Seanad Éireann debate -
Wednesday, 16 May 1956

Vol. 46 No. 1

Prisoners of War and Enemy Aliens Bill, 1956—Second Stage.

Minister for Defence (General MacEoin)

I move that the Bill be now read a Second Time. The Bill represents a second step in bringing the national legislation into accord with the provisions of the 1949 Geneva Conventions relative to:—

(a) the treatment of prisoners of war, known as the Prisoners of War Convention; and

(b) the protection of civilian persons in time of war, known as the Civilians Convention,

preparatory to the ratification of those conventions. The first step in that direction was taken when the Red Cross Act, 1954, relating principally to Red Cross matters, was enacted. A third measure remains to be introduced. This, which will be sponsored by the Minister for Justice, will deal with the domestic law in relation to those articles of the conventions aimed at the punishment of grave breaches of the conventions.

Beginning in 1864, when the first Geneva Convention was signed with the object of improving the fate of wounded belonging to armed forces in active service, efforts, translated into a number of conventions, have been made down through the years to better the conditions of members of armed forces who fall into the power of the enemy.

The 1949 Prisoners of War Convention gives expression to the present-day desire of nations to apply the highest possible humanitarian principles in their relations with prisoners of war. The convention introduces many new and important features. Prior to the 1949 Convention only members of the "armed forces" were regarded as prisoners of war and treated as such. The 1949 Convention defines the expression "Prisoners of War" in a much wider sense to include, in addition to armed forces who have fallen into the power of the enemy, members of militias and other volunteer corps and organised resistance movements, fulfilling certain conditions; persons accompanying the armed forces without actually being members thereof such as civilian members of military aircraft crews, war correspondents, supply contractors, etc., provided they have received authorisation from the armed forces which they accompany; members of crews of the merchant marine and of civil aircraft of the parties to the conflict who do not benefit by more favourable treatment under any other provisions of international law and the inhabitants of a non-occupied territory who take up arms to resist an invader, provided they carry arms openly and obey the laws and customs of war.

The convention also provides that persons belonging to any of the categories of persons defined as prisoners of war who have been received by neutral or non-belligerent powers on their territory and whom these powers are required to intern under international law shall be treated as prisoners of war without prejudice to any more favourable treatment which may be accorded. This provision is important from the standpoint of neutral countries and will help them in overcoming problems in their dealings with belligerent forces.

Other new features of the convention provide for the issue to persons entitled to be treated as prisoners of war of identity cards by their own Governments and for the issue of pay to noncommissioned officers and men as well as to officers, as formerly. The necessary financial adjustment will be effected at the end of hostilities. There is a further new provision laying down minimum rates of working pay and the conditions of work generally are closely related to those governing similarly employed civilian workers in the same locality. A great advance has been made in the matter of repatriation. This must now take place without delay after the cessation of active hostilities instead of, as formerly, as soon as possible after the conclusion of peace.

The Civilians Convention is an entirely new convention aimed at protecting the fundamental rights of the civilian population. It does not apply to aliens interned in neutral countries in time of war. The convention defines the categories of persons which it protects and regulates the treatment which must be accorded such persons. Protected persons who are a danger to the security of the State, for example, spies, are not entitled to claim such rights and privileges under the convention as would, if exercised in their favour, be prejudicial to the security of the State. Such persons must, however, be treated humanely until it is found possible to restore their full rights. Where a party to the conflict finds it necessary to deny protected persons an opportunity of supporting themselves that party must ensure their support as well as that of their dependents. Protected persons who may desire to leave the territory of a party to the conflict are entitled to do so unless their departure is contrary to the national interests of the State. If permission to leave the territory is refused, the refusal must be open to periodical review by an appropriate court or administrative board. If it is necessary to intern protected persons or assign them to a fixed residence their position must likewise be reviewed periodically.

Conditions of internment for protected persons are laid down in detail in the convention. These conditions are on the lines of those prescribed in the Prisoners of War Convention for prisoners of war.

The Bill I am now presenting to the Seanad contains several references to particular articles or portions of the conventions with which the measure is concerned. Copies of the conventions have been presented to the House by the Minister for External Affairs and Senators will, no doubt, have read them. A brief description of the nature of the principal provisions of the portions concerned of the conventions, particularly of those portions which will be dealt with by regulations, has, however, been given in the explanatory memorandum which was circulated with the text of the Bill. Senators will see from Sections 2 and 3 of the Bill that power is sought to deal with a miscellaneous number of matters by regulations. There is no other way by which the mass of detail contained in the particular portions concerned of the conventions could be satisfactorily dealt with. Senators will, however, have an opportunity of examining the regulations as they will be laid before the House.

