Ratification of EU and NATO Status of Forces Agreements: Referral to Select Committee

I move:

"That the proposal that Dáil Éireann approves the terms of:(i) the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context, done at Brussels on 17 November 2003, a copy of which was laid before Dáil Éireann on 2 January 2019; and

(ii) the North Atlantic Treaty Organisation Partnership for Peace Status of Forces Agreement, done at Brussels on 19 June 1995, a copy of which was laid before Dáil Éireann on 2 January 2019, subject to the respective reservations, copies of which were laid before Dáil Éireann on 2 January 2019;

subject to the respective reservations, copies of which were laid before Dáil Éireann on 2nd January, 2019, be referred to the Select Committee on Foreign Affairs and Trade, and Defence, in accordance with Standing Order 84A(3)(b), which, not later than 5th February, 2019, shall send a message to the Dáil in the manner prescribed in Standing Order 90, and Standing Order 89(2) shall accordingly apply.”

A status of forces agreement, SOFA, regulates the legal and administrative arrangements applied to members of foreign forces operating within the state where they are deployed. It relates to the immunities and privileges extended to members of the Defence Forces when serving on overseas missions as part of a UN-mandated force. It also relates, in the case of the EU and Partnership for Peace, PfP, SOFA, to the immunities and privileges extended to members of the Defence Forces when engaged in exercises in EU or NATO and PfP member states or on stand-by for the EU battle groups.

All international organisations, including the UN, the EU and NATO, have concluded SOFAs with the states where they have deployed forces or engaged in training missions. In respect of UN operations, the UN concludes a specific SOFA with the receiving states, for example with Lebanon in relation to UNIFIL. In the case of EU or NATO-led operations authorised by the UN, either a specific SOFA covering all deployed personnel is concluded or the relevant EU or PfP SOFA applies to personnel from participating states.

In circumstances where members of the Defence Forces are deployed within the territory of another EU member state on training or exercises, or where the relevant overseas mission utilises the EU or PfP SOFA, members of the Defence Forces do not benefit from the standard immunities and privileges as of right. This is due to the fact that Ireland has not ratified these SOFAs. In such circumstances separate arrangements have to be put in place through an exchange of letters. This, however, is not always possible. Ratification of these SOFAs is designed to address that deficiency. SOFAs are designed to protect deployed military personnel in terms of accidents, third party liability claims, potential prosecutions and other actions that may be covered by legislation in the host country. The ratification of the SOFAs simply means that the Defence Forces can acquire the rights and privileges of these arrangements as a matter of right rather than having to rely on a difficult or contentious exchange of letters between jurisdictions, which may or may not be concluded on their behalf.

The EU SOFA has been ratified by all member states except Ireland. It can only come into effect on ratification by Ireland. All other non-aligned or neutral member states, including Finland, Sweden and Austria, have ratified the EU SOFA. Approval by this House is not required in respect of ratification of the EU SOFA because this is covered under the Lisbon treaty. However, I have included it in the motion for the sake of transparency.

Ratification of these SOFAs will only extend to members of the Permanent Defence Forces deploying overseas where these SOFAs apply. They cannot apply within the State. There is a constitutional prohibition via Article 15.2 on Ireland agreeing to receive and base foreign troops on its territory and, as a result, there is no situation in which the SOFA could have application in respect of foreign forces in Ireland, including forces in transit or visiting personnel. In that regard, reservations have been drafted for both agreements, clearly articulating Ireland’s constitutional position and leaving no scope for ambiguity. The reservations state: “Ireland shall not be a receiving state for the purposes of the present Agreement”.

I cannot stress enough that Ireland’s policy of military neutrality is not diminished, circumvented or reduced by our ratification of the SOFAs. If anything, our national position will be more strongly discernible following this process, particularly in light of the reservations we are attaching to our instrument of ratification.

Fianna Fáil will be supporting the proposals to ratify the SOFA that will facilitate the participation of Ireland in the EU battle groups. The Minister of State is correct that this is about providing the immunities, privileges and process for the joint co-operation that is happening anyway. When he is replying, perhaps he might explain the problems that he and the Department have had regarding letters of exchange. In many ways, it was an Irish solution to an Irish problem for something on which we have co-operated over a long period. This year, in ratifying the agreement, we are providing for and protecting Irish men and women who serve abroad. It will enhance their training and also their protection while on any foreign mission.

