Geneva Conventions (Amendment) Bill, 1997: Amendments from the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

Amendments Nos. 2 and 19 are cognate on amendment No. 1 and amendment No. 22 is consequential. All may be discussed together by agreement.

I move that the Committee agree with the Seanad in amendment No. 1:

Section 2: In page 4, line 10, "done" deleted and "adopted" substituted.

Both Additional Protocols were adopted by consensus at the diplomatic conference on the reaffirmation and development of international humanitarian law applicable in armed conflicts on 8 June 1997. The final Act of that conference was signed on 10 June 1997 by way of authentication and the texts of the two Protocols were annexed to it. The view could be taken that the present wording in the Bill, "done at Geneva on 8 June 1977", is sufficiently clear to indicate the precise Protocol in question. On the other hand, to be absolutely precise the text should be changed to "done at Geneva on 10 June 1977" or "adopted at Geneva on 8 June 1977". I chose the second alternative.

I do not oppose the amendments, but I wish we had more time to examine them. Since Second Stage when I called on the IRA to inform the Red Cross about missing persons in Northern Ireland, there has been progress and there are indications that the IRA of its own volition might consider this. It would be a very civilised gesture and would be the clearest indication yet that the war in Northern Ireland is over. I hope the good offices of the Red Cross or such an organisation, as provided for in the Bill, will be used to bring an end to the terrible turmoil associated with missing persons. We support the Bill in general. I have no difficulty with the amendments, but we should have more time because they are highly technical.

These amendments are textual, but they have more than text to them in so far as they are a fulsome incorporation of the thrust of the Protocols. That was the thinking behind amendments tabled on Committee Stage by Deputy Spring and it is entirely consistent that I support the Minister of State's move to come down in favour of a textual reference that is unambiguously inclusive beyond the original 1970s formulation. I welcome it.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 2:

Section 2: In page 4, line 16, "done" deleted and "adopted" substituted.

Section 10 of the Extradition Act, 1965, provides that extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting state and of this State by imprisonment for a maximum period of at least one year. This amendment intends to enable the State to process requests from abroad for extradition of suspects for offences under the conventions and Protocols so that the State will not become a haven for persons wanted for offences under the conventions and Protocols.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 3:

Section 4: In page 5, line 27, after "substitution""for ‘six' of ‘12' and" inserted.

Question put and agreed to.

We come to amendment No. 4. Amendments Nos. 5 and 6 are related and amendment No. 7 is consequential on amendment No. 6. I suggest that amendments Nos. 4 to 7, inclusive, be taken together by agreement.

I move that the Committee agree with the Seanad in amendment No. 4: Section 5: In page 5, line 47, after "Protocol I", "or Protocol II" inserted.

These amendments will enable the Minister for Foreign Affairs to issue a certificate determining the circumstances in which Additional Protocol II applies. Additional Protocol II supplements common article 3 to the four Geneva conventions of 1949. The advantage of these insertions is certainty and clarity in any proceedings involving a minor breach — as discussed on Second and Committee Stages — of Additional Protocol II and would avoid any difficulties in court proceedings in the future.

I avail of the opportunity of this amendment to say I hope the full provisions of the Bill will apply not only in the Republic but in the United Kingdom also. Will the Minister say whether the UK has already legislated for the convention? It would seem that the provisions of the convention, including those which the Minister seeks to amend today, would be suitable provisions for the IRA and loyalist organisations to use in the case of assisting people who have suffered to identify the location of the bodies of missing persons. It seems that the convention provisions specifically apply in times of war. If the IRA and the loyalist organisations in Northern Ireland consider themselves to have been at war for the past 30 years and the war is now over, I hope they will take on the spirit and principles of this convention and use the machinery, if necessary, in this convention to let it be known, if not directly to the families or the Governments concerned, through the Red Cross or some machinery of that kind, where the missing bodies are. It is part of the healing process. I am pleased to note there are indications from the military wing of the republican movement that they are thinking in these terms. I hope this legislation will show the way in Northern Ireland, the Republic and in these islands what can be done to bring about a healing in this regard.

The United Kingdom has implemented the convention and Protocol I but not Protocol II. Ireland has embraced to the fullest extent the Protocols in the articles. Other countries have adopted a much more minimalist approach.

What are the implications for us given that the UK has not implemented Protocol II?

