DEFENDING THE CHARTER

The United Nations is not above the Law.

The Security Council can take "Adequate Measures" short of war.

Edited by George Farebrother and Kitty McVey

Published by the Institute for Law and Peace, 22.02.03

Dossier financed by proceeds from the Ted Dunn Memorial Fund

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CONTENTS

SUMMARY: THE UN CHARTER DOES NOT AUTHORISE THIS WAR WITH IRAQ.   Kitty McVey. 22nd February 2003.

PAPER A:   WAR, THE UN AND THE LAW.  Peter Carter QC, Chairman Bar Human Rights Committee. The Guardian, Letters, 13th February 2003

PAPER B: WHY INTERNATIONAL LAW MATTERS (extracts). 

Richard Falk, Prof. Emeritus of International Law and Practice at the University of Princeton.  The Nation, 10th February 2003

PAPER C: SECOND RESOLUTION: DEFEND THE UN CHARTER.   Milan Rai.

PAPER D: FORGOTTEN TRUTHS.  John Roberts, Chair, Institute for Law and Peace.

PAPER E:   IRAQ CRISIS: DIPLOMACY: "CONFLICT WOULD BE DEEMED ILLEGAL"

by Mark Taylor at the United Nations.  Financial Times, February 14th 2003.

PAPER F: THE DIFFERENCE BETWEEN  "PEACE ENFORCEMENT" AND "WAR". 

Quotes from experts on military doctrine.   Notes by Kitty McVey.

PAPER G: LEGAL ACCOUNTABILITY OF THE SECURITY COUNCIL. 

Summary of correspondence between George Farebrother and John Burroughs of the Lawyers Committee on Nuclear Policy, the US Chapter of International Lawyers Against Nuclear Arms.

PAPER H:   A  U.N. ALTERNATIVE TO WAR: "UNIITING FOR PEACE".

Michael  Ratner, President, Center for Constitutional Rights, Jules Lobel Professor, University of Pittsburgh Law School, Znet Daily Commentaries, February 8, 2003

PAPER I:   IN PLACE OF WAR, OPEN UP IRAQ.  Mary Kaldor 13 February 2003

PAPER J:  IRAQ: A WAY OUT?   Dr. Priscilla Elworthy, January 17th 2003

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SUMMARY:THE UN CHARTER DOES NOT AUTHORISE THIS WAR WITH IRAQ

Kitty McVey, 22 February 2003

The phrase "armed force" can mean anything from a friendly local police force to all-out nuclear war. Few "doves" would dispute the legitimacy of the former, and few "hawks" would recommend the latter. Failure to specify exactly what we mean when we talk about "war" or "force" can result in public debate that is unnecessarily polarised. A person can be entirely against war, in all circumstances, and yet not dispute the legitimacy of using armed force, even lethal force, on occasions. Imprecise use of words lets public debate about Iraq be driven by spin.

A second UN resolution, however it is phrased, would not necessarily make war on Iraq lawful. Law concerns itself with the deed that is done, not the name it is known by. Debate should focus on clarifying the nature of those actions which are both lawful and likely to work.

War is generally illegal - see Papers A to E in this dossier. The Security Council can authorise the limited use of armed force, but these Peace Enforcement operations are very different from war-fighting operations (Paper F). To be lawful, force must be necessary, proportionate and discriminate. The purpose of Peace Enforcement is not to "defeat an enemy", but to promote international peace and security.

It would be wrong to assume that if force is authorised by the UN, decisions about the nature and extent of any force to be used may be left to the military, or to particular governments. The Security Council has a duty to determine the degree of force used in its name. If unlawful force is used, individual politicians, as well as members of the UK armed forces, could face prosecution in the new International Criminal Court.

In considering what action to authorise, members of the Security Council have a duty to act in accordance with the principles of the UN Charter (Paper G). A resolution obtained by threats or inducements would not be valid (Paper A). Before armed force may be used, two tests must be satisfied. There has to be a "threat to peace" and non-military measures must be "inadequate" (Paper C).

