Seanad Éireann debate -
Tuesday, 23 Jun 1998

Vol. 156 No. 3

Geneva Conventions (Amendment) Bill, 1997: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Finance (Mr. Cullen)

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.

Mrs. A. Doyle

We support the Bill. However, the Minister avoided answers to questions which are begging to be asked. What have we been doing for the past 21 years? There have been Governments of every political hue and combination in those 21 years. I do not understand how it can take 21 years to introduce legislation ratifying these Additional Protocols to the Geneva Convention. I have yet to receive an explanation. Is it a subliminal statement by successive Governments that, as we are a "neutral" state, these matters did not trouble us too much and that other states could get on with ratifying them as they might be more immediately involved in armed conflict in Europe and internationally? What is the reason for the 21 year delay? To do justice to such important legislation the Minister of State owes the House an explanation on that point at the very outset.

The Minister of State brought us through the history of organising codes of behaviour in time of war and armed conflict generally. He pointed out that the original Geneva Convention was signed in 1864 and was amended in 1906 and 1929. In 1949 the four Geneva Red Cross Conventions were ratified to protect victims of international armed conflict.

I take issue with the Minister of State in that no explanatory memorandum was published with the original Bill before it went to the Dáil. Maybe we could have an explanation as to why that was so, given the technical nature of the legislation, including various protocols, articles and the number of changes that have taken place over the years. It would have been a courtesy to Members of both Houses of the Oireachtas if an explanatory memorandum had been made available. I know it is not normal procedure to issue an explanatory memorandum for the Seanad or for a Bill that is coming from the Dáil to the Seanad, but I understood it was normal to have an explanatory memorandum with a Bill before it went to the Dáil or when it is initially published, whether it originated in the Seanad or the Dáil. I cannot understand why an initial explanatory memorandum was omitted on this occasion.

In replying to Second Stage, the Minister of State should indicate how many other international conventions, or amendments to such conventions, are awaiting ratification by this House through amending legislation of one kind or another.

Mr. Cullen

I will make the information available to the Senator. I read it out in the Dáil today and I will lay it before the Seanad.

Mrs. A. Doyle

If anyone is troubled enough in the future to check the Official Report, these facts should be on the record. If these important amendments to the Geneva Convention, and the addition of the two protocols, can take 21 years to go through the Houses of the Oireachtas, what others are in the wings, of import or otherwise, that we have yet to get around to dealing with? I think we should know.

The Minister of State outlined in some detail the extension of the scope of the original conventions and exactly what these amendments seek to do. The Bill changes the law to enable us to ratify both protocols. This brings us to a very relevant point, particularly in the Irish context, which is the debate over whether we should extend our military role to peacemaking as distinct from peacekeeping alone. I would like to see a far more open debate in this regard. There is a role for extending the excellent reputation of our Defence Forces and the Garda Síochána who have done this nation proud in their peacekeeping roles abroad and on the one occasion when they were put into a peacemaking role, in Somalia.

Even as a neutral nation, there is room for a far greater investigation into the possibility of using our armed forces and gardaí as peacemakers. Particularly as a neutral nation, we have a very important role as peacemakers as well as peacekeepers. As peacemakers our neutral stance over the years should increase our bona fides in many difficult and tense political situations that have resulted in armed conflict.

The Minister of State should consider a more open debate on the possibility of extending the role of our armed forces generally in this regard. It may well be that the Minister for Defence and the Minister for Justice, Equality and Law Reform will have to partake in such a debate as much as, or instead of, the Minister for Foreign Affairs. However, such as it may be, it is very relevant to the legislation before the House.

The point of extending our peacekeeping role to that of peacemaking is extremely important now that we have ratified the Amsterdam Treaty by referendum. In the Amsterdam Treaty provisions are made for transferring certain areas — such as humanitarian aid, search and rescue, environmental protection, peacekeeping and peace enforcing — from the Western European Union to the European Union. We are now in a position to have an informed and enlightened debate as to whether we should extend the boundaries of our security forces' involvement in peacemaking and not just restrict it to peacekeeping — an area in which the individuals involved have done great credit to their country for many years.

The Minister of State pointed out some interesting facts in his address. I had no knowledge of Hugo Grotius or the customs of the middle ages and the Laterine Council. He certainly added some historic interest to the topic before us. We are basically talking about the evolution of customs of war to treaties, and the Minister of State pointed that out quite graphically. At a specially convened diplomatic conference in 1977, the two protocols now before the House were adopted. These concern the conduct of combatants and the protection of the civilian population from the effects of hostilities.

Drawing on the experiences of World War II and technological developments over the years, this diplomatic conference was convened. Twenty one years later we are about to transpose that into effect by amending our law.

Protocol I concerns the protection of victims of international armed conflict, while Protocol II concerns the protection of victims of non-international conflict and includes provisions relating to the protection of civilians — a most important move.

I want to make particular reference to article 51 of Protocol I, which confirms that innocent civilians must be kept outside hostilities as far as possible and must enjoy general protection from hostilities. I quote that legal reference which came my way from the Minister of State's own Department.

Violation is qualified as a grave breach of the protocol. The question of violations of the Geneva Convention and breaches of the law brings me to what powers of enforcement actually exist and how realistic is our ability to enforce. I would like the Minister to develop his thinking, as well as European and international thinking, in this area. Are we in a position to enforce humanitarian issues on the fringes of national and international warfare as regard breaches of protocol? What actual powers exist among the different states in the international fora for enforcing such breaches?

