Irish neutrality and the legality of the war under international law will be central to the Dáil debate tomorrow, writes Carol Coulter, Legal Affairs Correspondent
Is Irish neutrality formally a thing of the past if continued use of Shannon by the US is permitted now that there is no second UN resolution? Can the Dáil approve a war which is not legal under international law? Could this war end up before the new International Criminal Court if civilians are targeted? These are the types of questions which lawyers, as well as politicians, on both side of the debate are now considering.
Despite the fact that it is frequently invoked, Irish neutrality has no status in the Constitution or law. It is a policy decision taken by the Government, originally during the second World War, and adhered to since as part of our foreign policy. It has acquired almost totemic significance, but was not enshrined in legislation or in the Constitution.
When the constitutional amendment ratifying the Nice Treaty was passed last year, it included a provision that the State would not join in a European defence pact, but this has nothing to do with the current situation.
The only reference to our position in war in the Constitution occurs in Article 28, where it is stated: "War shall not be declared and the State shall not participate in any war save with the assent of the Dáil."
In relation to the war in Iraq, the only issue being debated is the use of Shannon for stopovers by US troops and equipment. The Government may argue that this is not "participating" in war, although its opponents are likely to argue that it is.
If this does constitute "participating" in a war, then Ireland is clearly not neutral between the two antagonists. States which have clearly stated their neutrality, such as Austria and Switzerland, are not permitting the use of their airspace or airports, though even those who oppose the war, but are not neutral, like Germany and France, are.
But can the Dáil assent to a war which is illegal under international law? Those who argue against the war say that it cannot, while those who support it, however reluctantly, say that there is at least an arguable case for its legality, citing the case put by the British Attorney General, Lord Goldsmith, to the British government.
He argued that the earlier UN resolutions on Iraq, 678 and 687, marking the beginning and the end of the 1991 war, respectively, along with resolution 1441, provide legal justification for the action now being undertaken by the US and the UK.
But this view is contested. In a survey of the views of leading British experts on international law, published in the Guardian newspaper, it was pointed out that resolution 1441 contained the phrase "serious consequences", which would not automatically trigger war, rather than the phrase "all necessary measures", which would. This was done in order to ensure widespread support. Had the resolution contained a phrase intended to trigger war, it would not have got through, according to these experts.
Barrister Mr Giollaíosa Ó Lideadha, organiser of a statement from over 70 Irish lawyers opposed to the war, agrees. He says that resolution 678 was used authorising all necessary means to restore the sovereignty of Kuwait. It was superseded by resolution 687, establishing the ceasefire, which stated that the Security Council would "remain seized of the matter and take further steps as required".
"It is not clear-cut," said another leading lawyer, who generally supports the position of the US and who did not wish to be named. "They can put a plausible case [for legality\], at its height. If a person was charged before the International Criminal Court, they could put up a plausible defence."
The chances of the Irish Government being brought before the ICC for its role in supporting the war are remote. However, a group of British lawyers have stated their intention of indicting Mr Blair if excessive force is used, and Mr Ó Lideadha said that the Irish Government should at least be aware of its potential liability in this regard.
Both Britain and Ireland have signed up to the International Criminal Court, while the US has not, and opposes it. The ICC was set up as a permanent court to try war crimes, including aggression, genocide and misconduct during war, such as unwarranted attacks on civilians. It is open to non-governmental organisations to bring complaints against states and individual leaders.
However, the court will only take action if national states refuse to.
Dr Ben Tonra, of UCD, said that there was little chance of success for such a case in the ICC. If the UK was indicted, it could plead a humanitarian basis for its military intervention, he said, as was argued in relation to Kosovo. "There is evolving human rights law that states have a right and a duty to intervene where there are gross violations of human rights. That could be argued before the ICC. But it would push out the boundaries of human rights law very, very far."