Tuesday, 18 November 2008
Dáil Eireann Debate
This amendment simply deals with the coming into operation of the Bill. I do not propose to delay very long on some of these amendments but I will concentrate on substantive ones of definition. It is interesting that on Committee Stage the defence of the text as it remains is that it is a convention relating to drafting. I have a more conservative view, which is that the decision of the Houses of the Oireachtas should be responsible for the final definition of the text.
Minister for Foreign Affairs (Deputy Micheál Martin): We had a discussion on this on Committee Stage. It is not just about parliamentary convention but as the Deputy knows, it has arisen from important practical reasons, such as the need to take cognisance and make necessary administrative and other arrangements before an Act can be properly implemented. In the present case, Defence Forces training manuals must be adapted to take account of the State’s new obligations under the convention on cluster munitions. That convention is not yet in force and Article 17 provides it will enter into force only six months after the 30th instrument of ratification has been deposited.
It is my intention to commence most parts of the Bill straight away, namely Part 1, preliminary and general; Part 3, anti-personnel mines; Part 4, investment of public moneys; and Part 5, penalties and miscellaneous provisions. I also intend to commence Part 2, cluster munitions, as soon as possible. It is the Government’s intention that we should ratify the convention immediately after it has been signed on behalf of Ireland in Oslo on 3 December, making us one of the first countries in the world to ratify it, a clear demonstration of our commitment to early entry into force of the convention. However, entry into force will only take place six months after the 30th instrument of ratification has been deposited, so we will be doing everything possible to encourage as many states to ratify it as soon as possible.
Deputy Michael D. Higgins: It was not my suggestion that the Minister would be dilatory in regard to either ratification or the bringing into existence of such administrative procedures as would expedite the delivery of the legislation. I was simply making a point in regard to any further legislation or in principle on any other legislation. It is my belief that we are incapable of finitude in regard to text and legislation. I agree with the Minister’s sense of urgency. It is one on which he has my support. I am not disposed to press the amendment, the point having been made. That is a principle I will follow in other legislation, where appropriate.
The amendment relates to the definition of anti-handling devices. It is a matter we discussed on Committee Stage and on which there remains a difference. For the sake of economy and brevity I hope to make the fundamental case. It is that something that has the consequence of being an anti-personnnel device — in the short term, medium term and long term — should be considered entirely from the point of view of the victim. I cannot accept that there is a category of anti-personnel device that is somehow or another mitigated in terms of its consequences or impact.
We discussed the matter on Committee Stage and I do not intend to delay the House with arguments that have been made previously. The matters that are covered by amendments Nos. 2, 5 and 9 are the outcome of a consensus that was established in a declaration, which I welcome as a considerable advance. The argument is whether one should confine oneself to that or not. The argument was made therefore as to whether if one goes beyond the consensus one is somehow or another guilty of an absence of goodwill. Two countries that will soon be signatories along with us to the convention are Belgium and Austria. As I understand it, they have legislation that goes beyond the frame of the convention. Their legislation could be construed as a complete ban on all munitions without the distinction of them being anti-handling or otherwise. I am interested in something quite simple. I see in the suggestion of the accommodation on anti-handling devices that technology has somehow or another mitigated the moral argument.
Amendment No. 5 concerns the deletion of lines 42 to 46 relating to the definition of an anti-personnel mine. I am interested to hear the Minister’s reply to amendment No. 9. Again, it was an issue that was raised on Committee Stage. The amendment calls for the repeal of section 30(1)(e) of the Defence Act 1954, which gives the power to the Minister for Defence to “lay mines”. It was my belief that it would be easier to repeal that section or make a request to repeal that aspect of the Act.
I see that list as a mitigation of a total ban, which is the main purpose with which I am dealing. For example, section 2(1)(c) states: “a munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:”. A general point arises as to whether in fact the available scientific and technical knowledge is able to specify a discrimination or whether one can put a fence around indiscriminate consequences. Section 2(1)(c)(i) states, “each munition contains fewer than 10 explosive submunitions;”. In order to save time later, if in fact one says the argument is that one uses nine cluster munitions and the first is successful in terms of achieving its target, what then happens to the other eight?
