'Illegal war' could place UK soldiers in the dock

By ROBERT VERKAIK in London

British ministers face the real prospect of waging an illegal war, which could lead to British soldiers being prosecuted by the newly constituted International Criminal Court.

The shaky legal grounds upon which Britain and America are expected to launch their military offensive have already been exposed by the United Nations Secretary-General, Kofi Annan.

But Annan's warning that military action against Iraq without a second UN resolution would be illegal is being supported by a growing number of senior British lawyers.

Stephen Solley, QC, an international human rights lawyer, said yesterday: "I feel this is a defining moment in our history which our children will want to ask us about. No one has made a legal case for war."

But he said it was also clear British troops could be the first to face war crimes charges at the ICC. The court, which was formally opened in the Hague yesterday, has the power to bring to trial individual soldiers, commanders and politicians charged with war crimes.

International lawyers argue that any military attack that killed Iraqi civilians could lead to British soldiers being prosecuted at the new court. Because America and Iraq are not signatories to the Rome treaty, which created the ICC, their soldiers are immune from prosecution.

Britain's Attorney-General, Lord Goldsmith, is known to have advised Prime Minister Tony Blair on the legal issues surrounding the prospect of war, but it is understood that the risk of soldiers being prosecuted is of most concern.

Military action in breach of UN resolutions would mean little if the sanction constituted no more than a finding that the United Kingdom was in violation of international law.

Potential sentences of life imprisonment for soldiers acting on the orders of the Prime Minister will have concentrated the minds of the Government's law officers.

Peter Carter, QC, chairman of the Bar's human rights committee, said British commanders would have to "adapt a very different attitude to their American colleagues so they can justify every military act of attrition against every target."

Professor James Crawford of Cambridge University, said no "criminal charges" could be brought against Britain or America for a use of force that breached UN or international law. But British soldiers and commanders could be prosecuted for war crimes.

Legal opinion has become increasingly unified in the belief that the US and its allies cannot rely on the principle of anticipatory self-defence to justify action against Iraq without a fresh UN resolution.

Article 51 of the UN charter allows self-defence only if an armed attack occurs against a member state and, even then, only until the Security Council has taken action.

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