Hawks and doves alike are dissatisfied with the results of UN actions to date, and call for more effective measures. However, potentially effective non-military approaches have received less publicity, and less funding, than preparations for war. Some non-military approaches are described in Papers H to J. See also note 1.

No. In Peace Enforcement doctrine the use of rigorously controlled force supports, rather than replaces, nonviolent approaches (Paper F). Such rigorously controlled use of force could satisfy both those who are impatient for forceful action and those who believe that there has not yet been genuine and competent use of effective conflict resolution techniques.

Politicians trade taunts about the immorality of war and the immorality of doing nothing, but ignore the immorality of yah-boo politics. False dichotomies prevent proper consideration of measures which might satisfy both sides, and prolong the inconclusive delay which so infuriates critics of the UN.

1 See www.war.inquiry.freeuk.com for the full text of this paper and references to papers on nonviolent responses to repressive regimes, and techniques for negotiating with tyrants.

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A security council resolution authorising war on Iraq would not be self-evidently sufficient in international law to make that war lawful (If the UN signs up to war, we will have to back it too, February 12). The council is a creature of law and must act in accordance with it. It cannot confer legitimacy on conduct which is in reality an act of aggression or is unjustified because it is a disproportionate response to a threat to peace. It is disproportionate if it involves an unacceptable risk of civilian casualties, either as the direct result of military action or as an inevitable indirect consequence.

The security council has delegated to it by the UN charter responsibility for the maintenance of international peace and security (article 24). In doing so, it must act in accordance with the purposes of the UN, that is, "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace".

A resolution which failed to comply with this fundamental principle, possibly resulting from members of the security council being browbeaten, would not confer legality on any use of force.

The consequences are far-reaching. The US has refused to support the international criminal court (an ideal venue to try Saddam Hussein for his continuing acts of inhumanity to his own citizens). Its citizens are likely to be immune from prosecution in the ICC for any acts which might be categorised as war crimes or crimes against humanity in the event of substantial civilian casualties.

Not so UK citizens who are members of the armed forces, nor their political masters. Unless of course the security council exercised its power to interfere with the process of the court and require that court to desist from a prosecution. Now that would be to bring the security council into disrepute.

Peter Carter QC
Chairman, Bar human rights committee.

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... World War II ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisors. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defense, which itself was restricted to responses to an A priori armed attack (Article 51), and only then until the Security Council had the chance to review the claim.

It is true that international lawyers have through decades argued about the interpretation of these basic rules of restraint, but these Charter guidelines have generally been well enough understood to enable a clear line to be drawn between permissible and impermissible uses of forces in most circumstances. A measure of flexibility existed, giving the UN legal authority to authorize non-defensive uses of force so as to uphold global peace and security, and some would add in light of recent practice, to protect vulnerable populations from severe abuses of human rights, especially ethnic cleansing and genocide. ...

The basic Charter idea was to regulate the use of force in relations among sovereign states. As such, with a bit of stretching international law could be responsibly interpreted as justifying recourse to a defensive war directed at Afghanistan. Even this was a stretch because the Taliban regime was not directly implicated in the attacks, and it was not given an opportunity to hand over the al Qaeda leadership or to cooperate with the United States in securing Afghan territory from being used in the future as a major terrorist base area. ...

[However], for President Bush claiming a generalized right to wage a pre-emptive war was in flagrant contradiction with the Charter’s legal framework without any special circumstances justifying an exception. And to apply that claim to Iraq, given the absence of any credible evidence of an imminent threat ... was to carry American unilateralism to the frightening extreme of claiming an extraordinarily dangerous and perverse right of a preventive war (that is, lacking the elements of necessity and imminence). Even here the question prevent what? cries for an answer given the absence of a plausible Iraqi threat in the foreseeable future and the razor sharp containment policy poised to annihilate Iraq in the event of a Baghdad provocation in the years ahead. ...