I have considered the matter since Committee Stage in terms of what the NGO sector started out with and what it ended up with. I accept the Minister’s good faith on what he is seeking to achieve but I am anxious to go further in terms of having our legislation in such a way that it provides the maximum protection. Perhaps the most horrific consequences are ones that occur long after the immediate conflict has taken place. We must consider whether the technical definition provided offers the protection we want in the immediate sense or consequent to conflicts. I am in favour of the more simple total prohibition on all anti-personnel missiles on the basis that it is stronger. I am not convinced by the suggestion that one can have such a sophisticated missile that it knows its intention is aimed at a tank and, given the possible success of one missile out of nine that the remainder should not therefore damage civilians. That is the crux of what remains in terms of Report Stage amendments.
Deputy Micheál Martin: I debated the issues with Deputy Higgins on Committee Stage. Section 2 makes provision for the interpretation of key terms as defined in the conventions on cluster munitions and the ban on anti-personnel mines. The key issue is consistency with what has been negotiated with all the other states. The success of the Dublin convention was the fact that up to 114 different countries arrived in Dublin and we managed to reach an agreement. If different states were to define these key terms in their domestic legislation in different ways, co-operation between the parties to the convention would become extremely complex and would inevitably frustrate future coherent implementation of the convention itself.
The area of definitions was one of the most difficult in agreeing the convention. It is important that when we are negotiating with other states that we demonstrate our bona fides subsequently. It could cause considerable difficulty in the future when one is working with like-minded states to develop international conventions on other issues. If, subsequently, each member state does its own thing there would be a breakdown in terms of collegiality and the sense of confidence that is necessary when like-minded states work together.
The impact of the amendment would be to blur the distinction between an anti-personnel mine and an anti-tank mine equipped with an anti-handling device. The first is prohibited by the anti-personnel mine ban convention, while the second is not. In essence, there would be an undesirable level of uncertainty concerning anti-tank mines equipped with anti-handling devices if we were to accept the amendment.
Let me return to the fundamental point. Applying standards in our laws that differ from those being adopted by other states party to the convention would risk, at best, severely complicating international co-operation in the implementation of the convention. As I stated on Committee Stage, of equal importance is the fact that the proposed amendments would effectively prevent the Defence Forces from participating in peacekeeping or other similar missions with almost any other country, whether it was a party to the convention, because we would have implemented a different standard of prohibition. The prohibition relates not just to the use of the defined munition — in this case, an anti-personnel mine — but also to assisting any other country that might use it. If the Irish definition is different from the agreed convention definition, other countries may very well be using a munition prohibited under Irish law but permitted by the convention. The purpose of the convention is, conversely, to standardise prohibitions.
On the proposed repeal of section 30(1)(e) of the Defence Act 1954, I have consulted the Minister for Defence, as I said I would do on Committee Stage. His position is that he cannot accept the amendment. The provision concerned is an enabling one only permitting the Minister for Defence to lay mines. However, it must be exercised in accordance with the State’s international legal obligations, including the anti-personnel mine ban convention, the convention on certain conventional weapons and the Geneva Conventions.
The term “mines” in the 1954 Act is not restricted to anti-personnel mines but includes anti-tank mines and sea mines. The laying of any of these mines may only be done in accordance with applicable international law. In the case of anti-personnel mines, that means only for the purpose of training in mine clearance techniques, in accordance with the provisions of the convention. Moreover, repeal of the section would raise doubts as to the lawfulness of laying any mine because the statutory power to do so would have been distinguished. This, in turn, would greatly complicate the ability of the Defence Forces to train for clearance and destruction, among other purposes. That is the rationale for not accepting the amendment.
Deputy Michael D. Higgins: The Minister has encouraged me to stray from the particular to the general on this matter. However, I will first refer to amendment No. 9. On the Minister’s last point, when he is reviewing the Explosives Act 1875, at the base of our current legislation on landmines, he might consider the 1954 Act. One cannot have it both ways in regard to interpretation. We can leave this amendment aside as it is the least contentious.
