I am glad to return to the House to speak on the Second Stage of this Bill.
Customs governing the conduct of war have existed from ancient times. The Laws of Manu, the greatest of the ancient Hindu codes, prohibited Hindus from using arrows and the Greeks and Romans customarily observed a prohibition against poison or poisoned weapons — I thought this would be the tone expected of me by the Seanad. Senators always appreciate useful information. During the middle ages the Lateran Council of 1132 declared that the crossbow and arbalest were unchristian weapons. As far back as the late middle ages, customs governing the conduct of war were clearly documented in the works of the famous commentator on international law, Hugo Grotius. These customs began to be transformed into treaties in the 19th century. One of the early steps in this development of international law was the Paris Declaration respecting maritime law in 1856. The conclusion of the first Geneva Convention in 1864 for the amelioration of the condition of wounded in armies in the field was another important milestone in the development of humanitarian law. This was followed by the conclusion of the St. Petersburg Declaration renouncing the use in time of war of explosive projectiles under 400 grammes weight in 1868 and by the conclusion of the Hague Conventions of 1899 concerning the laws and customs of war on land and of 1907 concerning the opening of hostilities and the laws and customs of warfare on land. Further development of this process to reduce the suffering of individuals in time of war occurred with the adoption of the Geneva Conventions in 1906 on the amelioration of the condition of the wounded and sick in armies in the field, and in 1929 on the amelioration of the condition of wounded in armed forces in the field and on the treatment of prisoners of war.
However, the atrocities which took place during World War II prompted the conclusion of the Genocide Convention in 1948 and the four Geneva Conventions of 12 August 1949, first, on the amelioration of the condition of the wounded and sick in armed forces in the field, second, on the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, third, on the treatment of prisoners of war and fourth, on the protection of civilian persons in enemy and occupied territory in time of war. These four Geneva Conventions have undoubtedly been the most significant in updating international humanitarian law. Ireland is a party to the four Geneva Conventions of 1949. They are part of Irish law by virtue of the Red Cross Act, 1954, the Prisoners of War and Enemy Aliens Act, 1956, and the Geneva Conventions Act, 1962. International humanitarian law is the term which is currently used to describe that branch of law that was formerly known as the laws of war. In the United States it is often called operational law as it affects military operations.
The purpose of this Bill is to enable effect to be given to the Protocols additional to the Geneva Conventions of 1949 done at Geneva on 8 June 1977 and for that purpose to amend the Geneva Conventions Act, 1962, section 6(1) of the Red Cross Act, 1938 and section 1 of the Prisoners of War and Enemy Aliens Act, 1956 and to provide for connected matters. Additional Protocol I and Protocol II are the most recent efforts at a multilateral level to augment and reinforce the Geneva Conventions of 1949. They cover aspects of human suffering in armed conflict not included in the Geneva Conventions of 1949. Additional Protocol l relates to international armed conflicts while Additional Protocol II is confined to non-international armed conflicts — of which we have been witnessing many recently.
I want to begin with the substance of the two Additional Protocols whose texts are set out in the Schedule to this Bill as the Fifth and Sixth Schedules to the Principal Act.
Protocol l, Additional to the Geneva Conventions of 12 August 1949, is concerned with the protection of victims of international armed conflicts. It contains 102 articles and attempts to deal with a wide range of issues including the protection of medical units, the methods and means of warfare, the status of combatants and prisoners of war and the protection of the civilian population against the effects of hostilities, among others. I do not intend to discuss the merits of each part of the Protocolumn However, it is important to note that the Protocol facilitates several advancements in the whole area of international humanitarian law. A significant development is contained in article 90. This provision acknowledges the fundamental importance of the International Humanitarian Fact Finding Commission, a permanent body available to the international community which I am happy to say has been operational since 1992. This is a new concept which is expressly designed to promote the application of international humanitarian law. 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. The commission comprises 15 members of high moral standing and acknowledged impartiality and has its seat in Berne, Switzerland. In its operations the commission must remain true to certain basic characteristics expressed or implied in article 90. Accordingly, it must carry out its functions in an independent and impartial way, in conformity with the international law requirements of fair procedure and, in general, on the basis of the consent of the parties. The setting up of this independent fact-finding commission is a welcome development which will assist in respect and compliance for international humanitarian law.
