I move: "That the Bill be now read a Second Time." I am pleased to have the opportunity to open the debate on the Second Stage of this Bill. Its purpose is to make the necessary changes in Irish law to enable Ireland ratify the two protocols which were concluded at Geneva on 10 June 1977, and which are additional to the four Geneva Conventions of 12 August 1949. Protocol I is concerned with the protection of victims of international armed conflicts while Protocol II relates to the protection of victims of non-international armed conflicts. They are the most recent efforts at a multilateral level to augment and reinforce the Geneva Conventions of 1949. Deputies will be given an opportunity to express their views on the manner in which Ireland is implementing the obligations laid down in Additional Protocols I and II.
The community of states has made many attempts to prohibit the use of force as a means to solve international disputes. It has tried to eliminate it from the scope of legally admissible conduct of states. It should be noted that there has been some success in regulating the circumstances in which the use of force may be resorted to.
Nevertheless, we cannot deny that the community of states has failed in the attempt to exclude completely the use of force from international relations. Unfortunately, states have resorted time and again to this method of solving their conflicts. This regrettable fact led to the elaboration of rules governing the means and methods of warfare as well as the protection of the victims of armed conflicts. These rules are variously called "the laws and customs of war" or "the law of armed conflict" or "international humanitarian law". The Geneva Conventions of 1949, which have found almost universal acceptance, and the 1977 Additional Protocols to the Geneva Conventions of 1949, are of fundamental importance in this respect. It is the unenviable task of these laws to promote the welfare of humanity in the most inhumane and appalling circumstances. In the absence of these rules and standards, the barbarism and brutality of armed conflicts would be unmitigated.
It is highly desirable that Ireland should be seen by other states to be adding to the momentum required for the universal respect of the Additional Protocols to the Geneva Conventions. As a State that is firmly committed to the equitable treatment of all human beings the ratification of Additional Protocols I and II is a logical and necessary step in this direction.
Protocols I and II follow a long line in Geneva Conventions to which, for the most part, this State has adhered. In 1949, four Geneva Conventions were concluded. These conventions dealt with the amelioration of the condition of the wounded and sick in armed forces in the field; the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea; the treatment of prisoners of war; and the protection of civilian persons in time of war.
The State is a party to the four Geneva Conventions of 1949 and effect was given to them in Irish law in 1954 when we enacted the Red Cross Act, and similarly in 1956 and 1962 with the enactment of the Prisoners of War and Enemy Aliens Act, and the Geneva Conventions Act. To enable effect to be given to Additional Protocols I and II, it is now necessary to amend the Principal Act. It is also necessary to amend the legislation dealing with other related areas. These include the Prisoners of War and Enemy Aliens Act, 1956, and the Red Cross Act, 1954. The Bill amends or extends existing sections of these Acts to give effect to certain articles of the First Additional Protocol 1977. As an illustration, the Bill will extend the category of "grave breach" under the Geneva Conventions Act, 1962 — the Principal Act — to include "grave breaches" of Additional Protocol 1. In addition, the Bill will regulate the use of certain symbols and signals used for identification purposes by civil defence and medical units and transports. Thus the Bill is only the latest in the line of legislation necessary to enable Ireland become a party to the update of the four Geneva Conventions, namely, the two Additional Protocols of 1977.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
Our Constitution of 1937 commits us to the ideal of peaceful and friendly co-operation among nations founded on international justice and morality. We are dedicated to the principle of pacific settlement of international disputes by international arbitration or judicial determination. The policy of such a position argues for neutrality and non-belligerency in the case of war and armed conflict. Such issues and their attendant rights especially arise in time of armed conflict between other states. Put simply it requires that the state adopt impartiality towards the participants of the conflict.
Neutrality should, however, never be equated with neglect or ambivalence regarding the suffering and devastating effects of armed conflict. Armed conflicts have yet to show themselves capable of affecting only those directly participating in them. Unfortunately, innocent people are affected. By way of a long-term and overall commitment to peace and security it is incumbent upon all states to attempt to limit the brutality of armed conflict. The Geneva Conventions of 1949 and the Additional Protocols of 1977 and their observance and respect are an indispensable mechanism in achieving this goal.
