Documents, including many procured under the Freedom of Information Act, show that, despite the Government's claims to the contrary, it was the exception rather than the rule over the past 50 years to permit foreign military aircraft carrying troops and weapons to use Irish airspace en route to war, it was claimed in the High Court yesterday.
From 1959 until last November no armed military aircraft, no armed foreign troops and no aircraft engaged in military exercises were permitted to overfly or land in the State, Mr John Rogers SC argued.
In allowing the use of Shannon Airport by US aircraft and troops bound for the war in Iraq, the Government was departing from, not continuing, the practice established over the past 50 years.
Mr Rogers was continuing his opening of an action taken by a retired Army officer, Mr Edward Horgan, of Castletroy, Limerick, against the Government and State over the use of Shannon Airport by Iraq-bound US aircraft and troops.
Mr Horgan says this use is in breach of our status as a neutral country and contrary to the constitutional provisions setting out our obligations at international law. He also alleges it breaches Article 28 of the Constitution which prohibits this State's participation in war without the consent of Dáil Éireann.
The Government denies it is participating in any war and also denies breaches of the Constitution or international law.
Mr Rogers read yesterday from a series of documents, including extracts from Dáil debates and documents from the Department of Foreign Affairs, which were related to the policy governing the use of Irish airspace by foreign military aircraft. Several of the documents were procured under the Freedom of Information Act.
He said those documents outlined that it was the general practice over the past 50 years to grant permission for overflights to aircraft which were unarmed, carried no munitions and were not engaged in intelligence gathering.
Permission had been refused a number of times to aircraft engaged in military exercises.
In the case of routine landings, confirmation was required that the aircraft was unarmed, did not carry arms, ammunition or explosives and did not form part of a military exercise or operation.
In a document from February 2000, the Taoiseach had stated that the Government supported overflights for purposes governed by the UN Charter while other requests for overflights would be looked at individually.
In a Department of Foreign Affairs security policy section internal document dated December 16th, 2002, it was noted that "on an exceptional basis" a decision was taken to provide landing and refuelling facilities pursuant to the State's obligations under UN Security Council Resolution 1,368, which requested states to work together to bring to justice those responsible for the attacks on September 11th, 2001, on New York and Washington.
That same document stated that in submitting requests for routine landings, all countries "are expected to comply with the stipulations that the aircraft is unarmed, does not carry arms, ammunition or explosives and does not form part of a military exercises or operation".
The document added that in waiving these usual stipulations for aircraft operating under UN Resolution 1,368, the Government was not participating in a war but was acting to assist a concerted international response to deal with a threat to international peace and security.
It remained "fully committed to Ireland's policy of military neutrality" but added Ireland "is not and has never been neutral in the face of international terrorism or in its support for the UN".
In relation to Iraq-bound US troops using Shannon, the document said: "It has been the practice, going back for many years, for commercial charter aircraft carrying US servicemen between the US and bases overseas to land at Shannon. Such flights do not require special permission and are subject to all normal civil aviation regulations." The document also confirmed that the aircraft were not inspected.
Mr Rogers said other documents indicated that the practice over the past 50 years was to permit Shannon to be used by civilian aircraft carrying US troops or their dependants only where these were not bound for a war or engaged in a military exercise.
In an affidavit also read to the court yesterday, Dr Iain Scobie, an expert in international law from the University of Glasgow, said it was incorrect for the State to assert that the Hague Convention and the San Remo Manual on International Law were not applicable or relevant to the issues before the court. He said both instruments were declaratory of customary international law and were binding on Ireland in international law.
The Hague Convention provided for neutral states to be bound by abstention and impartiality in relation to war. Article 18 of the San Remo Manual also reaffirmed the customary rule at international law excluding belligerent military aircraft from neutral airspace.
Dr Scobie said he was surprised that Mr Keith McBean, a counsellor in the Department of Foreign Affairs, who had argued that the Hague Convention and San Remo Manual were irrelevant to Mr Horgan's case, had failed to recognise the applicability of these fundamental rules relating to the obligations of neutral states in time of war.
Dr Scobie also noted Mr McBean's assertion that there was no clear legal consensus as to the legality of the current military action against Iraq. Dr Scobie said there was among international lawyers a preponderant balance of opinion that the war was unlawful and he believed Ireland's provision of overflight and landing facilities to the US military at Shannon was in breach of Ireland's duties of neutrality.
The hearing resumes on Tuesday.
