Irish participation in 'War on Terror' illegal in absence of Dáil vote

national | miscellaneous | news report Tuesday December 18, 2001 19:09 by Grattan Healy grattan_healy at compuserve dot com Bruxelles

(edited post Dec 6th: http://uk.indymedia.org/front.php3?article_id=17536)

Ireland is continuing to allow facilities to US warplanes at Shannon, and in doing so is participating in the so-called 'War on Terror'. This action is illegal without a Dáil vote. Any Irish citizen can challenge this in the Irish Courts.

Although merely providing transfer facilities at Shannon, Ireland is in effect participating in the US 'War on Terror'. The provision of those facilities seems not to be disputed by the Government, although if it is, ample video evidence and internal Foreign Affairs documents appear to exist to prove otherwise (see UK Indymedia items 16723 and 18660).

The Irish Government clearly feels Ireland has an obligation as a UN Member to participate, on the basis that the actions are under UN auspices. There are two problems with this argument.

Firstly, the much talked about UN mandate (based on Security Council Resolutions 1368 and 1373) is not at all specific about the use of military action in this case. Secondly, UN obligations cannot override the provisions of the Constitution, since no amendment to that effect was ever adopted by the Irish people, unlike the situation for the EU.

The UN mandate argument has been developed elsewhere (EU Observer, linked above and below). The UN did not specifically permit military action in this case, but reiterated instead the right of self-defence under Article 51 of the UN Charter, which reads:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Exercising rights under this article should require that two arguments be sustained.

Firstly, that the US is under a sustained military attack, which requires a counter attack to prevent it. No clear evidence has been produced to show that the current action is necessary to prevent further such attacks.

Secondly, the attacker must be clearly identified, to enable repulsion of the attack (a simple logical step in self-defence). The evidence for this, related to the previous point, is not conclusive, and may even have been manufactured. And we should recall that similar claims were made about the Oklahoma bombing, which later turned out to be an internal affair. Whatever the reason for the weak evidence, Members of the Dáil, and in all probability the Government itself, are not in possession of solid evidence, and are in no position to judge the validity of either argument.

Furthermore, according to Article 51, the US and its allies may only exercise self-defence in the short term, and only until the UN itself takes action. This it has done, but it has not itself chosen to go to war, rather it speaks about economic and financial measures, and bringing the culprits to Justice.

In other words, the exercise of self-defence under Article 51 is now highly questionable, and no other UN mandate for the current war is available. This implies that Ireland is not necessarily under any UN obligation to participate. Even if it was, the Government must nevertheless respect the Constitution, which is currently superior to UN law within the State. The Irish Constitution states:
"29.1 Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.
29.2 Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.
29.3 Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states."
It is difficult to see how the Government can get around Article 28.3.1, which reads:
"War shall not be declared and the State Shall not participate in any war save with the assent of Dáil Eireann"

It may be relying on Article 29.4.2 of the Constitution, which reads:
"For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern."
This does not suggest that UN law overrides the Constitution, the way EU law does, and certainly not as far as war is concerned.

Any Irish citizen may challenge the current situation in the Irish High Court, and if necessary in the Supreme Court. An interim injunction, leading if necessary to an injunction, should be sought, pending a Dáil vote. Every day lives are being taken in this cruel war and action is about to be directed to other parts of the globe. Ireland is now jointly culpable, so time is of the essence.