The Joint Committee met at 2 p.m. MEMBERS PRESENT: Deputy B. Allen,  | Deputy M. Mulcahy, | | Deputy B. Durkan, | Deputy L. O’Donnell, | | Deputy T. Gregory, | Senator P. Mooney, | | Deputy M. Higgins, | Senator D. Norris. |
In attendance: Senator J. Minihan. DEPUTY M. WOODS IN THE CHAIR. The joint committee met in private session until 2.16 p.m.  Business of Joint Committee.
Chairman: Apologies have been received from Deputy Quinn and Senator Bradford. The minutes of the meeting held on 25 November 2004 were circulated with the agenda. Are the minutes in order? Agreed. Are there any matters arising from the minutes? Deputy M. Higgins: The question of overseas development aid is back on the agenda for the next meeting. Committee members also had a late communication from Hans Zomer of Dóchas. I suggest we combine these issues. Chairman: I believe Mr. Zomer is the chief executive of Dóchas. Deputy M. Higgins: I do not know how the Chairman proposes to handle that communication but we should probably keep it simple and also include the present position on ODA on the agenda for the next meeting. Chairman: Agreed. Geneva Convention: Presentation. Chairman: I welcome Mr. Brendan McMahon from the legal division of the Department of Foreign Affairs. Legislation regarding the protection of civilians and their property in time of war is contained in a number of legal instruments. The one familiar to most people is the Fourth Geneva Convention. Mr. McMahon will outline the provisions of this convention and the other relevant instruments. I thank him for the detailed briefing which he has prepared for committee members and invite him to address the committee. Mr. Brendan McMahon: I propose to run through the briefing document which was sent to the committee earlier today. I do not propose to read it from start to finish. I will paraphrase it as I go along and I will then take questions. As stated, the paper concerns the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 1949. It is one of the four Geneva Conventions which have been ratified by every state in the world and enjoys customary international law status. It should be noted that the international humanitarian law relevant to the protection of civilians and their property during a time of armed conflict or occupation of a territory is contained in a number of legal instruments, the most important of which are the following: the 1907 Hague Convention (IV), encompassing regulations Respecting the Laws and Customs of War on Land; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts — Protocol I. Both the Hague regulations and the additional Protocol I are also seen to enjoy customary international law status. That means it is generally agreed that these have been accepted by the majority of states in the world and therefore enjoy the status of international law. In addition, I referred in the paper to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Some 112 states are party to this convention, the provisions of which are widely recognised as reflecting the principles of customary international law. Ireland has ratified the Geneva Conventions of 1949 and the additional protocol. The Hague Convention, by virtue of its age, has few enough state parties but, as I stated, it is customary international law. It is Government policy to enact legislation to enable the State to accede to The Hague Convention on cultural property and a number of its protocols. Such legislation is being drafted. The issue of the occupation of a territory is central to these legal instruments, particularly to the Fourth Geneva Convention. Article 42 of the Hague regulations of 1907 states: [A] territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
This point is made to emphasise that the motivation of the occupying power or even the legality of the war in question is not at issue. Once authority or control is established, the duties of an occupying power apply. Central to the conventions is the view that the occupying power is authorised only to exercise limited sovereignty on a temporary basis. The law of occupation envisages that this exercise of sovereignty will end. The basic obligations that befall an occupying power include the following: the obligation to restore public order and safety while respecting fundamental human rights; allowing access to food and medical supplies; the maintenance of medical facilities and ensuring public health and hygiene; co-operation with aid and relief organisations; the special protection of children and the protection of property. I will allude to each of these briefly. Article 43 of The Hague Convention requires the occupying power to take all measures in its power “to restore and ensure, as far as possible, public order and safety while respecting, unless absolutely prevented, the laws in force in the country”. A slight qualification is given in Article 27 of the Fourth Geneva Convention, which allows the occupying power to “take such measures of control and security in regard to protected persons as may be necessary as a result of the war”. A basic principle of the law of occupation is the idea of continuity of the legal system. This applies to both civil and penal law. According to Article 64 of the Fourth Geneva Convention, laws may only be repealed or suspended if they constitute a threat to the security of the occupying power, or to the application of the convention. Although Article 68 of the Fourth Geneva Convention permits the death penalty to be imposed by an occupying power, it may well be