To redefine the issue of US aggressiveness toward Iraq as the enforcement of UN Security Council resolutions or as a disarmament measure is to trample on sovereign rights of Iraq, and to subject its long suffering population to the scourge of a one-sided war.

The Full article is available on the Transnational Foundation Web Site on http://www.transnational.org/forum/meet/2003/Falk_InternationalLaw.html

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... a war on Iraq in the present circumstances would be an attack not only on the civilian population of Iraq, but on the core principles of the UN itself, an attack on the United Nations Charter. The anti-war movement must defend the UN Charter, against the UN Security Council if necessary.

It is unlikely that a new UN Resolution will explicitly authorise the use of force under US leadership ... It is more likely that the Resolution will declare Iraq in 'material breach' of its disarmament duties, and threaten 'serious consequences'. These vague phrases do not amount to an authorisation to use force. ...

Even if the Resolution did explicitly 'authorise' the use of force, war would not be legal. Article 39 of the UN Charter: 'The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.' Art. 41 deals with non-military measures.

Art. 42: 'Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.' So there are two tests: There has to be a 'threat to peace' and non-military means are 'inadequate'.

British Vice-Admiral Sir James Jungius KBE observed in a letter to The Times (1 Jan., p. 25): 'Even if the weapons do exist, where is the evidence of intent to use them? ...

Former Conservative Cabinet Minister Douglas Hogg: 'The real question is not whether he's got weapons of mass destruction, but rather whether-if he has got those weapons-he is a grave and imminent threat to the rest of us... even if he had these things, unless he's a grave and imminent threat there isn't a moral basis for war, be-cause the doctrine of self-defence isn't properly invoked.' (BBC Radio 4, The World This Weekend, 12 Jan.)..

To contain Iraq's suspected weapons programmes: 1) we can detect and disarm any remaining weapons capability, and 2) we can 'freeze' Iraq's capacity to make such weapons, to prevent their development and use in the future. ...

'To carry out a thorough inspection would likely take several months.' Ewen Buchanan, spokesperson for UNMOVIC. (FT, 9 Jan., p. 10) Mohammed El Baradei, head of IAEA inspections in Iraq, told the Security Council on 27 Jan., ... . These few months, in my view, would be a valuable investment in peace because they could help us to avoid a war.' (Financial Times, 28 Jan., p. 9) ...

More importantly, UN weapons inspectors could now install throughout Iraq a system of video cameras, radiation detectors, temperature sensors and other devices to monitor 'dual-use' equipment that might be used for developing weapons of mass destruction as well as for normal civilian purposes. Video and air sampling information could be fed back live to the inspectors' Baghdad HQ, and then onto the UN in New York, as they did before Dec. 1998. ...

... it is up to the Security Council to 'determine' whether there is a threat to peace, and to 'consider' whether nonviolent means are inadequate. However, this cannot be a licence for the Security Council to make war at whim. There must be some objective basis in fact for the findings that (a) there is a 'threat to peace' and (b) that nonviolent means are 'inadequate'.

In the present case, there are no threatening military deployments, no signalled threats, and no doctrine of aggressive attack-by Iraq. ...

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... The important Resolution 1441 which reiterated and strengthened the Iraqi obligations threatens "serious consequences" for Iraq if they are not complied with. It is clearly the pivot around which constructive

discussion must revolve. It not only stated the will of the United Nations explicitly but it was also, unusually for so peremptory and obvious a decision, unanimous. The inclusion of Arab states as well as the five permanent members made it significant beyond the regular Security Council decisions.

But neither the Resolution nor the "serious consequences" that it envisages, mention war. The Resolution makes it inescapable that the Council will have an obligation to ensure those consequences but it does not spell them out. The conclusion must surely be that whatever they will be, it is the Council that will have to determine them and such determination will require further deliberation, taking into account the situation that has developed and the degree of failure of the Iraqis to comply with the terms of the Resolution.

However, under the United Nations Charter, as from the time of the Kellogg Pact, war is illegal, which is tacitly recognised in that there have only been a couple of declarations of war since 1945. The "self-defence" that is permitted under the Charter is not, in strictly legal terms, to be equated with war. The Security Council may, indeed is obliged, to take all necessary steps, including the use of force, to uphold or restore international peace and security. But there is no provision in the Charter for the United Nations itself to go to war.

