Ireland could find itself facing embarrassing questions in the dock of the European Court of Human Rights over its Shannon support for the build-up to war in Iraq, a former Irish member of the Strasbourg court's vetting mechanism warns. Jane Liddy recalls the precedent of an action taken by victims of NATO bombing in Yugoslavia
On October 24th, 2001, 17 people appeared before the European Court of Human Rights in Strasbourg to defend their 17 governments against a complaint that NATO airstrikes had violated the right to life. They won in the end, and the complaints were rejected by the court, but the experience must have been an embarrassment, at least.
The European Court of Human Rights in Strasbourg has power to give binding judgments about whether or not the European Convention on Human Rights (ECHR) has been violated by a state, like Ireland, that has ratified it. At the request of a mere individual, governments can be asked to justify their actions in the light of human rights standards, such as the right to life or freedom from inhuman treatment.
If a public hearing is held a government may be exposed to impromptu questions from the judges of different nationalities, which could be as blunt as: "Well, regardless of the legal arguments as to whether or not human rights have been violated, why did you do what you did?" "Is that what you said at the time?" "If not, why not?"
In the Bankovic case a complaint had been made about NATO airstrikes directed against the territory of the Federal Republic of Yugoslavia on April 23rd, 1999. One missile hit a building in Belgrade that housed Radio Television Serbia. Sixteen people were killed and 16 seriously injured.
Family members of four of the dead and one injured man took their case to Strasbourg against the 17 NATO states that had ratified the ECHR. The court rejected the case, saying that what happened in Belgrade had happened outside the "jurisdiction" of the 17 countries. States were only obliged by the convention to secure its human rights to persons within their jurisdiction.
In reaching its decision the court said that there was a difference between the case and earlier cases where it had found Turkey responsible for events outside its territory, in northern Cyprus. Unlike Yugoslavia, northern Cyprus would have been covered by the convention's guarantees in the normal course of events because of the history of Cyprus and its link with the convention system.
If in the future a complainant asks the court to say that his or her case is different from the Bankovic case, much will probably be made of the "ethnic cleansing" background to those events and of the concept of a "just war" in such circumstances. It can also be argued that when the Strasbourg court rejected the Bankovic complaints the judges would have had in their minds that the air attacks had the authority of an international organisation, NATO, and that the bombing of Belgrade was only authorised after attempts to negotiate a political solution to the Kosovo crisis had failed.
There is no question of equating Ireland's role in the continuum of events with the actions of a "trigger-man", but it can hardly be denied that Ireland is involved in helping the US at the moment through the facilities of Shannon Airport. The human rights question that would arise after the event of war is about the extent of a country's responsibility for helping in the preparations for a war that was not mandated by the UN, and which events had shown to result in human rights violations perhaps at the hands of rogue elements unleashed by the circumstances or out to even old scores.
In the balance in any decision is the fact that human rights violations of the gravest kind, from mass displacements to burnings, lootings, rapes, maimings and killings, with immense human suffering, are usual in war. There is no evidence that the Irish Government has satisfied itself that such suffering would not follow from war in Iraq.
IF the UN gives a mandate for the war against Iraq, then a complaint to Strasbourg by a victim alleging that Ireland is responsible for human rights violations because of its part in the build-up would probably lose. There would be no reason to differentiate it from the Bankovic case: it could easily be rejected on the basis that Ireland is not responsible for acts having effects in Iraq. Just as NATO, if not the UN, could be shown to have authorised the action in Belgrade only after serious but failed attempts at peace, so the UN could be shown to have authorised action in Iraq only after serious attempts to avoid war had been seen to have failed.
If the US goes to war without any unambiguous UN mandate, then any complaint to Strasbourg about Ireland's part in the build-up to war and responsibility as a link in events for any human rights violations would be stronger.
Much would be made of the differences between action with the backing of international authority and action without the backing of international authority. Much would be made of the difference between the crisis in Yugoslavia and the wish of the UN to allow more time for inspections in Iraq. At the very least, the court would expect Ireland to be able to give a reason for its action in facilitating events, and a reason that carries as much weight as considerations about loss of lives and maimings in Iraq.
It would be somewhat embarrassing for any Irish representative to have to stand before the European Court of Human Rights in two or three years and to say that the reason given in newspapers of the time for Ireland's part in the continuum of events was its friendship with the US and concern for jobs, and that, being neutral in military matters, it never formed a view on whether the help given that led to loss of life was justified without a UN mandate.
In the press in recent days there have also been hints that the official line is that Ireland should as a matter of public policy help in the waving of a "big stick" at Iraq, even though war itself is not justified without a UN mandate. But would an Irish representative be able to back up this policy if called to account in Strasbourg? Would the State be able to point to documentary evidence showing that Ireland has given the US unambiguous advance notice of its view that war without a UN mandate is not justified and that the facilities of Shannon will be withdrawn if the US attempts to act without a UN mandate?
Judges in Strasbourg have a habit of asking governments to provide contemporaneous records. They also have a habit of asking awkward questions of the people standing before them at public hearings. They are used to drawing inferences from gaps and silences.
• Jane Liddy is a lawyer who was the last Irish member of the European Commission of Human Rights in Strasbourg and a former president of its First Chamber. That commission was the independent body that filtered cases to the Strasbourg court. She is at present serving as a member of the Irish Human Rights Commission. All views expressed are personal.