Dubsky v Government of Ireland

• Jurisdiction: Ireland
• Judgment Date: 13 December 2005
• Date: 13 December 2005
• Court: High Court

([2005] IEHC 442)

Ireland, High Court

(Macken J)

Dubsky

and

Government of Ireland and Others1

War and armed conflict War Definition of war and of participation in war Distinction between war and armed conflict Neutrality of States under international law Whether assisting aircraft constituting loss of neutral status Effect of loss of neutral status on State Foreign aircraft involved in military operations in Afghanistan Whether Ireland permitting overflight, landing and refuelling of aircraft carrying troops and munitions to Afghanistan constituting participation in war Participation in war requiring assent of parliament Constitution of Ireland, Article 28.3 Whether actions amounting to participation in war under constitution Whether permissions granting assistance without assent of parliament unconstitutional

Relationship of international law and municipal law Relations between States Justiciability Separation of powers Matters of war and participation in war Need for court to exercise restraint in assessment of war and participation in war The law of Ireland

Summary:2The facts:Following terrorist attacks in the United States in September 2001, United Nations Security Council Resolution 1368 (2001) called on all States to work together to combat terrorism. The Irish Government responded by facilitating the overflight, landing and refuelling of aircraft which it considered were engaged in actions pursuant to Resolution 1368 (2001) and in particular those of aircraft involved in military action undertaken by a coalition of States against Al Qaeda and the Taliban in Afghanistan. The applicant was an Irish citizen who claimed that by assisting coalition forces in this way, Ireland was participating in a war, and that such participation was unconstitutional as it had not been authorized by the Parliament as required

by Article 28.3.1 of the Constitution.3 The applicant argued that principles of international law on the neutrality of States included a well-established principle, reflected in Article 5 of Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 1907, that permitting belligerents or the moving of troops or convoys in or through their territory could not be considered neutral acts and constituted State participation in a war. The applicant denied that Resolution 1368 (2001) justified Ireland's action, because the resolution had not expressly authorized the action in Afghanistan and, even if it had, it could not render an unconstitutional act constitutional

The Government argued that the assistance given to foreign aircraft operating pursuant to Resolution 1368 (2001) did not constitute participation in a war within the ambit of Article 28.3.1 of the Constitution. The Constitution only required the assent of Parliament where a declaration of war had been made or there was participation in a war by the State. The military action in Afghanistan could not be considered a war within the meaning of Article 28.3.1 as it was being conducted with the consent of the legally recognized government of Afghanistan. Further, Article 28.3.3 clearly made a distinction between time of war or armed rebellion and situations of armed conflict such that the existence of an armed conflict did not necessarily equate to participation in a war.

The Government contended that the applicant's arguments concerning neutrality and participation relied on the provisions of Article 29 of the Constitution, which affirmed Ireland's commitment to international law principles in its relations with other States but did not create any enforceable legal rights capable of being invoked by an individual.

Held:The application was dismissed. The applicant had failed to establish in law the existence of a war in Afghanistan and had failed to establish that the relevant governmental decision, and the implementing permissions and facilities granted, constituted participation in a war within the meaning of Article 28.3.1 of the Constitution.

(1) The scope of Article 28.3.1 of the Constitution covered only those situations where a declaration of war had been made or participation in a war was intended by the State. There was no constitutional requirement for Parliament to issue its assent or state a position in instances that did not constitute participation in a war (paras. 679 and 847).

(2) The applicant had failed to establish that the events in Afghanistan constituted a war within the ambit of Article 28.3.1 of the Constitution. A clear distinction existed in Article 28.3.3 of the Constitution between a time of war and a state of armed conflict, which meant that to constitute a war it was not sufficient to demonstrate the existence of an armed conflict. Further, the applicant had failed to establish the existence of any standard recognized legal definitions of war or what constituted war under national or international law (paras. 703).

(3) The applicant's contention that in permitting and assisting the coalition aircraft the respondents had breached international principles of neutrality and thereby performed conduct constituting participation in a war was rejected. Whilst permitting certain activities during a war might jeopardize the neutral status of a State, the loss of neutrality or a failure to comply with international law norms of neutrality did not automatically constitute participation in a war. Such participation had to be objectively established. The Constitution was silent on the issue of neutrality, which was predominantly a question of policy, and the provisions of the Hague Convention on neutrality were not sufficiently established as principles of international law to be included within Article 29 of the Constitution. Article 29 referred to relations between States and confirmed Ireland's commitment to principles of international law; it did not enable an individual to challenge actions under international law (paras. 749).

(4) It was neither permissible nor appropriate for the Court to interpret a resolution of the Security Council. However, any actions by the State found to be unconstitutional could not be rendered constitutional by reason of a Security Council resolution (para. 80).

(5) Decisions as to participation or otherwise in a war were matters for the Government and not the courts. The courts should adopt a highly restrained approach to the question of whether and in what circumstances the executive arm of government should take decisions relating to war or armed conflict or hostilities of whatever nature (paras. 813).

(6) The Orders permitting and facilitating the coalition aircraft to overfly, land and refuel were lawfully and properly made. There was no impermissible delegation of power between the respondents, and the acts in question, as well as the procedures followed in carrying them out, could not be said to be either unlawful or unconstitutional (paras. 8897).

The following is the text of the judgment of the Court:

1. These judicial review proceedings arise in the wake of the terrorist attacks of 11 September 2001 in the United States and the subsequent United States led military action in Afghanistan. On 12 September 2001, Resolution 1368 of 2001 was passed by the Security Council of the United Nations in which it unequivocally condemned the terrorist attacks and expressed its readiness to take all necessary steps to respond to the terrorist attacksand to combat all forms of terrorism. The Resolution called on all states to work together urgently to bring justice to the perpetrators, organisers and sponsors of these terrorist attacks. These sentiments were repeated in Resolution 1373 of the Security Council of 28 September 2001.

2. The affidavit of Mr David Cooney, political director of the Department of Foreign Affairs, sworn on 19 September 2002, outlines the respondents' view of the response to the events which surrounded the military action commenced in Afghanistan by a coalition of States led by the United States. According to that affidavit, the United States, having established links between Al Qaeda and the Taliban regime in Afghanistan, [together with] the coalition launched a military campaign against the Al Qaeda network and the Taliban in that country. The Al Qaeda camps were destroyed and the Taliban overthrown. The international community thereafter established an interim authority in December 2001 which was subsequently replaced by a transitional authority in June 2002.

3. According to the affidavit evidence filed before the court, the response of the Irish Government as to the terrorist attacks in September 2001 and as to Resolution 1368 of 2001 was outlined in a speech made by An Taoiseach in which it was articulated that the State would, in so far as it was necessary, facilitate the overflight, landing and refuelling of aircraft engaged in pursuit of Resolution 1368 of 2001, and this position was duly communicated to Mr Colin Powell, then Secretary of State for the United States.

4. The applicant in these proceedings is seeking to challenge, by way of judicial review, the first respondent's decision to permit aircraft involved in the military action in Afghanistan to overfly the State and/or to land and refuel within the State, without the assent of the Dil. It is the applicant's contention that this assent is required by Article 28 of the Constitution. He also seeks to have struck down the permissions actually granted by the second or third respondents allowing aircraft to overfly the State or to land or refuel within the State.

RELIEF

5. The applicant obtained leave to apply for judicial review on 13 September 2002 by order of this court (Finnegan P). The reliefs sought by the applicant were originally more extensive, but, pursuant to the order of this court, are now the following:

• 1. An order of certiorari removing for the purpose of being quashed the decision of the first respondent to open the airports and airspace of the State to...