Many opponents of the Iraq war, recently including Kofi Annan, continue to repeat the mantra that the war was 'illegal', as though this were an obvious and established fact. On the contrary, this claim happens to be clearly incorrect. (Or at least, to put the matter in the most generous and open-minded way I can bring myself to do, this claim is very uncertain and far from self-evident.)
The very thought of explaining all the reasons once again makes me tired. But some - though far from all - of the key arguments are touched on clearly and concisely in a discussion by Matthew Yglesias, who writes for the progressive-Democratic magazine The American Prospect as well as blogging up a storm. Yglesias's credibility in making these arguments is enhanced by his having concluded that the war was a bad idea - on substantive policy grounds, not legalistic ones - and his hostility to the Bush administration. I happen to disagree with him on the first point, but it does suggest that his analysis of the legal issues is not simply an effort to rationalize his substantive position on the war. His sensible advice to other opponents of the Iraq war (and of George Bush) is that endlessly harping on legalistic objections to the war is not only inaccurate but also politically and morally misdirected. But all this is secondary to the fact that his arguments here about the legality of the war are solid and convincing on their own terms (and carefully formulated, even understated - in fact, I believe that they can be developed more fully and strongly).
Many people have said that their bedrock reason for opposing the Iraq war was that it violated international law - meaning, essentially, that it was not explicitly authorized by the UN Security Council. This is a logically coherent position, though incorrect and in some cases disingenuous. But some of these people also argue (or imply) that the supposedly illegal character of the war was a valid reason for governments to vote against it in the UN Security Council in the first place. That makes no sense. Yglesias ends his discussion by saying:
The nations that refused to vote a second resolution were acting poorly in their capacity as judges - as expositors of international law - but acting well in their capacity as policymakers. Since the UN Security Council is not a court, but a policymaking body, that strikes me as perfectly appropriate. But still, the dispute must be seen for what it was - a policy dispute in which the US, UK, and Spain outlined a bad policy, and other nations outlined a better one - not a legal controversy.(See also here.) Actually, whatever one thinks of the policy (or policies) put forward by the US, UK and Spain, it is quite wrong to say that the governments who opposed them in the Security Council 'outlined a better one'. They did not. The reality is that they pursued, with individual shadings and variations, a strategy of disingenuous and irresponsible obstructionism, without ever offering a serious and constructive alternative to the US-British position. But leaving this problem to one side, Yglesias is quite right to stress that this was fundamentally 'a policy dispute' and 'not a legal controversy'.
If the governments of France, Russia, China, and Germany had wanted to make the war a legal one by the criterion they often invoked - i.e., authorization by the UN Security Council - then all they had to do was vote in the Security Council to authorize the war. (By refusing to do so, incidentally, they were effectively refusing to enforce UN Security Council Resolution 1441, which they had passed unanimously.) Their 'legal' objections to the war were just a red herring. The real disagreements lay elsewhere. (Jeff Weintraub)