overridden by the fact that the death penalty has been abolished by more than 100 countries. This is a legal view shared by some human rights NGOs and commentators. On the legal provisions, Article 64 of the Fourth Geneva Convention allows the occupying power to “subject the population of the occupied territory to provisions which are essential to enabling the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power.” The legislative powers conferred by this article are quite limited and would seem to be confined to issues such as child welfare, labour, food, hygiene and public health, orderly government and other matters. Article 65 imposes a common safeguard in most legal systems such that any “penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language.” These provisions cannot be retroactive. Both The Hague Convention and the Fourth Geneva Convention also prohibit collective penalties and other measures of intimidation or terrorism by the occupying power. Under Article 54 of the Fourth Geneva Convention, public officials may not be compelled to stay in their jobs although tribunals may continue to function. The occupying power does have the right to remove public officials from their posts should it see the need to do so. In the absence of a functioning legal system, the occupying power may set up properly constituted non-political military courts. Two means of detaining civilians are allowed in addition to detaining civilians in anticipation of trial for war crimes or other crimes against humanity or other criminal offences. According to Article 78 of the Fourth Geneva Convention, if the occupying power “considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.” The right of the occupying power to impose internment or exercise this right is limited in the convention in that a person who may be interred does have a right of appeal and his appeal should be heard with the least possible delay. There are also detailed provisions in the convention dealing with the conditions under which people may be detained, including in circumstances of internment. In this regard it is appropriate to refer to the protections given in Articles 3, 27 and 31 of the Fourth Geneva Convention. The latter article prohibits physical or moral coercion being exercised against protected persons, in particular to obtain information from them or from third parties. Article 32 prohibits “any measure of such a character as to cause the physical suffering or extermination of protected persons” in the hands of the occupying power. On the transfer of persons from the occupied territory for detention, trial or extradition to other countries, Article 49 of the Fourth Geneva Convention prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country ... regardless of their motive.” This prohibition is different to that pertaining to prisoners of war, who can be removed from a particular territory. Forcible transfers of the civilian population within the occupied territory are also prohibited unless the security of the population or imperative military reasons so demand. There is a duty on the occupying power to facilitate the removal in the case of an imminent danger of conflict. On fundamental human rights, Common Article 3 of the Geneva Conventions sets out a minimum set of guarantees to be respected in all circumstances and at all times. It prohibits the following: violence to life, killing, mutilation, the taking of hostages, outrages upon personal dignities, and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court. Article 27 of the Fourth Geneva Convention stipulates the entitlement of the population “to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs”. This is defined in great detail in the commentary on the convention. It is worth mentioning that women are given special protection against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault. Expectant mothers and mothers of children under seven years are entitled to preferential measures with regard to food medical care and protection against the effects of war. The occupying power has a duty to meet the basic dietary and medical needs of the population, and must ensure that food and medical supplies for the civilian population are brought to people. It must do this to the “fullest extent of the means available to it.” The duty in this regard is expanded upon in Article 69 of additional Protocol No. 1, which specifies the obligations of the occupying power to provide clothing, bedding, means of shelter and other supplies essential to the survival of the civilian population. Common Article 3 provides that the “wounded and sick shall be collected and cared for”. Article 56 of the Fourth Geneva Convention imposes upon the occupying power “to the fullest extent of the means available to it” the duty of “ensuring and maintaining ... the medical and hospital establishment and services, public health and hygiene ... with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics”. If all or part of the population of the occupied territory is inadequately supplied, the occupying power is required to facilitate relief programs for the civilian population undertaken by other States or impartial humanitarian organisations “by all the means at its disposal”. Senator Norris: Could I intervene for a moment, Chairman? This is all extremely valuable and helpful and I thank Mr. McMahon. However, we have approximately 150 pages of this. Chairman: We will not have to go through the 150 pages. I explained that before we started. Senator Norris: I