I welcome the Minister of State, Deputy Eithne Fitzgerald, to the House.
Adjournment Matters. - Protocols I and II to the Geneva Convention, 1949.
I thank the Cathaoirleach for allowing me to bring this motion before the House and the Minister for coming here.
I want to declare a personal interest in this, I am a long standing member of the Irish Red Cross, having served on the council for several years and I have been a member of the Overseas Committee for over ten years. A relation of mine, a former Senator, Robert Rowlette, helped found the Irish Red Cross 55 years ago. I speak here wearing my Red Cross hat.
We have been trying to seek information in this area for some time. I have always been very proud to be involved in the Irish Red Cross which is held in very high esteem by the International Red Cross. Many of our volunteers have held important positions overseas, for example, Geoff Loane, who was recently elected Tipperary Man of the Year, is the regional co-ordinator for the Red Cross in charge of the majority of African operations.
Sadly, international conflicts continue. The news this morning spoke of the serious renewed fighting in Bosnia. There is no improvement in the situation in Angola and the same applies to many other areas where civil wars continue, for example, in areas of the former Soviet Union.
We in the Irish Red Cross have been disappointed that Protocols I and II to the Geneva Convention of 1949 have not been ratified by Ireland. When I telephoned the Department of Foreign Affairs about this recently I could not get any further information as to why they had not been ratified. This is why I decided to raise the matter today. The Protocols were brought forward in 1977 and unless there is a particularly important reason for the delay in ratification — I have not been able to find one, nor has the Irish Red Cross in the past — I urge that they be ratified as soon as possible, particularly because they apply to civilians and medical personnel in civil wars.
Briefly, the Geneva Convention of 1949 updated previous conventions and other treaties on the treatment of prisoners of war, civilians caught up in conflict, medical personnel giving aid and so forth.
The history of the Convention is clearly associated with that of the Red Cross. Henri Dunant instigated international negotiations in 1864, establishing the Convention for the Amelioration of the Wounded in Time of War. He had been at the scene of the Battle of Solferino and had been greatly disturbed by the treatment of wounded soldiers, prisoners on the field and civilians in the area of conflict. This convention provided for the immunity from capture and destruction of all establishments for the treatment of wounded and sick soldiers and their personnel, for the impartial reception and treatment of all combatants, for the protection of civilians rendering aid to the wounded and for the recognition of the Red Cross as a means of identifying persons and equipment covered by the agreement.
The Third Geneva Convention of 1929 related to the treatment of prisoners of war, providing that belligerents must treat prisoners humanely, supply information about them and permit visits to prison camps by representatives of neutral nations.
After the Second World War, because of the abuse by some belligerents of the principles contained in the earlier conventions, the four Geneva Conventions of 1949 were drawn up. One dealt with the amelioration of the condition of the sick and wounded in the armed forces on the field, the second with armed forces who might be shipwrecked, the third with prisoners of war and the fourth with the protection of civilian persons in times of war. Briefly, these conventions require humane treatment for those in the armed forces when they are hors de combat and for civilians caught up in the field of action.
The Protocols to which I refer and would like to see ratified were drawn up in 1977. Protocol I governs situations in international armed conflict and aims to improve, strengthen and develop the legal measures by creating a better basis for humanitarian action on behalf of war victims. Particularly important is the fact that it introduces into modern law rules on the protection of the civilian population from the effects of hostilities such as carpet bombing. It also addresses the bombing of nuclear power stations, dams, water supplies which may be essential for the survival of the civilian population and food supplies which may be indispensable too. The Protocol contains a statement to the effect that "the people's struggle against occupation by a foreign power and against racist regimes in accordance with their right to self-determination and the Charter of the United Nations" should be regarded as "armed international conflict". Article 42, dealing with conflicts involving national liberation movements recognised by the Organisation of African Unity or the Arab League, laid down that armed combatants should be given protection equivalent to that accorded to prisoners of war even though such combatants may not comply with the conditions of wearing armlets or other visible signs and carrying arms openly. This puts civil war type conflicts with an international agenda on a similar footing to what were regarded as proper international conflicts.
Protocol II considerably strengthens the protection of victims in non-international conflicts. As I pointed out at the beginning, this is all too frequent a problem at present. It sets out a "humanitarian minimum" of provisions relating to internal conflicts, in particular to the protection of the sick, the wounded and medical personnel. Again I wish to mention our many overseas delegates who are working in such areas of conflict and we should do all we can to protect them.
The Protocol also stresses the obligation to protect installations necessary for the survival of civilians, the prohibition of forced deportation — which is very important at present — the privileged treatment of children and the prohibition of starvation of the civilian population as a method of combat — this method is being used at the moment.