The broad purpose of the commission is to protect the victims of armed conflict by encouraging and securing the observation of the principles and rules of international law applicable in armed conflict. To this end the commission is competent, first, to inquire into any facts alleged to be a grave breach as defined in the conventions and the protocols or other serious violations of the conventions or the protocols and, second, to facilitate through its good offices the restoration of an attitude of respect for the conventions and the protocols. In addition, the commission is also empowered to institute inquiries in other situations at the request of a party to the conflict, but only if the other party or parties concerned consent. Significantly, the commission has expressed its willingness to inquire into alleged violations of humanitarian law, including those arising in non-international armed conflicts provided all parties concerned have consented. It is a useful tool which has the potential to serve the international community better than any other fact-finding body.
Protocol I also makes provision for the enhancement of the protection to be afforded to the civilian population including a prohibition on reprisals, starvation, the destruction of food and the destruction of farming areas. It also contains rules for the protection of works and installations containing dangerous forces and a prohibition on acts which damage the natural environment in articles 52 to 56. In article 79 journalists engaged in professional missions in areas of armed conflict are given protection as civilians and are entitled to special identity cards.
Protocol II constitutes the first real legal instrument for the protection of victims of non-international armed conflicts. It is shorter than Protocol I containing only 28 articles. In Part II it deals with areas of humane treatment; in Part III with wounded, sick and shipwrecked and in Part IV with the civilian population. 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.
Protocols I and II address the plight of children affected by armed conflict and it is in this context that I wish to draw attention to the horrendous plight of children affected by armed conflict. As the most innocent and powerless victims children require special protection. At this moment, in approximately 50 countries around the world, children are suffering from the effects of conflict and its aftermath. Not only are millions of children still the victims of war, but far too often they are its principal targets and even its instruments.
For all the children deliberately massacred, caught in cross fire or maimed by anti-personnel land mines, many more have been deprived of their physical, mental and emotional needs in the context of societies long at war. In Vietnam, Cambodia and Bosnia many people now go about their daily lives without one or more limbs. Some have been permanently traumatised by the events they have witnessed and experienced. In today's conflicts children are specifically targeted in strategies to eliminate the next generation of potential adversaries. Buildings and sites that have a presence of children, such as schools, playgrounds, kindergartens and hospitals, have been targeted for attack and destruction. To the same end children have been made the targets of rape, sexual abuse and gender based violence on a large scale.
Moreover, there has been an alarming trend in recent years of enlisting children into armed forces and groups to participate in armed conflicts. Most cynically, children have been compelled to become instruments of war, recruited or kidnapped to become child soldiers and forced to give expression to the hatreds of adults. Instances in which children have been coerced into joining government forces, for example in Guatemala and El Salvador, or opposition movements, as in Mozambique and Angola, are obvious examples of victimisation. There is little doubt that children have become victims in the current conflict and ethnic cleansing in the troubled area of Kosovo. Photographs in The Irish Times of 20 June 1998 of an armed child near the Albanian border and of a displaced child in Ethiopia fully illustrate this.
The Additional Protocols contain a number of significant measures which govern the protection of children in armed conflicts. There are 25 articles in total which specifically pertain to children. In particular, article 77 of Protocol I, entitled "Protection of Children", stipulates that children shall be the objects of special respect and shall be protected against any form of assault during conflict. Article 77, paragraph 2(c), requires parties to conflicts to "take all feasible measures" to ensure that children who have not attained the age of 15 years do not take a direct part in hostilities. Article 77, paragraph 4, provides that—
. if arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75 paragraph 5.
