Ireland’s military support for Ukraine, including participation in a planned EU training mission, would not violate the Constitution, legal experts say.
However, the announcement on Tuesday by Minister for Defence Simon Coveney that Ireland has agreed to support the mission has been criticised by peace campaigners, who say it violates Irish neutrality.
“Neutrality means not being involved in either side in a war,” said Roger Cole, the chair of the Peace and Neutrality Alliance (Pana). He said Pana opposes training of Ukrainian or Russian troops.
“Such a decision could mean the first step towards Irish involvement in a war involving states committed to the use of nuclear weapons. Pana advocates a ceasefire and UN-chaired negotiations.”
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Independent TD for Donegal Thomas Pringle said the support of the Irish public for neutrality must be respected. “Where does Irish neutrality stand if the Government is considering a step like this to support the EU military?” he said.
Mr Coveney called the agreement to establish an EU training mission the “next phase of military support” for Ukraine in its fight against Russia. It is understood Ireland may be asked to provide a small number of Defence Forces personnel to train Ukrainian military units in another European country.
Neutrality is not detailed in the Irish Constitution or domestic law. However, Irish assistance to foreign militaries has been challenged in the past under article 28.3 of the Constitution, which states: “The State shall not participate in any war save with the assent of Dáil Éireann.”
The key question is what constitutes “participation”, says Dr David Kenny, associate professor of law in Trinity College.
He said indirect aid, such as providing training or funds for military equipment, likely does not meet the definition of participation under the Constitution.
“I think participation in war under the Constitution involves fairly active participation,” Dr Kenny said. “I would have thought indirect aid, such as training, would not meet that standard to require Dáil assent.”
Dr Laura Cahillane, senior law lecturer at University of Limerick, agreed. “Participation is quite a high level. If you’re sending people over to train, it’s probably a bit of a stretch to say they’re involving the State in armed conflict.”
From a legal standpoint, the matter is somewhat of a moot point, Dr Kenny said, as the courts would be highly unlikely to interfere in this area. He said there has yet to be a Supreme Court interpretation of the issue but that a case taken against the Government in 2003 over the use of Shannon Airport by the US military is instructive.
In that case, which was taken by retired Army Commandant Edward Horgan, the High Court ruled it did not have the authority to decide what constituted “participation” in a war and that the issue is one for the Oireachtas and Government.
Dr Kenny said it is likely the courts would only intervene if there was an extremely clear breach of article 28.3, such as if the Government declared war without Dáil assent.
Mr Coveney said a detailed proposal for the mission will be presented to EU leaders by the end of September.
A Department of Defence spokesman said Mr Coveney, like a number of other EU Defence Ministers, has requested detail on the detailed structure legal basis for the mission.
