6.5 |
Planning and preparation for a post-Saddam Hussein Iraq, January to
March 2003
212.
On 31 January
Mr John Grainger, a Legal Counsellor in the FCO, sent
Mr Pattison
a “basic
principles” paper on rights under international law to occupy and
administer
post-conflict
Iraq. The paper was for use by Mr Pattison during talks in
Washington the
following
week and was copied to Mr Ricketts, Mr Ehrman and other
FCO officials.105
The paper
was also copied to Mr Martin Hemming, the MOD Legal Adviser,
but it is not
clear
whether it had been discussed with the MOD in draft.
213.
Mr Grainger
explained that he had discussed occupation rights with the
State
Department
Legal Advisors, who acknowledged they had not done any
systematic
thinking on
the issue, but that he had not yet discussed the issue with
DoD.
214.
Mr Grainger’s
paper stated:
“The rights
of Coalition forces to occupy Iraq following a conflict would be
closely
related to
their rights under international law to use force. It is likely
that those rights
will be
based on the express or implicit authorisation of the United
Nations Security
Council …
to be interpreted within the overall objective of Iraqi compliance
with
disarmament
obligations imposed by the Security Council and the requirement
for
restoring
international peace and security in any area … As regards
Occupation
post-conflict,
the authorisation will again only justify such steps as are
necessary
to achieve
the above objectives.
“To the
extent that Iraq came under Coalition control during the course of
any conflict
the rights
and obligations of the Coalition would be those of an Occupying
Power, as
set out in
detail in Articles 42 to 56 of the Regulations annexed to Hague
Convention
IV of 1907,
and in Geneva Convention IV … of 1949 … In general, the
Occupying
Power must
take all measures in its power to restore and ensure public safety
by
respecting,
unless absolutely prevented, the law in the occupied State …
Detailed
provisions
include limited rights to take possession of and use state property
…;
to remove
officials and judges …; and to amend the penal laws of the
occupying
territory …
The Geneva Convention also provides a comprehensive code on
the
protection
of the civilian population and internees.
“In these
and other areas it is likely that aspects of reconstruction of
institutions
and
infrastructure post-conflict could fall outside the competencies of
an Occupying
Power under
international law. For these reasons it is important that a
further
Security
Council resolution be adopted under Chapter VII as soon as possible
to
confer upon
the Coalition and/or other States and international organisations
as
appropriate
the necessary powers … A United Nations administration would not
be
an
occupying power and would not be constrained by the provisions of
international
humanitarian
law though it should apply general international law … Equally
a
105
Minute
Grainger to Pattison, 31 January 2003, ‘Rights Under International
Law to Occupy and
Administer
Iraq after a Conflict’ attaching Paper [unattributed and undated],
‘Rights Under International
Law to
Occupy and Administer Iraq after a Conflict’.
347