That is because the use of force is not always War. It may resemble it closely and indeed be thought of and spoken of as "war". But not only may it legally be other than war; its conduct and direction will not be that of war and if the United Nations follows the Charter and the rules of international law they are bound to be different. Part of the difficulties of distinguishing between war and the legal use of force comes from failures of the Security Council to lay down proper and detailed directions for the use of force under United Nations auspices.

Notably, that relates to the continuing failure to empower and operate the U.N. Military Staff Committee that appeared in the Charter but has since 1945 been a dead letter. Instead, the responsibility for the practice of peacekeeping has been largely shuffled off to the national armed forces of the variety of member-states that have sent contingents to act as "United Nations" troops. Sometimes, as in Rwanda and Srebrenica, this has led to disasters.

Circumstances at present are not at that pass. There is no urgency, after Iraq's containment for 12 years and the destruction of 90% of its weapons, in those "serious consequences". ...

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A legal pressure group told the UN Security Council yesterday that a preventive war against Iraq would be "both illegal and unnecessary", threatening the very foundation of international law and the United Nations.

"An action of such overriding importance can destroy international law," said Judge Christopher Weeramantry, former vice-president of the International Court of Justice.

In a petition presented yesterday, the International Association of Lawyers against Nuclear Arms said there was "no precedent in international law for use of force as a preventive measure, when there has been no actual or imminent attack by the offending State". Use of force is only permitted in the case of attack, or imminent attack, or if the Security Council declares a threat to peace and non-military measures have been determined to be inadequate, the association says.

Peter Weiss, the body's vice-president, said current UN resolutions offered "no pre-existing authorisation" for an Iraq war, adding that there was a precedent for the matter to be taken to the General Assembly.

Their position is likely to be contested by lawyers in the US administration, which argues that the current resolutions, alongside what they say is clear non-compliance by Iraq, give them the backing they need.

But it is unclear who is the final arbiter. Some argue that the Security Council holds the ultimate authority, but Mr Weeramantry says it is subject to the UN Charter and the International Court of Justice.

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QUOTES FROM EXPERTS ON MILITARY DOCTRINE
ON THE DIFFERENCE BETWEEN "PEACE ENFORCEMENT" AND "WAR"
Notes by Kitty McVey

The military doctrine governing Peace Enforcement operations, and distinguishing these from war, has been clarified by the Army Joint Doctrine and Concepts Centre, which was set up by the current Labour government (see reference 1b).

War differs from Peace Enforcement in two respects - aims and methods.

The AIM of peace enforcement is different from the aim of war.

"Peace Enforcement is different from war … when and if … it be necessary for the Peace Support Operations forces to use force, the aim would be to re-enforce the peace rather than the physical defeat of the non-complying faction (*3, p.63)

War has the aim of defeating a designated enemy (*1). Law does not designate an enemy - it simply states those conditions which must be maintained. (*3, p 62)

Peace Enforcement does not depend upon the consent of the non-complying parties having already been obtained, but does focus on "promoting consent" … "Military activities in Peace Support Operations [a heading which includes both Peace Enforcement and Peace keeping with the parties’ consent} are designed to create the conditions in which diplomatic and humanitarian agencies are more able to redress the symptoms and underlying causes of the conflict and thus achieve a long-lasting political settlement" (*1)

A stable settlement, NOT military victory is the ultimate measure of success in Peace Enforcement (*1)

The METHODS of peace enforcement are different from those of war.