apologise. However, committee meetings and the Order of Business in the Seanad coincide all the time. Chairman: I appreciate that the Seanad unusually began at 2 p.m. which has created a difficulty. Mr. McMahon is giving the committee a rundown on the top briefing document. Mr. McMahon: The requirement to which I referred in regard to humanitarian co-operation does not relieve the occupying power of it own responsibility in this regard. In addition to the duties owed to the civilian population in general, under the Fourth Geneva Convention, the occupying power is required to maintain “preferential measures in regards to food, medical care, and protection” in favour of children under 15 years, expectant mothers and mothers of children under seven. When distributing relief “consignments of essential foodstuffs, clothing and tonics”, priority shall be given to children, in particular those under fifteen. The occupying power must allow the free passage of medical supplies, food and clothing for children, expectant mothers, maternity cases and nursing mothers and must “make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents”. Children are also granted specific rights in Articles 24, 25, 26, 50 and 68, which are set out in page six of the document. Children must be allowed to communicate with their families and all necessary steps shall be taken to facilitate the identification of children and the registration of their parentage. The occupying power may not in any case enlist children in formations or organisations subordinate to it and it may not compel persons under 18 to work. The death penalty may not in any case be pronounced against a person who was under 18 years of age at the time of the offence, which is subject to the qualification which I mentioned earlier that, in view of the merging norm of customary international law, the death penalty is no longer legal. Children are also protected by protocol one against sexual exploitation. Public or private property is generally protected, “except where such destruction is rendered absolutely necessary by military operations”. The “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is one of the grave breaches of the convention. Public property may be seized without compensation if it is defined as movable, such as cash funds, realisable securities, deposits of arms, transport, stores and supplies and all movable property. Munitions of war, whether belonging to governments or private individuals, may be confiscated. Immovable government properties may be used and administered by the occupying power although a rule of law known as the rules of usufruct govern this issue, which is comparable to the position of a trustee where the occupying power can use immovable assets without altering the nature of the property. It is arguable that natural resources such as oil would come under the definition of immovable property. Private property cannot, as a rule, be confiscated although food and medical supplies may be requisitioned, but only “for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account”. The obligation to protect human heritage is dealt with in detail in the Hague Convention 1954, Article 4 of which provides that “... parties undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property”. In regard to the expiry of provisions of the Fourth Geneva Convention, Article 6 stipulates that “the application of the present convention shall cease one year after the general close of military operations”, although a number of important articles, most of which I mentioned in this presentation, will continue to apply as long as the occupation remains. Article 6 may therefore be of less significance than it appears be on first reading. Additional protocol one also refers to its provisions stopping in the case of the termination of the occupation. I have paraphrased the document I sent. I am ready to take questions from the committee. Chairman: I thank Mr. McMahon. This is a very helpful document and Mr. McMahon has given us an excellent summary of what can otherwise be quite complicated documents. Deputy M. Higgins: The document is a valuable resource for the future. It will be very useful for us to know it is there should we seek to return to it again. I join the Chairm an in thanking Mr. McMahon for his assistance in this regard. My motivation for raising this matter and suggesting that we consider it, however briefly, has more to do with issues of compliance by others. For example, at the time I raised the issue with the Chairman, the International Red Crescent, a parallel organisation of the International Red Cross, was being refused permission to distribute necessary medicines, foodstuffs and water. I have met representatives of the International Red Cross at different times in Geneva. I spoke to its country representative the day after one of its senior employees was killed in Baghdad, which was a difficult time. The Irish Government is one of those which supports the Geneva Conventions and the preceding protections of citizens. We are interested in whether the conventions can be implemented and would like to see a report on how that implementations is taking place. During this latest Iraq war, different representatives have, under pressure, referred to the removal of prisoners to Guantanamo Bay from Afghanistan and that they were being held in the spirit of the Geneva Convention, so to speak. To my mind, there is no reading of what Mr. McMahon has summarised that allows for this kind of vague attachment to the convention. He