One hears the argument (often from people who call themselves "realists") that this is no time for legal niceties. They point out that the world is confronted by a serious and imminent threat, and if the UN Charter is standing in the way of action to meet the threat, then the UN Charter must be brushed to one side. If the UN is incapable of meeting the threat, it is argued, others must take over from the UN and deal with the problem, even if it means going against the UN Charter - otherwise Saddam's sinister preparations will go unchecked. The world should be thankful - so the argument goes - that the US and its partners are coming to the rescue of the UN in its moment of weakness.

This line of argument suffers from several flaws.

1. There can be no doubt that the threat posed by Saddam due to his biological weapons is serious - but it can hardly be said to be imminent. Action to stop his buildup of weapons is clearly not needed immediately. Saddam's ability to use weapons of mass destruction, including biological weapons, against the outside world is not a new threat and is not a mounting threat. The threat is serious but it has existed at least since the Gulf War and nothing has happened recently that has given cause for any special alarm.

2. Not only is it not imminent, the danger posed by Saddam has been steadily decreasing since the end of the Gulf War. For seven years now, UNSCOM has been destroying more and more of Saddam's stockpile of weapons. The cumulative results are impressive:

Virtually all of Iraq's nuclear capability has been eliminated.[32]

Huge quantities of his chemical weapons have been destroyed.[33]

Forty-eight operational missiles have been destroyed.[34]

An enormous biological weapons factory has been demolished.[35]

Admittedly, there have been many interruptions in the process, but they have always turned out to be temporary. The long-term trend over the seven years has been continuously downward for Saddam's stockpile of weapons of mass destruction.

3. No matter how menacing the situation might appear at the present time or might later become, there can be no reason or justification for resorting to military force, provided the UN is willing and able to deal with the situation through non-violent means.

Although it is popular in some quarters to downgrade the extent to which sanctions have been able to influence Iraq's behaviour, the fact is that over the seven years since the end of the Gulf War, the UN sanctions have produced impressive results. The dramatic reductions noted above in Saddam's weaponry have been achieved as a direct result of the sanctions. The problem currently facing the UN is one of longstanding. The recent difficulties are not significantly different from those that have occurred many times in the past. What is needed is the continued application of the measures that have been used up to the present, namely the sanctions.

If there is impatience to bring the situation to a conclusion, the answer is not military force but a search for ways of strengthening sanctions. Some suggestions are offered in this connection below, but first a few words about sanctions as currently applied against Iraq would be appropriate.

It is often said that sanctions target the wrong group - that they hurt the general populace while allowing the leaders to prosper, with the result that the leaders feel no compulsion to alter their policies. In the case of Iraq, this line of argument can be answered in two ways.

Much is being done to alleviate the suffering of the populace through the oil-for-food-scheme. The size of the scheme under the recent move made by the Security Council is impressive. The amount of oil that Iraq is permitted to sell under the resolution adopted on 20 February 1998 (Resolution 1153) has been estimated to total two-thirds of the oil that Iraq was selling at its peak capacity before the embargo.[36]

As for the charge that sanctions leave the leaders unaffected so that there is no incentive for them to change their policies, this does not seem to apply in the case of Iraq. For the past seven years, Saddam has been standing by and watching while the UN inspectors have been systematically destroying enormous quantities of his best and most powerful weapons. Why has Saddam allowed this to happen? The answer can only be the sanctions.

Sanctions are always slow to act, but at least in the case of Iraq, there is no reason for thinking that they will not eventually succeed in compelling it to comply fully with its inspection obligations.

In the Iraqi situation, one thing is abundantly clear. As an instrument for producing the required results, sanctions hold more promise than the military measures currently being contemplated. The US press is full of articles to the effect that the bombing campaign being planned by the US cannot possibly succeed in getting access for UNSCOM inspectors to any of the disputed sites.[37] In fact, several commentators conclude that the bombing would do more harm than good: it is likely to spell the end of all inspections.[38 ] Many of the opinions given in these articles are coming from military personnel, diplomats and even from officials in the US administration (obviously speaking on the basis of anonymity). It is significant that there has been no effort on the part of the US administration to dispute this line of thinking.

The conclusion is inescapable that, since the bombing would be ineffective, the UN is actually better able to influence Iraqi behaviour through the use of its non-violent measures than the US would be through the use of its bombers.

