To the points above-
Actually there was a Security Council Resolution authorizing member states to act, I believe individually, to enforce the UN security provisions against Saddam Hussein. The question then becomes whether Saddam acted in such a way that made enforcement of the security provisions wrongful. Especially provision (4) of that resolution matters.
However-
Bradylama said:
Yes, there is. It is the feeling that something is legal because you have a general consent from the countries around the world.
No, there is no such thing as a sense of legality, because the legality of an action or substance is determined by law. Not general consent.
THis is actually an error.
Article 38 of the international court of justice defines what are the sources of international law.
Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
ALso note-
http://www.walter.gehr.net/source.html
Now the US is party to both the UN and the ICJ as a treaty, therefore the US is bound under the law of treaty.
However, you will also note that there are two other basis- customary international law and the practices of national legal systems.
Customary law works when countries practice a law as if they believed they were obligated to practice it. Practices of national systems is generally what most countries of the world would recognize as legal or illegal. So murder, which most countries have laws against, would be a violation of international law. The last- writings of jurists and scholars- is more a suggestion or persuasive body of evidence and the weakest basis of all.
But the point being- yes, general consent matters and can be the basis of law. What matters is how that consent manifests and is proven. That is a question for the courts.
If you said there was a sense of right or wrong, I would agree with you. But right and wrong don't equate to legality.
That depends on what basis you use for deciding what is right and wrong. If you accept ad hoc personal choices or what you feel is justified, than your moral code is subject to preferences and arguably no moral code at all (since preferences can be used instrumentally to justify your acts). If on the other hand you stick closely to a strong moral code, than you at least have an objective basis of morality to which you must answer to.
That said, the fact that the US took great pains to argue that what it was doing was in compliance ot international law reflects not the weakness of international law (in which case you are juding the strength of the law by outcomes) but the strength of the law (measured by the pains in which a country strives to stay within the law while still carrying out it's objectives).
In that sense what the US was doing was little different than a company or an individual trying to justify avoiding taxes through his interpretation of law. He's trying to both comply and do what he wants. ALternatively the US could have said, "Fuck international law, we're the super power and hegemon and our choices prevail." The US didn't do that (which would be analogous to tax evasion- completely defecting from complying with law). And that speaks strongly about the importance of international law to the US.
Besides, it's already been established that the war was legal, and that the US was invoking UN resolutions to justify it. Now, if those resolutions had been repealed by way of another resolution, then the war would have been illegal, but they weren't. People think the war is illegal because they don't like it, but its that very kind of reasoning that illustrates the flaws of putting faith in an organization that uses Primitive Law.
Such a resolution would never have been past because of the nature of power within the Security Council.
The Charter of the UN gives Security Council resolutions mandatory effect- they become law (something not true of General Assembly Resolutions). But deciding what becomes law has to get past that UN Security Council veto. The US would never have allowed such a resolution to pass.
And that's were the question of positive power (the idea that real power decides what the law is) begins to replace the notion of legitimate or moral authority.
If the way mandatory executive resolutions are made is seen, by the public, as being unjustified or immoral or an abuse of power (and let's be honest, the Security COuncil was a creation to maintain the status quo of power following World War 2) than the legitimacy of those decisions begins to be question. When law loses it's moral force it begins to weaken.
Governments, even international ones, have two ways of influencing people- action, often through repressive physical force, or hegemony- receiving the tacit acceptance by subordinates that their leadership is acceptable.
Yes, justification is subjective, which is exactly why there should be such a thing as legality obtained through the consent of the large majority of the countries around the world, making the justification as objective as possible.
There is no way to make justification objective. There'd be a lot less confusion if countries opposed wars for their own reasons instead of trying to hide their agendas behind a false sense of legality.
Actually there is a way to make justification objective- again by testing the standards of international law to figure out what are the prevailing norms. The Supreme Court does that all the time in deciding matters of Constitutional Law, and the ICJ does that when it governs on international law.
As for using legality- you are missing the point. Law is a form of power. What is law is decided by moral choices reached through political means.
Whether one body uses law as a weapon or as a defense is irrelevant. In either case law is just a tool. It is political will, power, and preferences that make the difference.
That's just stupid. That's saying that either the allies never should've touched Hitler, or Hitler should've been allowed to take over every country he wanted. Neither option is any good.
That entire point is silly but also ahistorical. Before the Second World War and in the effort to stop another war, both the Germans and the Allies had signed the Kellogg-Briand Pact outlawing offensive war. Violation of that was used to explain the German's breach of, or crime against, peace. Before that pact it was commonly accepted that nations had the positivist right to go to war and that war really was just politics by other means.
The Kellogg-Briand Pact was supercided by the UN Charter which tightly regulates the right of states to go to war under Article 2(4) and Article 51.
http://www.un.org/aboutun/charter/
Article 2- The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles....
(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
No, it doesn't. It means that the Allies should have opposed Hitler because he threatened their sovereignty, not because Hitler violated some sense of international law.
Under the current UN system the Allies had the right to do both- Under Art 51 to protect themselves through collective means and to enforce a treaty obligation of Germany.
Interestingly, this is where the Nuremburg Tribunal got into trouble with Crimes against Humanity. It was easy to try the Germans for the holocaust commited against non-German Jews, but damn difficult to nail Germany under crimes to it's own Jewish population. Why? Because Germany was a sovereign state and thus beyond the power of other countries for acts done within it's own territory.
I didn't say it was ok. I said that just because you don't like something doesn't give reason for making it illegal. (e.g. homosexual marriage)
Yes, but this is the mechanism by which law is made. Moral choices reached through political means.