Are the increased fines in the penalties section of the Bill realistic? Sums of £50 to £1,500 are stated. Yes, £50 is laughable, but is £1,500 a meaningful figure in a modern context? Who pays these fines if we catch up with the individual breaching the code of conduct in warfare? Who will pay for them? Is it not the individual states or armed forces? Will individuals pay the fines out of their own pockets? I think not. In the main, if there are breaches of the protocols in these conventions, individual states will pay. A £1,500 or £5,000 fine for a state does little to dissuade those from the error of their ways. Laudable as all the sentiments in the legislation and in the conventions are — and we do support them — how do we enforce penalties that are not realistic, if we ever catch up with those who breach the law?

I understand that the establishment of a permanent international criminal court is being considered. What are the plans for such a body and what will be its structures? What role will Ireland play in the context of an international criminal court? Will neutral states have a particular role in such a court or will they have no role whatsoever? We could argue both sides of that issue. Will the Minister of State inform the House of his views on that proposal and will he state the current position in respect of it?

Under Protocol I article 90 institutes the establishment of the international humanitarian fact-finding commission which will be a permanent, non-political body designed to promote the application of international humanitarian law. This is an extremely important development. I understand the commission was constituted in 1991 or 1992 and is up and running. Will the Minister provide information with regard to the effectiveness of this body and its role in regulating, from a humanitarian point of view, the code of international warfare?

Where stands atomic warfare in the context of the Bill? I am open to correction but I do not believe the legislation makes specific reference to such warfare. Surely the concept of an atomic war makes international codes of behaviour, the Geneva Conventions and other conventions and the role of the Red Cross and individual states totally superfluous or irrelevant. Will the Minister of State comment on the rules relating to the horrific concept of atomic warfare vis-à-vis this legislation?

I will conclude with a slightly irreverent story — I hope it will not detract from the seriousness of the legislation — which pertains to reference to the Geneva Convention and the Minister of State's constituency, Waterford. The story was imparted to me by Senator Tom Hayes, who will not be in a position to contribute to the debate. However, he gave me permission to place it on record.

Some years ago, when Clover Meats initially began to supply meat to the armed forces in Germany, a mess sergeant was dispatched to check the sourcing of the meat, the killing line, etc., and to ensure that everything was in order. The mess sergeant stayed in Dooley's Hotel, a well known hostelry in County Waterford, which was run by a strict and formidable maître d' called Ms Dooley. With his business for the day complete, the mess sergeant decided to retire to his room but, contrary to the regulations of the house, he was not alone. Having been chided by Ms Dooley to remove his lady friend from the bedroom, the mess sergeant told the proprietor where to go. Ms Dooley called the local garda who arrested the mess sergeant and brought him before the court in Waterford on the following day. When asked by the judge to explain his behaviour and offer a defence, he stated he was improperly arrested and that as a serving member of the armed forces he had not been cautioned under the relevant section of the Geneva Convention or asked his rank and serial number. Therefore, the mess sergeant got off by citing the Geneva Convention, and this is one of the earliest records of its use in Ireland. I thought the Minister of State would enjoy this story as it pertains to his constituency.

The Bill is extremely important. Will the Minister of State respond to the points I made? One matter I did not raise involves the use of sexual abuse as a weapon in modern warfare. Is sexual abuse covered fully and adequately under the 1977 to the original Geneva Conventions? If only for the record, the Minister of State should comment on this matter.

Mr. Lanigan

As other Members stated, this legislation is long overdue. I am not sure why it was not placed on the Statute Book before now. However, following its enactment, we must ensure that, as part of international law and international protocols, it is complied with by the signatories to the Geneva Conventions.

Whether referring to 1864, 1907, 1949 or 1977, we must accept that those involved in developing the principles behind the Geneva Conventions had the right idea. However, little has happened as a result of their efforts. The Geneva Conventions attempt to establish acceptable governance of the rules and customs of war, armed conflict and international humanitarian law. Have they been successful in that regard? The answer is no. The aims of the Geneva Conventions are extremely humane because if they were not in place the barbarism connected with warfare might be worse than it is at present. How can war be regarded as anything less than barbaric? Brutality is a part of any armed conflict and unmitigated brutality is being visited on people across the globe at present.

The Bill includes provisions on ameliorating ongoing problems in respect of the wounded, the sick, children, etc., in warfare. The Minister of State indicated that the Lateran Council of 1132 declared that the crossbow and arbalest were unchristian weapons. That council or any other council established by the Catholic Church did not object to the activities of the Spanish Inquisition, which decided to kill anyone who was not a member of the Church or who did not abide by its laws.

In the historical context, it is interesting to consider the conclusion of the St. Petersburg Declaration in 1868 renouncing the use in time of war of explosive projectiles under 400 grammes weight. If one takes account of the use of landmines throughout the world, 400 grammes might be deemed a reasonable average in terms of a landmine's weight. Unfortunately, however, these weapons are very small and they are hard to remove because plastic is used in their construction. The Minister of State referred to international human rights and, at a time when the European Commission has reneged on its obligations in terms of international human rights and the amelioration of problems attached to civilian populations which have been harmed, hurt or mutilated by wars during the past five to six years, we must take action to remove landmines, improve international human rights and rehabilitate the men, women and children who have been mutilated in recent wars.

Following a judgment handed down by the International Court of Law, the European Commission has decided that because NGOs are not established on a statutory basis they will no longer receive funding. As a result, these organisations which help sick and wounded victims of war will lose funding amounting to £264 million. That happened on 10 June as a result of a court case brought in 1995 by Britain, supported by Denmark and Sweden. The reason the British gave for bringing the case was that they wanted to cut EU spending but they have done away with aid projects for bodies like Concern, Trócaire and GOAL. It is suggested that Trócaire will lose about £2.4 million in funding for its South American operations alone — Trócaire itself provided £1 million in funding for those operations — and 75,000 people in the continent will suffer as a result.