If the House wishes, I will go into a general discussion of the Bill, but I do not suppose there is any necessity to do so. The whole object of the Bill is to enable us to ratify the conventions. We are one of a number of nations who have not yet done so: it has been ratified by a great number. We are in the wrong queue and we should like to get into the other queue as soon as possible.

Mr. Kissane

I do not propose to speak at length on this Bill, because I realise it is designed to ensure ratification of the convention to which the Minister referred. It is well to know that a great advance has been made in connection with the treatment of prisoners of war and that humanitarian principles are more or less being brought to bear on such people. It is only right and proper, therefore, that we—even though we are only a small nation—should subscribe to the principle enshrined in this Bill.

I gather from what the Minister has said that certain other nations are standing aloof from this international agreement. That is very much to be regretted. No doubt, they have reasons of their own for standing aloof from this——

General MacEoin

They have not yet ratified them. We are in that group ourselves.

Mr. Kissane

It is for that reason that this Bill should be welcomed—so as to make sure we do not belong to that group. This is a Bill which does not lend itself to a lengthy debate and I will conclude now by again saying that I welcome it.

Dr. Sheehy Skeffington

I should like to join with Senator Kissane in welcoming this step which is being taken by the Government to ratify the convention in relation to prisoners of war and enemy aliens. There are one or two points, however, that do not seem entirely satisfactory and that are not quite clear. In Section 2(3), I notice that, in order that such a person may be interned during war time, the Minister has to be satisfied that the internment of the enemy alien in question is "absolutely necessary for the security of the State". That seems to me to be a very strong phrase, and, if it were to be quite literally interpreted, it might well prevent the Minister from interning quite a large number of aliens about whom it could not reasonably be said that their internment was "absolutely necessary for the security of the State". I should like to hear what the Minister has to say about this necessity to satisfy himself in such absolute terms.

In sub-section (7) of the same Section 2, there are two points which I would like to mention. The first is a matter of wording. It would seem to me that, instead of talking about "any person as respects whom he has reasonable grounds for believing that such person is a person..." it would be simpler to say "any person whom he has reasonable grounds for believing to be a person..." I am objecting there to the cumbersome and, I think, unsatisfactory wording, which occurs again in a later clause to which I shall also refer.

The second point is more serious than a merely linguistic one, because this sub-section gives a member of the Garda Síochána a right to arrest a person without a warrant whom he believes to be a person "directed to be interned." There is no mention here or elsewhere in the Bill of any obligation on the Garda to take any further action in relation to such a person. In other words, this sub-section gives power to arrest, but does not give any defence to the person so arrested. There is no obligation on the Garda to show that his presumption or suspicion was in fact founded. There is no apparatus or machinery which must be brought into play in order to show that the individual Garda was right in his belief that this person was a person who had been "directed" to be interned. That seems to me to be a loose end which should be tied up. There should be some obligation placed on the Garda arresting a person without warrant, simply on suspicion, to convince some superior that he has acted rightly.

The next point I want to ask is a question in relation to Section 5. I am sure this arises out of the internationally agreed convention, but it has a slightly surprising ring to me. It says:—

"If sentence of death is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of the period of six months referred to in Article 101 of the Prisoners of War Convention."

I should like the Minister to explain just precisely what is the implication of this 6 months' delay between conviction and execution in this case. It is a rather startling clause and we might have some explanation of it.

I see that Senator Crosbie is not quite happy, perhaps because he notices there is a motion down, to which I have put my name, for the abolition of capital punishment. I am not to be taken at all as urging that the man be executed quickly. I am asking the question for the purpose of finding out what lies behind this clause. It would be nice if one could change the period of six months to 100 years. It would be a pleasant amendment to put in, and it would be in accordance with my own views. At all events, I want to know how it arises and what is the necessity for it.

Section 7 is the next section about which I should like to ask a question. The Minister, in introducing this Bill, suggested that this is for the purpose of ratifying international conventions, but Section 7 permits the trying by a military tribunal of an interned enemy alien charged with any offence. I notice in Section 8 of the memorandum that accompanies this Bill that we are told:—

"The Civilians Convention does not specifically provide for trial of enemy aliens by military courts. Neither, however, does it preclude such action and as it is obviously desirable that there should be power in certain circumstances to bring enemy aliens before military courts, provision accordingly is made in Section 7 of the Bill."

