Martin Village explains why the legality of the Iraq invasion will never be decided in a court of international law

Avi Shlaim* recently said that 'history will surely pass judgment on Blair' for his invasion of Iraq. Hopefully so, because, certainly, no court of international law will.

Well, he really does sound like my kinda guy, because he is for all the right things...

The International Court of Justice at the Hague could in theory give an advisory opinion on the legality of the Iraq invasion if asked to do so by the UN's General Assembly, but so far such a request hasn't been and, as time goes by, probably won't be forthcoming, presumably because the GA doesn't want to cause diplomatic embarrassment to the US and UK. Otherwise the ICJ only deals with disputes between states, and although it could have been seised of jurisdiction by Iraq with a complaint that the US and UK had unlawfully invaded its territory on March 20, 2003, Saddam Hussein somehow forgot to put the necessary paperwork in the post before disappearing into his subterranean hideaway a couple of weeks later. Not that, anyway, the ICJ's record is good when it comes to contentious issues. It really hates arguments, and depends on everyone consenting to its jurisdiction much in the way a dispute arbitrator would. And even if the ICJ had the courage to hand down a judgment not to the liking of the US and UK, it is not cynical to suggest that these countries would use their veto to avoid it.

So politics rule at the ICJ in a way that, there is reason to hope, they won't at the International Criminal Court, which wants to avoid being bullied by the major powers so that it can originate proceedings independently of the security council. That's probably why the present US administration decided it wasn't in the US's interests to be a signatory, and would love to have strangled what they regard as the baby of dangerous European liberals at birth. To the deep irritation of John Bolton, among others, the ICC sprang to life on July 1, 2002 just in time, you might think, to wade into the question of the legality of the invasion of Iraq and, perhaps, hold real individuals to account for real crimes.

But no. Although the ICC statute defines genocide, crimes against humanity and war crimes (all of which can be committed within the context of an otherwise legal war), it reserved for later, more detailed consideration the definition of the crime of aggression which, at the Nuremberg War Crimes Tribunal, was described as "the supreme international crime differing only from other war crimes in that it contains within it the accumulated evil of the whole". A 'leadership' crime, the present thinking is that the perpetrator of a crime of aggression must be "in a position effectively to exercise control over or to direct the political or military action of a state" and must have "participated actively in the planning, preparation, initiation or execution of an act of aggression". The Special Working Group will be meeting later this month, ironically in the non-signatory US, in the salubrious surroundings of Princeton University, and then after that in New York, to hone its deliberations. Only in 2009, it is thought, will the signatory states be in a position to alter the ICC statute, and only in respect of acts committed thereafter will the ICC have jurisdiction.

So the mouth-watering prospect of the ICC's Office of the Prosecutor deciding to investigate the behaviour of Blair and others (such as Baroness Morgan, and Lords Falconer and Goldsmith, all of whom were apparently involved in the run-up to the fateful Commons vote on March 18, 2003, in the preparation of persuasive, but dubious statements pertaining to the legality of the invasion) and charge them, eventually, with the crime of aggression, must remain a legal revenge fantasy. Although a nice one.

* Comment and Debate, The Guardian, May 14, 2007