[Part one of a two-part feature on Ireland at war.]

According to a letter sent to Eoin Dubsky by the Office of the Minister for Foreign Affairs on 23 July 2002 (http://slack.redbrick.dcu.ie/rp/yesminister.html) following the September 11 terrorist attacks in America the Minister, Brian Cowen allegedly "waived" the normal safeguards controlling foreign military aircraft passing through Ireland "in respect of aircraft operating in pursuit of the implementation of the Security Council Resolution 1368". The Minister confirmed this only recently in answer to a Dail question on October 23 (Question 138 - http://www.gov.ie/debates-02/23Oct/Sect8.htm). Normally confirmation is required that the aircraft in question are unarmed, carry no arms, ammunition or explosives and that the flights in question do not form part of military exercises or operations. Then under the AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER, 1952 "the Minister" can - exceptionally - grant permission to foreign military aircraft to overfly or land in the State.

That's what the authorities are saying anyway. It looks a bit confusing, and it doesn't help that the relevant orders allegedly made by Brian Cowen are not available because they are secret or don't even exist!

"Irish neutrality"

To begin, some background about "Irish neutrality" and legislation regarding foreign military within the state. The term 'neutrality' in international law refers to the legal position of states which don't actively participate in a given armed conflict. It should be distinguished from other uses of the term, for example to describe the permanent status of a state neutralised by special treaty (See 'Documents on the Laws of War' 3rd Edition, p.85). When Ireland is not participating in a war we have certain rights and responsibilities as a neutral power like every other country.

According to Article 5 of the HAGUE CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND "A Neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory." Article 2 states "Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a Neutral Power". The Hague Conventions are part of international customary law and these principles are evident in Irish legislation dealing with military matters. For example articles of the CONSTITUTION OF IRELAND most relevant to this debate are:

15.6.1° The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas.

15.6.2° No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever.

...

28.3.1° War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.

People sometimes say "Ireland can't be neutral because we can't protect our neutrality from a foreign invasion like Switzerland can..." and I think they're not only mixing their definitions of "neutrality", but also where the first assault is likely to come from. The provisions in the Constitution above, and those attached to the AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER, 1952 are important safeguards against misuse of power within the state which could - and I believe it has - result in Ireland quickly becoming party to a dubious military conquest.

War and the law

In my view allowing US Armed Forces pass through the territory while their country is engaged in a military conquest is participation in war. No matter how you look at it though, now that the restrictions of the AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER, 1952 have been "waived" there is no ambiguity about the nature of this US military traffic through Ireland. Even though the Airport Police at Shannon Airport and Shannon Garda never verified whether military aircraft refueling at Shannon were in fact empty in the past, now it would seem that they are entirely relieved of their duties in this important regard. This is being done without the assent of the parliament and is therefore in contravention of Article 28.3.1° of the CONSTITUTION OF IRELAND.

Constitution

Like "neutrality", the term "war" is a tricky one. Generally in law terms like "aggression" and "armed attack" are used instead of "war". I don't mean to confuse things more, only to show you briefly that the Government's roguish conduct has also broken through other important fire doors in Constitutional- and International Humanitarian Law. To begin, some more important principles from the Constitution being flouted:

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.

Aggression against Afghanistan

No UN Security Council Resolutions authorised the use of force against Afghanistan, and the US military intervention is also not justifiable self-defence. Therefore these actions, which are still on-going today, are an act of aggression as defined in Article 1 of the Definition of Aggression agreed by the UN General Assembly in Resolution 3314:

Article 1: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Explanatory note: In this Definition the term "State":
(a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations;
(b) Includes the concept of a "group of States" where appropriate.

[This definition of aggression was quoted as expressing international customary law by the International Court of Justice in (NICARAGUA v. UNITED STATES OF AMERICA).]

Threat to the Peace and Aggression against Iraq

The threat by the United States to resort to force against the Republic of Iraq without the explicit authorization of the Security Council constitutes therefore a threat to the peace, that is a breach of Article 2(4) of the CHARTER OF THE UNITED NATIONS:

2(3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations.

If the US will invade Iraq without explicit Security Council endorsement it will be committing a crime of aggression. Like the Minister for Foreign Affair's "waiver" for military flights relevant to the so-called war on terrorism, the Security Council might pass resolutions which are themselves unlawful. In any case, there is no Security Council authorisation for the enforcement of so-called "no fly zones" which America and Britain use to constantly attack Iraq. These assaults are criminal acts of aggression too.

Participation is Aggression

If the United States is engaged in an act of aggression, then allowing Ireland be used for perpetrating that act would constitute an act of aggression too as determined by Article 3 (f) of the Definition of Aggression agreed by the UN General Assembly in Resolution 3314:

"Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:… (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;"

Shannon Airport as 'human shield'

Use of Shannon Airport for refueling United States military flights during a war would constitute a war crime too as determined by Article 8 (2) (b) part xxiii of the ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT:

"War crimes means...serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts;…(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;"

Depleted Uranium

US military flights passing through Ireland could be carrying depleted uranium weapons or other 'nuclear material', which if they threaten to use to cause death or serious injury to any person or substantial property damage would be an offence under the RADIOLOGICAL PROTECTION ACT, 1991 SECTION 38. 'Nuclear material' in this Act has the meaning assigned to it by Article 1 of The CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL. According to the Act it doesn't matter whether the threat is meant for here or abroad.

According to Article 36 of Protocol I additional to the Geneva Conventions, States are required to ensure that any new weapon, means or method of warfare does not contravene existing rules of international law. These rules prohibit weapons, means or methods of warfare of a nature to cause superfluous injury or unnecessary suffering, which have indiscriminate effects or which cause widespread, long-term and severe damage to the natural environment. The Geneva Conventions have been brought into Irish law most recently with the GENEVA CONVENTIONS (AMENDMENT) ACT, 1998. Depleted uranium weapons and nuclear weapons obviously fall fowl of this Act.

How much longer will this go on?

Nobody can tell how much longer the so-called "waiver" will be in place and Ireland will continue to participate in US aggressions. Brian Cowen says it applies to all military aircraft "operating pursuant to UN Security Council Resolution 1368"... But he's clearly using the US understanding of that resolution as a guide (see http://news.bbc.co.uk/1/hi/world/americas/1547561.stm). Ireland seems to think that with S.C. Resolution 1368 the UN has basically authorised the so-called "war on terrorism" and every oil - oops, I mean "terrorism" - related assault on Bush's agenda. It doesn't of course, but that doesn't seem to matter either.

We put the "mic" into machiavellian!

Here's something you can do RIGHT NOW - without even going offline - to see just how machiavellian the Minister for Foreign Affairs, Brian Cowen really is: Lookup the AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER, 1952 and see if you can work out which Government Minister made it. Lookup the Act and see if it grants the Foreign Affairs Minister powers to "waive" conditions attached to such Orders.

[There will be another article on Irish Foreign Policy here in a week. What are Irish troops doing in Afghanistan and under what command are they exactly?]