Letter adams to llewellyn effect of un security council resolution 1483 on the authority of the occupying powers

King Charles Street 9 June 2003 LONDON SWIA 2AH Dear Huw IRAQ: EFFECT OF SECURITY COUNCIL RESOLUTION 1483 ON THE AUTHORITY OF THE OCCUPYING POWERS General on whether the draft Security Council resolution on post-conflict Iraq would authorise the Coalition to undertake action going beyond the scope of their authority as Occupying Powers. I am writing to record the Attorney's views. Summary: Resolution 1483 confers a clear mandate on the Coalition working with the Special Representative of the Secretary General (SRSG), to facilitate a process leading to the establishment by the people of Iraq, first, of an Iraqi interim administration and subsequently of an internationally resolution clarifies the recognised representative government. legitimate scope of activity of the Occupying Powers and authorises them to undertake actions for the reform and reconstruction of Iraq going beyond In the limitations of Geneva Convention IV and the Hague Regulations. some cases such actions must be carried out in coordination with the SRSG or in consultation with the IIA. 2. The draft resolution was adopted on 22 May by the Security Council as The advice which follows is based on the final text of the resolution 1483. resolution (but this appears to be in substantially the same terms as the draft attached to your letter). 3. The Attorney considers that, in analysing the legal effect of the resolution, letter dated 8 May from the UK and US Permanent Representatives to the United Nations to the President of the Security Council. In that letter, the Coalition Partners described the actions which they were taking and intended to take, in accordance with their obligations under international law, in order to meet the objective of the complete disarmament of Iraq of weapons of mass destruction. DECLASSIFIED VU0AL1D14 view that the catalogue of activities contained in the 8 May letter constitute legitimate activities for an occupying power. This endorsement by the Security Council therefore provides helpful, although not conclusive, clarification of the legitimate scope of activity of the Coalition. 4. Your letter identifies two areas in which the resolution develops the previous legal position as reflected in the Attorney's advice of 26 March: the political process; and reconstruction work. Political process 5. As noted in your letter, resolution 1483 has a number of provisions which deal with the political process. There are two main themes running through all these provisions: • recognition of the rights of the Iraqi people freely to determine their political future (see PP4, OP4); and • encouragement towards the establishment of a representative government in Iraq (see PPs 5-7, OP8(c), OP9). It is argued that these provisions of the resolution collectively amount to a mandate to the Iraqi people to establish a representative government and therefore their choices in determining their political future have been limited by the Security Council. The Attorney is not convinced that this is a correct reading of the effect of the resolution, as it is hard to square this analysis with the stress laid on the rights of the Iraqi people freely to determine their political future. Moreover, he considers that the resolution must be interpreted consistently with the purposes and principles of the United Nations, which include in Article 1(2) of the Charter, "respect for the principle of equal rights and self-determination of peoples" . The Attorney considers that it is difficult to see how it is compatible with the Iraqi people's right of self-determination to argue that the Security Council has to some extent pre-determined the outcome of the political process The Attorney acknowledges that the resolution places considerable emphasis on the establishment of a representative government in Iraq, which is clearly the desired outcome of the Security Council. The resolution therefore constrains what the Coalition can help the Iraqi people to do. But the Attorney considers that it goes too far to argue that the resolution constrains the rights of the Iraqi people themselves in this respect. DECLASSIFIED 7. The Attorney notes the fact that the lIA is likely to be under the control of the Occupying Powers in the initial phase of its existence. The Attorney agrees that if the IlA were to be structured so that it does in fact operate under Coalition control, then its scope of authority would not extend beyond that of the Coalition under occupation law and such further powers as conferred on the Coalition by the resolution. 8. The Attorney notes, however, that it might be argued that such an outcome is incompatible with OP9 of the resolution which states that the Council supports "the formation by the people of Iraq with the help of the [Coalition] and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised representative government is established by the people of Iraq and assumes the The underlined words could be read as responsibilities of the (Coalition]". indicating that the Council intended the lIA to have at least some degree of independence from the Coalition. On the other hand, the paragraph clearly envisages that the Coalition will retain their role (and authority) as Occupying Powers until the establishment of an internationally recognised Iraqi government. The Council cannot therefore have intended that the Coalition should hand over executive authority to the lIA immediately it is established. Moreover, OP13 provides for the lIA to have an advisory rather than an executive role in relation to the disbursement of funds from the Development Fund for Iraq (DFI). In these circumstances, the Attorney considers that there are reasonable grounds for maintaining that a progressive transfer of power from the Coalition to the lIA is compatible with OP9 of the resolution. 