mentioned that countries sign up to the convention and, when the number of signatures reaches a certain number, we agree it becomes part of international customary law. In the case of prisoners who were being held, whom I have instanced, the issue is whether the Geneva Convention was being applied. If so, was it being complied with and with what consequences? An elaborate set of instruments is there for protection. However, we are delivered a situation, such as Iraq, where we are not in a position to give the number of civilian casualties or prisoners held under or outside the convention. Neither are we in a position to say whether the convention was observed in Fallujah or in any other Iraqi city. Surely this is a matter of concern. Article 33 prohibits collective penalties. On what basis can one say, following the invasion of Iraq, every member of the Ba’ath party is disqualified from public service, or service in the defence and police forces or protection agencies? Article 49 deals with mass transfers. Under the terms of this article, a notion of necessary military operations was invoked to transfer the majority of the population from Fallujah. Article 147 is specifically concerned with torture and inhuman treatment. Have the terms of the Geneva Convention been articulated with regard to the situation in Abu Ghraib? Article 27 is particularly relevant with regard to the most recent hostilities as it deals with the concept of honour. Three other articles deal with the concept of the appropriate treatment of women. This raises the issue of the treatment of women prisoners. We are unable to say whether they are held in compliance with articles of the Geneva Convention. We cannot even say whether women are being held at all. Tariq Aziz, a member of the previous administration, is apparently being held somewhere in Iraq. His family are now living in Jordan and received a letter three months ago. Mr. Aziz’s son is seeking information about the state of his father’s health. The Red Cross has a procedure regarding the manner in which it visits prisoners held under the convention. How are we to know? Perhaps the Department could tell us about the Irish Red Cross Society and its relationship with the International Committee of the Red Cross in Geneva and the Red Crescent. The officials could dispose of all my questions by simply telling me the convention’s articles exist only for moral suasion and that the most militarily powerful will do what they like. If that is the case, they must say so. If it is not the case, they must tell me what influence the Department of Foreign Affairs has, or seeks to have, with regard to the vindication of what they so valuably described. Senator Norris: I welcome Mr. McMahon and thank him for his illuminating and scholarly introduction to the meeting. I have a couple of brief and practical questions. My distinguished colleague, Deputy Michael D. Higgins, asked what we could do if the most intensely and militarily powerful country decided to tear up the Geneva Convention. We are speaking about the United States of America. It grieves me to say it is a state which is out of control fiscally, as evinced in the financial markets. The dollar is on the slide and we must pay for the country’s profligacy. It has reneged on international environmental treaties, such as Kyoto, and international conventions regarding chemical and biological weapons. It has reneged on the International Court of Justice. Following the last election, Mr. John Ashcroft, a fairly sinister attorney general, was replaced by Mr. Alberto Gonzales. He gave the White House the opinion that the Geneva Convention need not apply and one could define people out of their human rights by terming them “illegal combatants”, or some other made-up phrase. The United States attorney general is on the record as saying that he can unilaterally tear up the most significant human rights statutes which exist internationally. This is desperately worrying. Mr. Donald Rumsfeld, who has survived in the regime, authorised some of the techniques which were subsequently found to constitute torture. He did not authorise them for Abu Ghraib, but he did for Guantanamo Bay. That is also worrying. I am not exonerating the other side, the so-called insurgents. There would be many insurgents here if Ireland got the same treatment from the US as Iraq. The International Committee of the Red Cross has stated both sides in Falluja have shown absolute contempt for humanity. What can Ireland do? I ask for advice on how we should proceed. I will push this matter in the Seanad, the Joint Oireachtas Committee on Transport and this committee. A Gulfstream jet aeroplane regularly passes through Shannon. Its only known track record is the transportation of people who are frequently victims of kidnap from countries such as Sweden to places such as Jordan, Syria and Egypt. They are then routinely tortured in the presence of CIA officials while medical personnel ensure they are not killed. However, one of these people died in Egypt. This jet plane is leased by US authorities from a private aircraft company. It passed through Shannon Airport ten or 13 times in 2003. An answer was given in Dáil Éireann to the effect that it has not passed through Shannon Airport this year. However, that information is wrong, inaccurate and misleading. The information was given because authorities became so embarrassed by the aeroplane they changed the call sign without notification. On a number of occasions these flights have gone through without