Customs of war have existed as far back as the Middle Ages. It is since the 19th century that these customs have been transformed into treaties. The conclusion of the first Geneva Convention in 1864 marked the beginning of an important process of development and strengthening of international humanitarian law. Further conventions were concluded in 1906 and 1929. The conclusion of four conventions in 1949 significantly reshaped and updated international humanitarian law in the light of the experiences of World War II. The original Geneva Convention agreed in 1864 sought to improve the plight of wounded soldiers on the battlefield. Since then, the Geneva Convention has been extended to other categories of war victims — the shipwrecked, prisoners of war and civilians. Perhaps the most important innovation of the four conventions concluded in 1949 was the inclusion of civilians in Geneva Convention IV, which attempted to deal comprehensively for the first time with the treatment to be afforded to civilians in cases of war. Undoubtedly, the fourth Geneva Convention was motivated by the experience of the civilian population in World War II.
The main principles laid down in the 1864 Convention have been maintained in all subsequent Geneva Conventions. They are, first, relief to the wounded without distinction as to nationality; second, the inviolability of medical personnel and medical establishments and units; and third, the distinctive sign of the red cross on a white background, known universally as the Red Cross emblem, to be used as a symbol of protection and neutrality.
I shall briefly explain the two Additional Protocols whose texts are set out in the Schedule to this Bill. Although humanitarian law had been developed and adapted to the needs of the time in 1949, the Geneva Conventions did not cover all aspects of human suffering in armed conflict. By the early 1970s these conventions were already a quarter of a century old and that there were gaps and imperfections in the regime which they established. In addition, the law of the Hague, which is concerned with developing rules on hostilities and the use of weapons, had not undergone any significant revision since 1907. Consequently, two subjects arising from the Hague Regulations Respecting the Laws and Customs of War on Land were placed on the agenda for future development, the conduct of combatants and, even more important, the protection of the civilian population from the effects of hostilities. These concerns, combined with the various technological developments in armed conflict since 1949, contributed to the impetus for the convening of a diplomatic conference and the subsequent adoption by the conference of Protocols I and II. Other motivating factors ranged from the non-application of the Geneva Conventions by some parties to the difficulty of whether ‘wars of liberation' ought to be treated as proper subjects of international humanitarian law. The aim of the diplomatic conference was described as "reaffirming and developing humanitarian law". There is no doubt, however, that on certain points the 1977 instruments modify previous law and even introduce fairly bold innovations.
Protocol I, additional to the Geneva Conventions of 12 August 1949, concerns the protection of victims of international armed conflicts. It contains 102 articles in total and attempts to deal with a wide range of issues. Protocol I is divided up into various parts, each dealing with a different area. I do not intend to discuss the merits of each part of the Protocol. I would, however, like to emphasise certain parts which represent advances in the whole area of international humanitarian law.
Part IV of Protocol I contains the majority of provisions relating to the protection of civilians. It is divided into three sections. The first section contains 19 articles — 48-67 — and is divided into six separate chapters. Article 48 lays down the basic rule of protection and distinction concerning the civilian population. It is the foundation on which the codification of the laws and customs of war rests. The civilian population and civilian objects must be respected and protected in armed conflict, and for this purpose must be distinguished from combatants and military objectives. In the Hague Conventions of 1899 and 1907, like the Geneva Conventions of 1929 and 1949, the principle of protection is deemed to be a developing rule of law, though at that time it was not considered necessary to formulate it word for word in the texts themselves. Due to the development of weaponry during and after World War II it was considered necessary to explicitly confirm this concept in a treaty.
Article 51 is perhaps one of the most important articles in Protocol I. It explicitly confirms the customary rule that innocent civilians must be kept outside hostilities as far as possible and enjoy general protection against danger from hostilities. The importance attached to this article is reflected in the fact that violation of several of its provisions is qualified as a grave breach of the Protocol. Paragraph 4 is of particular significance in the context of the development of international humanitarian law. This provision contains a general prohibition on indiscriminate attacks against the civilian population and also defines three types of attack covered by the general expression of "indiscriminate attacks". It confirms the unlawful character of certain regrettable practices of World War II and subsequent armed conflicts.