Peace Enforcement involves "The judicious and impartial use of the minimum necessary force to achieve its aim … the measured and proportionate application of violence or coercion, sufficient only to achieve a specific objective and confined in effect to the legitimate target intended". (*1)

The impartiality is codified by mandate and by international law. (*1) International Humanitarian Law [provides] the criteria against which all [Peace Enforcement] actions should be measured and judged" (*3, p57)

Particular tasks of Peace Enforcement Operations could include … "guarantee or denial of freedom of movement … and the arrest of war criminals" (*3 p 57,58). There may be a need to use "force capable of over-matching whatever level of opposition may be offered" (*3 p60) and to plan for the possible need to "escalate to" the use of combat, depending on the nature of resistance encountered.

However, to use aerial bombardment before testing the resistance to more humane levels of force does not appear to be consistent with Peace Enforcement doctrine or the UN charter. It should not be assumed that bombing Iraq would be legal even if the UN authorise force.

The use of non-lethal weapons is desirable (*1c)

There is a need for training the world’s armed forces to a common standard. "The UN could do more in the way of guidance and codes of conduct at management level" (*2)

"Peace Support Operations doctrine requires that military commanders balance the short-term advantages which may be gained from the use of enforcement techniques, with the requirements of diplomatic and aid agencies and the long term demands of peace. In addition they must ensure that military efforts to build consent are are co-ordinated into a wider multi-agency "hearts and minds" strategy. Military operations are designed to conclude conflict by conciliation" (*3 p64).

REFERENCES TO SOURCES

1 Lt Colonel Rupert Wielock of the Army Joint Doctrine and Concepts Centre - statements made / slides shown during his presentation to a meeting organised by The Hope Project (www.hopeproject.co.uk) on 12th June 2002 at Charney Manor.

1a) Background to that event. Charney Manor is a Quaker venue sometimes used for high-level behind-the-scenes conflict-resolution between diplomats of disputing countries. At this particular meeting, the conflict to be "resolved" was the ideological conflict between soldiers and pacifists. Participants reported that "barriers tumbled" and "if only TV debate (and debate in Parliament or the UN Security Council) were conducted in this way!".

1b) Background to the Army Joint Doctrine and Concepts Centre. At this event, Lt Colonel Wielock explained that the background to setting up the JDCC includes the perceived failure of UN peacekeeping operations in Bosnia (perceived inadequate mandate - "bystander syndrome"). There was a desire to develop clear doctrine (military guidance) enabling armed forces to be effective enforcers of peace, in situations where there consent of all parties has not yet been obtained, (unlike peace-keeping operations), but without resort to war. The newly developed doctrine is "now shared by most of the major players .. [including] the UK, US, France, the FINABEL group of nations, NATO and the Nordic nations".

Previously, it appears that in military circles "Peace Enforcement was considered synonymous with war, [and therefore] war-fighting doctrine was adequate for its execution" (source - *3). [Readers may find this surprising, given the absence of any endorsement of war in the UN Charter (see - attachment B)].

1c) Non-lethal weapons / legal negligence by politicans. Asked if he welcomed the role of non-lethal weapons, Lt Colonel Wielock replied "Yes. Obviously, the phrase "phasars set to stun", from Star Treck, [describes] a situation we would like to be in". He said that much work was being done in this area. However there was no time to elaborate on what was / was not feasible with current technology. Nor was their time to discuss the question of whether failure by politicians to deploy (or to further develop) non-lethal technology (or indeed to mandate troops to use modern Peace Enforcement doctrine) could be considered legally negligent.

2) Professor Chris Bellamy of the Department of Strategic Studies at Cranfield University - statements made during his presentation made at the same event.

3) Colonel (now retired) Philip Wilkinson, of the Centre for Defence Studies, Kings College, London University in his essay "Sharpening the Weapons of Peace" in "No Alternative - Nonviolent responses to repressive Regimes" a collection of essays edited by John Lampen of the Hope Project, published by William Sessions Ltd., 2000).

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Summary of Correspondence between George Farebrother and John Burroughs of the Lawyers Comittee on Nuclear Policy, the US Chapter of
International Lawyers Against Nuclear Arms.

The possibility of a Security Council resolution which is contrary to the purposes of the UN and therefore illegal leads to the question of the accountability of the Security Council itself. Some years ago Mohammed Bedjaoui (formerly a judge of the International Court of Justice) addressed this issue in "The Security Council and the Rule of law" arguing that SC resolutions should be subject to legal review by the International Court of Justice (ICJ).

