Minister's Statement on Sovereign Immunity for Military Aircraft Raises Serious Questions

The question of whether or not the Gardai can inspect US military aircraft at Shannon is something that the various personnel, agencies and services in the Department of Justice and Equality seem to have very different understandings of. The Minister says they can't. The Gardai themselves seem to think they can if there is good reason to. And at least one judge believes they can.

So who's right?

Only last week, on November 5th, the Minister for Justice and Equality, Alan Shatter, said that "the Garda Síochána has no role in relation to the inspection of foreign State or military aircraft which, in accordance with international law, enjoy sovereign immunity." Sovereign immunity prevents a government or its subdivisions, departments, and agencies from being sued without its consent. In other words they are above the law.

The Gardai themselves seem to believe that they have a role when it comes to investigating the action and movement of US military aircraft through Shannon. Granted, they don't do very much by way of investigation, but Shannonwatch clearly recall one occasion when a Garda sergeant at Shannon claimed to have investigated or "checked out" the possibility of weapons being carried by US personnel on board a military aircraft (it was on the 18th February this year). Clearly he wasn't told that he had no role in relation to the inspection of military aircraft.

Indeed the fact that the Gardai continue to accept and record complaints from Shannonwatch and other activists in relation to US military aircraft would indicate that they believe they have a role. Surely if these military aircraft did have immunity from prosecution the Gardai would not or could not process such complaints?

The advice of a judge in Ennis District Court last Wednesday was even more telling. On Wednesday 6th November - which was the day after the Minister said the Gardai had no role in relation to the inspection of foreign military aircraft - Margaretta D'Arcy and Niall Farrell of Galway Alliance Against War were appearing at Ennis District Court. In the course of the hearing Niall raised the fact that there were two US and one Canadian military aircraft at Shannon Airport .The judge said it wasn't relevant to the case but that the appropriate thing to do was to make a complaint to the Gardai. He even suggested that that Niall go to local Garda station in Ennis to do so during the lunchtime recess.

At the Garda Station a Garda accepted the complaint and said he would pass it on to his superiors and to the Gardai in Shannon. In other words he, like the judge, believed that the Gardai had a role in relation to the inspection of these foreign military aircraft.

Arising from all this we have four questions which we want the Minister for Justice and Equality, and his govwernment colleague the Minister for Foreign Affairs, to answer:

1. If the US military aircraft passing through Shannon have sovereign immunity why do the Gardai and the judiciary think otherwise? Why do the Gardai believe they have a role in relation to these aircraft?

2. If military aircraft at Shannon do in fact have sovereign immunity, what exactly does this mean? In particular, what exactly does the Minister mean when he says "in accordance with international law"? [See (1) below]

3. Again, if military aircraft at Shannon have sovereign immunity how does this impact on Ireland's responsibility to uphold international treaties like the Geneva Conventions, the Hague Convention, the Arms Trade Treaty, and the UN Convention Against Torture (which Ireland has ratified)?

4. In addition to the US, what other States or foreign military been granted sovereign immunity?

We await their answers.

(1) In a 2011 article in The European Journal of International Law Vol. 21 no. 4, entitled "Sovereign Immunity: Rule, Comity or Something Else?"  Jasper Finke says "Sovereign immunity is best understood not as a specific rule of customary international law, but as a legally binding principle. If not bound by detailed treaty obligations, states are free to frame and define the scope and limits of sovereign immunity within their legal orders as long as they observe the boundaries set by other principles of international law.

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