On the other two amendments, the issue that arises is that the Minister has chosen to extend the grounds of his objection to my amendments to the general. In the case of the landmines legislation considered when the Leas-Cheann Comhairle and I were Cabinet members, the decision of the then Tánaiste was to establish a template of legislation and seek consensus within it. In this particular case the consensus falls short, to some extent, of the lead given in some of the Belgian and Austrian legislation. I do not accept the Minister’s principle. My interpretation is actually the better one of trust between nations in their recognition of the consensus established at the heart of their own legislation. It involves a rather minimalist and pejorative view of diplomacy to suggest that, because one has an external frame or agreement, excellence is achieved by remaining strictly within it. It is equally evident from the history of diplomatic achievement that when one includes the agreement and transcends it, one is retaining forward movement for the defence of civilians.
The Minister has associated this group of three amendments with the question of interoperability. On Committee Stage I was very much interested in hearing the guarantee he was giving. His reply on having a different definition from that of other countries leads to a different consideration.
Deputy Micheál Martin: ——the modus operandi by which it was achieved is, by definition, deserving of commendation. Consider the consequences if, as a Minister, I agreed with ten other Ministers on the standard to be set and two or three of the countries, for example, had a difficultly. In the case of the United Kingdom, the Prime Minister, Mr. Gordon Brown, intervened personally to enable the United Kingdom to agree to the convention. I am not so sure countries would be so willing to agree if they found out the following month that those states with which they were agreeing took a different approach to them, thus putting them under more pressure. If one adopted a collegial approach but then adopted a new approach on reaching agreement, parties to the agreement would feel “once bitten, twice shy” in respect of engaging with one again. One can argue the point both ways; one can be in splendid isolation for 20 years by adopting a certain view on a matter or one can seek to create a standard. The ultimate success of the convention will depend on the stigmatisation of the weapons. The convention creates the momentum for that stigmatisation, such that even those who have not signed up to it will be dissuaded from using the weapons.
There is a difference between an anti-handling device and an anti-personnel mine. I recognise it, although I am not a military expert. Those who worked on the convention made this distinction. In the Bill, we are remaining faithful to the definitions agreed and on which we sought agreement while chairing the convention process. I would not be disposed to straying from what we signed up to in a bona fide way.
Deputy Michael D. Higgins: It is unfair of the Minister to suggest I am arguing for a position of splendid isolation. Far from it, it is a question of adequacy in what we are seeking to achieve. We differ regarding the construction of the consensus achieved. I share the Minister’s view on stigmatisation, which is what we should seek in regard to those states which use the weapons in question. An issue arises as to the sufficiency of moral suasion to urge non-signatories to sign up to the convention.
Consider my view on foreign policy construction as a choice between idealism and the view that the following of interests should prevail. I have held a different view on this from others, including such distinguished ministerial predecessors as Dr. Garret FitzGerald. When the history of Irish policy is written, we will find policy has been more damaged by excessive concentration on interests than principles. We would note this in the history of the Department if we were considering the detailed history of the preparations for the Treaty on the Non-Proliferation of Nuclear Weapons and other treaties. There is a genuine difference but I am not arguing for splendid isolation, rather I am arguing for encouraging people to raise the bar. Those who argue against my position are more pessimistic in regard to the goodwill evident for the achievement of a general ban.