9. The Attorney has seen recent reporting which indicates that the political process may develop in a rather different way to that envisaged in paragraph 6 of your letter. John Sawers' latest report (Iraqrep telno 28 of 1 June) suggests that the IlA will be a framework rather than a single body, which will comprise a Political Council, a Council of Interim Ministers and a number of Commissions to carry out specific tasks. It appears that the idea of a national conference has been put on ice. The Attorney considers that these proposals raise a number of questions regarding their compatibility with resolution 1483; (a) OP9 of the resolution envisages the "formation by the people of Irag ... of an Iraqi interim administration". It is not clear from the reporting how and by whom all the elements of the proposed IlA will be established, but it appears that the Political Council will be in effect self-appointed. The question DECLASSIFIED action under OPs 13 and 16 if there is no lIA, or if it appears that the body which has been established is not an IlA as envisaged in OP9. (c) If the IlA is to be a framework, rather than a single institution, the question arises as to which element of the IlA should be consulted under OPs 13 and 16. (d) It appears from the reporting that the Commissions will undertake activities going beyond the scope of authority of an Occupying Power and yet these Commissions will be subject to the control of the Coalition. As discussed in paragraph 7 above, if they remain under Coalition control, the Commissions will not be entitled to exercise greater authority than the Coalition itself has under occupation law and resolution 1483. It will therefore be important to ensure that the Commissions operate within these constraints. However, The Attorney agrees with your analysis that once an IlA is established in accordance with OP9, to the extent that it acquires executive authority independent of the Coalition, its actions will no longer be governed by occupation law. Reconstruction 10. The Attorney considers that the key provisions of the resolution in assessing its effect on the Coalition's powers in areas other than the political process are PP13 and OPs 4, 5, 8 and 14. 11. As discussed in paragraph 3 above, the effect of PP13 is to endorse (and legitimise) the Coalition's own description of the scope of authority of an Occupying Power. OP5 of the resolution, which calls on all concerned to comply with their obligations under the Geneva Conventions and Hague Regulations therefore has to be read in this context. OP4, which calls upon the Coalition, consistent with the Charter and other relevant international law, to establish "effective administration" in Iraq does not add much to the Coalition's existing obligations in this respect. 12. However, the Attorney considers that OP8 does appear to mandate the Coalition to engage in activity going beyond the scope of authority of an Occupying Power. OP8 is principally directed at the SRSG, but the activities set out in sub-paragraphs (a)-(i) which he is directed to conduct are to be carried out "in coordination with the [Coalition]", which must be read as implied recognition of the Coalition's authority to engage in such activities. The Attorney considers DECLASSIFIED 13. OP14 of the resolution authorises the Coalition, in consultation with the IIA, to disburse funds from the DFl in support of a wide range of reconstruction The Attorney agrees that the general references to activities. "economic reconstruction" and "other purposes benefiting the people of Iraq" mean that the scope of activity authorised by this paragraph is potentially very broad. The extent to which OP14 authorises activity going beyond occupation law is a debatable, but moot, point now that the resolution has been adopted. 14. On the face of it, the Attorney also agrees that the resolution leaves it to the Coalition to decide whether or not a project to be funded under the residual category will in fact benefit the Iraqi people. But he considers that the Coalition is likely to need to provide some objective reasoning for that assessment if they are to satisfy the International Advisory and Monitoring Board established by OP12 and are to avoid criticism that they are abusing these powers. (The Attorney does not agree with the suggestion he has seen in one report that the IAMB's sole function should be to appoint the auditors of the Fund. He does not consider this to be a tenable interpretation of OP12. The name of the Board alone suggests that it is intended to have a broader remit including monitoring of the Coalition's actions in relation to the Fund.) The Attorney also agrees that once the lIA is established, it would be desirable to ensure full consultation in relation to disbursements from the Fund even in cases where this is not a requirement of the resolution. 15. In connection with OP13, the Attorney also notes that the resolution clearly imposes joint US/UK responsibility for disbursements from the DFI. It is therefore important to ensure that the US Government does not take actions in relation to the Fund which are incompatible with the resolution. The fact that the resolution imposes joint responsibility gives the UK a locus to argue with the US that we should be fully involved in the decision-taking process. Anything less would be legally risky. In conclusion, the Attorney considers that resolution 1483 authorises the 16. Coalition to engage in the reconstruction and reform of Iraq to a greater degree than would be permissible under occupation law alone, although in some cases the resolution requires that such activity be carried out in consultation with the IlA or in coordination with the SRSG. However, it is clear that the resolution does not grant the Coalition full legislative and executive authority in Iraq, so there is still a need to consider the legality of specific proposals against the requirements of occupation law and the terms of the resolution. DECLASSIFIED DECLASSIFIED