The International Committee of the Red Cross has pursued a highly active campaign to encourage the ratification of the Protocols. Ratification by all states will strengthen these laws by showing their universality. All these procedures should lead to better protection for victims of conflicts through respect for international law.
It is 15 years since the Protocols were brought forward. The Ukraine has been independent for only a few years but it has ratified. If the Minister can advance good reasons for Ireland not ratifying I would be glad to hear them. It is because I feel we are of importance in this area and have a strong, moral, humane voice that I asked this question.
I appreciate Senator Henry's humanitarian concern in raising this issue and am aware of her work with the Red Cross. On behalf of the Tánaiste I commend her for that work and hope we can make progress on this issue.
Ireland became a party to the four Geneva Conventions of 1949 relating to the victims of international armed conflicts and to the protection of victims of non-international armed conflicts after the enactment of the necessary legislation — the Red Cross Act, 1954, the Prisoners of War and Enemy Aliens Act, 1956, and the Geneva Conventions Act, 1962.
The additional Protocols to which the Senator refers supplement the substantive rules and the implementation mechanisms in the four conventions for the protection of war victims. While the Protocols reassert a desire for peace, they recognise and take into account the realities of life, so that for those situations where legal regulations are essential the Protocols contribute to the promotion of humanitarian ideals by limiting the effects of hostilities. They reaffirm further that the provisions of the 1949 Conventions must be fully applied in all circumstances to all persons who are protected by those instruments. The fact of being the aggressor or the victim of aggression does not absolve anyone from his or her obligations nor deprive anyone of the guarantees laid down by humanitarian law.
The scope of the Protocols was made more specific and broader than that of the conventions themselves. For example, the protection of the wounded, sick and shipwrecked, which was not included in the conventions, is covered by Protocol I. That Protocol is also important in that it develops the protection of civilian medical personnel and emphasis is put on the protection of persons in the power of the enemy. The Protocols introduce new elements and clarifications in relation to "grave breaches" as defined by the conventions. Such breaches must lead to administrative, disciplinary or penal sanctions in accordance with the general principle that every punishment should be proportional to the severity of the breach. The Protocol increases the number of situations in which already defined acts would become grave breaches.
Contracting parties have a duty to take any legislative measures necessary to establish adequate penal sanctions to be imposed on persons who have committed or have ordered to be committed any grave breaches. Such breaches are subject to universal jurisdiction and each contracting party must search for persons alleged to have committed or to have ordered to be committed any such grave breach. These persons must either be brought before its own courts or handed over for trial to another contracting party interested in prosecuting them, provided it has made out a prima facie case against them.
Regardless of the rules contained in criminal law or the law relating to extradition of each contracting party, universal jurisdiction provides an alternative which should not leave any loophole. On the other hand, it is also required that procedural guarantees be provided for any accused. Accused persons must enjoy a free defence which will ensure them a fair trial and they must have a right of appeal against any sentence with a view to quashing or revising it, or to the reopening of the trial. A party to a conflict which violates the provisions of the conventions or Protocols may be liable to pay compensation on the basis that it is responsible for all acts committed by persons forming part of its armed forces.
Protocol II constitutes the first legal instrument for the protection of victims of non-international armed conflicts. The Protocols contain provisions relating to the implementation of the conventions and of the Protocols. Both Protocols were signed, subject to ratification, on behalf of Ireland. The State is, therefore, already committed to refrain from acts which would defeat the object and purpose of the Protocols.
As can be seen from the foregoing, the Protocols, which extend and elaborate further on the 1949 Conventions contain provisions on many major matters for which it appears clear that legislation will be required if the State is to give effect to them. The first step, therefore, will be for a detailed examination of the Protocols to be undertaken with a view to determining the nature of any legislation which may be required. Senator Henry is probably aware that there are 130 separate articles, so it is a complex legal task to which legal resources must be devoted. I think that has been the cause of the delay rather than any lack of willingness — it is the sheer complexity of reconciling the task with our laws and Constitution.
Following any recommendation in that regard and with a view to their ratification in due course, the Tánaiste will be submitting the matter to Government so that a decision can be taken on how best to proceed to enable Ireland to comply with the obligations which the Protocols impose.
I thank the Minister of State for her statement and I fully realise how long and difficult the process may be. However, it is not that I think this State is going to do anything appalling but that I feel our moral voice is what the Red Cross wants in the ratification of this. I hope — because it seems to be constantly slipping to the bottom of the heap in the Department of Foreign Affairs — that we could look at the necessary legislation in the near future.