The International Fact-Finding Commission was set up in 1992 and is currently operational but what benefit has it been to people in areas of conflict? We have set up international commissions to deal with what happened in Rwanda, Burundi and elsewhere but it has been virtually impossible to do anything in these areas. The commission was established in hope but, although it comprises 15 members of high moral standing and acknowledged impartiality, it has not done anything to stop violations of humanitarian law, including those arising from non-international arms conflicts. The Minister said it was a useful tool but how is it to be put to work?

I am delighted he has included a provision on the use of children in areas of armed conflict because there can be no doubt that they have suffered in certain areas of the world. In minor conflicts, civil wars and international conflicts the rights of children have been ignored. The Geneva Convention states that children should be removed from areas of conflict but there is no point pretending this has happened — in many cases, they have been drawn into areas of conflict so that they can be used as shields to protect protagonists or to take part in the war. The Minister said children have been coerced into joining Government forces in Guatemala and El Salvador and opposition movements in Mozambique or Angola, and that these are obvious examples of victimisation. Having observed the position in both Mozambique and Angola, I know that both Government and opposition sides have victimised children. When one sees children in conflict areas who have been mutilated or lost limbs, etc., one can have no doubt that the people behind these wars have no humanity. It is not only in African or Third World countries where this has happened; throughout the ages children have been used in the progression of conflict and this will continue.

If children are arrested, detained or interned for reasons related to the armed conflict they should be kept in quarters separate from adults except where families are accommodated as units, as provided in Article 75(5) of the convention. However, that provision is completely ignored in Rwanda. Children are being born and are living in detention camps with their parents who were involved in the conflict, and children who were involved in the atrocities have not been separated from adults. The Minister made the first significant mention of Civil Defence which I have heard for many years. Although its members do not play a major part in the day to day provision of aid to the civilian community, they are well trained and have been used in floods, fires and threats of explosions. It is good to hear them mentioned and to have acknowledged that they are able to provide humanitarian aid. Civil Defence is designed to provide aid to the civilian and military authorities and is well prepared for whatever hazards may arise.

In protecting people affected by war, we must go to the basic issue — that is, who supplies the arms? The Geneva Convention has been signed by the US, Britain and France but those countries are the biggest arms suppliers in the world. Some people argue that British Conservative Governments spend a larger percentage of their budgets on armaments than British Labour Governments, but down the years Labour Governments have spent much more. The arms trade has no morality and the armaments firms of the US, Britain and France could not care less where their products end up. Tomorrow we will be discussing East Timor; the current British Minister for Defence is in the process of selling more planes to Indonesia and these could only be used for suppressing the local population.

In the year marking the 50th anniversary of the Universal Declaration of Human Rights, it is a disgrace that the European Commission should override the wishes of the European Parliament — albeit as a result of a court judgment — and cut £260 million in aid and £7 million which was to be used for the elimination of landmines. This money would have gone to organisations like Oxfam, GOAL and Trócaire and it is horrific to think it is happening at this time. Europe should feel ashamed of this, and we should be ashamed of ourselves if we allow it to continue.

This legislation is of fundamental importance. While we live in a time of relative peace around the world, it is nevertheless imperative that the utmost respect be accorded to international humanitarian law. Within a three or four hour airplane journey of Ireland, massacres are taking place and the war in Kosovo is a major conflict. The problems associated with the possible spread of conflict in the Balkans cannot be ignored.

There is conflict in the Middle East between the Palestinians and the Israelis. We have close connections to this area in terms of trade, tourism and religion. There are ongoing wars in South America, many of which are not linked to cocaine. There is no doubt recent events in Pakistan and India must be taken into account as a major source of possible world conflagration because they are playing against each other, but they will be supported by outsiders and their weapons of mass destruction do not bear thinking about.

One can buy whatever one wants in terms of armaments at any roundabout in Beirut. I do see what the fuss is about when people talk about decommissioning in the North because they could get rid of everything they have and then purchase more weapons. As a result of the break up of the USSR one can buy arms for very little in countries in the former Russian Federation and the Middle East.

The Bill has great meaning and gives one hope that a great deal more will be done to help those trapped by conflict and punish those responsible for it but, unfortunately, unless countries tackle the problems rather than just tabling more amendments to conventions, we will not get very far.

Dr. Henry

I welcome the Bill. I have been a little involved in the Bill's passing through the Oireachtas. On the Adjournment on 4 November 1993 I asked that these Additional Protocols be ratified. I explained them to the former Minister of State, Deputy Eithne Fitzgerald and she stated that:

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. .Following any recommendation in that regard and with a view to their ratification in due course, I 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 obligations which the Protocols impose.

Legislation was ready last May; it took at least four years to get this far. However, I am sure when people got around to looking at it they drafted it quickly. It is unfortunate that we signed the conventions almost 20 years ago and yet it took this long to ratify the Additional Protocols. It makes us appear half hearted. We must be seen to care about this issue, because it deals with the humanitarian concerns at the heart of international law and morality.

We in Ireland like to think we have an important place in these debates. We are in a good position to speak on international humanitarian law because, while Ireland is not a big, powerful country, we have a great deal of influence internationally because of our history. We have a policy of neutrality and a very good record in peacekeeping and humanitarian relief activities. While Ireland was important in the promotion of international disarmament in the 1950s and 1960s, it would be appropriate if we tried to have a more active role in this field. The very least we should do is not lag behind in terms of international progress.

While a significant number of states still have not ratified these protocols, it is good that Ireland is doing so now. The Principal Act is of great importance and the legislation has to do with the principle of universal jurisdiction and humanitarian legislation. As we speak a meeting is taking place in Rome on the concept of setting up an international criminal court, which I hope happens.

