We have a duty to intern US military in Ireland

national | miscellaneous | news report Sunday January 26, 2003 20:55 by Eoin Dubsky - Refueling Peace info at refuelingpeace dot org

"There is little doubt that under international law our duties as a neutral state in a case of hostilities would be to use the means at our disposal to prevent the entry of belligerent military aircraft into our airspace, to compel such aircraft to alight and to intern aircraft and crew." These are the words Con Cremin used considering a request for blanket permission by the US for military overflights.

Mr. Cremin isn't a peace activist or a subversive. He didn't make these comments recently like some cynical politician amidst an ever-more vocal peace movement. The quotation comes from a secret government document on the subject of neutrality, written in 1958 by Mr Cremin, one of the most eminent figures in the history of the Irish diplomatic service.

The term 'neutrality' in international law refers to the legal position of states which don't actively participate in a given armed conflict. It should be distinguished from other uses of the term, for example to describe the permanent status of a state neutralised by special treaty (See 'Documents on the Laws of War' 3rd Edition, p.85).

When Ireland is not participating in a war we have certain rights and responsibilities as a neutral power like every other country.

According to Article 5 of the HAGUE CONVENTION (V) RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS AND PERSONS IN CASE OF WAR ON LAND:
"A Neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory."

Article 2 states:
"Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a Neutral Power".

The Hague Conventions are part of international customary law and our Constitution at Article 29.3 states that "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States."

You'll find the Hague Convention (V) here:
http://www1.umn.edu/humanrts/peace/docs/con5.html

So that's the State's duty... Well we all know how seriously they take that, don't we? International humanitarian law isn't just about states though, and in the past 60 years at least has clearly shown that individuals have international rights and responsibilities in law too. As pointed out in a previous article here ("Blank Cheque: Revisiting Ireland's decision to refuel US warplanes" http://indymedia.ie/cgi-bin/newswire.cgi?id=22825&start=0) many grave war crimes are being committed presently with our assistance.

Below is a portion of the defence used by a nuclear weapons disarmer, Angie Zelter, which relates also to our situation as individuals in Ireland too:

"3. International Law Defence that authorises individuals to act in order to prevent the commission of crimes recognised under international law.

3.0 It is every citizen's right and duty to try and uphold international taw and to prevent war crimes and my acts of disarmament were designed to do just that.
The Universal Declaration of Human Rights as the chief exponent of customary international law with regard to fundamental human rights is of relevance here. The preamble says:- 'The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind shall strive...by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction' [Universal Declaration of Human Rights, 948] The rights then outlined in the Charter are impossible to reconcile with the use of nuclear weapons. For instance to look at just the first Article where we are all asked to act towards one another in a spirit of brotherhood, it is obvious that this is impossible if we threaten indiscriminate mass destruction.

3.1 I therefore have a peaceful privilege, if not duty, under this UN Declaration of Human Rights, to effect adherence by the UK Government and military to this declaration.

3.2 The Nuremburg Charter also authorises me to act in order to prevent the commission of crimes recognised under international law. The International Military Tribunal, faced with the contention that international law provided no punishment for individuals, held as follows: 'That international law imposed duties and liabilities upon individuals as well as states has long been recognised...Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced...The true test, which is found in varying degrees in the criminal law of most nations...is whether moral choice was in fact possible' [Judgement of the Nuremburg International Tribunal, 41 American Journal of International Law 12, at 175, 1947 - Boyle p26].

3.3 This duty derives from Article 8 of the Charter of the International Military Tribunal and Article 4 of the Draft Code which both state, that the fact that the defendant 'acted pursuant to order of his government or of a superior shall not free him from responsibility' in international law.

3.4 Similarly, in the trial of German industrialists for war crimes committed during World War II, the Tribunal stated with respect to private individuals, 'International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done be an officer of the government are criminal when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is no novelty' [The Flick case, VI Trials of War Criminals, 1952 - p.237 Boyle]. Let me remind the court that German businessmen who provided the Zyklon B gas that was used in the gas chambers in Nazi Germany were eventually found guilty and sentenced to death for their breaches of international law [the Zyklon B Case, Law Reports of Trials of War Criminals vol 1 p93, London 1947].

3.5 We contend that if international law punishes individuals for complicity in the commission of war crimes, crimes against peace, crimes against humanity and offences against the peace and security of mankind, by inference, international law must authorise acts taken to prevent those crimes. To go back to the German industrialists who were found guilty after they had helped to kill thousands of people, it is quite obvious that any individual who had tried to prevent the gas from reaching the chambers, even if she had caused some property destruction, would have been acting lawfully.

3.6 Justice Jackson, Chief Prosecutor in the 1945 Nuremburg War Crimes Trial, clearly establishes that the Nuremburg Principles binds citizens, 'The very essence of the Nuremburg Charter is that individuals have international duties which transcend national obligations of obedience imposed by the individual state' [6 F.R.D. 69, 110, 1946 - p.237 Boyle].

3.7 The Tokyo War Cries Tribunal went so far as to declare, 'Anyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent the commission of crimes' [Tokyo War Crimes Trial Decision. p.237 - Boyle].

3.8 I thus had a duty to take affirmative action under international law, the reasonable exercise of which made my disarmament action lawful. Accordingly, I contend that under international law I have a positive duty to take such steps as are reasonable and necessary to prevent the commission of war crimes and other violations of international humanitarian law and that this duty is supreme vis-a-vis the domestic law of any state, which includes Scotland.

3.9 If the principle of individual responsibility for offences against international law or complicity in those offences, does not infer a positive duty to act to prevent them, it must at least imply a right to take such steps as are reasonably calculated to bring about that end.

3.10 The ICJ has confirmed that the Nuremburg Charter applies to nuclear weapons, thus it is my right, if not my duty, to uphold the law relating to nuclear weapons and of military personnel to obey it even if given a contrary order by a superior or by his or her national government [Advisory Opinion of the ICJ, 80].

3.11 Therefore I had a right, if not a duty, to try to uphold international law and prevent grave breaches of international humanitarian law by attempting to enter Faslane Base with the intention of disarming Trident.

3.12 I therefore ask the court to acquit me under international law on the ground that I was trying to prevent grave breaches of international law."

[ Full text: http://www.tridentploughshares.org/legal/dzelter.html ]