Wednesday, 14 February 1962
Dáil Eireann Debate
The purpose of the Bill is to enable ratification by Ireland of the four Geneva Conventions which were concluded on the 12th August, 1949 at Geneva and signed on behalf of this country on the 19th December, 1949. The Conventions came into force in  October, 1950 and already 82 States have ratified or acceded to them. The texts of the Conventions are scheduled to this Bill and members will have seen that they constitute an extensive and clear statement of the humanitarian principles which should be recognised and honoured in time of war. The Conventions are, indeed, at the same time, the greatest single contribution ever made to the laws of war. They will always be associated with the Red Cross, both as to the past and as to the present. The original Geneva Conventions, to which I shall make reference shortly, were concluded under the auspices and impetus of the Red Cross, and the Conventions which we have here are also due, to a very great extent, to the preparation and enthusiasm of the International Committee of the Red Cross in the years subsequent to World War II. The Conventions deal with many interstate obligations but the Red Cross is nearly always concerned in the carrying out of those obligations.
As members are aware, it is our long-established practice not to become a party to any international agreement unless we are in a position to enforce the provisions of the agreement. In the case of most international agreements there is no conflict with our law and we may, therefore, become parties without legislation. Sometimes, however, it is necessary either to change the provisions of our domestic legislation which are in conflict with the terms of the international agreement or, as in the present case, to provide that our domestic legislation is properly equipped to enforce the provisions of the international agreement in question. There is, of course, no conflict between our domestic legislation and the provisions of the Geneva Conventions but we would not be in a position fully to enforce those provisions unless this legislation were passed.
This Bill is not intended to enact into our domestic law all the Articles of the Geneva Conventions—even though the Conventions are fully set out in the Schedules to the Bill. In fact, only those Articles of the Conventions which are specifically covered  in the eight sections of the Bill are brought into our domestic law.
This is the first or “traditional” Geneva Convention and takes the place of the Convention on the same subject concluded also at Geneva on 27 July, 1929. This, in turn, had replaced earlier Conventions in 1906 and 1864. The 1864 Convention was one of the first achievements of the Red Cross, which was then only one year old. Switzerland, a European country, not great in size but, then, as now, certainly great in spirit, acting on a recommendation of the Red Cross Conference of the previous year, called an interstate conference which drew up the 1864 Convention.
The second or “Maritime” Convention, which is very similar in purpose and structure to the First Convention, replaces the Tenth Hague Convention of 18 October, 1907, which had also replaced Conventions of 1868 and 1899. The general principle underlying the Convention is that members of the armed forces, and those assimilated to them, who are at sea and who are sick, wounded or shipwrecked must be respected and protected in all circumstances. Like sick or wounded armed forces on land, they must be treated humanely.
The third or “Prisoners-of-War” Convention is also a development of a 1929 Convention but this latter was the first international treaty on the protection of prisoners-of-war. During World War II, the 1929 Convention provided the basis for action by  the International Committee of the Red Cross on behalf of millions of prisoners-of-war. It made it possible for the Red Cross to carry out over 11,000 camp visits and to have a cardindex on prisoners-of-war amounting to 30,000,000. Particularly in the war in Western Europe and in North Africa, the 1929 Convention was successful. The system of the protecting powers operated extensively, and the International Committee of the Red Cross, working on the basis of the 1929 Convention, was very active.
According as war becomes more and more devastating, there is less and less distinction between its effects on armies, on the one hand, and civilian populations, on the other. The fourth or “Civilians” Convention is the first international treaty of its kind and responds to a long-felt need in positive international law to protect effectively civilians in time of war.
Our law is already adequate to carry out most of the requirements of the Conventions; this Bill will enable us to meet all their requirements fully. The principle purpose of the Bill is to provide for the punishment of “grave breaches” of the Conventions in accordance with Article 49 of the First Convention, Article 50 of the Second Convention, Article 129 of the Third Convention and Article 146 of the Fourth Convention. The following matters are included in the term “grave breaches”: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling prisoners-of-war or other protected persons to serve in the forces of the hostile power; wilfully depriving protected persons of the rights of fair and regular trial prescribed in the Conventions; the taking of hostages; unlawful deportation or transfer or unlawful confinement of protected persons.
 In accordance with the relevant provisions of the Conventions to which I have referred it is necessary that Irish legislation should provide not only for the punishment of “grave breaches” if committed within the country but also if they are committed by Irish citizens or citizens of other countries outside Ireland. This is a new departure in our criminal law but it may be regarded as justified by the gravity and international character of the crimes involved.
Provision is also made for punishment of “minor breaches” of the Conventions. As Deputies will have seen, the Articles in each of the Conventions which deal with the “grave breaches” also make it obligatory for contracting parties “to take measures necessary for the suppression of all acts contrary to the provisions” of the Convention in question. I am advised that this involves the obligation to provide specifically for the punishment of these acts and we are therefore taking this opportunity of so providing. The following are examples of minor breaches: non-burial of persons protected by the Conventions or nonrespect of the graves of deceased protected persons which would be contrary to Article 17 of Convention I, Article 120 of Convention III or Article 130 of Convention IV; non-transmission of correspondence which would be contrary to Article 76 of Convention III or Article 107 of Convention IV; exposing prisoners-of-war to public humiliation which would be contrary to Article 13 of Convention III.
