9.2 | 23
May 2003 to June 2004
85.
Ms Adams’
letter said that 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 recognised representative
government. The
resolution
clarifies the legitimate scope of activity of the Occupying Powers
and
authorises
them to undertake actions for the reform and reconstruction of Iraq
going
beyond the
limitations of Geneva Convention IV and the Hague Regulations.
In
some cases
such actions must be carried out in co-ordination with the SRSG or
in
consultation
with the IIA.”
86.
The letter
continued:
“The
Attorney agrees, however, that the resolution does not give the
Coalition any
authority
to control the political process nor engineer the
outcome.”
87.
If the IIA
were to be controlled by the Coalition, Ms Adams explained that
its
authority
would be limited to the powers of its master.
88.
Ms Adams
recorded Lord Goldsmith’s concern, based on recent
diplomatic
reporting
which suggested that the IIA might be a framework rather than a
single
institution,
that existing plans might not be compatible with resolution
1483.
89.
Ms Adams
recorded that Lord Goldsmith was content that the resolution
provided a
clear
mandate for the Coalition, working with the Special Representative,
to facilitate the
establishment
of the IIA by the people of Iraq. But he was clear that the process
would
have to be
undertaken in strict compliance with the terms of the
resolution.
90.
Since other
elements of the resolution required consultation with the
IIA:
“Questions
therefore may be raised about the legitimacy of Coalition action
under
OPs
[operative paragraphs] 13 and 16 if there is no IIA, or if it
appears that the body
which has
been established is not an IIA as envisaged in OP9.”
91.
Ms Adams’
letter also advised on the effect of resolution 1483 on
reconstruction.
Lord
Goldsmith considered that the resolution did “appear to” mandate
the Coalition
to engage
in activity beyond the scope of an Occupying Power. Since the
Special
Representative’s
wider activities were to be carried out in co-ordination with
the
Coalition this:
“… must be
read as implied recognition of the Coalition’s authority to engage
in
such
activities … However, to the extent that the Coalition’s
involvement in activities
falling
under these headings is not otherwise authorised elsewhere in the
resolution
or under
occupation law, then there is a clear requirement that the
Coalition’s action
should be
undertaken only in co-ordination with the SRSG.”
221