These guarantees are further supplemented by article 4, paragraph 3, of Protocol II which is devoted exclusively to children and requires that they "should be provided with the care and aid they require", referring expressly to education, family reunion and temporary evacuation. The standards and commitments for the protection of children in armed conflict created by the Additional Protocols are of particular relevance and importance today. Children represent the future of human civilisation and the future of every society. To permit them to be used as pawns in warfare, whether as targets or perpetrators, is to cast a shadow on the future.
One of the truly innovative features of Protocol I is the inclusion for the first time of a chapter dealing with civil defence. Civil defence is defined at article 61 of Protocol I as the performance of some or all of a variety of humanitarian tasks to protect the civil population against the dangers, and to help it recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival. The main tasks of civil defence include warning, evacuation, management of shelters and blackout measures, rescue, medical services, including first aid and religious assistance, fire fighting, detection and marking of danger areas, decontamination and similar protective measures, provision of emergency accommodation and supplies, emergency assistance in the restoration and maintenance of order in distressed areas, emergency repair of indispensable public utilities, emergency disposal of the dead and assistance in the preservation of objects essential for survival.
Article 62 provides that civil defence organisations and personnel shall be respected and protected in order that they can perform their tasks.
In order to be protected they must be identified and the protocol introduces the international distinctive sign of civil defence which is an equilateral blue triangle on an orange background. It also provides for an identity card which incorporates the international distinctive sign.
In Ireland, Civil Defence operates under the Air Raid Precaution Acts, 1939 and 1946, and the Local Government Acts, 1941, 1955, 1960, 1963 and 1976. The Minister of State at the Department of Defence has responsibility for the co-ordination of policy, planning and organisation for civil defence. The main elements of the organisation are the civil defence branch of the Department of Defence, which includes the Civil Defence School and 32 local authority units under the control of the relevant county or city manager. The day to day operation of the Civil Defence at local level is carried out by the Civil Defence officer. The control, administration and direction of the organisation is operated through the civil defence branch of the Department of Defence whose functions include control of expenditure and the provision of civil defence equipment for use by local authorities. The Civil Defence School provides technical advice on civil defence and provides training and qualification of instructors.
The Civil Defence organisation was established initially to protect the civilian population from the hazards of war, in particular atomic or nuclear war, but it is now involved principally in a community support role. It is organised on a county basis with volunteers recruited locally for the following services — warden, rescue, casualty, welfare and auxiliary fire service. The tendency nowadays is for a multi-disciplined service. There are approximately 6,000 male and female active volunteers in the organisation with a further 3,000 trained persons not active but available in a major emergency. The Department of Defence staff involved with Civil Defence matters number 25 personnel, both administrative and technical. The current annual budget is £3.5 million approximately.
I need hardly say that human rights and international humanitarian law are closely linked. On 10 December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. This year has been designated United Nations Human Rights Year to celebrate the 50th anniversary of the signing of the declaration. The celebrations will culminate with the 50th anniversary of the signing of the Universal Declaration of Human Rights on 10 December 1998.
The human rights unit of the Department of Foreign Affairs is co-ordinating, in conjunction with the Standing Interdepartmental Committee on Human Rights and the Joint Department of Foreign Affairs and Non-Governmental Organisations Standing Committee on Human Rights, a number of events to commemorate the anniversary. On 7 March of this year a Non-Governmental Organisation Forum on Human Rights was organised at national level and a commemorative postage stamp is being issued. In addition, the European Council in Luxembourg issued a statement reaffirming the commitment of the Union to the principles enshrined in the universal declaration. The declaration itself contains 30 articles which recognise the inherent dignity and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.