Procedural guarantees are ensured in the remaining sections of the Bill. These relate, first, to the necessity to serve notice on a protecting power regarding the trial of prisoners of war and internees, secondly, an accused person's right to legal representation and, thirdly, appeals. These Articles reproduce to a large extent the provisions of the earlier Conventions to which I have referred and, as far as prisoners of war are concerned, have proved in the past to be of practical advantage to accused persons.
Two Acts have already been passed by the Oirechtas to enable ratification of these Conventions. The Red Cross Act, 1954 and the Prisoners of War  and Enemy Aliens Act, 1956. The purpose of the 1954 Act was to make it one of the primary objects of the Irish Red Cross Society to furnish relief to civilians who are protected persons within the meaning of the Convention relative to the Treatment of Civilian Persons in Time of War and enable internationally-recognised symbols used by certain countries instead of the Red Cross, viz., the Red Crescent and the Red Lion and Sun, to be protected from future unauthorised use in this country. The 1956 Act was intended to provide for the internment and treatment of prisoners of war and enemy aliens so that the conditions of internment, discipline, etc., of such persons should accord with the requirements of the Conventions.
Mr. D. Costello: The steps being taken to ratify these three Conventions meet with approval from this side of the House. A frequent test in the community of nations of the bona fides of a State is the extent to which it is prepared to ratify and accept international conventions.
It is desirable that this country should ratify as many of these international conventions as possible. Whilst it is appreciated that in this case it is necessary to introduce legislation to give effect to the requirements of the conventions, so that they can formally be ratified, I would like to know whether there are other conventions which we would be prepared to ratify but which require legislative sanction of one sort or another and, if there are, I should be glad if the Minister would indicate if it is proposed to introduce legislation so that they may be ratified.
We enact this piece of legislation in the firm hope that we shall never have to implement any part of it. We do so in the firm hope that the circumstances in which these conventions may be required to operate will never arise. In time of war, international conventions are very frequently relegated  to the back of the minds of the participants but, as the Minister pointed out, the work of these international organisations in the past has borne considerable fruit in times of war.
Whilst it is, perhaps, legitimate to be cynical about the expressions that certain States are prepared to utter in times of war, the fact is that these Conventions in the past have helped to ameliorate the lot of people who suffered from the awful effects of war. The working of the Red Cross in this regard is something to which it is proper to give recognition. As the Minister has pointed out, the fact that the Red Cross has helped so admirably so many unfortunate persons in previous conflicts is something to which we should give recognition and approbation.
The only matter of detail to which I should like to refer is the rather wide terms of Section 3 of the Bill which refers to the indictment of persons committing grievous breaches of the Scheduled Conventions. As drafted, the Bill would empower our Attorney-General to approve in proceedings being instituted against any person, whatever his nationality, who committed an offence anywhere in the world in respect of these Conventions. It may or may not be desirable that such a very wide ambit should be given to the enabling part of this legislation but it seems to me that we are introducing a very new and novel concept into our criminal law and I wonder is it necessary for the proper legal status of these Conventions that such wide power should be taken.
Mr. Tully: As the Minister says, this Bill is for the purpose of enabling us to become parties to the 1949 Geneva Conventions. We in the Labour Party would find little, if anything at all, to disagree with in the suggestion that we should now ratify them but there are one or two things I should like the Minister to let me know when he is replying, if the information is available.
Naturally, the provisions laid down in the Bill are highly desirable.  Whether they are going to be much use if there is a nuclear war is a matter which is very doubtful but I suppose we have to take things as they come. The 1949 Conventions replace the 1929 Conventions. I wonder if the Minister would say what countries have subscribed already to the 1949 Conventions? Are there set rules laid down?
Deputy Costello referred to the punishment of people, who might not be in this country, who committed an offence in respect of the Conventions. I should like to know if, in fact, this applies to all other countries that have accepted the Conventions. Can they act in a similar way or are there certain punishments laid down in this country, similar to those obtaining in the countries that have accepted the Conventions?
The only other thing I want to do is to point out that Article 47, Schedule 1, provides that information as to the content of the principles of the Geneva Conventions should be as widely disseminated as possible among military forces and the general public. Would the Minister say if any special arrangements are made to bring this matter to the notice of the armed Forces of this country and of the general public?
My final point concerns the fact that these Conventions were supposed to be signed on 12th February, 1950. I am glad that even at this late stage we have got round to signing them, even if we are 12 years behind time.
Mr. Aiken: In reply to Deputy Costello, I should like just to say that Section 3 which provides that anyone can be tried here for committing grave breaches of the Scheduled Conventions in any part of the world is in accordance with the Conventions. The Conventions lay it down. Therefore, before we can sign them, we must provide by law that it can be done.
Deputy Tully referred to the 1949 Convention and asked how many countries signed it. In fact, I gave the number. I think it was 82. So, indeed, I take it that nearly all the countries that existed until the recent hive of new countries have signed it. One part of the course of training in  respect of our Armed Forces consists of instruction on their responsibilities towards prisoners of war and towards the Conventions that existed up to this time. That covered them.
Mr. Aiken: No, it is part of the general instruction. The officers deal with it very fully at the Military College. They are expected to instruct their men. I would take it that the Irish soldiers would abide by the provisions for humane treatment that are laid down as being obligatory whether it was the law or not. It is only ordinary, common, decent treatment of a person who is in trouble, whether he is a military prisoner or a civilian.
Deputy Declan Costello asked me were there any other Conventions which we were prepared to ratify that we cannot ratify in the absence of appropriate legislation. I just do not know offhand whether there are any such. I will look into the matter. Perhaps, if the Deputy raises the matter again on Committee Stage I will have a reply by that time.
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