Protocol II simply deals with minor breaches. It is a matter for the United Kingdom whether it wishes to implement Protocol II — it is voluntary, not compulsory.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 5:

Section 5: In page 5, line 48, after "Article 2", "or 3" inserted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 6:

Section 5: In page 5, line 49, after "Protocol I", "or Article 1 of Protocol II" inserted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 7:

Section 5: In page 6, line 2, "Protocol" deleted and "Protocols" substituted.

Question put and agreed to.

Seanad amendments Nos. 8 and 11 are consequential on Seanad amendments Nos. 9 and 10 and Seanad amendment No. 12 is related. I suggest amendments Nos. 8 to 12, inclusive, be discussed together by agreement.

I move that the Committee agree with the Seanad in amendment No. 8:

Section 9: In page 6, subsection (1)(a), line 35, "or" deleted.

Article 56, paragraph 7 of the Additional Protocol I of 1977 prescribes the international special protective sign for works and installations containing dangerous forces. The amendment makes provision to restrict use of these dangerous forces sign such as that required for the Red Cross emblem or for the international distinctive sign of Civil Defence. Additional Protocol I does not require states parties to restrict use and compare Article 66, paragraph 8, regarding the Civil Defence sign with Article 56, paragraph 7, concerning the dangerous forces sign. Nevertheless the amendment restricts the use of the dangerous forces sign to help ensure it will retain its protective value if ever needed in an armed conflict.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 9:

Section 9: In page 6, subsection (1), between lines 35 and 36, the following new paragraph inserted:

"(b) other than a person involved in the protection of works and installations containing dangerous forces (within the meaning of Article 56 of Protocol I), to use or display the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces, as provided for in paragraph 7 of that Article, or".

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 10:

Section 9: In page 6, subsection (1), between lines 45 and 46, the following new paragraph inserted:

"(b) any design so nearly resembling the sign referred to in subsection (1)(b) of this section as to be capable of being mistaken for that sign, or".

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 11:

Section 9: In page 7, subsection (3), line 1, "subsection (1)(a) or (2)(a)" deleted and "subsection (1)(a) or (b) or (2)(a) or (b)" substituted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 12:

Section 9: In page 7, subsection (4), line 6, after "civil defence", "or of the international special sign for works and installations containing dangerous forces" inserted.

Question put and agreed to.

The next amendment is Seanad amendment No. 13. Seanad amendments Nos. 14 and 15 are related. I suggest that Seanad amendments Nos. 13 to 15, inclusive, be discussed together by agreement.

I move that the Committee agree with the Seanad in amendment No. 13:

Section 10: In page 7, subsection (1), line 30, after "may", ", without prejudice to his or her power under section 4 (as amended by section 8 of the Red Cross Act, 1954) of the Red Cross Act, 1938," inserted.

These amendments are consequential on other amendments and relate to the regulation-making functions of the Minister for Defence.

These amendments are the substance of the Bill. The passage of these amendments will enable the Red Cross to be specifically mentioned and also to be able to operate in certain circumstances and with precision where there might have been precision in relation to insignia and whatever. For that reason we should not delay them.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 14:

Section 10: In page 7, subsection (1)(b), line 40, after "Chapter I", "or V" inserted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 15:

Section 10: In page 7, subsection 3, line 50, after "section", "or section 9(4) of this Act" inserted.

Question put and agreed to.

Seanad amendments Nos. 16 and 17 are related and I suggest that they be discussed together by agreement.

I move that the Committee agree with the Seanad in amendment No. 16:

Section 11: In page 8, before section 11, the following new section inserted:

11.—(1) The Minister may, on behalf of the Government, issue for the purposes of Article 79 of Protocol I, an identity card, similar to the model in Annex II to Protocol I, to a journalist, referred to in that Article, whom the Minister considers to be engaged or likely to be engaged as such in dangerous professional missions in areas of armed conflict.

(2) An identity card issued under this section to a journalist may be issued to the journalist subject to such terms or conditions as the Minister decides.

(3) The Minister may, from time to time specify in regulations a fee to be paid by a person for the issue of an identity card under this section.

The present wording of the Bill, while providing for identity cards for Civil Defence personnel, does not adequately provide for the issue of identity cards for two journalists engaged on a dangerous professional mission. Also it does not cover the information card for children evacuated to a foreign country. This is an important issue which arose on Second and Committee Stages. Consequently a separate section covering identity cards for journalists and evacuee children is being inserted. The advantage of covering all of these identity cards and the information card is that all the possibilities for such items under Protocol I of 1977 will be covered.

What are the implications of identity cards for evacuated children? Why is it necessary to include that provision? Will the Minister illustrate the thinking behind it and similarly for journalists?

