Six days into the Iraq war, when the talk was of a long, hard campaign, Tony Blair turned to his top legal adviser and friend, Lord Goldsmith. The Prime Minister was thinking ahead. He wanted to know from his Attorney General on what terms British forces would be able to operate in Iraq once victory had been assured.
Goldsmith had done the business on the eve of war. His advice that military action was lawful, even though a second United Nations resolution had not been secured, helped save Blair's leadership in those desperate days. Other lawyers took issue, but his was the view that counted - and Blair took the unprecedented step of publishing it.
The news Goldsmith brought the war cabinet on the morning of 26 March, however, was not what Blair wanted to hear. He knew it would cause problems. Once the presentation was over Blair did not invite questions. He swiftly moved the agenda on. Later that day, Goldsmith decided he had to put his thoughts into a memorandum addressed to Blair and circulated to a small number of key Whitehall departments. The document, which was kept secret but a copy of which the New Statesman has obtained, makes for startling reading. In essence, Goldsmith told Blair and his senior ministers that all US and British activity in Iraq from the end of the war, beyond essential maintenance of security, would be unlawful without specific authorisation from the UN.
"My view is that a further Security Council resolution is needed to authorise imposing reform and restructuring of Iraq and its government," Goldsmith wrote. In other words, everything that the US-led Office of Reconstruction and Humanitarian Assistance (ORHA) has attempted to do - from the efforts to form an interim Iraqi administration to control of the supply and sale of oil, and the award of lucrative reconstruction contracts to US corporations with links to the Bush administration - may, under a British reading of the law, be invalid.
Citing the two main pillars of international law, the Geneva Conventions of 1949 and the Hague Regulations of 1907, Goldsmith listed specifically the "limitations placed on the authority of an Occupying Power". These included attempts at "wide-ranging reforms of governmental and administrative structures"; "any alteration 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".
The issue of the UN's role was central to Clare Short's decision to resign on 12 May. In her denunciation of Blair, the former international development secretary 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."
Short's suggestion that the government had been acting illegally and against Goldsmith's advice was taken up by Iain Duncan Smith. The Conservative leader proposed to Blair in the Commons on 14 May that he should publish the Attorney General's note, "to show that he has nothing to hide, nor his government". The Liberal Democrats repeated the request. Blair refused but told MPs: "There is no possibility of our acting in a way inconsistent with international law. That would be wholly wrong. I would not countenance it and neither would anyone else." In his statement that day, Goldsmith confined himself to saying: "In relation to the current situation in Iraq, I am satisfied that the government is acting in accordance with international law."
Downing Street denied that Blair had reneged on any assurances made to Short on the role of the UN. It also implied - a line that was then repeated by journalists - that Goldsmith's advice was complicated and not categorical. Any reading of his exact words suggests otherwise.
In fact, Goldsmith appears to go further. In his conclusion, he refers back to the UN resolution that authorised the use of force against Saddam Hussein when he invaded Kuwait in August 1990 - the resolution, he maintained, that provided a legal mandate for both the first Gulf war and this year's war. Any military action must, the Attorney General said, therefore be limited to what is necessary to achieve the objectives of that resolution, "namely Iraqi disarmament".
He goes on: "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 admin-istration depart from the main objective, the more difficult it will be to justify the lawfulness of the occupation." In the five weeks since the Americans declared themselves in control of Iraq, the reconstruction efforts have been, to say the least, patchy, as Andrew Stephen reports on page 10. Blair has had to send in one of his most seasoned diplomats and behind-the-scenes fixers, John Sawers, to help sort out the mess. The military have got nowhere in their search for Saddam's alleged weapons of mass destruction - which, as Goldsmith himself acknowledges in the document, provided the legal reason for going to war.
Blair did not receive the advice at the last minute. This was at the beginning of hostilities. Time and again at the war cabinet and in other meetings, Short challenged him to tackle the issues contained in Goldsmith's briefing. In fact, I am told that so concerned did senior officials at the Foreign Office and Ministry of Defence become about the legality of the reconstruction plans that they asked the Attorney General to obtain some form of memorandum of understanding with the Americans. Goldsmith tried, but was unable to get any such undertaking.
Blair, too, pressed the Americans. Shortly after his briefing from Goldsmith, he flew to Camp David for talks with Bush. They spent some time there and in Northern Ireland little more than a week later trying to resolve their differences over a postwar settlement. For Blair, early and central UN involvement was important to heal the wounds caused by the road to war, both in the UK and in Europe. Blair wanted a central role for the UN, partly on principle, partly as a political counterweight for failing to get a second resolution on the eve of war - and for legal reasons. Though he tried to finesse the language with the Americans, he did not get very far. This document shows just how important it was to him.