According to international law a state has a right to punish the crime of genocide and crimes against humanity in violation of the Hague Conventions of their own nationals and aliens. Under section 3 we will establish the right to prosecute such people. Should we have gone further to say we have a duty to prosecute them? This would mean we would rise above the minimum obligation on us under international law. It would have been a statement that this State could in no circumstances be seen as a haven for war criminals. Should a war crimes Bill be passed if it is needed, similar to that in the UK and Belgium so that we would have a duty and not just a right to prosecute people involved in war crimes?

We could promote the seizure of assets belonging to warlords in Ireland. There has been a major problem with those who waged wars around the world putting their assets in other areas, frequently Europe or the United States, because they feel they are safe. It could be a large deterrent to these criminals if they knew their assets would be seized in Ireland. They frequently wage wars in their native countries while their families and money are abroad. They are at risk of being shot in their countries and, therefore, the thought of a prison sentence is not much of a deterrent, but the fact that their millions or billions could be seized might make them think more carefully about what they are doing.

We could also look at their exports which are obtained in the most appalling manner in their own countries. For example, the diamond trade is very important in Sierra Leone. Diamonds are exported to Amsterdam and Antwerp and the means by which they are obtained are unsavoury. I do not know if they are sent to Shannon, but if they were, it would be good if we were in a position to do something about it.

One frequently sees newspaper reports of dictators in Third World countries, who thrive on dealing with the poorest people, whose families live in Switzerland or the US. They attend college, have large villas and a satisfactory lifestyle. Would it not be good if we led the way so that if one of them bought a magnificent villa in Dalkey, we could ask how this money had been obtained? That might be a deterrent to their activities in their native countries. We have a responsibility in the West to make sure we do not harbour money belonging to those who have obtained it through appalling means from their own population. If newspaper reports are to be believed, there are too many of these people around.

I am worried about section 9 which deals with the protection of insignia. The protection provided for Civil Defence insignia is very good and appears to be better than that provided for the Red Cross. I must confess an interest in this regard as I am a member of the Red Cross and was on its council and overseas committee for many years. The section states the Minister may make regulations in this regard. Such regulations are needed at once because the Red Cross insignia is among the most abused in the world. I have seen it used in incredible situations, as the Minister of State probably also has. Protection is needed so that the insignia cannot be abused abroad or in domestic situations.

I am delighted we are ratifying the first protocol. The section dealing with medical personnel is very dear to my heart. It is incredible that attacks on medical personnel, whether they are from the country concerned or have come from abroad to help in a disaster, have not been considered war crimes until now. When medical personnel go to work in foreign countries they are seeking help and justice for the afflicted civilian population and those who are hors de combat but they must also be protected. The increased protection under this protocol is greatly welcome.

I am also very glad that extra protection is being provided for journalists because we would not know what was happening in these areas if it were not reported by war correspondents, some of whom have been killed. Their reporting, particularly in areas of internal conflict, has been of the greatest importance and I welcome the increased protection for them.

We must always remember that medical personnel and journalists are the most vulnerable people in such situations. When we read the graphic details of what has happened to journalists in countries such as Algeria, we must realise our main focus must be to protect personnel from the countries concerned. Foreign journalists and medical personnel can be brought home but it is very difficult for those trying to honestly report conflict, such as that in Algeria, to obtain any protection.

Article 90, which relates to the International Fact-Finding Commission, is very important and I was delighted to hear the Minister of State's support for it. This has been needed for a long time and it is good to see it being brought forth. This commission can go to areas where we have relief agencies and can find out what is happening. It must also be considered a crime to attack such agencies.

It is most important that internal strife is at last being covered because, regrettably, some of the most serious conflicts in recent years have been non international ones. Almost all the current conflicts, with the exception of Eritrea, are non international. A staggering amount of people are lost in non international conflicts. There have been huge losses in the Balkans, Africa and the Far East in recent years. We do not know how many people died or disappeared in Rwanda. The Red Cross lost more personnel in Rwanda than it had in the entire history of the society. We do not know whether many of them are dead or had to flee as refugees to other countries.

I am also very glad the Minister of State stressed the prohibition in the protocol on using the civilian population as a method of waging war, either by moving sections of the population or by starving them by destroying food and agriculture, which is widely used in non international conflicts.

The situation of children in armed conflict was also addressed. Children are frequently recruited into armies, which is quite appalling. It should be considered a war crime to recruit children under the age of 15 years into an army. Children cannot be regarded as responsible for their crimes, yet they are incorporated into armies, often after being kidnapped. It is vital that this practice be banned. The evacuation of children is also very important.

The role of our peace keepers must be emphasised and they must be kept in a constant state of advanced training. They must frequently deal with very difficult situations when they go abroad.

If people found out how our Refugee Act is being applied not many of them would flee here. I was delighted that the Minister of State's colleague, the Minister of State, Deputy O'Donnell, gave publicity to the refugee agency report yesterday which showed no Bosnians have been given citizenship since the Government came into office. That is extremely bad, given that the Bosnians were invited here. The situation here is very bad and refugees are advised not to go out at night for their own safety. The changes in how the Department of Justice, Equality and Law Reform is implementing the criteria for manifestly unfounded claims for asylum seeking means that hardly anyone will be left here — as far as I can see, torture victims could be expelled. I ask the Minister of State to ask the Department to look at this matter urgently.

Tenders have been sent out for the provision of legal services. However, these services will be assessed on a year by year basis, which does not make them seem very independent.

In view of the fact that all paramilitaries in Northern Ireland are observing a ceasefire, it should be pointed out to them that we have ratified these protocols so that they would know that the mutilation of civilians by kneecapping, beating with baseball bats or any other form of torture is totally against anything that might be countenanced on this island. That might make them finally put an end to these appalling practices.

