Clare Dyer Legal correspondent Thursday May 22, 2003 The Guardian
Leaked advice from the attorney general, Lord Goldsmith, reveals that he warned Tony Blair two months ago that attempts at postwar reconstruction of Iraq by US-British occupying authorities would be unlawful without a further UN resolution.
Lord Goldsmith, the government's chief law officer, told the prime minister that the longer the occupation went on and the more the actions of the occupying authorities departed from their main task of disarmament, the harder it would be to justify the occupation as lawful.
The advice, published in today's New Statesman, was written in a memo to Mr Blair and circulated to a small number of government departments on March 26. The magazine says it follows oral advice from Lord Goldsmith at a cabinet meeting six days into the war, making clear that all activity beyond essential maintenance of security would be unlawful without a further security council resolution.
"My view is that a further security council resolution is needed to authorise imposing reform and restructuring of Iraq and its government," Lord Goldsmith wrote.
He listed specifically the limitations placed on the authority of an occupying power under international law. These included attempts at "wide-ranging reforms of governmental and administrative structures", any alterations in the status of public officials or judges except in exceptional cases, changes to the penal laws, and the imposition of major structural economic reforms.
Lord Goldsmith stressed that any military action must be limited to achieving Iraqi disarmament. He wrote: "The government has concluded that the removal of the current Iraqi regime from power is necessary to secure disarmament, but the longer the occupation of Iraq continues, and the more the tasks undertaken by an interim administration depart from the main objective, the more difficult it will be to justify the lawfulness of the occupation."
His opinion throws into doubt the legality of the efforts of the US-led office of reconstruction and humanitarian assistance to form an interim Iraqi administration. It also shows how close to the wind the British administration was prepared to sail in its Iraq role.
The foreign secretary, Jack Straw, has worked hard to bring the UN on board and was last night relieved when France, Russia and Germany announced that they would vote in favour of a UN resolution to let the US-led coalition run the country until a recognised government takes over and to lift 13 years of sanctions. It should make it a virtual certainty that the resolution will pass when the security council votes on it today.
The issue of the UN's role was key to Clare Short's resignation as international development secretary on May 12, when she told MPs: "I believe the UK could and should have respected the attorney general's advice, told the US this was a red line for us and worked for international agreement to a proper UN-led process to establish an interim Iraqi government, just as was done in Afghanistan."
At the time Lord Goldsmith said: "In relation to the current situation in Iraq, I am satisfied that the government is acting in accordance with international law." His spokesman refused to comment last night.
Downing Street said last night: "We don't comment on leaks. The attorney general has put on record that what the government is doing is legal."
The shadow attorney general, Bill Cash, said: "In her resignation letter, Clare Short levied the most serious charges against the prime minister, indicating that she regarded herself as having been misled about the legal basis for the postwar reconstruction of Iraq, and that she in turn, relying on that advice, misled the House."