The Constitution requires the Government to first determine that the US-led war in Iraq is founded on "international justice and morality" before this State can provide overflight, landing and refuelling facilities to the US military at Shannon Airport, it was asserted in the High Court yesterday.
The Taoiseach, Mr Ahern, had made a "grossly misleading" statement to the Dáil on March 20th in suggesting the present activities at Shannon were a continuation of practices extending over the past 50 years, Mr Edward Horgan, a retired Army commandant, claimed.
According to documents procured by Mr Horgan from the National Archives and other sources, that was not the case and overflights and landing facilities were previously granted only on a very limited basis.
Previous administrations had contemplated such facilities would be granted only in times of peace and for peaceful purposes, Mr Horgan added.
The facilities being given to the US now represented "the most fundamental and far-reaching change in national policy in relation to the State's practice in time of war in the absence of an express request for assistance from the UN Security Council".
Mr John Rogers SC read affidavits from Mr Horgan when opening the former officer's challenge to the Government's permitting of overflights, landings and refuelling of US military aircraft at Shannon Airport.
The court heard that more than 33,000 US troops had used Shannon en route to the war in Iraq since January 1st.
Mr Rogers has outlined three central planks of his case - that the activities at Shannon constitute participation in a war for which the required Dáil assent under Article 28 has not been given; that the war is in breach of the provisions of Article 29 asserting Ireland's adherence to the peaceful settlement of international disputes and that the war is in breach of customary international law regarding the duties of neutral States.
Mr Horgan rejects the Government's claim that the permitting of overflying and other activities by the US military at Shannon does not constitute participation in the war on Iraq. He argues it does amount to participation in a war and is unconstitutional. He says the Constitution requires, under Article 28, Dáil assent for participation in a war and no such assent has been given.
He also contends the Government, in permitting the US use of Shannon in such a manner, is in breach of Article 29 of the Constitution which affirms Ireland's devotion to "the ideal of peace and friendly co-operation among nations founded on international justice and morality" and our adherence to the "pacific settlement of international disputes by international arbitration or judicial determination".
He says the Government must first establish whether a war is just and lawful before it may make facilities available to a belligerent. Article 29 was central to any decision on whether the war was just and lawful and obliged the government to adhere to the principle of the peaceful settlement of international disputes.
Therefore, before the Government could make a decision which might involve the use of executive power in assisting in the prosecution of a war, the Government must be satisfied the war was in assistance of the peaceful settlement of international disputes.
The Government had taken no view on this issue and had said it did not know whether the war was just and lawful, Mr Rogers said. It was his case that the use of force could only be justified where it was expressly provided for under the UN Charter and only in situations consistent with UN purposes. The Government, by allowing Shannon to be used as it is, was assisting a belligerent in breach of our duties at international law and as a neutral state.
Earlier, Mr Rogers stressed his client was in court to pursue issues of law, particularly constitutional law, and "antagonisms" outside had no place in the case.
Mr Horgan came from a history of personal devotion to the State and adherence to the Constitution to which he had sworn oaths. He was a former Army officer and was in court for no purpose other than to ensure the Constitution was adhered to.
Mr Horgan also had a grown up family and lived in Limerick. He said he was concerned at the effects of the war on his personal security in this State.
In an affidavit, he said that from his military experience, he believed the use of Shannon airport and Irish airspace by US military aircraft in the war against Iraq constituted assistance and participation in that war. He believed the military attacks on Iraq had not been sanctioned by the UN Security Council. As a citizen of a state which was neutral in international law, he was concerned to ensure the compliance by the organs of government with the constitutional provisions relating to the exercise of the executive power of this State.
He believed the Taoiseach was wrong in asserting in last month's Dáil debate on the use of Shannon that Ireland would be acting differently than it had in previous conflicts if it were not to allow the US military to use Shannon.
What was happening at Shannon now was a new and fundamentally different policy of permitting munitions and troop carrying military aircraft to overfly and land in the State in transit to a war.
He believed, as a result of how Mr Ahern had represented the position in his statement to the Dáil, it was open to debate whether the Dáil had in fact supported the activities at Shannon.
In its defence to the action, the Government and State plead the activities at Shannon are a continuation of similar activities sanctioned over the past 50 years. They say the Government decision of March 19th last permitting the activities at Shannon was a decision to maintain the "pre-existing" arrangements and has not exposed Mr Horgan to grave or any other danger from reprisal.
They also argue the court should not determine whether the military action being conducted by the US and others in Iraq does or does not constitute a just war. They "do not admit" that the actions against Iraq constitute an unjust war; breach the Charter of the United Nations; are unauthorised by the UN Security Council; breach international law and/or are not an act of self-defence.
They further deny the relevance or applicability of issues as to the context of international law and the question of whether the State is allegedly in breach of that. Without prejudice, they plead they have not breached any obligations under international law.
The State also denies that in the absence of a decision that the Iraq war is in accordance with the principles of international justice and morality, that any alleged assistance given by this State to that war is in breach of the Constitution.
They plead that the provisions of Article 29 relating to the conduct of the State in its relationship with other states does not confer any rights on individual citizens.
The hearing continues today before Mr Justice Kearns.
