Could the Iraq inquiry pass judgement on the legality of war?

Sitting in the shadows in a corner of the Iraq inquiry, watching yesterday and today, is the inquiry’s legal adviser – Prof Dame Rosalyn Higgins QC.

Dame Roslayn chaired the International Court of Justice in The Hague until last year. In a rare interview when she first joined the ICJ, Dame Rosalyn gently rubbished the notion, it seems held by Jack Straw, that “international law is an abstraction.”

Inquiry critics in the legal world say that she, like the panel, is too establishment to rock the boat (she is married to the former Tory MP Lord Higgins).

But it’s intriguing where the questioning has been going in the last couple of sessions. Legal witnesses were asked what would be the consequences of British involvement in Iraq being found to be illegal.

The answers came back that it would be unlikely to lead to court cases but would damage British standing (though countries that have incorporated the crime of aggression into their law could, technically, arrest and try someone they thought in breach of it if that person was unwise enough to tread on their soil).

So might the inquiry team be testing the ground to see if it should dare, when the report is ready at the end of this year or early 2011, to pass judgement on legality, just as the Dutch inquiry did a couple of weeks ago?

Panel members are conscious that this is primarily a “lessons learned” inquiry, but just like the Butler inquiry into intelligence on WMD, which strayed, on its own admission, as far as it could off its remit to peer into the murky goings-on around the attorney general’s legal opinion, could this inquiry stray to pass judgement on legality, if it thought the evidence was strong enough and the costs to individuals and the state tolerable?