Break glass in time of war, High Court's lesson

national | miscellaneous | news report

Tuesday May 13, 2003 23:14

by Eoin Dubsky - Refueling Peace

info at refuelingpeace dot org

Mr Justice Kearns' judgement in Ed Horgan's High Court case against Ireland for assisting the Anglo-American attack against Iraq includes some real gems for an appeal, and for activists facing charges relating to anti-war direct actions. Below is one in particular about Article 29 of the Constitution (pages 60 - 66 of the judgement).

(Read it all at http://slack.redbrick.dcu.ie/rp/ed/judgement.doc 203k)

Article 29 of the Constitution begins with the following three points, which Ed Horgan relied on in his case to show that Ireland should not participate in war against Iraq, and that Ireland has to accept the internationally accepted meaning of participation and non-participation (neutrality):

"Article 29

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international
justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international
arbitration or judicial determination.

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with
other States."

(http://www.taoiseach.gov.ie/upload/publications/297.htm)

It goes on to explain other matters for international relations, but this is how the Article starts.

In explaining part of his judgement (which went in the government's favour), J Kearns explored the possibilities of what horrors may occur if he would rule in Ed's favour instead:

"(e) interpretation of the Constitutional principles as argued for by the plaintiff would clearly permit a challenge to a war declared by the Executive even with the approval of the Dáil under Article 28.3, on the grounds that it was a war that did not comply with justice and morality, or the principle of pacific settlement of disputes, under Articles 29.1 and 29.2.

I accept and hold with the submission of the defendants that the provisions of Article 29.1 — 3 are to be seen therefore as statements of principle or guidelines rather than binding rules on the Executive."

...In other words, even if you know for a fact that the government have allowed part of the country be used for an aggression against Iraq (which itself is an act of aggression), there's nothing the courts will do about it. If a majority of TDs want war, irrespective of how grossly immoral and illegal it is, war is what Ireland will get.

...Or to put it another way... The only recourse to justice is to stop the injustice directly "by hand". Then explain it to a jury a few months later -- luckily they aren't appointed by the PDs!