|Ahern, Dermot.||Ahern, Michael.|
|Ahern, Noel.||Andrews, Barry.|
|Andrews, Chris.||Ardagh, Seán.|
|Aylward, Bobby.||Bannon, James.|
|Barrett, Seán.||Behan, Joe.|
|Blaney, Niall.||Brady, Áine.|
|Brady, Cyprian.||Brady, Johnny.|
|Browne, John.||Burke, Ulick.|
|Byrne, Catherine.||Byrne, Thomas.|
|Calleary, Dara.||Carey, Joe.|
|Carey, Pat.||Conlon, Margaret.|
|Connaughton, Paul.||Connick, Seán.|
|Coonan, Noel J.||Coughlan, Mary.|
|Crawford, Seymour.||Creed, Michael.|
|Creighton, Lucinda.||Cuffe, Ciarán.|
|Curran, John.||Deasy, John.|
|Deenihan, Jimmy.||Devins, Jimmy.|
|Dooley, Timmy.||Doyle, Andrew.|
|Durkan, Bernard J.||Enright, Olwyn.|
|Finneran, Michael.||Fitzpatrick, Michael.|
|Flanagan, Charles.||Flanagan, Terence.|
|Fleming, Seán.||Flynn, Beverley.|
|Gallagher, Pat The Cope.||Gormley, John.|
|Grealish, Noel.||Harney, Mary.|
|Haughey, Seán.||Hayes, Brian.|
|Hayes, Tom.||Healy-Rae, Jackie.|
|Hoctor, Máire.||Hogan, Phil.|
|Kehoe, Paul.||Kelleher, Billy.|
|Kelly, Peter.||Kenneally, Brendan.|
|Kennedy, Michael.||Kenny, Enda.|
|Kirk, Seamus.||Kitt, Michael P.|
|Kitt, Tom.||Lenihan, Brian.|
|Lowry, Michael.||McEllistrim, Thomas.|
|McEntee, Shane.||McGinley, Dinny.|
|McGrath, Michael.||McHugh, Joe.|
|Martin, Micheál.||Mitchell, Olivia.|
|Mulcahy, Michael.||Naughten, Denis.|
|Neville, Dan.||Ó Cuív, Éamon.|
|Ó Fearghaíl, Seán.||O’Brien, Darragh.|
|O’Connor, Charlie.||O’Dowd, Fergus.|
|O’Flynn, Noel.||O’Hanlon, Rory.|
|O’Mahony, John.||O’Rourke, Mary.|
|Perry, John.||Power, Seán.|
|Reilly, James.||Ring, Michael.|
|Roche, Dick.||Ryan, Eamon.|
|Sargent, Trevor.||Scanlon, Eamon.|
|Sheahan, Tom.||Sheehan, P. J.|
|Smith, Brendan.||Stanton, David.|
|Timmins, Billy.||Treacy, Noel.|
|Varadkar, Leo.||Wallace, Mary.|
|White, Mary Alexandra.||Woods, Michael.|
|Broughan, Thomas P.||Burton, Joan.|
|Costello, Joe.||Gilmore, Eamon.|
|Higgins, Michael D.||Lynch, Ciarán.|
|Lynch, Kathleen.||McGrath, Finian.|
|Morgan, Arthur.||Ó Caoláin, Caoimhghín.|
|Ó Snodaigh, Aengus.||O’Shea, Brian.|
|Penrose, Willie.||Quinn, Ruairí.|
|Rabbitte, Pat.||Sherlock, Seán.|
|Shortall, Róisín.||Stagg, Emmet.|
|Tuffy, Joanna.||Upton, Mary.|
It is not necessary to delay the House with this amendment because I made arguments on the definition in our discussion of the previous amendments. Amendment No. 3 which would have the effect of deleting section 2(1)(c) calls into question the provision which would exclude from the definition of “cluster munition” a munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has a number of characteristics, which are listed. I have made my case on this issue.
I acknowledge that the House has accepted the argument that, as far as this Legislature is concerned, that which has been agreed is the substantive matter to be addressed in this legislation. Nevertheless, it behoves those who accept the inclusion of section 2(1)(c) to technically validate its provisions. For example, while the inclusion in the list of ammunition containing fewer than ten explosive submunitions is an achievement in so far as it is some limitation, it leaves open the question I put about whether technology can answer the question as to the discriminate or indiscriminate nature of the remaining nine explosive devices in the event that the first submunition explodes successfully. The issue of weight, on which neither me nor the Minister claims to be an expert, also arises.
I wish to dispose of the view that I hold an idle, idealist position. We have had that argument. If the text is retained, a straightforward argument could be made that the provisions of the Bill are what it was pragmatically possible to achieve. While I can accept this, it does not refute the argument that it would have been better to have a complete ban without the exceptions listed in section 2(1)(c). It is, if one likes, a moral and epistemological question as to how one defines an exception. An exception does not defeat the principle.