Paragraph 6 relates to the issue of reprisals. It is also founded upon the experiences of World War II where countless civilian lives were lost when parties to the conflict, on the pretext that their own population had been hit, went so far, by way of reprisals, as to wage war almost indiscriminately against civilians. The prohibition contained in Article 51 on the taking of armed reprisals is not subject to conditions. It, therefore, has a peremptory character; in particular it leaves out the possibility of derogating from this rule by invoking military necessity.
Providing supplies for the civilian population in times of armed conflict is a basic problem as events have cruelly shown. The Fourth Geneva Convention, 1949, contains numerous articles relating to the obligations of an occupying power with respect to the population of the occupied territory. In comparison to the conventions, section II of Part IV relating to relief actions in favour of starving civilians is characterised by numerous improvements such as enlarging the range of supplies deemed essential to the civilian population of the occupied territory, an extension of the benefit of this relief to the whole of the civilian population, and provisions relating to the personnel participating in relief actions, who had been hitherto ignored.
The law of war, specifically that part of the law which relates to methods and means of warfare, merits particular attention. Part III of Protocol I outlines the rules relating to the methods and means of warfare and the status of combatants and prisoners of war. These rules of warfare are basically those contained in Articles 22 and 23 of the Hague regulations. In addition to the general principle by which the right of belligerents to adopt means of injuring the enemy is not unlimited, they contain two types of fundamental rules — on the one hand humanitarian rules and on the other hand rules on good faith. The first section of Part III — Methods and Means of Warfare — is concerned with the reaffirmation of these principles. This implies accepting the principle of limited warfare, as opposed to total warfare which discards all rules. It has a key function in relation to other provisions of the Protocol, since non-respect for the rules of combat entails non-respect for all other rules.
The purpose of this section is not only to reaffirm the Law of the Hague but also to update and supplement the existing rules. Three completely new provisions which have no equivalent in the above mentioned articles of the Hague regulations have been introduced. These are concerned with the protection of the environment — Article 35: Basic rules, paragraph 3 — with the responsibilities at the national level relating to the introduction of new weapons — Article 36: New Weapons — and with the protection of airmen in distress — Article 42: Occupants of aircraft.
One of the more remarkable additions of Protocol I is the mechanism expressly designed to promote the application of international humanitarian law, that is the International Fact-Finding Commission instituted under Article 90 of Protocol I. This provision is closely related to Article 1 common to the Conventions and Article 1 of the Protocol which enjoins the contracting parties to respect and to ensure respect for the conventions and the Protocol in all circumstances.
With regard to the Commission's competence, in principle it is only concerned with facts and essentially has no competence to proceed to a legal assessment of the facts that have been established. The allegation which is submitted to the Commission must relate to a "grave breach" or "serious violation" of the conventions or the Protocols. It should also be emphasised that the primary task of the Commission is not only that of fact-finding, but also to facilitate, through its good offices, the restoration of an attitude of respect with regard to a "grave breach" of particular provisions and for the Geneva Conventions and Protocols in general. Under Article 90 a chamber of inquiry is to be established consisting of seven members with the purpose of producing a report containing the findings of the Commission and containing "such recommendations as it may think proper for the amicable solution of the dispute".
Article 90(1)(b) of Protocol I requires the agreement of not less then 20 parties to accept the competence of the Commission before it can come into being. This occurred in 1991. In 1992 the Commission adopted its rules. By the end of 1995 the number of states accepting the jurisdiction of the Commission had risen to 46. It almost doubled in the five years and includes approximately one third of the parties to Protocol I. The Commission is made up of "fifteen members of high moral standing and acknowledged impartiality." It is also required that there must be an "equitable geographical distribution" among the members of the Commission and that its members serve in their personal capacity. Elections are to take place every five years after the convening of the first meeting.
