LONDON- U.S. and British policy towards Saddam Hussein’s Iraq has hit a wall. Whichever way the vote in the Security Council goes (had gone, the vote is scheduled for later this week) on the sanctions issue Britain and America have come out of their nine year old entanglement with Saddam the worse for wear. It is, in fact, a diplomatic smash-up of historic proportions. In brief, it can be summed up as the U.S. and Britain embracing anarchy and demonstrating they have little or no interest in the legal underpinnings of international order.

The bombing of Iraq on almost a daily basis continues. The decision to try and modify the bite of sanctions affects the continuing air war not at all. But by what right have Washington and London arrogated the responsibility for deciding they can bomb for as long as they like? Only – as with sanctions – the UN Security Council possesses the unique legal power to authorize the use of force in response to threats to the peace. The only exception is the right to self-defence if the action taken to safeguard a country has to be instant and immediate. Outside of a Security Council mandate international law does not recognize a right to wage pre-emptive or even preventative wars against more or less distant threats. And this also applies even if the threat might be from a country prepared to use weapons of mass destruction. In 1981, when Israel bombed Iraq’s nuclear reactor, Israel argued that it had no choice if it wanted to prevent Iraq from obtaining a nuclear weapons’ capability. But the Security Council unanimously, including of course the U.S. and Britain, condemned the strike.

The bombing, argue Washington and London, is because Iraq made the work of UNSCOM, the UN body charged with disarming Iraq following its defeat almost nine years ago in the Gulf War, impossible. Yet President Bill Clinton has acknowledged many times that UNSCOM achieved far more in destroying Iraq’s stockpiles of weapons of mass destruction than the allied air campaign during the war itself. And Tim Trevan, author of the authoritative study “Saddam’s Secrets” said UNSCOM succeeded “beyond its wildest expectations”. If Washington and London were exasperated by Saddam’s obstructionist policy towards UNSCOM, it was simply because they were victims of their own rising expectations. There was probably little left to unearth, at least relative to what had been discovered and neutralized.

When UNSCOM closed down shop in Baghdad the day before bombing began on December 16th last year it was generally agreed that only three items remained missing or unaccounted for:

• a significant amount of precursor chemicals for the deadly VX nerve gas.
• an unaccounted quantity of growth medium which might have been used to produce more biological weapons than Iraq has admitted to.
• undisclosed capabilities for manufacturing short range ballistic missiles.

The key point in assessing this armoury – ugly as it looks, but nevertheless only a tiny fraction of what Iraq had nine years ago – is whether one believes that Saddam Hussein will provoke a new war and try to use these weapons. Or whether, after the destruction of the war, followed by the destruction carried out by UNSCOM, together with the effect of grinding sanctions, one concludes that Iraq is no longer capable of fighting anyone. The truth is Iraq’s airforce and navy are non-existent and his army’s hardware has been reduced to the elementary. It would appear that Saddam has fought to hang on to the few remaining items more to bolster his amour-propre than to sustain a real military campaign. This poorly armed, down on its heel, country of only 21 million people is no real threat. Moreover, Saddam well knows that if he ever tried a suitcase nuclear or biological bomb the retaliation would be totally devastating. In short, UNSCOM or no UNSCOM, Saddam is in a box.

All this suggests that Washington and London are on the wrong track. The pity is that they are undermining and destroying the legal stature of the UN as they go.

With their bombing campaign they have argued that they are acting to enforce the “will” of the Security Council and that also they are responding to a “material breach” of the cease-fire that ended the Gulf War. Thirdly, they say, they are pre-empting Iraq’s future potential use of weapons of mass destruction. The first two arguments simply don’t stand up and the third takes us into a new doctrine of pre-emptive war that could be used by other nations to use force whenever they want.

As Marc Weller, the deputy director of Cambridge University’s Centre for International Studies recently wrote, “in past practice the Security Council has sharply distinguished between the demands it has made- in this case with Resolution 687 ordering Iraq to disarm- and the authority to enforce them militarily”. For example, this was the reason for Resolution 665 which explicitly authorized the naval interdiction campaign against Iraq in 1989. And this is why Britain demanded a precise Security Council mandate before enforcing militarily oil sanctions against Southern Rhodesia.

It would, indeed, be almost impossible for the Security Council to adopt any resolution at all if the very fact of the expression of the “will” of the Council were taken to imply a mandate to enforce it militarily.

Likewise, a “material breach” does not revive the use of force, short of a specific resolution. The original resolution 678 of November 29th, 1990 authorizing the use of force against Iraq was terminated on April 11th 1991 when the Security Council president certified Iraq’s acceptance of Resolution 687.

Maybe one day Saddam will rise phoenix-like from the ashes and threaten the world. Then action will have to be taken and the Security Council will undoubtedly authorize it. But right now the monster is more dead than alive; its purpose survival rather than aggrandizement. What is needed today is an end to the bombing and the removal of all those sanctions that penalize the ordinary people of Iraq rather than the dictator and his circle of intimates. What the U.S. and Britain must do is to take the long view, or one day these decisions that undermine the UN will come back to haunt them when they need it most.