This approach has considerable appeal. In many countries the actions of governments are open to judicial review; and the ICJ is, after all, the legal arm of the United Nations. However there are problems about this approach.

The ICJ can hear and settle Contentious Cases - legal disputes between states which accept the compulsory jurisdiction of the Court. Britain, for example, is one of these, but Iraq is not. Perhaps a neighbouring state which would be harmed could bring a case - although this is unlikely scenario.

Alternatively, any United Nations body can ask the ICJ for an Advisory Opinion - a determination by the Court of what international law actually is. The General Assembly could ask for an Advisory Opinion on on the lawfulness of any war, especially when not explicitly authorized by the Security Council, to prevent a state from acquiring nuclear, chemical or biological weapons. The ICJ could reject this on the ground that this was really a contentious case. It could also could say that to hear such a case would infringe the authority of Security Council. as it did in the Libya case when it declined to assert that it has authority to review Security Council actions.

Instead of adjudicating of the legality of the Security Council Resolution the ICJ might be willing to deal with a more general question such as the lawfulness of preventive war, what is a threat to international peace and security justifying war, or some other general formulation, to attempt to avoid the problem of directly infringing on Security Council .

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A U.N. ALTERNATIVE TO WAR: "UNITING FOR PEACE"
Michael Ratner, President, Center for Constitutional Rights, Jules Lobel Professor,
University of Pittsburgh Law School, Znet Daily Commentaries, February 8, 2003

In the last few months the Bush Administration has been unyielding in its march towards war over the objections of some allies and despite the efforts of the United Nations. It now seems inevitable that the United States, with some other countries, may soon engage in armed conflict in Iraq. But for people around the world terrified by the current conflict, there may be hope yet. That hope lies in a little-discussed mechanism of the United Nations which, although it seems marginalized by American power, has the potential to stop the war.

In 1950, the Security Council set up a procedure for insuring that stalemates between countries would not prevent the United Nations from carrying out its mission to "maintain international peace and security." With the United States playing an important role in its adoption, the Council adopted Resolution 377, the aptly named "Uniting for Peace" in an almost unanimous vote.

Uniting for Peace provides that if, because of the lack of unanimity of the permanent members of the Security Council (France, China, Russia, Britain, United States), the Council cannot maintain international peace where there is a "threat to the peace, breach of the peace or act of aggression," the General Assembly "shall consider the matter immediately...." The language of Uniting for Peace would also allow its use even if the Security Council approved the use of force against Iraq. It can be employed "if the Security Council...fails to exercise its primary responsibility for the maintenance of international peace and security..."

The General Assembly can meet within 24 hours to consider such a matter, and can recommend collective measures to U.N. members including the use of armed forces to "maintain or restore international peace and security."

The Uniting for Peace resolution procedure has been used ten times since 1950. Its first use was by the United States. After Egypt nationalized the Suez Canal in 1956 Britain and France attacked and occupied parts of the canal. Cease-fire resolutions in the Security Council were quickly vetoed by Britain and France. The United States went to the General Assembly calling for a cease-fire and a withdrawal of forces. An emergency session was held under the Uniting for Peace resolution; the U.S. resolution and subsequently an even stronger resolution passed the General Assembly. In the face of these resolutions it took less then a week for Britain and France to withdraw.

Uniting for Peace was next used by the United States to pressure the Soviet Union to cease its intervention in Hungary in 1956. The Soviet Union had used its veto to prevent the passage of an anti-intervention resolution in the Security Council. Again, an emergency session of the General Assembly was held and the Soviet Union was ordered to stop its intervention in Hungary.

In the current impasse over Iraq in the Security Council, Uniting for Peace can and should be used. The General Assembly should consider taking action with regard to the threat to the peace posed by U.S. military action against Iraq taken without U.N. authority. (The General Assembly could also act, as stated earlier, if the Security Council authorized a war that was a "threat to international peace and security.") It could require that no military action be taken against Iraq without the explicit authority of the Security Council.