Deputy Micheál Martin: Under no circumstances do I perceive the Deputy’s position to be one of an idle idealist. He has been committed to and active in this entire process. On the other hand, I would not describe the standards in the definitions achieved as minimalist. They are comprehensive and of a high order. The definition of what constitutes a cluster munition was, as we know, one of the difficult issues encountered during the negotiations in Dublin. The guiding principle was to reach agreement on the prohibition of all cluster munitions that caused unacceptable harm to civilians. The definition, as set out in the Bill, reproduces the one agreed in the negotiations. It is comprehensive and meets the objective of prohibiting all cluster munitions that cause unacceptable harm to civilians. The convention prohibits all types of cluster munitions that have ever been used in an armed conflict. Following proposals made by the Government, it also prohibits explosive bomblets specifically designed to be released from dispensers of fixed wing aircraft in the same way as cluster munitions. This is an extremely important provision which closes potential loopholes created by new technologies.
As the Deputy said, in terms of our discussion on the last set of amendments, there is the issue of consistency in applying the standards we have agreed with like-minded countries. We would risk severely complicating international co-operation and implementation conventions, particularly in the context of international peacekeeping operations. The Defence Forces have to work with the armies of other states in peacekeeping missions. At worst, we could make it impossible for them to engage in such missions.
The convention sets out the standards agreed by all states involved in the negotiations. If each state, in turn, were to apply different standards in its domestic laws, the convention would be unworkable. We had this debate on Committee Stage and while I appreciate the Deputy’s viewpoint and perspective, I am not disposed to accept the amendment for the reasons outlined.
On Committee Stage the Minister, in relation to amendment No. 7, made a helpful statement by way of clarification as regards the circumstances that would govern co-operation between Irish and other forces. My reason for retaining the amendment, however, was my concern that the protection in place referred to criminality liability on the part of a serving officer. To some extent, it did not address the fundamental issue as to whether such munitions should be used in the first place. The question of the strength of an assurance then arose as regards a co-operating force involved in a shared action and the degree to which one should ask such a question. It is interesting because, without upsetting too many people, I am convinced by the international legal opinion that is so overwhelming as regards another matter, namely, the inadequacy of international assurances in relation to compliance, say, in the UN convention against torture. That is my view for consideration on another day, but in exactly the same manner I am thinking about the discourse that should govern those co-operating in a particular situation as to what assurances should be sought and given from one side or another. The Minister went a considerable way on Committee Stage in acknowledging what was, in fact, the substance of amendment No. 7. It is less so in the case of amendment No. 4. I am interested in his reply.
Deputy Micheál Martin: We considered amendments No. 4 and 7 on Committee Stage. The effect of both would be to prevent the participation of the Defence Forces in peacekeeping operations with countries that may not be parties to the Convention on Cluster Munitions. They would affect the provisions of the Bill concerning inter-operability, dealt with in Article 21 of the convention and section 7 of the Bill. As I said during the course of the Second Stage debate on the Bill, Article 21 of the convention was the most difficult to resolve in the negotiations at Croke Park, an agreement was only reached literally at the last moment. Given the importance all Members attach to Ireland’s continued involvement in international peacekeeping operations, it would be useful if I were to go into some detail on Article 21 and the provisions of section 7 which will implement it.
Article 21 states, “States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not parties to this Convention that might engage in activities prohibited to a State party”. This provision takes account of the fact that, at least initially, not all states will be parties to the convention and that some may continue to retain cluster munitions. This was a particular concern of members of NATO, for example, because the United States had been clear in its opposition to the Oslo process. When considering Article 21, it is important to note that each state party is obliged to encourage states not party to the convention to become a party to it and, where it engages in military co-operation or operations with these states, to notify them of its obligations under the convention, promote the norms established by the convention and make its best efforts to discourage them from using cluster munitions.
Article 21 does not specifically authorise a state party to develop, produce or otherwise acquire cluster munitions; to stockpile or transfer cluster munitions; to use cluster munitions; or to expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control. We believe the convention’s prohibition on cluster munitions will, in time, as I said, become established as a new norm of international humanitarian law. This will happen when states begin to feel obliged to behave in accordance with it, regardless of whether they are parties to it. As we know, it has happened very successfully in the context of the anti-personnel mine ban convention, even though a number of states which now observe its norms are not party to it. We will tend to work internationally with our partners to ensure the Convention on Cluster Munitions will have a similar effect.
