The courts are starting to accept that the war against Iraq is a crime

Two scarcely reported court cases have large ramifications for both the British and American governments.

The first involved two men in their 30s, Phil Pritchard and Toby Olditch, who were found at an air base at Fairford in Gloucestershire making their way towards B52 bombers carrying tools and paint with the intention of damaging the planes. Nor did they deny this was their intention. Indeed, they freely admitted as much claiming they wanted to prevent the planes from being able to take off in order to prevent war crimes from being committed.

They were prosecuted but the jury failed to convict them as it was unable to reach a verdict.

In a similar case a month ago, Margaret Jones and Paul Milling admitted planning to attack several vehicles used to load bombs on to the B52's and - again - the jury failed to convict them.

In both cases the defendants claimed they were putting the state on trial.

The defendants had tried to argue in court that the entire war against Iraq was a crime of aggression. But in March this year the law lords ruled that they could not use this defence: while aggression by the state is a crime under international law, it is not a crime under domestic law. But they were allowed to show that they were seeking to prevent specific war crimes from being committed - principally, the release by the B52s of cluster bombs and munitions tipped with depleted uranium.

They cited section 5 of the 1971 Criminal Damage Act, which provides lawful excuse for damaging property if that action prevents property belonging to other people from being damaged, and section 3 of the 1967 Criminal Law Act, which states that "a person may use such force as is reasonable in the prevention of a crime". In summing up, the judge told the jurors that using weapons "with an adverse effect on civilian populations which is disproportionate to the need to achieve the military objective" is a war crime.

The jury failed to convict and the men will be tried again next year. However, although this is as far as we have got in the UK, in Germany and Ireland the courts have been even bolder:

Last year, five peace campaigners were acquitted after using an axe and hammers to cause $2.5m worth of damage to a plane belonging to the US navy. When they attacked it, in February 2003, it had been refuelling at Shannon airport on its way to Kuwait, where it would deliver supplies to be used in the impending war. The jury decided that the five saboteurs were acting lawfully.

This summer, the German federal administrative court threw out the charge of insubordination against a major in the German army. He had refused to obey an order which, he believed, would implicate him in the invasion of Iraq. The judges determined that the UN charter permits a state to go to war in only two circumstances: in self-defence, and when it has been authorised to do so by the UN security council. The states attacking Iraq, they ruled, had no such licence. Resolution 1441, which was used by the British and US governments to justify the invasion, contained no authorisation. The war could be considered an act of aggression.

This is heady stuff. The German federal administrative court has ruled that the Iraq war was "a war of aggression". This is not only a war crime, it is the supreme war crime as it is a "crime against peace" as established by the trials at Nuremberg.

Bush and Blair should sit up and take notice. Foreign courts are labelling their actions "war crimes" and them, it naturally follows, war criminals.

And there is evidence that the government are taking this seriously. During the case regarding Fairford in Gloucestershire, Sir Michael Jay, permanent under-secretary at the Foreign Office, submitted a witness statement that contained hints of governmental panic:

"It would be prejudicial to the national interest and to the conduct of the government's foreign policy if the English courts were to express opinions on questions of international law concerning the use of force ... which might differ from those expressed by the government," he wrote. Such an opinion "would inevitably weaken the government's hand in its negotiations with other states. Allied states, which have agreed with and supported the United Kingdom's views on the legality of the use of force, could regard such a step as tending to undermine their own position."

Here we have the government telling courts that it is in the "national interest" that they do not rule on questions of international law "if they might differ from those expressed by the government".

Blair is now trying to force courts not to rule on the subject. I suspect this is because he, deep down in his gut, knows what that ruling would be.

However, with juries refusing to convict anyone who uses the illegality of the war in Iraq as a defence, one has to wonder how long it will be before a British court rules that the Iraq war was, indeed, illegal.

I am no constitutional expert, but things would become very hairy for both Bush and Blair were a British court to rule that they had acted illegally by invading Iraq. And that day may be nearer than we think.

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