Mr. Lydon

I commend this important Bill to the House. I cannot understand why it has taken so long to get here. The Bill's provisions in regard to the conduct of warfare are very important. However, talking about it here is rather like talking about nuclear disarmament at a county council meeting. It is very laudable but nothing will happen — as long as the main world powers do not obey these conventions no one else will do so.

One need only think about the United State's actions in Chile, its attack on the civilian population in Iraq, and the use of civilians in Nicaragua as an exercise for a think tank in California. The Minister of State referred to starvation. What about the blockade of Cuba? He referred to the provision that farming areas should not be attacked. What about the use of Agent Orange in Vietnam? The US used LSD on its own soldiers and released radioactive material in some US states. If it does that to its own civilians, what does it do to its enemies?

The United Kingdom breaks these rules and regulations all the time. There was continual harassment of the population in the Six Counties and torture, including white noise, went on there for many years. Britain was brought before the European Court of Human Rights more than any other nation and convicted on many occasions.

Other examples include the sale by the French of Exocet missiles to Argentina at the time of the Malvinas War during which the British killed 320 young soldiers on an out of date ship steaming in the wrong direction outside the war zone. The Israelis have grouped Palestinians into camps, taken their land and destroyed all their human rights. They do not obey any of these rules. Nor do the Palestinians when they plant car or suicide bombs in the middle of Jerusalem. Senator Henry referred to the IRA and the harassment of the civilian population, including shooting and knee capping.

I agree all this should be stopped and that these rules should be in place. However, I do not believe they are obeyed. I would like to think they were more than aspirational but I cannot believe they are. The International Humanitarian Fact-Finding Commission will find facts on people like Slobodan Milosevic, but I doubt if it would ever find fact on somebody like Churchill who condoned the bombing of Coventry and the killing of his people because he did not want a code to be found out. Nor would it condemn the horrific bombing of Dresden in the last World War.

I agree with the Bill and the conventions, which must be in place. However, unless we get a consensus among the major western powers that they will abide by them they are hardly worth the paper on which they are written. We repeatedly see gross violations of human rights by all the major western powers, and not only by Britain in this country, in which it has been engaged for hundreds of years and continues to be, despite all kinds of agreements. The US, France and all of the peace loving nations are also involved. For example, Sweden sells arms all over the world — Olaf Palme was apparently involved in that — as do the Dutch. Portugal, a county I am fond of and whose people I love, was involved in Angola up to the 1950s and breached all human rights, including those on slavery. I could go on. The Minister knows the position as well as I do.

It is hypocritical in one way to proceed with this legislation because it is useless to devise rules for people who will not obey them. While international opinion condemned the Iraqi invasion of Kuwait nothing was said later about the gross abuse by many of the allied forces there, including the rolling over and crushing of people in bunkers and the killing of children who had been put on the front line by Saddam Hussein. While they did not do much to his national guard, they killed others, including those who did not even have shoes. They were shot and mowed down in the face, yet there was not word about it.

It is good that this legislation has been introduced and I laud those who try to make the world a more peaceful place. However, unless there is commitment from the larger powers, such as the US, the UK, France and Germany, to try and realise these aspirations and rules in a meaningful way it is little more than window dressing. I hope this does not sound too pessimistic——

Mr. Gallagher

A note of realism.

Mr. Lydon

Perhaps. I do not mean to sound pessimistic. If we do not have anything to aspire to we will never get there. I wish that at every forum people would tell it like it is to those that matter.

Mr. Gallagher

In preparing for this debate and researching the material the thoughts which Senator Lydon enunciated came to my mind. When we look at Kosovo and the possibility of the Bosnian situation re-emerging in another fashion there and the danger of the re-emergence of ethnic strife in Rwanda and other places it is easy to curse the darkness. However, we must try and light the light.

The problem I and other Senators have is not with the proposals, conventions or legislation, but with the fact that the means of enforcement, including implementation bodies, are deliberately weak and ineffective and that it is very difficult at international fora to get the support of the so-called great powers to agree to any effectual measures because many of their actions would be the first to be scrutinised by such inquiries.

I draw the attention of the House to Item 15, motion 1 on the Order Paper which states:

That Seanad Éireann urges the Government in the current negotiations to create an International Criminal Court to support a fully independent court able to prosecute any individual for genocide, aggression, war crimes and other crimes against humanity, without any veto by national governments and to support the granting to individuals and citizen groups, as well as national governments and the Court's prosecutor, the right to bring cases before the Court.

While I do not wish to debate this motion, I agree with its sentiments. It should be an objective of the Government and the country to ensure that the efforts, however, painstaking, to establish an international criminal court would be proceeded with and that we would give them our wholehearted support and seek support at EU level. As there is no point in threatening a child for bad behaviour if a sanction is not imposed, there is no point in threatening people who engage in behaviour which is contrary to these kinds of conventions if they know they will never be called to account.

What are our obligations on the international war crimes tribunals that are meeting in the Hague in respect of the former Yugoslavia and in Arusha, Tanzania, in respect of the Rwandan conflict? I have been informed that Ireland has yet to give effect in law to the UN Security Council resolutions establishing these tribunals. I would be very disappointed to learn that such legislation, if it is necessary, has not been proceeded with. We have supported the establishment of such tribunals at the UN and have said, as country which is especially concerned with human rights and development issues, that there must be no impunity regarding these actions and that people must be called to the bar of justice. However, there is an obligation on us to rectify without delay any tardiness in ratifying necessary legislation to support these tribunals.

The Minister of State took Committee and Remaining Stages of the Bill through the Dáil, while the Minister of State at the Department of Agriculture and Food, Deputy O'Keeffe, took Second Stage. At the time, the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, was closely involved in the culmination of the Northern Ireland negotiations. I had hoped, given that she is the first Minister of State to have special responsibility for human rights, to tease out some of the issues involved with her this evening, especially given this is the first Bill in the area of humanitarian law and human rights to come before the House. In the meantime, I understand the Minister of State will do his best to answer my queries.

