Today, at least some of the nightmare for Iraqis, Allied soldiers and taxpayers is over - the last US troops are leaving Iraq. They leave behind them a tangled legacy, a fragile democracy and too many questions to be satisfactorily answered today. It will take many years to fully understand the issues and answer the questions they beg. It is apparent that the Iraq War has been a seminal moment in recent international and political history and we must consider it carefully if we are to understand a litany of current events in these spheres. It has played a huge role in everything from the erosion of trust in politicians to the wording of Security Council resolutions. 

I want to consider one of the central issues facing the Iraq War - the justness of the invasion. Just War is an ancient concept, going back to the Romans at the very least, but it was particularly adopted in the West by Christians theologians such as St Augustine. Whether we are Christian or not, I would contend that it is common place to accept that some wars are just and some are not; the notion of justness has percolated into our collective identity when it comes to war. Once, we looked to Rome to decide whether wars were just or not - though their pronunciations on the matter were ignored or circumvented, ultimately having Papal blessing mattered to Western political leaders. It gave a war the extra impetus of rightness; thus the political cover to raise more taxes, to command greater loyalty among allies and to recruit more to fight for the cause. 

With the tides of history, the Papacy has lost this commanding role in the eyes of European leaders - but the idea has gone beyond formerly Catholic Europe and taken on a global role. States have chosen to delegate the power to decide justness of war to outside bodies for centuries; now, it has come to rest in the UN Security Council. The Council is a bizarre hybrid - it provides both legality and legitimacy to conflicts. These are separate but linked concepts - the former implies compliance with international law (something Louis Henkin reminds us that the majority of states follow the majority of the time); the latter is a more elusive concept, but basically rests on the notion of states being social creatures that seek the approval or acceptance of their peers in their actions. Given that the Council’s resolutions have legal force, and a majority of its members are chosen by the body politic of states (the remainder being, arguably, the Great Powers), the Council sits on both of these concepts firmly - both the Great Legalised and the Great Legitimiser. 

It was this role that found the Council in the middle of the debates over whether the Iraq War was, in essence, just. For all the angry ink spilled over the US’s proposed doctrine of “pre-emptive self-defence”, it was never actually brought before the Security Council in the arguments over the invasion - only Australia came close, but even then they backed away. It was ridiculous from the moment it came into being, and died quickly when exposed to the strong light of public ridicule - no state, regardless of power, can claim to elevate itself above others enough to grant itself the right to wage war on its own suspicion that others pose a threat to its security. To do so would break both existing international law - Article 51 of the UN Charter - and even more urgently, one of the persistent truths of international relations; that all states are equal (a truth maintained even as the international political and legal landscape warps).

So the thrust of the arguments given to the Security Council - and echoed by the politicians who backed the war - was that Iraq was in possession of weapons of mass destruction (WMD), therefore in breach of existing Security Council resolutions, which re-activated the authority to use force contained in Security Council resolution 678. I will set aside the issue of the nature of the Iraqi regime for now; I want to focus in on the arguments made before the Security Council, when the pro-war states were in the company of their peers, seeking that legitimacy and legality. 

Plainly put, the pro-war legal argument does not have a leg to stand on. It both completely misunderstands the nature of the Security Council and the meaning of resolutions passed by the Council during the First Gulf War and 2002. Let us begin with the nature of the Security Council and the resolutions that it passes. 

The Security Council sits astride several fault lines - aside from the one identified above, with regards legality and legitimacy - it also functions as a legal body comprised of politicians. The decisions made by the Council are designed to be political acceptable, yet have legal force in resolutions. Thus, Security Council Resolutions are best read narrowly by those seeking to interpret them.

Second of all, the best interpreter of these resolutions is the Security Council itself - the Council knows, arguably, what the Council means. The ICJ argued both these points in its advisory opinion on the Namibia case in 1971; first that the Council’s resolutions must be read carefully, and then:

• “Thus it is for the Security Council to determine any further measures consequent  upon  the  decisions  already  taken  by  it […]”

- International Court of Justice; Legal consequences for states etc.; 21st June 1971

It is worth stressing these points here and now - the Council’s resolutions exist between politics and law, and so must be read narrowly; and that the Council knows what the Council means, and so decides what to do if a state is in breach of a resolution. It is not tenable to argue that states can read what they will into Security Council resolutions, especially with regards to the use of force. Given that the UN and the Council were set up with the explicit intention of limiting the use of force, arguing that the Council has granted open-ended authority to use it would seem to clash with the core principles of the UN.

