The Security Council is a political and not a judicial body. It would therefore be curious if the legality of war were to depend upon how a particular country were to vote, when that vote (as in the case of France) is likely to be as much a reflection of its lack of enthusiasm for the United States’s position as global hyper-power as of the desirability of disarming Saddam Hussein. For that reason, the fact that Security Council members are seeking consensus on a second resolution authorising war does not mean that war would be illegal should they fail to reach agreement.

One difficulty in assessing the legality of a war is the lack of clear principles. A quick scan of the literature shows no consensus on how the UN Charter is to be interpreted. Nevertheless, there are arguments to justify the legality of war on Saddam. The first is textual. Although Resolution 1441 would not appear to authorise war, it has to be read against the background of resolutions passed during and after the first Gulf War. The UN Secretary-General (among others) has used these to justify the use of force against Iraq after ceasefire violations in the past 13 years, strong evidence that further explicit measures are unnecessary.

The second argument rests upon the right of all states to defend themselves against actual or potential aggressors. The right of pre-emptive self-defence is expressly preserved by the UN Charter. Whether a threat is imminent enough to justify a pre-emptive attack is a question of fact, which puts those not in possession of all the facts at a disadvantage when they challenge the Bush-Blair assertion that their national security agencies are certain that Saddam presents a sufficiently serious and immediate threat.

Finally, there is the humanitarian argument. Many of the military operations mounted in the former Yugoslavia took place without express Security Council approval and were justified by the need to protect civilian populations from mass murder and torture. Saddam’s use of chemical weapons against the Kurds is well known. His ability to do so again cannot be doubted. Every day in Iraq prisoners are beheaded, electrocuted or locked in cells until they are driven to eat the flesh of other prisoners. Military force can surely be justified to remove the man whose major contribution to modern Arab culture has been genocide and cannibalism.

Julian Knowles is a barrister at Matrix Chambers specialising in international human rights law.

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