Article 21 is implemented by section 7 of the Bill, of which subsection (4) provides for particular circumstances that may arise in relation to the participation of members of the Defence Forces in peacekeeping missions with states which are not parties to the convention. As I said both on Second Stage and Committee Stage, we expect the likelihood of participation in missions such as this to be very low. Section 7(4) provides that on such admission, a member of the Defence Forces shall not be guilty of the offence of assisting, inducing or encouraging the commission of any of the offences created by section 6(1) of the Bill. However, if he or she does any of the political things prohibited — use, develop, induce etc. — he or she will be guilty of an offence. That subsection (4) is intended to address only exceptional and very unlikely circumstances such as where an Irish contingent of a UN-mandated peacekeeping force, for example, finds itself under attack and needs to call for support, either from the air or land-based artillery, to relieve it. It may happen that fire support is provided by the forces of another state participating in the mission which is not a party to the convention and it is conceivable that it might be delivered without the knowledge of the Irish contingent in the form of cluster munitions. The Bill provides that in such a scenario no member of the Defence Forces could be prosecuted for inducing or encouraging the use of cluster munitions contrary to section 6(2) of the Bill.
I have to emphasise, as I did on Committee Stage, that everything possible will be done to avoid such a scenario. As I said during the Second Stage debate, our preference in considering contributions to peacekeeping missions will be to join with states that are parties to the convention. In such circumstances the question of inter-operability with states not party to it will not arise. However, even where we define ourselves as a member of a peacekeeping mission that includes the armed forces of a state not a party to the convention, every effort will be made, in the elaboration of codes of conduct, rules of engagement, caveats and similar agreements, to ensure there is no prospect of cluster munitions playing any role. Therefore, it is highly unlikely that section 7(4) will ever apply. However, all Members of the House will agree on the importance of ensuring no member of the Defence Forces should ever face prosecution for simply carrying out his or her duty as a member of a peacekeeping mission.
The important principle of peacekeeping and having a set of absolute conditions for the protection of Irish personnel are issues which affect me. I do not want to put into text something which would have the consequence of impairing the capacity to respond quickly or be part of a peacekeeping force, or in exceptional circumstances endangering serving Irish personnel. I made the point on it and the Minister’s assurances given on Committee Stage and Report Stage are very strong, and in those circumstances I withdraw this amendment.
Deputy Billy Timmins: I understand Deputy Higgins’s position and it is very honourable. With the passing of time such an amendment may not be necessary. It is important to remember that regarding cluster munitions or other weapons, beauty is in the eye of the beholder, and if the weapon is used in a defensive position it can be quite productive and progressive. Taking on board the point the Minister has made and the potential impact this would have for our peacekeeping forces, and from a pragmatic point of view, it would not be possible for me to support the amendment.
Deputy Micheál Martin: It is an “Ar eagla na heagla” amendment. I understand Deputy Higgins’s point but we need to have balance and ensure our forces can participate in peacekeeping without inadvertently being prosecuted for something of which they had no prior knowledge.
Deputy Michael D. Higgins: In withdrawing this amendment the Minister is establishing a political moral context in which an operational decision would be taken. None of us in the House would suggest it is a mere matter of operational decision making outside another context. The Minister has supplied context on Committee Stage and Report Stage and I am happy to accept that on the understanding it is what would govern decision making.
We do not need to delay on this. The purpose of this amendment is to extend the extra territorial scope of the Bill to ensure offences by or against Irish citizens are prohibited. The legislation as amended on Committee Stage lists a number of parties and this amendment extends it to the citizen.
Deputy Micheál Martin: We discussed this. Section 6 of the Bill creates certain criminal offences regarding cluster munitions and explosive bomblets in accordance with the obligations the State will assume under the Convention on Cluster Munitions. Section 9 creates similar offences for anti-personnel mines and both provisions extend the jurisdiction of the State for these offences beyond the territory of the State to acts committed on board Irish registered ships or aircraft, or committed by members of the Defence Forces. This is in accordance with the established principles of international law.