The seat of the Commission is in Berne, Switzerland. The administrative facilities for the performance of the functions of the Commission are to be provided by the Swiss Government. The expenses are met by contributions from the states which have made declarations under the Protocol and by voluntary contributions. The regulations adopted by the states' parties are largely similar to the proportions adopted by the United Nations. The party or parties to the conflict requesting an inquiry are obliged to advance the necessary funds for the expenses incurred by a chamber and are to be reimbursed by the party or parties against which allegations are made to the extent of 50 per cent of the costs of the chamber.
To date it would appear that the Commission has concerned itself with matters of a practical nature. These have included a number of issues ranging from the availability of equipment for inquiries in loco to increasing awareness among the international community of the existence of the Commission.
The setting up of an independent fact-finding Commission to assist in respect and compliance for international humanitarian law is a most welcome development. For the first time in the law of armed conflict this Article institutes a permanent non-political and impartial international Commission of inquiry to which the parties to the conflict can resort at any time. This point must be noted, earlier attempts in 1949 had failed due to the lack of consent of the parties concerned. The task of the Commission is not to judge on the case but to assist states in achieving a situation in which basic principles of humanity are respected. In light of its restricted task and of its independence this Commission is an effective and valuable mechanism in the context of ensuring respect for international humanitarian law.
It is a great achievement of present humanitarian law that it does not only cover international conflicts, but also extends to conflicts of a non-international character. Common Article 3 of the 1949 Geneva Conventions which sought to regulate "the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" has often been referred to as a "mini-convention". Undoubtedly, it has been a keystone in such matters. Prior to 1949, doctrine was opposed to any positive law interference into what was essentially considered to be a matter of sovereignty. Some of these difficulties were overcome by means of legal construction, that is the recognition of belligerency. However, Protocol II constitutes the first real legal instrument for the protection of victims of non-international armed conflict. The importance of Protocol II lies in its ability to develop, amplify and support Article 3 of the 1949 Geneva Conventions. Despite this laudable attempt to extend the operation of the Conventions, there were deficiencies. Among these was the sparse to non-existent protection to be afforded to medical personnel and a lack of rules on the conduct of hostilities aimed at sparing the civilian population.
The need for such a set of rules of conduct cannot be overstated. We are currently confronted with an increasing use of force in conflicts which fall short of the level required to include them under the heading of "international". Basic humanitarian considerations require that also in such non-international conflicts fundamental standards of humanity are respected. The very existence of such a set of rules, being representative of a desire on the part of the international community, is a welcome development, of which Ireland should be seen to be a part.
Protocol II, additional to the Geneva Conventions of 12 August 1949, in its title, declares itself to be directly concerned with non-international armed conflicts. Protocol II is shorter than Protocol I containing only 28 articles. It deals with areas of humane treatment in Part II, wounded, sick and shipwrecked in Part III, and the civilian population in Part IV. Article 4(2) contains a list of acts which remain prohibited at any time and place. It establishes fundamental guarantees for all persons who do not take a direct part in hostilities, bans attacks on the civilian population and forbids the forced displacement of civilians.
Protocol II lays down provisions in relation to the care of the wounded and sick. Of primary importance in this regard is the protection given in Article 12 to the distinctive emblem. Such provisions can only assist medical personnel in their attempts to administer to the sick and wounded.
Overall, Protocol II is silent on the issue of enforcement. Acts which violate the Protocol are breaches of the treaty. This fact alone does not give any other state standing to bring an action. However, events like setting up the two tribunals for the prosecution of war crimes in the former Yugoslavia and Rwanda stand testament to the commitment of the international community not to let gross violations of international humanitarian law go unpunished.
