rights Unit