The particular resolutions we must consider here are 660, 678, 687 and 1441. 660 contains the initial reaction to the invasion; 678 the authorisation to use force given to the Coalition assembled to liberate Kuwait; 687 the ceasefire between the UN and Iraq and 1441 was a 2002 attempt to find a resolution to tensions over Iraq. It is manifestly true that 678 grants the Coalition the authority to use force - but, this pertains to the issues laid down in Resolution 660 and subsequent resolutions. None of these contain any reference to WMD in any capacity. The use of force was centred on the liberation of Kuwait from Iraqi occupation by the Coalition operating under UN authorisation - and this theme is returned to in 687, where the language makes it very clear that the ceasefire, and the terms being agreed, are between Iraq and the UN as a body, rather than the individual member states. This is worth dwelling on; the authority to check the stockpiles rests in the UN’s hands, the authority to decide when the authority to use force is back in play is in the hands of the Council, one of the two ceasefire parties.

If 687’s suspension of the authorisation to use force could not be re-activated by the member states alone, without Security Council authorisation, then did 1441 provide the necessary legal firepower to cover the Coalition? Simply, no. 1441 does indeed threaten “serious consequences” for Iraq if it fails to comply with the ceasefire conditions in 687. But at no point does the resolution give member states the right to decide whether Iraq is in breach of those conditions, nor does it empower them to decide what the consequences are to be. The resolution creates a new inspection regime to try and see if there has been a breach of the ceasefire conditions. As above - the Council decides what the Council means.

What the Council means becomes even more salient when you consider the press release by three of the permanent members of the Security Council - France, Russia and China. They made it explicitly clear that they were only voting for the resolution on the explicit grounds that it did not authorise the use of force. It would be difficult to argue that one could interpret a resolution in way that is directly opposed to how it was intended. In any case, 1441 does not contain the necessary ‘magic words’ of Security Council speak - “all necessary means” - to grant the authority to use force to the member states. What the consequences were to be would have to be settled by a resolution - that alone has binding authority, not a discussion in the Council.

In summary - whilst 678 authorised the use of force, the suspension of that use of force in 687 was in the hands of the Council; it alone would decide when the authorisation was re-activated. 1441 neither re-activated 678’s authority, nor did it provide any new authorisation to use force of its own. Let me be absolutely clear on this - there was no Security Council authorisation to use force active with regards Iraq in 2003. Consequently, as there were no grounds to argue self-defence against Iraq as under Article 51, I am of the firm opinion that the Iraq War was utterly illegal and also illegitimate. 

This matters a great deal - as stated earlier, the joint legalising/legitimising role of the Security Council, a conscious creation of the Charter, places it front and centre in the society of states. States seek out this blessing today as much as they ever did with the Popes of Europe - states want to feel that what they’re doing is right and that they have reason and the law behind them. International law would simply not exist if states had no intention of following it - that it does, and is growing in complexity, is surely testament to the importance and utility of international law to states. Further more, that the allied powers first went to the Council to try and get a resolution - expending considerable effort as they did so - and then went back after the invasion to get UN backing for the occupation, is testament to how important the Council was in this process. Glib comments that it “doesn’t matter” ignore the huge, if often silent, evidence to the contrary.

But, if Saddam was a bad man, does that override the legal/legitimacy argument advanced above? If the Iraqi regime was sufficient evil, then surely states have a right to intervene to free the Iraqi people from their suffering? It is difficult to argue against this - Saddam’s regime was clearly a brutal, vicious one that subjected the Iraqi people to a horrific series of genocides, torture and other grotesque attacks. But he was sadly not alone in the world - there are a great many regimes to which we may ascribe the label “evil” - China, Russia, Belarus, Myanmar, Zimbabwe, Cuba, North Korea and so on. How evil does one have to be to warrant a breach of extant international legal and legitimacy mechanisms to use force to remove you from power? What threshold of horror must one cross to bring the full weight of the military power of the world bearing down on your palace?

It is a grisly argument to make, but an important one - if we are to describe one regime as sufficiently evil to warrant removal, we must make it clear why that state is such a special case in the circumstances as to make it essential that we remove it through the use of force. Otherwise, we are laying ourselves open to the charge of hypocrisy and inconsistency. 

I am swayed more readily, still, by these arguments - yet they are not enough for me, and should not be enough for a government to commit men to die and treasure to be spent to a cause. No state should engage in the use of force without the UN’s backing - they created the UN specifically to restrain the use of force by all against all, and so they should respect it. It benefits them to do so - a legal, legitimate war is harder to criticise than one without that aegis of support. Perhaps the Council will work towards an established doctrine of humanitarian intervention to give new cover to instances where states are descending into horror.

But until that day, Iraq remains an unjust war. Without law, without the blessing of the international community and when we cannot say that Saddam was particular more evil than other evil dictators enough to warrant the use of force, we are forced to conclude we did an unjust thing by going into Iraq. We cannot lift this burden through a pilgrimage or raising monasteries and cathedrals up to pay the price - we will pay it for years to come, in a reduced international standing and suspicion of Britain in many quarters as being a warmonger for her own gain, rather than a liberator of the Iraqi people. That may seem unfair to some who argued for the war; but it is the natural conclusion of going to war without law, legitimacy or justness.