Years ago there was a song in which the chorus finished "but 21 years is a mighty long time". It is in placing this legislation before us. Deputy Spring initiated it when he was Minister for Foreign Affairs but, despite now having a Minister of State with specific responsibility for human rights, no humanitarian legislation has been initiated by this Government in its first year of office. That is unfortunate because having a Minister of State for this area gives an opportunity to raise the profile at Government level of issues which have not been addressed sufficiently in the past. It is unfair for the Government to claim credit for giving the Minister responsibility for human rights if the legislation to tidy up our minimal international obligations is not being introduced.

On RTÉ radio two weeks ago, Rodney Rice interviewed Minister of State O'Donnell. She stated that the Progressive Democrats Party brought a different perspective in Government to human rights issues to that of Fianna Fáil. She did not enunciate that difference and I know that many Members of the Fianna Fáil Party in both Houses have a strong interest in human rights issues. She said the Progressive Democrats Party believed in a true republic and her party's view on human rights was informed by that whereas Fianna Fáil's view was informed by something else. I am mystified to know what that means.

Mr. O'Toole

The Senator should read Deputy O'Malley's speech from the dock before he resigned from Fianna Fáil.

Mr. Gallagher

Minister of State Cullen might be able to shed some light on that for us. It is a shame that a State with such an interest in human rights issues has been so slow in bringing before us even the small number of conventions which we have signed but not yet ratified or brought into our own law. I appeal to the Minister to get the Government to make a special effort in this area.

There is a motion on the Dáil Order Paper in the name of Deputy Spring which starts off in a similar fashion to a motion tabled by Minister of State O'Donnell, noting the fact that this is the UN Human Rights Year and the 50th anniversary of the adoption of the UN Universal Declaration on Human Rights. Deputy Spring's motion goes on to ask the Dáil to approve a number of further protocols and instruments: the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly of the United Nations in 1965; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly in 1984; and Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, done at Strasbourg in 1984. Those are three important international instruments in relation to racial discrimination, torture and protection of human rights and fundamental freedoms. I appeal to the Minister to give us a commitment that the Government will move quickly to implement those instruments and others which have long been ratified but not yet brought into law.

The Republic of Ireland is seeking election to the UN Security Council, our former President is the UN High Commissioner for Human Rights and we play an active role in the UN Human Rights Commission; but our credibility does not stand up to international scrutiny if we do not introduce into our own law those instruments going back many years. These will not impose a burden on this State but we should be seen to be fully committed to them before we preach to anyone else.

In the radio interview which I mentioned, Deputy O'Donnell was concerned about the manner in which the Government is handling the issue of asylum seekers and applicants for refugee status. I echo those concerns. Last week I took part in a local radio debate on this issue with a representative of the Immigration Control Platform and other organisations. It would be an understatement to say the debate was ill informed. The Government has deliberately assisted in the fostering of misinformation and the lack of public understanding by not implementing the Refugee Act, by not seeking an early High Court hearing of the action taken by a former Minister challenging that Act and by putting in place arrangements which do not stand up to any examination of whether due process is being applied. Is there another agenda within the Department of Justice, Equality and Law Reform?

The Department has never distinguished itself under any administration by the openness with which it conducts its affairs, and with regard to asylum seekers, applicants for refugee status and immigrants in particular. I would like to see that area handed over to a separate immigration and naturalisation service. Many of the functions of the Department relating to courts and prisons are being transferred elsewhere. I would like to see the immigration area established on a statutory footing with a proper avenue of appeal. The public should be assured that the procedures to deal with applications for asylum, refugee status and other types of immigration are being implemented as quickly as possible. The Department of Justice, Equality and Law Reform has connived at the lack of information which is leading to the growth of prejudice alluded to by Senator Henry.

We should not congratulate ourselves as it is a shame it has taken so long to introduce this legislation. The Government has been tardy and shown no initiative in introducing human rights legislation in its first year of office, in the area of asylum seekers and refugees in particular. The Government has a duty to help applicants and citizens of the State by implementing the Refugee Act as it was passed and by establishing a separate immigration and naturalisation service to deal with this matter in an above board manner.

Two years ago I approached the Department of Justice to seek an extension of the visa of a student from the developing world. The student had gone to the Aliens Office in Harcourt Square — an office which should be renamed, these people are not from Mars — where he was not dealt with in a caring manner. When I eventually reached an official in the Department, he told me that if I got a letter from a priest everything could be sorted out. That is not openness and transparency, that is not acting in accordance with the principles of natural justice.

Mr. Mooney

I welcome this initiative by the Government, although to a large extent I agree with Senator Gallagher's sentiments asking why it has taken so long. I am not sure if the Minister has addressed the reasons for the delay in his contribution on Second Stage. I applaud Senator Gallagher's long standing interest in human rights. It is obvious from the tenor and content of his contribution that he has not lost his appetite in this area.

In the context of suggestions that this Government has been tardy in introducing legislation on human rights, I feel that the ethos of this Government is to ensure that all legislation which comes before the Houses is influenced by a strong human rights philosophy. Of the legislation which has been introduced in the Houses in the last six months, some 50 per cent has emanated from the Department of Justice, Equality and Law Reform, much of which is imbued with the human rights philosophy. That is a cornerstone of both parties in Government.

My interest in this Bill is as much of a historical nature as it is contemporary. I was interested to note that the 1949 Geneva Convention, which is the bedrock of this legislation and to which the two protocols are attached, came about primarily as a result of the outrageous and scandalous manner in which the combatants, particularly the Nazis, in the Second World War totally discarded the contents of the 1929 Geneva Convention as it referred to the treatment of prisoners. Those of us who followed the war movies during our youth will remember the stiff upper lipped British officer who, when captured, always referred to the Geneva Convention in terms of his imprisonment. This was always met by complete resistance by the Nazis who did not seem to have any regard for human or prisoners rights. Following the Second World War, various countries came together to form the bedrock of attitudes in war for combatant and neutral countries.