When Ireland plays a role in a crisis management situation it is important that we provide for the legal certainty for members of our Defence Forces. In 2016, the Germans questioned the letters of exchange regarding the German-led battle group and for the 2020 battle group. Perhaps the Minister of State will elaborate on that. Reference was made to some reputational damage in that regard. This has been ongoing since the 2000s, a long time before the Minister of State's tenure in the Department. Why has it taken so long, going between Departments and the Attorney General, to see this agreement ratified when it is found for within the Lisbon treaty as the Minister of State mentioned?

I welcome the fact that there is democratic legitimacy to this motion being provided in Dáil Éireann, even though it is currently covered within treaty law. When Fianna Fáil was last in Government we supported the development of the EU's rapid response capability in support of the United Nations. This is in keeping with our State's long tradition and policy of support for the United Nations' multilateralism and for the Security Council as the lead authority for the maintenance of international peace and security. Among the operations in respect of which a battle group could be deployed are those of a humanitarian nature involving as assisting, if requested, the authorities in a state that has been devastated by a natural or man-made disaster where there is unlikely to be a UN Security Council resolution because the situation may not involve any security issues. In 2006, Ireland was involved with the Nordic battle group with the EU and this provided for a military response. In the context of this agreement it is important to note that the SOFA protects Irish troops who are abroad. I welcome that. It is also important that we put on the record that this is part of Ireland having an approach that reflects an active neutrality. This is extremely important. An active neutrality reflects the reality that our sovereignty is secure, that our democracy is functioning well and that, in fact, Ireland is one of the most successful democracies in the world.

It also reflects the fact that we are at a juncture in our development where we have an enhanced opportunity to focus on what we have to offer other members of the international community. An active neutrality says that we have a duty to share our lessons of our experience of peace building on this island and peacekeeping on the international stage with others who may benefit from them. As part of the triple lock and maintaining our status of neutrality we can offer an independent role on that basis but we have to be involved to play a positive role and ignoring the EU SOFA and ignoring co-operation does not achieve that.

It is important that we are a bridge between the developed and the developing world, a global leader in the fight against poverty, disease and underdevelopment and an intermediary and facilitator in peace processes. In that regard it is important that we should not just abandon the triple lock, specifically the requirement in the 1954, 1960 and 1993 Defence Acts that there would be a UN mandate when sending a contingent of 12 or more armed Irish troops overseas. It is important that we reflect that Ireland's policy of military neutrality is a positive policy. We need to ensure that we continue a multilateral approach and continue the triple lock but that we also co-operate with others so that we can defend our country and others against the threats of the 21st century. Our participation in the agreement allows that.

Unlike the previous speaker I do not welcome the agreement and I will not support it. I do not understand how we would support it having been tied to NATO's Partnership for Peace, PfP, because Fianna Fáil decided to turn its back on an electoral commitment not to join it, but as soon as it got into Government it did so. Now, the Government wants us to sign up to an agreement that will give immunity even in the case of the use of lethal force to Irish soldiers, French soldiers or whatnot, and that they can be brought back to the safe haven of the country from which they were sent abroad in the first place. The Government needs to seriously think about that. If something is not broken then we should not fix it. We have operated within the Partnership for Peace, albeit it without our support in this House, for many years. What should be before us is a motion extracting ourselves from bodies that compromise our neutrality but that is not what is before us. I have made the argument previously in this House. Both of the SOFA, status of forces agreements, will affect Irish soldiers not only in EU battle groups – the EU army – but also Irish soldiers or military staff who are currently in Brussels. There are five Irish soldiers in the EU military staff, two soldiers liaise with NATO and there are four military representatives to the EU, and there would be many more in the future.

This is very similar to PESCO where there was no understanding or preparedness in terms of saying we need to go down this road and then all of a sudden it was foisted on us out of the blue. That is like many of the actions that have been taken over the years to undermine our neutrality.

We know how the EU has developed and continues to develop in terms of militarisation, the European Defence Agency and the EU army, which despite the Minister of State's protestations, all of the other EU leaders say will be set up by 2021 at the earliest and 2023 at the latest. That is exactly what they are looking for. I have not heard a demand from anyone within the Defence Forces here looking for that to give extra protections to Irish soldiers. There are sufficient protections available. If members of the Defence Forces were confined to UN missions, there is already a SOFA in place to cover them. It is only when the situation is complicated by being part of an EU battle group or because it is a Partnership for Peace mission or connected to NATO that one runs into difficulties. Reference was made to the potential of soldiers being embarrassed when they were on duty with an EU battle group. I am embarrassed that they were there in the first place, and many Irish people are embarrassed that Irish soldiers are aligning themselves with NATO troops around the world on missions either encouraged by NATO countries or by the EU. The Irish people have taken a stand in this country and demanded that we respect neutrality. The agreement is totally contrary to that and we should reject it and any other attempt to take the little steps that further immerse us in the EU military apparatus and the EU project, or for that matter in any NATO project associated with it. I am opposed to the agreement and to any further diminution of Irish neutrality.

