VOL. XLVI

No 40

06-October-2003
 

The Political Scene (6 October 2003)

 

The Iraqis have been unable to agree on how to set about writing a constitution (let alone on the issues they will have to deal with once they start to do so). The latest draft resolution on Iraq from the US has run into flak from the French and a clearly disaffected Kofi Annan. In the opinion of Britain’s Attorney General, economic reforms of the sort decreed two weeks ago in Iraq by the Coalition Provisional Authority are illegal.

 

Constitutional Problems

It is ironic that just as the US has for the first time showed signs of listening to demands – mainly from France, Germany and Russia, but also from Iraq’s Governing Council (GC) – that some sort of timetable should be set for the transfer of sovereignty to Iraq, the Iraqis themselves have suggested that the process may take longer than the Americans might like. Secretary of State Colin Powell signaled what amounted to a shift in the American position on 26 September when he said that as far as drafting a new constitution for Iraq is concerned, “you have to have some sense of time on this and so six months is a good date to put out there,” although he added that “the term ‘deadline’ suggests that something awful happens at the end of the six months, and I wouldn’t want to convey the impression that it falls off the end of the earth at the end of six months.” He also suggested that elections might be held within six months of completing the constitution, saying “if it is possible to meet the goal of finishing the constitutional work in six months, then it is quite appropriate to consider that shortly thereafter the people will be able to ratify such a constitution and prepare for elections. Some people have said it would take another six months for elections, but we really can’t be precise about it.” Reacting to Mr Powell’s remarks, the US administrator in Iraq, Paul Bremer, said on the same day that “we don’t know how long it will take them to write the constitution. Six months seems to me a reasonable guess as to how long it will take, but there are no deadlines involved here.” He also pointed out that “I think if you read carefully what the secretary was talking about, he was talking about the period after the …constitutional conference convention is assembled. There is another unknown period which precedes that, which is when do we see the constitutional conference convened?”

 

The answer to Mr Bremer’s question was not long in coming, and it was almost certainly one the Americans did not want to hear. Intifadh Qanbar, a spokesman for the committee set up to recommend a procedure for drafting the constitution, told a press conference on 30 September – the day that the committee was supposed to submit its findings to the Governing Council (GC) – that the committee had been unable to reach agreement and that as far as the constitution is concerned, “I don’t think six months will be sufficient. It will probably take a year.” According to reports from Baghdad, the main problem facing the committee is that Iraq’s Shi'as, who form a majority of the population, want the constituent assembly that will write the constitution to be elected (for obvious reasons), while minorities such as the Sunnis and Kurds would prefer it to be appointed (for equally obvious reasons). As a result, the committee is expected to present the GC with a range of options rather than a specific recommendation, in effect passing the buck to the GC and further delaying the process of drawing up a constitution. (GC member Ahmad al-Barrak suggested that the wrangling in the GC could be prolonged when he said on 2 October that “the GC will read the committee’s report and after that the GC will discuss it and come to a decision. This is a very important issue and will be discussed for whatever time it takes.”) Moreover, it seems reasonable to assume that if the Iraqis are having difficulty in agreeing on how to set about writing a constitution, the task of actually drafting one is likely to prove far lengthier and more difficult than anyone on Washington appears to have imagined (ensuring, for example, that the US remains entangled in Iraq until next year’s US presidential elections). It is little wonder that the Americans are reportedly mulling their own options, including reviving the idea, abandoned in the immediate aftermath of the war, of appointing a provisional government with limited sovereignty before a constitution is in place. At the moment, therefore, it is anything but clear how and when the country will move in the direction of a normal political life. The only certainty is that Iraq is broken, and the Americans must mend it, one way or another, before they can leave.

 

Annan Criticizes US Draft

The question of the transfer of power to the Iraqis was also much on everyone’s mind in New York, where the Americans submitted a revised draft resolution to the Security Council on 1 October in the hopes of persuading the international community to contribute financially and militarily to Iraq’s rehabilitation. The revised draft contains a number of essentially cosmetic concessions to Washington’s critics:

However, as far as the role of the UN is concerned, the resolution:

 

And, getting down to brass tacks, the resolution:

In essence, therefore, what the Americans want is UN authorization for a multinational force under US command and international financial assistance, while remaining studiously vague as to when power might be transferred to the Iraqis and assigning to the UN a role which might charitably be described as marginal (despite the insertion of the adjective “vital”). It was little wonder, therefore, that the new resolution was dismissed out of hand by French ambassador Jean-Marc de la Sabliere, who said on 2 October that “the revised text does not address our wishes. We didn’t find the proposals we made, along with Germany, on the main points.” (More specifically, Mr de la Sabliere complained that the US proposal “leaves the UN in a secondary role.”) More surprisingly, Mr Annan, who two weeks ago openly criticized the American doctrine of preemptive attack, also came out against to the American draft, saying that “obviously it’s not going in the direction I had recommended. We are studying it. We will have to determine whether it is a radical change from the past or what it is.” Mr Annan also stressed – at a lunch with the Security Council members on 2 October – that he could not accept a draft that did not incorporate his suggestion that the Iraqis should form a government before writing a constitution and holding elections. Faced with French opposition and a clearly disaffected secretary general, US ambassador to the UN John Negroponte maintained gamely that “we are encouraged by what we see to be an emerging convergence among the 15 Security Council members.” But while it still looked as if the US would obtain a resolution of sorts (if only because no one seemed willing to use their veto), it seemed increasingly likely that its passage would rest on so many abstentions as to deprive it of any real authority.

 

Illegal As Well As Impractical?

It turns out that the sweeping economic reforms decreed by Iraqi administrator Paul Bremer two weeks ago are not only pointless but also probably illegal under international law, at least in the opinion of the British Attorney General, Lord Goldsmith.  In a memorandum submitted to Prime Minister Tony Blair on 26 March 2003 – a week after the invasion of Iraq began – Lord Goldsmith said that “my view is that a further Security Council resolution is needed to authorize 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.” He went on to note that “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 or administrative structures would not be lawful.” Finally, “there are no specific provisions on Geneva Convention IV or the Hague Regulations dealing with the economy of the occupied territory. However, the general principle outlined…above applies equally to economic reform, so that the imposition of major structural economic reforms would not be authorized by international law.”

 

The full text of Lord Goldsmith’s memorandum can be found below

 

Charles Snow

 

The Legal Warning In Full

 

Confidential

 

Prime Minister

 

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

Attorney General

 

26 March 2003

 

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