We should acknowledge the outstanding work of agencies such as the International Committee of the Red Cross, the Red Crescent and the Red Lion. I was not aware that any other international organisation did similar work to the International Committee of the Red Cross until I was well into my teenage years. Perhaps that was as a result of the cultural or Christian environment in which I grew up. We sometimes think the International Committee of the Red Cross is the only organisation working in this field.

While we rightly applaud the humanitarian efforts and work of these relief organisations, they have also come under the microscope for the position they have taken which has not always been in the best interests of the victims. A recent documentary on BBC highlighted the contradictions within the International Committee of the Red Cross during the war in its attitude to the Jewish pogroms, particularly when it became apparent from 1942 onwards that there were concentration and extermination camps. The International Committee of the Red Cross went into these camps and was aware of what was happening, yet it still found it impossible to issue public statements in case its impartiality and credibility with the international community, particularly with the Nazi regime, was compromised.

As regards the most recent war in Europe following the break-up of Yugoslavia in 1991 to 1993, the protocols and Acts governing the Geneva Convention did not live up to the aspirations of the participating countries which framed them. One can only reflect on why more action was not taken against Slobodan Milosevic and his Serbian Government when it became known that they were re-enacting that which took place in the concentration camps of the Second World War. We all saw the images of people on our television screens and it was like a rerun of Auschwitz and Bergen Belsen.

Although the obligations of commanders in a war situation are outlined in legislation, one cannot help but reflect on the butcher of the Serbian army who stood up to the Dutch UN forces in one of the more outrageous atrocities which took place during the Serbian Bosnian conflict. He stated in front of television cameras that the segregation of male prisoners from their wives and families was only an operational matter and that they would not come to any harm. He threatened violence on the UN force which had to stand by helplessly as male prisoners were led away to almost immediate death, as we later found out.

While international communities correctly put down benchmarks for humanitarian concerns and civilised behaviour in the atrocity of war, governments should not hide behind bland public pronouncements or allow the interests of certain countries to supersede the humanitarian concerns they have subscribed to in articles such as the Geneva Convention. That is why I am cynical at times. This legislation is filled with the best intentions, yet we and the dogs in the street know that when reality sets in, as happened in the Serbian Bosnian conflict, humanitarian interests go out the window. The international community, particularly the European community, stood idly by and allowed men, women and children to be led to their deaths. The greatest scandal was to witness the Jewish residents of Bosnia Herzegovina who had been forcibly removed from their homes during the Second World War and who had survived and returned to pick up the shattered remnants of their lives being bussed away from their homes 40 years later by an odious regime.

There are many aspects and dimensions to the issue of how we treat non-combatants and civilians in a war situation. Although obligations are imposed on the combatants and their commanding officers and the treatment which should be given to civilians is outlined, we will not be able to change human nature, particularly in view of the old saying: power corrupts and all power corrupts absolutely. I wish we could change such human weakness.

It is because legislation such as this is enacted in civilised societies that there is hope for the future and that we can hand it on to our children as a legacy of this generation's concern. While we have learned to some degree from the mistakes of the past and while we cannot eliminate war in its entirety, we can do our best to minimise the shock, trauma and horror of war by introducing humanitarian methods such as those encompassed in the protocols and the Geneva Convention. I commend this legislation to the House.

Mr. O'Toole

I compliment the Minister for introducing this legislation. I have called for it many times during my 11 years in this House. I will not get involved in Senator Gallagher's party political jousts because these delays are not the fault of any particular Government. We have a poor record when it comes to legislating for UN international agreements. This is a cultural issue within Departments rather than Governments, but it does not look well for us. We should show more commitment to the work of the UN while seeking to be represented at its highest levels. The former Taoiseach, Mr. Charles Haughey, signed the convention on children's rights in 1990, but some aspects of it have still not been implemented. We have also been slow to deal with many other aspects of international agreements.

I support this legislation which required a tremendous amount of work. I know it is a matter of putting together articles, etc. I compliment the draftspersons on a difficult job well done. We are very reliant on them. It is a complete vote of trust and confidence in the draftspersons. We hope they have bridged all the gaps, made all the links and got every part right.

The Bill is here at last. The reason it is so important to enact such legislation early rather than late is Ireland's proclaimed neutral status. I have said many times that it is impossible to get us to understand the meaning of neutrality. I do not quite know what it means. It means certain things to me but it is an evolving philosophy for me and most thinking people.

I did not disagree with much of what the previous speaker said but he said it was appalling that the world stood idly by while what happened in Auschwitz and other places took place and we also must remember — I only say it because there are no members of the other parties here to capitalise on something which I recognise happened 50 years ago — that the Taoiseach of the day went down to the German Embassy and signed the book of condolences on the death of Hitler. That is why Ireland's neutrality is always questionable. It is hugely important that we enact these Bills which show us to be neutral, active and prepared to move on and support these matters.

I was in Dingle on Sunday afternoon and I met some visitors who asked me to recommend walks. I recommended a particular walk, up the hill behind the hospital. They asked me about a field they could see in the distance and I told them it was the paupers' graveyard, where people who died in the workhouses from the time of the Famine were buried in unnamed graves. As I was talking to them, I suddenly remembered there was another grave in the middle of the graveyard for German airmen who died when their aeroplanes hit the Kerry mountains during the war. They were buried there because we were not prepared to give them the kind of burial which is sought in this Bill and is welcome. I do not wish to be critical of the people at the time because they did what they thought was right, but it is good that we are now more compassionate. For instance, the word "humane" is evident throughout the Minister's speech and the Bill. That is important.

