Ireland and Iraq: 'Aiding and abetting murder'

The significance of this is simply that Ireland and Mexico were in no doubt but that war would be illegal without a further resolution. At least that was the inference from Peter Goldsmith's letter.

In the motion passed by the Dáil on 20 March 2003 on the Iraq conflict, a clause explicitly recalled: "Ireland's statement as a member of the Security Council on the adoption of Resolution 1441 that it would be for the Security Council to decide on any ensuing action in the event of further Iraqi non-compliance (with UN resolutions)."

In the ensuing Dáil debate, Bertie Ahern referred to divergent legal opinion on the legality of the military intervention in the absence of a second UN resolution. He noted: "The legal arguments in favour of this position have been set out by the British Attorney General, Lord Goldsmith, and have been widely reported in the Irish media". He continued: "I said some weeks ago that a second resolution was a political imperative. In its absence we have to conduct ourselves in a manner which is in keeping with our Constitution and with our interests and we will do so".

So, although he was saying a second resolution was "a political imperative", he was implying it was also a legal necessity, for otherwise what was the relevance of the reference to the Constitution?

He then went on to say we could not participate in this military action – the clear implication being that this was because, in the view of the Government, this was illegal, but we would continue to facilitate this illegal action through the continuance of landing rights at Shannon and permission for overflights.

How facilitating (i.e. "aiding and abetting") an illegal action is not itself illegal has not been explained.

Peter Goldsmith, in that 7 March 2003 letter to Tony Blair, went on to warn him that there was a possibility that a legal action might be instituted by another state, or a body such as the Campaign for Nuclear Disarmament (CND) or by an individual against the British State or against Tony Blair and other ministers personally. For instance an action for murder might be taken. He said there was no certainty that such an action would not succeed.

The same is true here, surely?

An implication of what was said on Ireland's behalf at the Security Council in November 2002 is that military action against Iraq, in the absence of a further resolution, would be illegal. Certainly that would be argued in any proceedings instituted arising from Ireland's facilitation of the war, and there would be plausibility problems were the Government now to argue otherwise.

But even if they did argue otherwise, a court might well find that the war on Iraq was illegal and that the killing of people in Iraq amounted to murder. A court might further find that the facilitating of that war through the granting of overflight permission and landing rights at Shannon amounted to "aiding and abetting" that criminality, that murder, and was itself a crime (it is hard to see how this could be argued against convincingly).

Murder is one of the few offences that can be prosecuted here, irrespective of where it is committed. It follows that aiding and abetting murder could also be prosecuted here, even though the murder was being perpetrated elsewhere.

Where would that leave Bertie Ahern and the other ministers involved in this facilitation of murder?

vincent browne