I wish to share time with Deputy Boyd Barrett.

Is that agreed? Agreed.

We are completely against the ratification of the status of forces agreement. We are against the process of militarisation which is happening across the European Union. We are against the integration of Ireland with NATO through the process of the so-called Partnership for Peace. These agreements are designed to facilitate the further process of militarisation. That is the truth.

The model for the status of forces agreement is the NATO model. It is a model which is used, especially by the US, to allow its troops not to be subject to the jurisdiction of host states and their troops have a very long and inglorious record of avoiding the justice system in those states when their troops commit crimes, even when off duty. These agreements provide the legal framework to smooth the process of further involvement of Irish military forces in EU and Partnership for Peace deployments. The Government and Fianna Fáil like to say the deployments are for humanitarian reasons but the truth, unfortunately, is otherwise. There is a galloping process of militarisation of the European Union to which we have been drawing attention in recent years. I will give a couple of recent examples which illustrate the point. Angela Merkel, not in some unguarded comment or minor speech, but in a speech in the European Parliament in November said: "We have to create a European intervention unit with which Europe can act on the ground where necessary ... We have taken major steps in the field of military co-operation ... we have to work on a vision to establish a real European army one day." That was linked to a call for a move away from unanimity on the matters of defence and foreign policy. Mrs. Merkel said: "in the long run, Europe has to become more capable to act. We have to reconsider our ways of deciding and to renounce the principle of unanimity" while proposing a European security council. That is already taking effect in the significant increase in the amount of European money going on defence spending and research spending on defence. It is also taking effect in the moves towards the creation of a European military headquarters.

George Orwell, in his fantastic work 1984, described a dystopian future where the world is divided into three big geopolitical military blocs in a state of permanent warfare, but that reality was glossed over by ideological doublespeak from the rulers of those blocs whose motto was "war is peace, freedom is slavery, ignorance is strength". That is precisely what we are getting from the Government and Fianna Fáil when it comes to our involvement with the increasing process of militarisation and the creation of a European army.

Incredibly, they acclaim it. It is encapsulated in the name - PfP with NATO. This is an oxymoron, it is doublespeak, and it is a contradiction in terms. NATO is a nuclear, military, expansionist, aggressive alliance. It has a first-strike nuclear policy, which means you fire nuclear weapons at other people before they fire them at you. The EU is integrating with the organisation and the Government is dragging us by stealth into that through the process of PfP and these sorts of agreements while claiming it is not affecting our neutrality. It is rubbish.

Let us look at the current deployment in Mali. Mali is a place where the French have a colonial history, and not a very good one. We are deploying 12 Army rangers, just enough so we do not have to invoke the triple lock, but we are not involved in peacekeeping, where peace has been established, but instead we are in-between, maintaining the peace but basically in a civil war situation where the Government we are supporting has itself acknowledged it is killing innocent civilians in a complicated conflict. Why the hell are we sending our troops into that dangerous situation and aligning ourselves with aggressive imperial powers like France? In this case, we are aligning with NATO, which is instigating an expansionist policy in eastern Europe and intensifying conflict with Russia, one of the other aggressive geopolitical military blocs. It is madness and we absolutely oppose it.

I wish to share time with Deputy Clare Daly.

Is that agreed? Agreed.

I am not sure why the Government is ratifying these SOFAs now. Can the Minister of State give me examples where the Defence Forces have suffered in previous instances due to these SOFAs not being ratified?

A WikiLeaks cable from 15 December 2009 showed the Department of Defence was considering ratifying them in 2010 but was concerned about the element dealing with foreign troops on Irish soil. In a Wikileaks cable from 2009, an assistant secretary in the Department of Defence, Ciaran Murphy, tells a US political officer of Ireland's hopes to ratify an EU SOFA and a NATO-PfP SOFA in 2010, which obviously did not happen. Ratifying these two SOFAs now also opens up the possibility that Ireland may receive requests for foreign troops to transit on route to operations. The briefing note supplied by the Department of the Taoiseach for the debate states that ratifying these SOFAs would not impact our traditional policy of military neutrality, if it exists, and that there was no situation in which a SOFA could result in Ireland agreeing to receive and base foreign troops on its territory, including forces in transit, as there is a constitutional prohibition on this. This is not true. There is no constitutional prohibition on foreign forces transiting, although Dáil approval is required, as per Article 28.3 of the Constitution, which states: "The State shall not participate in any war save with the assent of Dáil Éireann".

