The Government is required under the Constitution to determine the US-led war in Iraq is founded on "international justice and morality" before providing facilities to the US military at Shannon Airport, the High Court heard today.
Mr Edward Horgan, a retired army commandant with an address in Co Limerick, told the court the Taoiseach had made a "grossly misleading" statement to the Dáil on March 20th suggesting the use of Shannon was part of a practice stretching back over 50 years.
Mr Horgan said documents he had procured from the national archives suggested this was not the case and overflights and landing facilities were previously granted on a very limited basis.
He believed, as a result of how the Taoiseach had represented the position in his statement to the Dáil, it was open to debate whether the Dail had in fact supported the activities at Shannon.
The facilities being given to the US now represented "the most fundamental and far-reaching change in national policy in relation to the State's practice in time of war in the absence of an express request for assistance from the UN Security Council", he told the court.
Mr John Rogers SC read affidavits from Mr Horgan today opening the former officer's challenge to the Government's permitting of overflights, landings and refuelling of US military aircraft at Shannon Airport. The court heard more than 33,000 US troops have used Shannon en route to the war in Iraq since January 1st.
Mr Rogers outlined three central points in the case - that the activities at Shannon constitutes participation in a war for which the required Dail assent under Article 28 has not been given; that the war is in breach of the provisions of Article 29 asserting Ireland's adherence to the peaceful settlement of international disputes and that the war is in breach of customary international law regarding the duties of neutral States.
In its defence to the action, the Government and State plead the activities at Shannon are a continuation of similar activities sanctioned over the past 50 years. They say the Government decision of March 19th last permitting the activities at Shannon was a decision to maintain the "pre-existing" arrangements and has not exposed Mr Horgan to grave or any other danger from reprisal.
They also argue the court should not determine whether the military action being conducted by the US and others in Iraq does or does not constitute a just war.
They "do not admit" that the actions against Iraq constitute an unjust war; breach the Charter of the United Nations; are unauthorised by the UN Security Council; breach international law and/or are not an act of self defence.
They plead that the provisions of Article 29 relating to the conduct of the state in its relationship with other States does not confer any rights on individual citizens.