I have detailed for the benefit of the House some aspects of the substance of and the background to the Bill. I propose now to refer to the various sections of the Bill. Section 1 defines the Principal Act as the Geneva Conventions Act, 1962. The State is already party to the four Geneva Conventions of 1949. Effect was given to the aforesaid conventions in Irish law with the enactment of the Red Cross Act, 1954, the Prisoners of War and Enemy Aliens Act, 1956, and the Geneva Conventions Act, 1962.
Section 2 replaces section 2 of the Principal Act, 1962, with an entirely new section in regard to the interpretation of the phrases "court", "International Fact-Finding Commission", "the Minister", "protected internee", "protected prisoner of war", "the protecting power", "Protocol I", "Protocol II", and "the Scheduled Conventions" as used in the Bill.
Section 3, 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 of Protocol I 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 term of punishment shall not exceed 14 years. In addition to wilful killing, any act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a party is a grave breach.
Section 4 relates to minor breaches of the conventions and Protocols I and II by adding references to the appropriate protocol or to both protocols where reference is made in the Principal Act to "the Scheduled Conventions", i.e. the four Geneva Conventions of 12 August 1949, and by updating the level of certain fines provided for in the Principal Act from £50 to £1,500 on conviction in the District Court and from £300 to £15,000 on conviction following trial on indictment. A minor breach is any act or omission which is not a grave breach. Ireland's 1962 Geneva Conventions Act differs in a positive way from other common law legislation in that it expressly provides, in section 4, for the punishment of non-grave offences of the Geneva Conventions of 1949 when committed in Ireland or by an Irish national.
It is entirely consistent with this approach to extend the scope of section 4 to cover not only non-grave breaches of Additional Protocol I of 1977, as is done in section 4 of the Bill, but also to cover violations of Additional Protocol II. Although legislation extending jurisdiction over violations of humanitarian law committed in non-international armed conflicts is not obligatory, nevertheless it is in the best interests of war victims to provide for this jurisdiction in our legislation. The Bill thus provides for jurisdiction over violations of humanitarian law occurring during high intensity non-international armed conflicts, i.e., those covered by Additional Protocol II of 1977 on the basis of territory and nationality.
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 is a very important one which enables judicial notice to be taken of a report from the International Fact-Finding Commission. Section 7 provides for the insertion of the two additional Protocols into the Principal Act as the Fifth and Sixth Schedules.
Section 8 enables the Minister for Foreign Affairs to publish in a statutory instrument any reservation or declaration made by the State in relation to either of the Additional Protocols. Section 9 regulates the use of certain signs, symbols and signals for the purposes of identification by the civil defence services and medical units and transports and also makes their use subject to the consent of the Minister for Defence. Section 10 makes provision for the making of regulations by the Minister for Defence.
Section 11 increases the fine for offences committed under the Red Cross Act, 1938, from £10 to £1,500. Section 12 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. Section 13 restricts the application of section 12 of the Extradition Act, 1965, by specifying that it does not apply in the case of an offence involving a grave or minor breach of any of the Scheduled Conventions or of Protocols I or II.
Section 14 enables Ireland to make an annual contribution towards the administrative expenses of the International Fact-Finding Commission. At the present time, the annual budget of the commission is in the region of £65,000. While it would be inappropriate and premature to speculate whether or not the Government will make a declaration pursuant to paragraph 2 of article 90 of Additional Protocol I in relation to the International Fact-Finding Commission and thereby obliging the State to make an annual contribution towards the expenses of the commission in accordance with paragraph 7 of the said article, nevertheless I should inform the House that, on the basis of information available to the Minister, the current likely annual contribution for Ireland should be less than £1,000.
Section 15 is a general expense provision. Section 16 provides for the short title, collective citation, construction and commencement of the Bill. It also enables the Minister for Foreign Affairs to make an order to bring this Bill into operation.
This legislation is of fundamental importance. While, at present, we are living in a time of relative peace in the world, it is nonetheless imperative that the utmost respect be accorded to international humanitarian law. 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 by ratifying these Protocols.
I commend the Bill to the House.