Referring back to the 2009 cable in regard to a request for US troops to transit through Shannon under a SOFA, the assistant secretary in the Department stated:

...while the Irish constitution does not forbid foreign troops transiting through Ireland or coming for ship visits, as U.S. troops do, a SOFA that included provisions for transiting troops would require legislative approval, since the constitution gives the Irish parliament authority over military forces. Getting legislation approving troop transits, and giving U.S. troops transiting Ireland any sort of special status ... would entail a major public debate that would shine a spotlight on the fact that U.S. troops are transiting Ireland on the way to Afghanistan; it would awaken the opposition of an Irish populace that is very zealous of Ireland's neutrality.

How interesting. The cable summarily ends with the following line: "U.S. troops transiting to Afghanistan and Iraq through Shannon airport in Ireland will continue to be handled informally." This cable highlights how consecutive Governments since 2003 have been able to get around the provision of Article 28.3 concerning Dáil approval by stating that its use does not amount to participation in a war and that the arrangement is on an informal basis for the past 65 years. We are neutral in name only. The ratification of these two SOFAs is another example of this. It is not right to pretend that they will not affect our neutrality or that there is no possibility of foreign troops transiting through as a result of the ratification. Why does the Government not just be straight and tell the people how it is, because this is not true?

We all know NATO set up the PfP in 1994. We also know that William Perry and Ashton Carter, the brains behind it, said in their book, Preventive Defense:

The objective of a renewed Partnership for Peace should be to make the experience of partnership as close as possible, in practical military terms, to the experience of membership in NATO . . .PfP combined exercises and other military-to-military activities should advance from the partnership's early focus on peacekeeping and humanitarian operations to true combat operations.

The PfP is, and always has been, a disgusting contradiction in terms. Ireland should have nothing to do with it. As a neutral, post-colonial country, we should have nothing to do with the neocolonialists in NATO. What we are being asked to do today is to agree to Ireland signing up to EU and NATO Partnership for Peace SOFAs. We are being asked to entangle Ireland ever more closely with a Europe newly determined for wars to start so it can give its armies something to do with the weapons it is eagerly amassing to the benefit of the arms industry.

I have an interesting quote regarding to what deeper entanglement might mean for Ireland:

Our view is that any decisions involving a closer association with NATO or the Western European Union would represent a substantial change in defence policy, and would have long-term if not immediate implications for our policy on neutrality. Any such proposals must be put to the people in a referendum before a decision is taken.

That was Bertie Ahern in 1996. Fianna Fáil fought and won the 1997 election on the basis of opposition to participation in the PfP. What has happened since then to change that status? Absolutely nothing, except a much deeper drive to arms and enrichment of the arms industry. We should not have had anything to do with it in 1996 and we certainly should have nothing to do with it in 2019 either.

I thank Deputies for their comments and contributions. I very much respect the views on all sides of the House and the concerns raised. Deputies have highlighted the importance of our military neutrality and our reputation for peacekeeping. However, the public would also consider it important that the brave men and women of Óglaigh na hÉireann serving overseas are protected, like all other military personnel operating on the same mission or exercise are protected. We would also want our personnel to benefit fully from the training available through exercising with peacekeeping partners and contributing states where such opportunities are available. In the face of increasingly complex crisis management operations, such exercises can contribute extensively to the capacity and capability of any mission. Ratification of the SOFAs can deliver these benefits for members of our Defence Forces without in any way compromising or diminishing our traditional policy of military neutrality.

The SOFAs will offer members of our Defence Forces equal protections and immunities as our colleagues from other countries where they are working alongside them on missions and operations abroad and ensure they are not restricted to such operations or exercises. As previously outlined, the EU and Partnership for Peace SOFAs are standard agreements which apply in regard to certain EU and NATO-led overseas crisis management operations and exercises. They provide members of the Defence Forces with the same immunities and privileges as all other contributors without the requirement for complex side agreements between Ireland and other contributors, which is currently the case. In regard to the PfP SOFA, it is important to note that the EU crisis management operations and battlegroups have operated under this agreement where there has been third-state participation in operations, and it is very common that security and policy missions and operations also involve third-state participation from non-EU member states.