The Deputy’s proposed amendments as I said on Committee Stage would further extend the jurisdiction of the State to cover cases in which the perpetrator of the act is an Irish citizen. My advice is that as a matter of legal policy Ireland has only ever extended criminal jurisdiction in such a manner on a very limited basis. This is primarily because of the large number of Irish citizens around the world, many of whom have dual nationality.
Accordingly, the State has been very conservative is exercising jurisdiction on this basis and has only done so where there is broad international consensus on the character of activity concerned, such as murder, manslaughter and certain sexual offences involving children. It would be very problematic to extend the State’s criminal jurisdiction over acts that are lawful if committed in another state of which the perpetrator is a citizen. An Irish citizen with dual citizenship could be serving in the US army and commit an act that would be legal in a state not party to the convention, yet we would seek to prosecute.
The main focus of Deputy Higgins’s amendment was to try and target mercenaries. Irish citizens may participate as mercenaries in armed conflict outside the State. We considered the issue of mercenaries between Committee and Report Stage and it is a wide and complex issue. In general terms the status of mercenaries is governed by the first protocol additional to the Geneva Convention which provides that mercenaries shall not have the right to combatant status. In practice it is open to a party to an armed conflict to accord a mercenary combatant status. A person granted combatant status is not subject to criminal prosecution but is entitled to prisoner of war status if captured. If not granted such status a person will come within the criminal jurisdiction of the state on whose territory he or she acts. There are complexities involved and we know some states use mercenaries. It is an issue that falls outside the specific scope of this Bill and we are not in a position to accept the amendment because of this reason.
Deputy Michael D. Higgins: At the end of my discussion on a related amendment on Committee Stage I introduced the question of the position of mercenaries, and I had a particular reason for that. I can see the goodwill of the Minister towards the spirit of my amendment but he is unwilling to accept it due to difficulties in implementation.
The use of the position of non-combatants in the Geneva Convention is not helpful. It is a strategy employed by the Government of the United States to handle many people who are deprived of the basic elements of the protection of international law in Guantanamo Bay. It is also something related to operability in the field, the wearing of a uniform and what constitutes a uniform, and Deputy Timmins would know of the application of that part of the Geneva Convention. It is an area of discussion that may belong to a different occasion.
I am interested in the consistency between the point I am arguing in this amendment and what I argued on the control of exports as it governs military equipment. I did not succeed, but I made a case for the importance of securing information on end use and argued that if something is used in a military way, one takes responsibility for its final usage. As one looks at what is produced it floats out of control and moves into an unaccountable area.
I am not going to dwell on this, but not so long ago I was in Karamojo, northern Uganda where once people were cattle rustlers and used spears, but now in the marketplace people are buying and selling guns. There are no places producing armaments on the continent of Africa, but they have been introduced as instruments of death. I appreciate this might not be the place to do what I was trying to do with my amendment, to cast the net so wide that anybody who ever participated in transactions involving departures from the spirit of this legislation would be within our remit.
I am not convinced by the argument that people might find themselves in a group or in an army that was a non-signatory. This argument does not move me because I have a view that is even more conservative than that of the Minister with regard to personal responsibility. The fact the State is throwing its net abroad and as widely as possible does not bother me. That is where I am not conservative. The balance of personal responsibility exists, but I believe the State should be an activist with regard to seeking to get compliance with good legislation. This is undoubtedly good legislation, even if it is less than perfect.
Reluctantly, I will not press the amendment. However, I suggest to the Minister that he should alert his colleague the Minister for Defence of the necessity of achieving what I have suggested in it. We can come back to the matter on another occasion.
In essence, this amendment is that of Deputy Timmins. I said on Committee Stage that I would respond to Deputy Timmins who first proposed what are now amendments Nos. 10 and 11. I am sympathetic to his aims. We have consulted Parliamentary Counsel on appropriate formulations and these now appear as amendments Nos. 10 and 12.