I do not think that it is quite so "obviously desirable," in the first place, and I am afraid that we are inserting something here under the impression that we are merely ratifying an international convention, which, in fact, by the admission of this memorandum, does not appear in the international convention. I consider it slightly odd to find it said here that we may introduce this military tribunal here because these conventions do not preclude it! The only argument for it is the statement that it is "obviously desirable." I do not think the "obviousness" of that desirability has been put before us. I personally should like to see it justified, before I would vote for this proposal to try by military tribunal interned enemy aliens charged with an offence. I am not convinced that that would be necessary.

The last section I want to refer to is Section 8. Section 8 refers to what can be done to a person who is not an interned enemy alien but who assists one to escape. I would suggest that if this section was not in the Bill, which relates to prisoners of war and enemy aliens, and if some Senator were to put it down and ask that it be inserted as an amendment, I suggest that he would be told that it was irrelevant because it gives power to deal in a certain way with Irish citizens and not with enemy aliens or prisoners of war.

Here we have in this Bill, which purports to deal with prisoners of war and enemy aliens, a clause which allows for certain penal action to be taken against Irish citizens! I would suggest that this Bill is not the place for such a provision.

I have two other objections to this section. One is in respect of the wording of sub-section (3), which says:—

"A member of the Garda Síochána or of the Defence Forces may arrest without warrant any person as respects whom he has reasonable grounds for believing that such person has contravened..."

"As respects whom"—I feel that that could be more happily worded. I would ask the Minister to put down an amendment wording it more simply and speaking of "any person whom he has reasonable grounds for believing to be a person who has contravened..."

The last point I want to make in relation to this section and the Bill is that this section permits the arrest by a member of the Garda Síochána or Defence Forces—any ordinary Garda or any private soldier—permits the arrest of an Irish citizen without a warrant and without any indication as to what procedure must immediately follow upon this arrest on suspicion. Again I feel that in this clause power is given for arrest without warrant and on suspicion, without the necessary defence being given for the person involved.

It is quite obvious, of course, that a Garda or private soldier might suspect a person and yet be wrong. He might suspect him in good faith, and yet be wrong, but this clause gives him the right to arrest this Irish citizen, not an enemy alien, a prisoner of war or an internee, without asking for any safeguard to be included, compelling, for instance, the arresting Garda or soldier to convince some tribunal or superior officer, preferably a judicial tribunal, that his suspicion was in fact founded. Unless some such change were made I should be unhappy about that sub-section as, indeed, I should be unhappy about the entire Section 8 which deals not with prisoners of war or enemy aliens but with Irish citizens.

General MacEoin

This Bill is drafted in accordance with the conventions and is designed to enable us to ratify them. Senator Sheehy Skeffington referred to various sections. With regard to Section 2, part of that gives authority for internment to be governed by regulation afterwards. One would have a field day, I admit, on the regulations, but practically every section in this Bill is closely related to the conventions themselves. Perhaps what I should have done was to go through each section and say to what division of the convention it is related.

With regard to the question of arrest, I want the Senator to realise that this will be war time. Somebody must have power to arrest. You cannot have a tailor, a blacksmith or anybody like that to effect the arrest. The only person entitled to do so is a Civic Guard or a member of the Defence Forces. The arrested person must then be brought in the proper process of law to justice, when he has the right to defend himself and do all the things that ought to be done for that purpose.

The provision that the person is not to be shot for six months is to give the country to which he belongs an opportunity of saying something to prevent him being shot. It is part of the convention that no prisoner of war is to be shot after sentence of death has been imposed, for at least six months. I think it is a very desirable thing, instead of giving authority to shoot a prisoner out of hand.

Dr. Sheehy Skeffington

It is a pity that principle was not applied in the past to some of our own nationals!

General MacEoin

It is part of the convention to see that he gets a fair chance in war conditions. I know you can argue that the death penalty should be abolished but you must remember that war is a killing match and it is not made to-day by the old orthodox methods. It is a new phase altogether and the intention in this measure is to try to lessen the impact.

As regards the trial of enemy aliens by military courts, we must remember that in a time of war the civilian courts may be out of action. This is an enabling Bill to empower trial by court-martial. It is reasonable enough that under these circumstances the trial would be by court-martial. Generally speaking, courts-martial are fair enough, if they are given a chance.

The wording of some of the sections may be difficult but they are designed by the parliamentary draftsman to give effect to the convention. Whether he has succeeded in that, I am not in a position to say, but the legal advisers to the Government say so and my officials assure me that these sections are in accordance with and not contrary to any of the conventions. Therefore, we think they meet all the requirements.

Question put and agreed to.

Committee Stage ordered for Wednesday, 30th May, 1956.