These third states are usually states party to the PfP SOFA but not party to the EU SOFA. As such, it is more appropriate to apply the PfP SOFA in that context. Ratification of the SOFA means simply that the Defence Forces can acquire the privileges of these arrangements as a matter of right rather than having to rely on difficult exchanges of letters between jurisdictions which may or may not be concluded on their behalf. In the past, issues have arisen unnecessarily in relation to the completion of the exchange of letters through no fault of either party concerned. As outlined by Deputy Jack Chambers, this was a reality in 2016 during Ireland's participation in the German-led battle group when Germany advised that it could not facilitate the exchange-of-letters arrangements on time due to legal, constitutional and parliamentary requirements. As a result, Ireland could not participate in the field exercises undertaken by all other participants in the German battle group.

This is unsatisfactory from a training and interoperability perspective. We also had to rely on the goodwill of members of the Defence Forces and their partners in respect of the deployment to the battle group's operational headquarters during the stand-by period. This SOFA compromises in no way our national policy of military neutrality.

Given the constitutional prohibition in Article 15.6.2o on Ireland agreeing to base foreign troops on its territory, there are no circumstances in which the SOFA could have an application in respect of foreign forces in Ireland, including forces in transit or visiting personnel. The reservations which will attach to our instrument of ratification makes this absolutely explicit and leaves no room for ambiguity. It states that Ireland shall not be a receiving state for the purposes of the present agreement.

Our Defence Forces should be protected in the same manner as the other military personnel with whom they operate on missions and exercises when deployed outside the State. Ratifying the SOFA provides these protections. I thank the Members for their contributions and will consider what has been said in advance of further discussions at the Select Committee on Foreign Affairs and Trade, and Defence. I respect everyone's views and take on board the concerns expressed. However, I emphasise that this SOFA does not threaten our military neutrality in any way. I propose that the motion be referred to the select committee for its consideration.

In accordance with the order of the House of yesterday, any division will be taken immediately.

Question put:
The Dáil divided: Tá, 75; Níl, 29; Staon, 0.

  • Aylward, Bobby.
  • Bailey, Maria.
  • Breathnach, Declan.
  • Breen, Pat.
  • Brophy, Colm.
  • Browne, James.
  • Bruton, Richard.
  • Burke, Peter.
  • Byrne, Catherine.
  • Cahill, Jackie.
  • Canney, Seán.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Casey, Pat.
  • Chambers, Jack.
  • Collins, Michael.
  • Corcoran Kennedy, Marcella.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Curran, John.
  • Daly, Jim.
  • Deasy, John.
  • Deering, Pat.
  • Doherty, Regina.
  • Donnelly, Stephen S.
  • Donohoe, Paschal.
  • Dooley, Timmy.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Griffin, Brendan.
  • Harty, Michael.
  • Haughey, Seán.
  • Healy-Rae, Danny.
  • Heydon, Martin.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Kyne, Seán.
  • Lahart, John.
  • MacSharry, Marc.
  • Madigan, Josepha.
  • McEntee, Helen.
  • McGrath, Michael.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mitchell O'Connor, Mary.
  • Moran, Kevin Boxer.
  • Moynihan, Michael.
  • Murphy O'Mahony, Margaret.
  • Murphy, Eoghan.
  • Murphy, Eugene.
  • Naughton, Hildegarde.
  • Neville, Tom.
  • Noonan, Michael.
  • O'Connell, Kate.
  • O'Dea, Willie.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Loughlin, Fiona.
  • O'Rourke, Frank.
  • Ó Cuív, Éamon.
  • Phelan, John Paul.
  • Ring, Michael.
  • Rock, Noel.
  • Ross, Shane.
  • Scanlon, Eamon.
  • Smyth, Niamh.
  • Stanton, David.
  • Troy, Robert.
  • Varadkar, Leo.
  • Zappone, Katherine.

Níl

  • Barry, Mick.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Broughan, Thomas P.
  • Buckley, Pat.
  • Collins, Joan.
  • Connolly, Catherine.
  • Crowe, Seán.
  • Daly, Clare.
  • Ellis, Dessie.
  • Funchion, Kathleen.
  • Kenny, Martin.
  • Mitchell, Denise.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • O'Brien, Jonathan.
  • O'Reilly, Louise.
  • O'Sullivan, Maureen.
  • Ó Broin, Eoin.
  • Ó Caoláin, Caoimhghín.
  • Ó Laoghaire, Donnchadh.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Ryan, Eamon.
  • Smith, Bríd.
  • Stanley, Brian.
  • Wallace, Mick.

Staon

Tellers: Tá, Deputies Seán Kyne and Tony McLoughlin; Níl, Deputies Richard Boyd Barrett and Aengus Ó Snodaigh.
Question declared carried.