It arises out of conflicts with which we are all familiar, particularly in recent times. It is to find a distinctive and simple way of directly identifying, in the case of children, if they are moved from one jurisdiction to another. The identification card belonging to them would have some international currency and would be easily recognised and, therefore, be a valuable asset to any child who is moved. It should remove much of the red tape in international law. At least it is an identification that stands up.

I hope it will not create red tape for children who do not have identity cards. If a child is found not to have the identity card will it be used as an excuse to send them back or delay them? Is the Minister happy that this is to the benefit of children in international movements?

I take the Deputy's point. As Deputies will appreciate, while we set down the laws and legislative framework, common sense and goodwill are essential by all to ensure they are given the proper recognition. This is not intended to add to the burden and trauma of children caught in an armed conflict. It will also help to trace children, if there is an identification mark through the system, which would be of value to parents who have become separated from them. There would then be a register or a basis on which to trace them.

Journalists provide a valuable service in sending information about armed conflict to the world. Some of it has been extremely helpful to mankind in general and the bravery of those people should be noted. We should, therefore, equally embrace an identification scheme for journalists which will benefit their status and position.

My only concern is to ensure, in international warfare where human rights are abused on a wholesale basis, that children and others will not suffer as a result of an official saying they do not have the proper documentation. However, I am happy to accept the Minister's assurance on the matter.

Based on my experience of conflict zones, particularly my visit to refugee camps in northern Kenya at the time of the Somalia crisis, I am willing to accept the Minister's amendments because they are well meant. Will these provisions also apply to the Red Crescent, which is the parallel organisation to the Red Cross? The central tracing agency of the International Committee of the Red Cross does most valuable work. Deputy Mitchell has a reasonable point in that it would be to the net detriment of children to introduce a layer of bureaucracy to organisations dealing with children who have been moved rapidly and in distressing conditions. Unfortunately that has happened even in cases where the UNHCR has had to deal with children. The Red Cross has an excellent record and it argues in favour of identification, provided it can be issued quickly — it is a matter where one must have a certain trust. The central tracing agency has been of immense benefit in dealing with the most horrific aspect of lost children and it works with parents and the children themselves. Cultural differences in the naming of children makes it extraordinarily difficult. I trust the International Committee of the Red Cross and that is all we can do in this legislation, but the identification system should be paralleled when other international organisations, such as the Red Crescent, are involved.

I am aware of the Deputy's first hand knowledge of and deep interest in this area, and have heard him speak of it on many occasions. From our perspective we are providing a legislative framework for these ideas and hope other countries take a lead from what we are doing — we cannot force them to adopt something which is not obligatory but what we are doing is underpinned by common sense. In response to Deputy Mitchell, it applies to children who have been evacuated from the war zone — even if they have been taken to America there is an identification process which is simple, easily accessible, efficient and works quickly to overcome the trauma involved.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 17:

Section 11: In page 8, before section 11, the following new section inserted:

12.—The Minister may establish a card in respect of a child evacuated under Article 78 of Protocol I, containing a photograph of the child and the information required under paragraph 3 of that Article, which shall be sent to the Central Tracing Agency of the International Committee of the Red Cross.

Question put and agreed to.

Seanad amendment Nos. 23 is consequential on amendment No. 18 and both may be discussed together.

I move that the Committee agree with the Seanad in amendment No. 18:

Section 11: In page 8, between lines 8 and 9, the following new subsection inserted:

"(2) The Red Cross Act, 1954, is hereby amended—

(a) in section 3, after the definition of ‘the Civilians Convention,' of the following definitions:

‘Protocol I' means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) adopted at Geneva on 8 June 1977;

‘Protocol II' means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-lnternational Armed Conflicts (Protocol II) adopted at Geneva on 8 June 1977;

(b) in section 4(2)(a)(i), after ‘Wounded and Sick Convention' to insert', Part II of Protocol I and Part III of Protocol II',

(c) in section 4(2)(a)(ii), after ‘Maritime Convention' to insert ‘, Part II of Protocol I and Part III of Protocol II',

(d) in section 4(2)(b), after ‘Prisoners of War Convention' to insert ‘and Part III of Protocol 1',

(e) in section 4(2)(c), after ‘Civilians Convention' to insert ‘, Part IV of Protocol I and Part IV of Protocol II',

(f) in section 7(1),

(i) the deletion in paragraph (b) after ‘Convention,' of ‘and',

(ii) the substitution in paragraph (c) for ‘Convention.' of ‘Convention, and', and

(iii) the insertion after paragraph (c) of the following paragraph:

‘(d) the authorisations or assignments referred to in Articles 8 and 61 of Protocol I, or the facilities referred to in Article 81 of Protocol I' and

(g) in section 7(2), the substitution for ‘or commission' of ‘, commission, assignment or facility'.".