Those supporting the US position appear to be basing their case on three false assumptions: that the world, prior to the Annan Agreement, was facing some kind of impending calamity and will be facing it again if Iraq starts to block inspections; that the UN is powerless to prevent any such calamity; and that it can only be prevented by military force. These assumptions are wrong for the following reasons:

1. There was no such calamity nor will there be if the inspections are again blocked; instead of a calamity that calls for immediate action, what is involved is a serious problem of longstanding that calls for the continued application of the current long-term measures.

2. The UN is far from powerless; on the contrary, it is handling the situation adequately; it has demonstrated that it can contain Saddam and destroy most of his heavy weapons.

3. As for rectifying the situation through military force, it is obvious that that option would be of no avail; in fact, military force, as currently proposed, is itself powerless to influence Iraq.

Strengthening The Sanctions

If Iraq creates further problems, rather than using or threatening military measures, the US should devote its energies to the strengthening of the sanctions regime. There are three ways in which the sanctions against Iraq could be made more effective.

First, the travel ban could be implemented. The Security Council has already adopted three resolutions on this matter, the last of which (Resolution 1137) was adopted on 12 November 1997. It provided that all member states must "prevent the entry into or transit through their territory of all Iraqi officials . . . responsible for . . . noncompliance . . . [with the inspection obligations]."[39] The resolution stipulated that member states must start to impose these restrictions "without delay." But the resolution went on to provide that a list should be prepared of persons to be affected by the ban. The Security Council has never seen fit to prepare this list, with the result that the travel ban has yet to be implemented. This measure would strike at Iraqi top officials in particular, because many of them are in the habit of driving to neighbouring countries to acquire consumer goods in order to sell them in Iraq at a substantial profit.

Second, the Security Council could put pressure on Iran to start cooperating with the sanctions regulations. Iran should be requested to allow the UN naval blockade to intercept the small boats that are carrying oil from Iraq through the coastal waters of Iran. While quantities are small, they are important because much of the trade is carried on by persons close to the Iraqi leadership for whom it is an important source of income.

Third, the Security Council could strengthen the financial sanctions against Iraq. In their current form, the sanctions have the effect of freezing government assets but they do not target the personal assets of Saddam or his entourage. The regulations relating to the freezing of Iraqi assets held outside Iraq are contained in Resolution 661 (1990). The Security Council could adopt a resolution extending these regulations to cover the personal assets of the leadership.

A case could be made for adopting these three improvements now without waiting for the situation in Iraq to deteriorate. Since they are all targeted upon the leadership, it could be said that they should be put in place at this time simply because they can be considered to be an important part of any sanctions regime that might be required in the future. (Although the suggested improvement relating to Iran might be thought to have no general application, it could be argued that the time has come for the Security Council to experiment with methods of pressuring uncooperative UN members who are supposed to be participating in the sanction scheme.)

Sanctions will always be the Security Council's most important instrument for enforcing disarmament treaties. The problem posed by Iraq today is essentially that of enforcing a disarmament agreement. When viewed in this light, the confrontation between the UN and Iraq can be regarded as a test of the UN's ability to enforce a disarmament treaty. At the same time, the confrontation challenges the Security Council to address the long-term task of refining, improving and strengthening its sanctions procedures, so that it will have available a well-functioning package of procedures for future use.

Rumour has it that Russia, China or France would be likely to veto any of the three improvements suggested above. If this is the case, and if other members of the Security Council feel that the time has come for the UN sanctions regime to be strengthened, then these countries should consider speaking out against any such blocking tactics. This applies especially to non-permanent members of the Council. If they truly believe that the UN sanctions need to be strengthened, they could use their position on Council to publicize the issue and in this way bring pressure to bear upon any of the veto powers that threaten to block the improvements. These latter powers should be required to explain their actions and why they should not be held responsible for deliberately weakening the UN's only non-violent instrument for ensuring peace.

In conclusion, it is possible to summarize the mistakes being made by the US and the other countries that are currently supporting military measures against Iraq as follows:

1. They are overestimating the danger posed by Iraq, and accordingly, they are mistaken in calling for an immediate response using measures that go beyond the sanctions currently in effect.

2. They are underestimating the effectiveness of the sanctions.

3. They are overestimating the effectiveness of the military response proposed by the US.

4. They have been too hasty in accepting the US position as to the legality of the US military response, which is serious because it involves acting contrary to the UN Charter.

5. They are ignoring the opportunity offered by the present confrontation to persuade the Security Council to strengthen its sanctions procedures by adding specifically targeted sanctions.