- The fifteen Germans who arrived in a stolen (or 'borrowed') vessel at Kinsale, coming from St. Nazaire,1 cannot be regarded as entitled here to the treatment which they would have received before Germany's unconditional surrender to the Allies.
Before that surrender, there was a state of war, marked by active hostilities, subsisting between the German Reich and the Allies. Ireland, as a neutral State, had certain rights and still more duties vis-à-vis the opposing belligerents.
At that time our duty to the German belligerent was, strictly speaking, to allow his prisoners of war who had escaped from Allied custody to return freely to Germany, or to the German forces wherever they might be. In point of fact (with regard to German escapees from the Six Counties) we did not attempt to perform this duty.
Now, the war is over as far as Germany is concerned - even though no peace treaty has been concluded, - and Ireland's neutrality has ceased in that connection. Neutral status can only subsist in respect of an actual war between belligerents. Germany, even if the German State still exists (which we are entitled to assume it does), is no longer a belligerent and it is very doubtful indeed if it still possesses an Army.
- It would accordingly be correct to consider the Germans at Kinsale as ordinary aliens who have landed there without our Government's permission which, in the case of aliens coming directly from Europe, is intimated by an Irish visa on a valid foreign Travel document.
Hence, as a matter of purely domestic jurisdiction we have to decide whether or not we intend to expel these aliens and how or where.
- However, although the issue before us is, in great part, a domestic one and quite unconnected with our neutral relations to a German belligerent, it is, unfortunately, not free from international complications. These result from the fact that the men in question were properly (i.e. properly, according to modern standards of international law and morality) in the custody of the French Republic when they evaded that custody to come here.
Also from the fact that the vessel on which they sailed and which is now in our jurisdiction, was (from every point of view) misappropriated.
These considerations must necessarily affect the Government's decision as to the best way of disposing of the men if it is decided to expel them from this country.
- In parenthesis, it should be remarked that the claim of the French Government to the custody of the men cannot be ignored in considering any proposal to allow them to remain in Ireland. A serious diplomatic incident might be created with France, or the Allies generally, if the Government were to permit the men to stay on in Ireland, (whether at liberty or in detention), unless with the full consent of the States to which Germany unconditionally surrendered.
We should, otherwise, have to raise the whole moral issue (the legal one would be almost impossible for us to argue) and we might find it difficult to sustain. The act of near-piracy involved in the mens' 'escape' would render our task still more onerous.
However, this is only in parenthesis. The chief argument against giving the Germans permission to reside here, despite their illegal entry, would seem to lie in the bad precedent such indulgence would create.
Ireland might easily become a refuge for all the displaced persons of Europe with the means of landing unexpectedly here.
- The main question for the Government, once it is decided to expel the men, is the question where they are to be sent.
The Aliens Act 1935 and subsidiary Orders do not prescribe any set rules on this point. All they do is to empower the Minister for Justice to expel aliens, who have landed in Irish jurisdiction, out of the jurisdiction.
The place to which undesirable, or undesired aliens are expelled is a matter of mere convenience.
The procedure is to send them out on the vessel which brought them in or on a vessel belonging to the same owners. Generally, in pre-war days, the country of origin of the alien would have been chosen in preference to the country (other than that of origin) from whence the alien came, simply because the former would be more likely to receive the alien than the latter.
Now that position is clearly reversed. We would find it very troublesome, or impossible, to arrange for the return to Germany of these men whose country of origin it is; but France, the country whence the men admit they came, is probably going to clamour for them.
From our point of view it will be lawful to return the men to either Germany or France, but, of course, every argument of convenience points to France.
- Assuming that the men are to be returned to France, the problem arises as to how their passage is to take place. The Minister for Justice has not the advantage of being able, in this case, to hand over the men to the responsibility of a ship's master as in normal cases of illegal landings. No one was responsible for bringing in the men and so no one can be compelled under the sanctions of Irish law to sail them free of charge (as a matter of fact and comity we always pay) to the port from whence they departed or to their native land.
We might, of course, give the men petrol and food supplies and order them out of the three-mile limit, but there would be grave objections to such a course.
In the first place that would mean conniving at the possible larceny of a French-owned minesweeper and a possible deprivation of services (however 'immoral') to which the French claim they are entitled.
Also the men might refuse to obey and we could not under any existing law of this land compel them by physical threats to obey.
An alternative method might be to fit out the minesweeper to return under escort of a French gunboat. This would need to be arranged with the French Government and, doubtless, the Germans ought be told about it. Such a plan might be unpopular locally, especially if the Germans staged a last-minute protest.
The best scheme would probably be to ask the French Minister2 (or the French Government in Paris) to arrange the whole affair. The French are naturally not bound to help us at all, but, if they want these men returned, it is certainly 'up' to them to co-operate. They may or may not apply to their British ally for assistance (e.g. to take the men via England) but that is their affair rather than ours. In the event of our being unable for one reason or another to send away the men quickly, it will probably be necessary to remove them to an ordinary place of detention. At present they are being detained on the boat - that is, guarded by police and fed at the State's expense on prison rations. If they were to escape at this stage it would be obviously awkward. Also it costs the State much more to look after the men under existing conditions.
