The Report
of the Iraq Inquiry
662.
On 28
February, Mr Wood advised:
“The legal
basis for the occupation of Iraq by Coalition forces in a
post-conflict phase
would
depend initially on the legal basis for the use of force. That
legal basis is
likely to
be Security Council authorisation for military action to enforce
Iraq’s WMD
obligations
under SCRs. But the longer an occupation went on, and the further
the
tasks
undertaken departed from this objective, the more difficult it
would become
to justify
an occupation in legal terms.
“Without a
Security Council mandate for the post-conflict phase, the status of
the
occupying
forces would be that of belligerent occupants, who would have
the
rights and
responsibilities laid down by international humanitarian law as set
out in
particular
in the Hague Regulations of 1907 and the Geneva Conventions of
1949.
The rights
of belligerent occupants are quite limited …
“FCO Legal
Advisers are closely involved in the establishment of our policy
on
the
post-conflict phase. This stresses the need for rapid UN
involvement, and in
particular
for UN authorisation of, if possible, the presence of and the
activities to be
undertaken
by the Coalition. The Foreign Secretary will know of the efforts we
are
making to
persuade the US of the merits of our position. We understand that
they
are almost
ready to share with us a draft of the so-called third
resolution.”287
663.
Mr Wood
attached copies of:
•
Mr Grainger’s
advice of 31 January on the general position in international
law;
•
FCO legal
advice to the IPU on occupation rights relating to oil;
and
•
FCO legal
advice to the IPU on occupation rights and the administration
of
justice.
664.
Mr Grainger
had sent advice on occupation rights relating to oil to the IPU
on
14 February.288
In it, he
advised that, under the 1907 Hague Convention:
“… the
Occupying Power acquires a temporary right of administration, but
not
sovereignty.
He does not acquire the right to dispose of property in that
territory
except
according to the strict rules laid down in those regulations. So
occupation
is by
no means a licence for unregulated economic
exploitation.”
665.
Mr Grainger
also advised that, in the event of there being no government in
active
control of
Iraq, there would need to be changes to existing arrangements for
OFF, which
assumed a
degree of Iraqi Government involvement in the programme’s
operation.
287
Minute Wood
to McDonald, 28 February 2003, ‘Iraq Post-Conflict’.
288
Minute
Grainger to Iraq Planning Unit [junior official], 14 February 2003,
‘Occupation Rights: Iraqi Oil’.
428