As bombs fall over Baghdad, international lawyers and politicians seeking to justify or undermine the American-led attack on Iraq continue to debate the legality of the second Gulf War. The United Nations Charter, along with numerous Security Council resolutions passed from 1990 through 2002, provide legal experts on both sides of the debate with the ability to present their cases convincingly. According to Anne-Marie Slaughter, dean of the Woodrow Wilson School of Public and International Affairs and president of the American Society of International Law, the Bush administration has embarked on a course that could be called "illegal but legitimate." In avoiding another Security Council vote and relying instead on existing resolutions, says Slaughter, "both sides can claim to have the better of the argument over how best to disarm Iraq."

The most basic references to the legality of the war in Iraq lie within the United Nations Charter. Chapter VII of the UN Charter contains two specific articles that outline when nations are authorized in the use of force. Article 51 gives states the "inherent right of individual or collective self-defense if an attack occurs against a member of the United Nations," while Article 42 provides the right to "take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security."

International lawyers who challenge the Bush administration's actions in Iraq claim that it has not met either of these requirements. "Either you are acting in self-defense or you are acting under the authorization of the Security Council," said Sean Murphy, an international law professor at George Washington University, in a United Press International report. Restoring "international peace and security", say experts who dispute the legality of the war, can only take place with the explicit approval of the Security Council - an authorization process that the U.S. has largely forgone.

Lawyers from the Bush administration and others familiar with international law, however, claim that the war in Iraq is justified under article 51, which authorizes the use of force for self-defense. President Bush himself has invoked the UN Charter as justification for American military action, to the surprise of many who doubt the administration's commitment to international law. In his speech Monday, President Bush invoked the nation's "sovereign authority to use force in assuring its own national security," claiming that "terrorists and terrorist states do not reveal their threats with fair notice in formal declarations." According to the Boston Globe, "That statement seemed to echo existing calls to interpret the UN Charter less like a statute and more like a constitution, allowing its mandates to be interpreted to adopt to changed circumstances."

Indeed, international lawyers speaking at the Foreign Policy Association in January placed importance on such interpretations. "The U.S. has long held, consistent with [Article 51], and with customary international law, that a state may use force in self-defense, first, if it has been attacked, or second, if an armed attack is legitimately deemed to be imminent," said William Howard Taft IV, legal advisor to the U.S. Department of State. "The question obviously is how long do you have to wait before you can take serious steps to prevent serious harm? In an era of weapons of mass destruction, definitions within the traditional framework of the use of force in self-defense, and the concept of preemption, have and must adapt to the nature and capabilities of today's threats."

The answer, says Michael Reisman, Myres S. McDougal professor of international law at Yale Law School, lies in a state's ability to determine that "an attack is so palpable, imminent and perceptively destructive that the only defense is its prevention." Reisman also points out that anticipatory self-defense, since it is based primarily on subjective perception, is always open to abuse and criticism. Many legal experts charge that the U.S. has not made the case for self-defense. "That armed attack has to be at least imminent," said Irwin Cotler, a Canadian MP who is also an expert on international law. "There has to be evidence of a clear and present danger of such an armed attack. And to the present time such evidence has not been adduced."

Both arguments concerning the legality of the war in Iraq turn to a number of Security Council Resolutions, some in effect since 1990, to bolster their arguments. Resolutions 678, 687 and 1441 all fall under article 42 of the UN Charter, and are intended to aid in the process of disarming Iraq in order to maintain "international peace and security." How these resolutions are interpreted, however, depends largely on the goals of those who invoke them. While Resolution 678 authorized member states to use force specifically to facilitate the withdrawal of Iraqi forces from Kuwait, it is the much weightier Resolution 687 that the U.S. claims justifies the use of force in Iraq today. Resolution 687, "Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities; (b) All ballistic missiles with a range greater than 150 kilometers and related major parts, and repair and production facilities."

According to White House spokesman Ari Fleischer, President Bush noted in a recent letter to Congress that he believes, "based on the reviews conducted by the attorneys, that there already exists a legal basis both in international law, as well as in domestic law, for the use of force to disarm Saddam Hussein," that is found in "Security Council Resolutions 678, 687 and 1441." Opponents say that such an argument is flawed. The ceasefire resolution, they claim, notes that the Security Council "decides to remain ceased of the matter," language that leaves any enforcement or amendment on the issue up to the Security Council alone.

It was largely for this reason that the U.S. sought yet another resolution to reinforce 687. The unanimous passing at the Security Council of Resolution 1441, though, has further complicated matters, primarily because of its vague language. "Resolution 1441 muddied the waters," says Ruth Wedgewood, professor of international law at Johns Hopkins University. A largely political invention, the resolution affirms that Iraq is once again in "material breach" of the demands outlined in Resolution 687, and that is stands to face "serious consequences" if it continues to do so.

Of course, the actual meaning of the phrase "serious consequences" continues to fuel the debate. Those who oppose war claim that none of the UN Security Council Resolutions use the preferred UN language for the justification of military action by, "all necessary means." Those who support the legality of war with Iraq claim that the phrase obviously implies the use of force. Legitimacy vs. Legality While experts note that the legality concerning an American led preemptive attack on Iraq will likely be debated for years, Anne-Marie Slaughter of Princeton argues that what is most important now is for contending sides to "continue to regard United Nations approval as a necessary component of the use of force." Even though many international lawyers continue to regard the war in Iraq as illegal, it could later be accepted as legitimate, notes a report from the Council on Foreign Relations, as was the case with the war in Kosovo. "What we are witnessing today is an unruly process of pushing and shoving toward a redefined role for the United Nations. Practices have to evolve without formal amendment," writes Slaughter in the New York Times. "That is the lesson that the United Nations and all of us should draw from this crisis. Overall, everyone involved is still playing by the rules. But depending on what we find in Iraq, the rules may have to evolve, so that which is legitimate is also legal."