It could mandate that the inspection regime be permitted to complete its inspections. It seems unlikely that the United States and Britain would ignore such a measure. A vote by the majority of countries in the world, particularly if it were almost unanimous, would make the unilateral rush to war more difficult.

Uniting for Peace can be invoked either by seven members of the Security Council or by a majority of the members of the General Assembly. This gives those who oppose unilateral war a real opportunity for activism. People everywhere in the world can lobby their governments to bring on such a resolution. This effort can become a worldwide effort to, as the UN Charter so eloquently states, "save succeeding generations form the scourge of war."

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Tony Blair is clearly aware that a solution to the crisis with Iraq is intricately tied up with the impasse in the Middle East and the plight of the Palestinians. That problem however is going to take time to resolve, and in the meantime the profound risks involved in an attack on Iraq need to be avoided. It is therefore worth examining the situation from the perspective of the needs and wishes of the key protagonists, because if these can be satisfied a way forward may become clear.

· President Bush needs to be able to go into the next election with Saddam Hussein removed from power.

· US oil interests want a figurehead government in Iraq, allowing them to pump 4-5 million barrels per day of Iraqi oil to Europe and North America.

· The Russians want the oil to flow (to repay debts) as do the French.

· The Pentagon wants a military victory in order for the US to be able to carry out anti al-Qaida operations without restrictions and to become the defining power in the Middle East and Persian Gulf.

· European states like France, Germany and Italy, as well as countries like Saudi Arabia and Iran, do not want the US to be able to use Iraq as a base to extend control throughout the Arabian peninsula, with inevitable political and economic consequences

· Saddam Hussein wants to survive and hold on to power.

· The Iraqi people, and there are few professionals or intelligentsia left, want food, medicine, dignity, to stay alive, and to regain control over their lives.

· Many of the Iraqi diaspora would like to return, but are rightly afraid to do so.

· OPEC members want to continue to negotiate prices for their oil.

A possible solution to these needs and wishes could lie in some version of the following. Saddam Hussein could be offered 'retirement', possibly outside Iraq in one of the countries so far mentioned such as Libya or Belarus. He is being strongly pushed toward the exile option, but he is unlikely to accept it. What he might accept would be to retire with his family within Iraq, perhaps to the vacation city 130km North of Baghdad known as Saddamiat Al-Tharthar, into which he has poured money and care. This option would require adequate policing and security guarantees, possibly to be provided by the UN. Some form of indictments would be put in place to detain members of the current Iraqi regime guilty of human rights violations. Saddam himself would know that if he left his refuge or manipulated politics in Baghdad he would immediately be arrested and tried for war crimes.

Saddam Hussein's 'retirement' would leave room for an interim government - possibly a UN protectorate or trusteeship that would build on the civil rights reforms already begun, namely to introduce a multi-party system and continue to abolish the laws restricting civil and political rights. [The Iraqi government has already reduced exit visa fees from $200 to $10, has abolished the 'special courts' on security violations, and has given amnesty to political prisoners. There are therefore foundations to build on.] Under this arrangement sanctions and the Oil-for-Food programme would be removed, enabling ordinary Iraqis to get enough to eat and build up their infrastructure, especially medical services. The Iraqi diaspora, consisting of hundreds of thousands of professionals, could return to Iraq with guarantees for their safety, possibly provided by an agreement whereby any violations of their security would entail the arrest of Saddam and the immediate sequestering of oil revenues.

Commercial arrangements for the export of Iraqi oil would return to a free market basis when an elected government was in place. In the meantime, negotiations with oil companies would be handled by the UN, in an extension of present arrangements. OPEC could continue. Such a settlement would not include the establishment of US military bases in Iraq, but it would imply the final dismantling of any remaining CBW, a residual UN inspection force, and a UN resolution making clear that any return to the development/deployment of WMD was strictly and would be enforcably prohibited.

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