Since the occupation began, intense work on a UN resolution has been shrouded in secrecy. But as we went to press, the Security Council was considering a revised version of a US-drafted resolution amid optimism that further American concessions may allay the concerns of France, Russia and Germany, and may after weeks of haggling secure its passage.
The original draft called for the lifting of UN sanctions and gave both occupying powers the main role in deciding how to spend Iraqi oil money. The amended text says a UN special co-ordinator would work closely with the US and Britain to restore local and national institutions. John Negroponte, the US ambassador to the UN, said the UN would have a "vital role" in humanitarian relief, in facilitating a return to representative government in Iraq "and in many other areas - the protection of human rights and so forth".
Meanwhile, the spin in Washington and London has focused on the intransigence of those Security Council members refusing to lift sanctions. But the legal message which has been ringing in Blair's ears for the past eight weeks is that the onus is not on the French, Germans, Russians and others to move on this issue. It is on the occupying powers to bring themselves back into compliance with international law.
John Kampfner is the NS political editor
The legal warning in full
Iraq: Authorisation for an Interim Administration
1. I am writing to confirm the advice I gave at the meeting this morning concerning the need for UN Security Council authorisation for the coalition or the international community to establish an interim Iraqi administration to reform and restructure Iraq and its administration.
2. In short, my view is that a further Security Council resolution is needed to authorise imposing reform and restructuring of Iraq and its Government. In the absence of a further resolution, the UK (and US) would be bound by the provisions of international law governing belligerent occupation, notably the Fourth Geneva Convention and the 1907 Hague Regulations. The provisions of these treaties would need to be considered against specific proposals in order to give detailed advice on the precise limits of what is possible, but the general principle is that an Occupying Power does not become the government of the occupied territory. Rather, it exercises temporary de facto control in accordance with the defined rights and obligations under Geneva Convention IV and the Hague Regulations. These instruments are complex, but the following points give an indication of the limitations placed on the authority of an Occupying Power:
(a) Article 43 of the Hague Regulations imposes an obligation to respect the laws in force in the occupied territory "unless absolutely prevented". Thus, while some changes to the legislative and administrative structures of Iraq may be permissible if they are necessary for security or public order reasons, or in order to further humanitarian objectives, more wide-ranging reforms of governmental and administrative structures would not be lawful.
(b) Geneva Convention IV prohibits, subject to certain limited exceptions, any alteration in the status of public officials or judges (although officials may be removed from post in certain circumstances).
(c) Geneva Convention IV also requires that the penal laws of the occupied territory must remain in force except where they constitute a threat to security or an obstacle to application of the Convention. In addition, the courts of the occupied territory must be allowed to continue to function. There are limited exceptions allowing the Occupying Power to promulgate its own laws in order to fulfil its obligations under the Convention and to maintain security and public order, but in principle, the existing structures for the administration of justice must remain in place.
(d) Apart from rules on the collection of taxes (which must as far as possible be in accordance with existing local law), there are no specific provisions in Geneva Convention IV or the Hague Regulations dealing with the economy of the occupied territory. However, the general principle outlined in (a) above applies equally to economic reform, so that the imposition of major structural economic reforms would not be authorised by international law.
3. Different considerations could apply if it were suggested that the people of Iraq themselves were engaged in undertaking such governmental and administrative reform, but that is not what I understand is currently envisaged.
4. I can also confirm that the issues set out in paragraph 2 above are a separate matter from the question of whether a further Security Council resolution is necessary to amend the existing Oil for Food and sanctions regimes in order to secure the immediate delivery of humanitarian aid to Iraq.
5. Although unconnected with the requirement for a further Security Council resolution, a further complicating factor for the United Kingdom is the extent to which the ECHR [European Convention on Human Rights] and other international human rights instruments are likely to apply to any territory of which the UK is the Occupying Power. I am advising the Ministry of Defence separately on the extent of our ECHR obligations in Iraq.
6. Finally and in any event, it must be borne in mind that the lawfulness of any occupation after the conflict has ended is still governed by the legal basis for the use of force. As you know, any military action pursuant to the authorisation in resolution 678 (1990) must be limited to what is necessary to achieve the objectives of that resolution, namely Iraqi disarmament, and must be a proportionate response to that objective. 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. So in the absence of a further Security Council resolution, in addition to the issues raised in paragraph 2 above, it is likely to be difficult to justify the legality of the continued occupation of Iraq once the disarmament requirements of the relevant Security Council resolutions have been completed.
7. I am copying this note to the Foreign Secretary, the Secretary of State for International Development, the Defence Secretary and the Cabinet Secretary.
The Rt Hon the Lord Goldsmith QC
26 March 2003