I move amendment No. 1 to Seanad amendment No. 18:

In page 3, to substitute the following for paragraphs (a) to (g):

"(a) in section 3, after the definition of ‘the Civilians Convention' by the insertion of the following definitions:

‘Protocol I' means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) adopted at Geneva on 8 June 1977;

‘Protocol II' means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) adopted at Geneva on 8 June 1977;

(b) in section 4(2)(a)(i), after ‘Wounded and Sick Convention' by the insertion of ‘, Part II of Protocol I and Part III of Protocol II', (c) in section 4(2)(a)(ii), after ‘Maritime Convention' by the insertion of ‘, Part II of Protocol I and Part III of Protocol II',

(d) in section 4(2)(b), after ‘Prisoners of War Convention' by the insertion of ‘and Part III of Protocol I',

(e) in section 4(2)(c), by the insertion after ‘Civilians Convention' of ‘, Part IV of Protocol I and Part IV of Protocol II',

(f) in section 7(1)—

(i) by the deletion in paragraph (b) after ‘Convention,' of ‘and',

(ii) by the substitution in paragraph (c) for ‘Convention.' of ‘Convention, and', and

(iii) by the insertion after paragraph (c) of the following, paragraph:

‘(d) the authorisations or assignments referred to in Articles 8 and 61 of Protocol I, or the facilities referred to in Article 81 of Protocol I',

and

(g) in section 7(2), by the substitution for ‘or commission' of ‘, commission, assignment or facility'.".

The powers and functions of the Irish Red Cross Society, as contained in the Red Cross Acts, 1938 to 1954, need to include those powers and functions arising under the two additional protocols of 1977. The same applies to the authorisations, assignments and facilities able to be given to them. It does not seem possible to interpret the relevant sections in the existing legislation as including the two additional protocols of 1977 and it is necessary to amend the current wording of those Acts so that the position cannot be in doubt.

On Committee Stage I proposed an amendment to provide that this section should be reported on annually to Dáil Éireann, specifically in relation to the relatives of families in both jurisdictions in Ireland. As to the extension of responsibilities and entitlements of the Red Cross under the legislation, I ask the Minister to urge the society to report annually to the Dáil about missing persons, particularly in Northern Ireland, so that we can keep applying pressure by using the society as an honest broker. If the Red Cross did so, this matter could be dealt with as quickly as possible.

I am sure the Deputy did not mean to suggest there is no flow of information, and I would not like that to go out from the House because there is a substantial flow, but I take the point. I am sure if the Red Cross is in a position to furnish the Oireachtas with such information we would be happy to receive it.

It would make sense if a report was laid before the Oireachtas because, if there were events during the year about which people expressed concern, the report could form the basis of a debate. If we did not accept this amendment we would probably require separate legislation to amend the Red Cross Act, 1954, and none of us wants that, so it is sensible, economically and otherwise.

Amendment to amendment agreed to.
Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 19:

Section 12: In page 8, paragraph (a), line 16, to delete "done" and substitute "adopted".

Question put and agreed to.

Seanad amendment No. 20 is consequential on amendment No. 21 and they may be taken together by agreement.

I move that the Committee agree with the Seanad in amendment No. 20:

Section 12: In page 8, paragraph (b), line 19, to delete "subsection" and substitute "sub-sections".

The problem of mercenaries first came to prominence in 1961 in connection with the Katangese secession. Since then there has scarcely been any conflict involving military operations in which the presence of mercenaries has not played a part in one way or another. Article 47 of Protocol 1 contains the definition of the term "mercenary" but does not give a mercenary the right to claim prisoner of war status. The amendment enables the State to detain mercenaries who may happen to enter the State on the way to an armed conflict. This is hoped to enable the State to make a contribution which will lead to a reduction of violence and of the number of deaths in armed hostilities. The inverted commas are being deleted to permit the additional subsection.

As I understand it the Minister is providing for prisoner of war status for mercenaries. I am sure there is a good reason for this but it seems strange that a hired gun, so to speak, who is paid to fight for one side or the other, should have or should be capable of having the same status cast upon him as a member of a disciplined army, answerable to a democratically elected Government.