any proper notification. Should the Government not investigate the matter? The Garda have been made aware of the situation and complaints have been made by members of the public who have made notes of the aeroplane. I am in possession of information which makes perfectly clear the new call sign refers to a aeroplane with the same chassis number as the original. There is no doubt it is the same aeroplane. An inspector at Shannon Airport has also been made aware of the situation. Proof is required, but how can one get proof without boarding the aeroplane? Is the Irish Government satisfying its legal and moral obligations by allowing this tainted vehicle pass through our airspace, let alone land at Shannon Airport and refuel? This is a serious matter, particularly when one considers Mr. Gonzales’s view of the Geneva Convention. I do not envy Mr. McMahon’s lonely eminence and am not getting at him personally. He is thoroughly professional. However, as a human being, I am filled with outrage and disgust to think it is possible that civilians lay shackled in that aeroplane on Irish soil. I am horrified and disgusted. Unless it is proved not to be the case, I will continue to hammer the point. Deputy Allen: I thank Mr. McMahon for his comprehensive presentation to the committee. We all received the same e-mail regarding the incident to which Senator Norris referred. It came from the Tara Foundation. Senator Norris: I received that e-mail, but I have been pushing the issue for a couple of months. Deputy Allen: Have the contents of the e-mail been investigated by the Department? What information has the Department of Transport? Has there been co-ordination between both Departments on the issue? I am concerned about a reference in Mr. McMahon’s presentation to co-operation with aid and relief organisations. Following the death of Margaret Hassan and the kidnapping of Anetta Flanigan, who fortunately is free, what is the Department’s attitude to the need for a UN convention providing special status for all aid workers? Many Irish workers provide humanitarian, political and development assistance overseas. Is the Government pressing to extend the convention? The United Nations Convention on the Safety of United Nations and Associated Personnel has been in place since 1994 but only 77 states are party to it. Unfortunately several of the states where there are Irish development workers such as Afghanistan and Iraq are not signatories. The second major weakness is that it does not cover all UN operations for the purpose of delivering aid. Is the Department pushing to extend the cover to all aid workers, whether the initiatives are under UN auspices or not? As Deputy Michael Higgins said, compliance is the important issue. There is a strong case for a campaign to get all states to sign up to the convention and to extend its scope. Given our record in this area, we should be to the fore in ensuring that under international law the acts of murder, kidnapping and other attacks that have taken place in recent years are outlawed and that all states are required to make every effort to prevent such attacks and to punish those who are responsible. What is happening at a political level to get special protection for aid workers? Senator Mooney: I thank Mr. McMahon for his presentation. The background documents we received, especially that concerning the 1907 Hague Convention IV on which much of the case law and this presentation are based, makes for interesting reading. It was drafted when the great powers were not ending wars but were concerned with the laws, rights, duties and customs of war. It is a pity the signatories are not all named here as that would be of historical interest. The first chapter on the qualifications of belligerents refers to section 4, which directs them to conduct their operations in accordance with the laws and customs of war. There was no attempt then or since to eliminate war. On what legal grounds does Mr. McMahon believe the US Government operates in Guantanamo Bay outside the terms of the Geneva Convention? There are several references in the convention to belligerents, combatants and non-combatants. Politically, we know why the US Government is doing this. From a legal point of view, is it on shaky ground? Following the invasion of Iraq last year many cultural artefacts were destroyed, and evidence suggests that the coalition forces moved more rapidly to protect oil installations and government buildings than to protect the centres of antiquity, especially the museum in Baghdad, although this did not comply with the Hague Convention. Was this issue raised with the coalition forces? There was major international outrage when this happened and the curators are trying to recover some of the artefacts looted at the time. In summary, my questions concern the sanctions, if any, for non-compliance with the Hague Convention in these matters. Chairman: Deputy Higgins said Guantanamo Bay is being run in the spirit of the Geneva Convention as claimed. The note here states: Persons accused or convicted of a criminal offence must be detained in humane conditions and kept in detention facilities within the occupied territory (Article 76). They have the right to receive visits by delegates of the ICRC. . . . No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.
Article 49 of the Fourth Geneva Convention prohibits, “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country . . . regardless of their motive.” That seems to comment sharply on the situation in Guantanamo Bay. |