On the question of increasing the maximum fine that can be imposed for conviction under sections 6 or 9, amendment No. 10, I agree with the Deputy that this should be raised from €250,000 to €1 million. While a substantial prison sentence of ten years may be imposed on individuals for the commission of the most serious offences under these provisions, the situation of a body corporate must also be considered. If a body corporate, rather than its managers or employees, is convicted of such an offence, a penalty of imprisonment could not be imposed. In those circumstances — I am thinking here of a large scale production or distribution operation — a fine capable of being substantial would be the appropriate penalty.
I am also satisfied that on conviction, it should be within the discretion of the court, in addition to imposing a fine and-or a custodial sentence on any offender, to require that person to contribute to the costs of destroying any munitions that were the subject of the criminal proceedings. This is provided for in amendment No. 12. I am unable, therefore, to accept amendment No. 11.
Deputy Billy Timmins: I thank the Minister for accepting my proposals. Amendment No. 10 is straightforward. The Minister deals with my amendment No. 11 in amendment No. 12. This makes sense. If someone was caught illegally dumping, that person would have to pay the costs involved. Therefore, it makes sense that costs involved with illegal munitions would also be imposed on those involved. I thank the Minister for accepting this.
On Committee Stage the Minister indicated he would inquire from the Department of Finance whether this was possible. I would like to hear his view on it. It is something that is desirable, but I would like to hear the practicalities involved.
Deputy Micheál Martin: As the House will recall, I introduced a new Part 4 of the Bill by way of amendment on Committee Stage. That new part puts in place a clear legislative framework providing that any statutory investment mandate is qualified by requirement to exclude investments in the manufacturers of cluster munitions and anti-personnel mines. Part 4 sets down the requirement to avoid initial investments of public moneys, directly or indirectly, in manufacturers of prohibited munitions. It also sets out clear requirements and guidelines for dealing with these circumstances, where such investments occur despite best efforts to avoid them.
Deputy Timmins proposes that a register of prohibited investments be published. He suggested on Committee Stage that those charged with investing public moneys in assessing their own investments would work off some such list. However, the Minister for Finance advises me that such a list will not be compiled by those investing public moneys. Instead, in practice, as part of a standard due diligence with regard to any prospective investment, an investor of public moneys must satisfy him or herself on the basis of investigation and research that the company concerned and its subsidiaries do not engage in the manufacture of or trade in cluster munitions or anti-personnel mines.
As I indicated on Committee Stage, the production of a register is likely to engage considerable human and financial resources. Moreover, it is unlikely ever to be exhaustive or complete and inevitably will not be a reliable tool for investors. The best means of ensuring that companies around the world stop making these weapons is to promote ratification of the convention by more of the countries in which they operate. Also, those investing public moneys must do the due diligence exercise and investigate appropriately.
Deputy Michael D. Higgins: As someone who tabled a number of amendments, it is appropriate to pay tribute to the Government for bringing forward the legislation. I pay tribute too to the staff of the Department, who throughout the negotiations in Croke Park and in preparation for the legislation were an admirable example of an activist Department operating out of a rights perspective. They deserve our admiration for that. For the future of humanity, I wish this legislation the maximum number of signatories and ratification. I hope it has the effect everyone in the House wants.
Deputy Billy Timmins: I congratulate the Minister and the Department on bringing forward this legislation. My only regret is that the Minister’s predecessor did not accept our Bill as we could have had it in place before the convention, but perhaps that magnanimous gesture might not have tied in with his personality. I am sure this Minister would have.
Minister for Foreign Affairs (Deputy Micheál Martin): I thank the Deputies for their contributions. They, on behalf of their parties, have shown a strong commitment that has endured. I appreciate their co-operation on the passage of the legislation through this House. I also pay tribute to my predecessor who was very involved at the initial stage of this with other like-minded countries. It is an achievement for Ireland that we negotiated the final stages of this convention in Croke Park, in Dublin. It is an historic convention that will impact on humankind.
I recall meeting victims of cluster munitions at the Croke Park convention. When one meets the victims, one sees at first hand the appalling impact of cluster munitions on them, their families and their lives, as well as on entire communities. This is an important Bill and while it may not receive the same profile as do other issues, it will have a decided impact on the future of humankind in future conflicts. Members should not understate what they have done in this regard.
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