The State signed the additional Protocols on 12 December 1977, subject to ratification. Since then 146 states have become parties to Protocol I and 138 to Protocol II. Despite a considerable lapse in time, this Government has indicated for some time its willingness to begin the process of ratification. A statement was made on behalf of the State at the XXV International Conference of the Red Cross and Red Crescent in December 1995 underlining the Government's intention to ratify the 1977 additional Protocols. On 10 July 1996, the President of the International Committee of the Red Cross, Mr. Cornelio Sommaruga, at a meeting of the Oireachtas Joint Committee on Foreign Affairs, raised the issue of Ireland's non-ratification of Protocols I and II and emphasised his hope that Ireland would ratify these as soon as possible. The chairman of the joint committee assured Mr. Sommaruga that all appropriate action would be taken on this issue. Ratification of these Protocols will help complete the task of the International Committee of the Red Cross in achieving universal recognition of the 1977 Protocols, and could also be influential in encouraging the few remaining countries which are not yet parties to the Protocols to become so.
I wish to refer to the various sections of the Bill and, in doing so, I will concentrate on a number of specific measures. Section 1 of the Bill defines the Principal Act as the Geneva Conventions Act, 1962.
Section 2 of the Bill replaces section 2 of the Principal Act of 1962 with a completely new section in regard to the interpretation of certain phrases.
Section 3 of the Bill, amending section 3 of the Principal Act, extends the category of "grave breach" under the Principal Act to include "grave breaches" as defined in paragraph 4 of Article 11 and paragraphs 2, 3, or 4 of Article 85 of Protocol I and sets out maximum sentences applicable in respect of "grave breaches" which involve wilful killing and other grave breaches. In the former the sentence is to be life imprisonment or any less term and for the latter the punishment shall not exceed 14 years.
Section 4 relates to minor breaches of the Conventions and Protocol 1 by (i) adding references to the appropriate Protocol or to both Protocols where reference is made in the Principal Act to "the Scheduled Conventions", that is the four Geneva Conventions of 12 August 1949, and (ii) updating the level of certain fines provided for in the Principal Act from £50 to £1,500 and £300 to £5,000.
Section 5 facilitates the proof of application of any of the Conventions or Protocol I in court proceedings by way of a certificate from the Minister for Foreign Affairs.
Section 6 provides for the insertion of the additional Protocols into the Principal Act as the Fifth and Sixth Schedules.
Section 7 enables the Minister for Foreign Affairs to publish in a statutory instrument any reservations or declarations made by the State in relation to either of the additional Protocols.
Sections 8 and 9 regulate the use of certain symbols and signals used for identification purposes by Civil Defence and medical units and transports and also make their use subject to the consent of the Minister for Defence. Furthermore, they enable the Minister for Defence to make regulations in accordance with the relevant convention or protocol in respect of miscellaneous identifying objects and identity cards and they create offences punishable by fine where such regulations or consent requirements are infringed either by individual persons or bodies corporate.
Section 10 increases the fine for offences committed under the Red Cross Act, 1938, one such offence being the unlawful use by any person of the heraldic emblem of the Red Cross from £10 to £1,500.
Section 11 extends the scope of section 1 of the Prisoners of War and Enemy Aliens Act, 1956, which provides the definition of persons as prisoners of war and enemy aliens. It is principally designed to extend and accommodate the categories of persons covered by the relevant provisions of Protocol l in regard to the classification of persons as prisoners of war. Section 12 provides for the short Title and also enables the Minister to make an order to bring the Bill into operation.
Since the publication of the Bill a number of problems, mainly of a technical and grammatical nature, have been brought to my attention which I will address by way of amendment on Committee Stage. It is believed that the minor amendments on Committee Stage will improve the Bill's overall texture and content.
As noted earlier, it is the task of such laws to promote humanity in the most inhumane circumstances. In this regard alone their objective is truly onerous and difficult. The values of humane treatment and restraint, of making a distinction between civilians and military so that the former are not attacked, as contained in both protocols, merit reaffirmation. It is my opinion that the two protocols represent a sincere commitment on the part of the international community to mitigate the brutality and suffering of armed conflicts throughout the world. It is regrettable that some parties to conflicts seem to recognise such conventions and protocols only in the breach. This fact cannot be used to undermine the utility of humanitarian law, rather it must strengthen the resolve of states to ensure universal respect for such laws.
I commend the Bill to the House.