Does this amendment allow us to equate a mercenary with a soldier? There is an implication that someone in transit could be held as a prisoner of war. Could they be held as a common criminal or otherwise? Do they have to be held as prisoners of war? Perhaps the Minister can clarify the amendment as it seems unusual.

This issue arises in relation to the construction of the term "prisoner of war" which is consequential on the capture of someone during an act of conflict between two sovereign bodies. On balance, what is required is the right to detain. The choice is to leave someone who is clearly in an anticipatory situation to a conflict outside the category and therefore in a position to challenge the basis of being held. I would be willing to take the risk that there is a case for using the detention powers.

I do not oppose the extension. However, they are not equivalent in status. They are also not equivalent in status in relation to the main thrust of the convention or to some other principles of international law. I am sure the Minister will assure us that we are not changing any principle of international definition or law but that we are creating a circumstance of management of the position of mercenary or someone of that status who is being detained.

This interesting and important point arose in the Seanad yesterday. We are not giving them mercenary-prisoner of war status in the sense in which we understand it. As Deputy Higgins correctly said, we are using the mechanism to detain them. There is a definition of a mercenary in the section. There are a number of areas in which the State can determine what category of person, within the definitions, it may want to detain. It is proper that the State has a view — we do not want a transit depot for people who want to maim, murder and kill for profit.

Colonel North, for example.

We could have a long discussion on that.

The term "prisoner of war" seems to be too honourable a term to attach to mercenaries.

I am conscious of the status of the term "prisoner of war". I am not giving them prisoner of war status but rather using the mechanism to do what we all want in that regard.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 21:

Section 12: In page 8, line 46, "tribunal." deleted and "tribunal.

(2A) Any reference in this Act to prisoners of war includes a reference to mercenaries (within the meaning of Article 47 of Protocol I) who as such have fallen into the power of, or been received on the territory of, the State.'." substituted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 22:

TITLE: In page 3, line 8, "DONE" deleted and "ADOPTED" substituted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 23:

TITLE: In page 3, lines 10 and 11, "SECTION (6)(1) OF THE RED CROSS ACT, 1938" deleted and "THE RED CROSS ACTS, 1938 to 1954" substituted.

Question put and agreed to.
Amendments reported and agreed to.

I wish to address some matters raised by Deputies. The issue of nuclear warfare was raised during the 1949 diplomatic conference in Geneva and prior to the adoption of the 1977 protocols. Articles 35(1) and (2) in Protocol I provide that the right to choose methods or means of warfare is not unlimited and that it is prohibited to employ weapons of a nature to cause superfluous injury or unnecessary suffering.

In addition, Article 48 of the protocol obliges combatants to distinguish between the civilian population and objects and military persons and objectives. The United Kingdom, on signing the protocols, declared that the new rules introduced are not intended to have any effect on, and do not regulate or prohibit the use of, nuclear weapons. The USA made a similar declaration and France declared it did not consider the rules of the protocol applied to nuclear weapons. India declared that the rules in Article 35 apply to all categories of weapons.

As regards sexual abuse as a weapon, Article 76 of Protocol I provides that women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. Article 4, paragraph (2)(e) of Protocol II prohibits outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any other form of indecent assault on persons.

As regards measures to enable the assets of offenders against the provisions of the conventions of protocols to be seized, I made inquiries and established that under the Criminal Justice Act, 1994, there is a possibility of confiscation. Under the Proceeds of Crime Act, 1996, it is possible to make an order freezing specified assets. Accordingly, measures exist and are available in the State in appropriate circumstances.

As regards involuntary transplants from prisoners, Article 11, paragraphs (2) and (4) of Protocol I prohibit the carrying out, even with their consent, of, (a) physical mutilations, (b) medical or scientific experiments and (c) removal of tissue or organs for transplantation, except where these are justified for the physical and mental health and integrity of persons concerned. Article 75 of Protocol I prohibits violence to the life, health or physical or mental well-being of persons.

I thank Members who have contributed to the enactment of this important legislation on behalf of combatants and victims caught up in hostilities.

With Deputy Higgins, I met some prisoners of war in Algeria. To this day I do not know whether what they told us was true. I felt they were not able to speak, despite the fact that they knew we were international and independent observers. I welcome this legislation and I hope it helps. My only criticism is that it has taken 21 years to bring it before the House. There is a Convention on the Safety of UN Personnel Serving Abroad which is relevant to us. It cannot take effect until 20 countries have signed it. I urge the Minister to bring forward legislation on that convention as soon as possible.

The agreement to the Seanad amendments is reported to the House and a message will be sent to Seanad Éireann acquainting it accordingly.