Global Policy Forum

By John Innes

The government faces fresh claims today that the United States and Britain acted illegally in post-war Iraq. A leaked memo to Tony Blair, the Prime Minister, from the Attorney General, Lord Goldsmith, appears to indicate that a whole range of actions taken by the coalition authorities may have been unlawful in the continuing absence of a new United Nations resolution.

It suggests almost everything the US-led Office of Reconstruction and Humanitarian Aid (ORHA) has attempted to do, from the efforts to form an interim Iraqi administration to the control of the supply and sale of oil and the award of reconstruction contracts to US firms, may have been invalid.

Clare Short, the former international development secretary, in her resignation statement on 12 May, told MPs that the government "could and should have respected the Attorney General's advice ... and worked for international agreement to a proper UN-led process to establish an interim Iraqi government".

Those words prompted the Tories and Liberal Democrats to call for the publication of Lord Goldsmith's advice. Mr Blair refused that request, but insisted there was "no possibility" of the government acting in a way inconsistent with international law.

The New Statesman magazine will publish details of a 26 March memo - just six days into the war - from Lord Goldsmith to Mr Blair and senior ministers which suggested that all US and British activity in Iraq from the end of the war, beyond the maintenance of security, would be unlawful without specific UN authorisation.

"My view is that a further Security Council resolution is needed to authorise imposing reform and restructuring of Iraq and its government," Lord Goldsmith wrote. Citing the Geneva Convention and the Hague Regulations, Lord Goldsmith listed the "limitations placed on the authority of an Occupying Power".

These included attempts at "wide-ranging reforms of governmental and administrative structures", "any alterations 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".

Lord Goldsmith went 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 administration depart from the main objective, the more difficult it will be to justify the lawfulness of the occupation."

A Downing Street spokesman said: "We do not comment on leaks. But the Attorney General has said on the record that the government was acting on a sound legal basis and we hope to have an agreed UN resolution on this by the end of the week."

On 12 May, in the wake of Ms Short's resignation, Lord Goldsmith said in a statement that in his view the military action against Iraq was taken on a sound legal basis. He went on to say that in relation to the current situation in Iraq, he was "satisfied that the government is acting in accordance with international law".

Over the last few weeks, the US, UK and Spain have been pushing hard at the UN in New York for a new resolution on future developments in Iraq.

The Liberal Democrat foreign affairs spokesman, Menzies Campbell, said: "If these reports are true, the British government has entered into a legal minefield. Action without the unequivocal endorsement of the UN may not only be illegal, but is deeply politically damaging as well," he said. "In these unusual circumstances, it is high time that Lord Goldsmith's advice, both before and since military action, was published."

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