However, it is also important that we recognise what we mean by neutrality. The Bill states that nothing in the Bill can be used to promote violence or war except within the UN Conventions, but I do not know if we are allowed to do that because I am not sure how the Constitution affects such declarations of war.

The Minister did not refer to involuntary transplants from prisoners of war which are extraordinarily redolent of the experiments which were carried out on prisoners in Nazi concentration camps. There was significant evidence in recent times of prisoners in corrupt states being put under anaesthetic and not realising they had a kidney removed and sold in the developed world. That practice has been stopped, and not before time.

I ask the Minister to relate this Bill to the policy of neutrality. I ask him to address his comments to the contributions of some of the Senators who spoke about how Europe stood idly by; to put it softly, Europe stood idly by because countries like Ireland are neutral, which means we stand aside with the I'm all right Jack attitude and allow other groups to kill each other. We also stood idly by because there is no common European foreign policy. Therefore, the Germans took one line in a conflict and the French took another. Consequently, there was never a European line.

I say that as somebody who speaks in favour of neutrality and Ireland's tradition of neutrality. However, I never believed that neutrality was a passive role; I always believed it to be active. I ask the Minister to move the debate forward from our extraordinarily influential role as peacekeepers to perhaps peacemakers. I understand the implications of that and I am not saying I know the answers. It could well be that the day a Minister puts forward that viewpoint I will be the first to contradict him and argue, but all that will prove is that for Ireland to play a full international role will involve a painful debate.

I am not certain about what is neutrality and I have thought long and hard about it, but it is not about being passive. It is not — I do not think anybody believes it is — about sitting around while Pol Pot or Hitler killed millions and it is not about Ireland becoming a member of NATO either, but there are intermediate positions. The position to which I refer is rooted in the United Nations. In a world which approached the benign ambience which is outlined in the introduction to the Geneva Convention, we will need a world police force or army under the UN. It may well be that countries which want to be neutral or non-aligned will eventually get rid of their armies and put the same investment into a UN army, which would have a proper structure within the UN. It would not be run by the current UN Security Council, of which the Secretary General of the UN is not a member, which is really run by a number of large nations. Ireland's future neutrality could lie in the context of the UN.

I particularly welcome what the Minister said about the protection of children. This has been brought to my attention, not only by The Irish Times to which the Minister referred, but also by teachers from Kosovo to whom I have spoken. The INTO has sent people out there and so have some of the European committees, of which I am a member. I also met some teachers from Kosovo. It has been disheartening and discouraging. We have seen in the occupied territories of Middle East and in Jerusalem, for instance, that they close universities and schools and use students as shields of war. People have been raped and sexually abused. Napalm, Agent Orange, dumdum bullets, mustard gas and biological weapons have been used; there is the proliferation of nuclear arms. The issues go on and on. Senator Lanigan referred to landmines on the Order of Business and we have spoken about that issue here from time and again. Landmines are legacies of man's inhumanity to man.

I support the Bill and hope it is passed without amendment.

Minister of State at the Department of Finance (Mr. Cullen)

I thank the Senators who contributed to the Bill. I will do my best to deal with the points raised. Most Senators asked why has it taken us so long to introduce this Bill. I accept that various Government waited a lengthy period between the adoption of the two protocols, their subsequent signature on behalf of the State and the introduction of this legislation.

This Bill is important and very technical. I do not suggest that we needed 21 years to get it right but the fact that we are only now introducing this legislation should not be seen as indicating that the Irish people do not support it in spirit. We are very supportive of the conventions and protocols. We are now giving substance to that support and in some instances this legislation goes beyond the requirements of the protocols. I am sure the Seanad welcomes that approach.

Senator Avril Doyle, Senator O'Toole and others referred to the peacemaking and peacekeeping roles and our policy of neutrality. I do not wish to encroach on the responsibilities of the Minsters for Foreign Affairs and Defence but I can say that the Irish people must face the challenge of the debate on the issue of neutrality in the context of our involvement in Europe and a changing world. The difference between peacekeeping and peacemaking has implications for our policy on neutrality and we must come to terms with this issue. I am sure it will be debated in the near future.

Some Senators referred to powers of enforcement. The Bill attempts to establish the basic rules of international humanitarian law. The Haig tribunal is at present dealing with alleged violations of that law. Senators spoke in a questioning and even cynical tone but to do nothing is to despair. We must move forward in the area of international humanitarian law.

Atomic warfare was mentioned by Senators Lanigan and Doyle. The International Court of Justice at the Hague has stated that the conventions and protocols do not apply to atomic warfare.

Mrs. A. Doyle

Why not?

Mr. Cullen

The conventions and protocols are structured so that they do not apply to atomic warfare. We may return to this issue and I will get more information on this matter.

To Senator Lanigan's question, a land mine is not a projectile. The International Humanitarian Fact-Finding Commission can only operate where the parties consent and its reports are confidential. Senator Henry spoke about journalists. I will be tabling an amendment to provide further protection for journalists.

The sign of the Red Cross is protected under the Red Cross Acts and under the Geneva Conventions. All Senators referred to the fundamental issue of children's rights. It is forbidden, under article 7, paragraph 2 of Protocol I, to recruit children under 15 years of age.

Senator Gallagher raised the question of war tribunals and whether legislation is necessary. The enactment of such legislation would be a matter for the Minister for Justice and Law Reform and I will convey the Senator's remarks to him. I do not agree with Senator Gallagher that the Government is not making progress in this area. As much progress is being made by this Government as by the previous one and we now have a substantial body of legislation. The Senator's party is not long out of office. The Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, is very committed to progressing in this area despite her heavy responsibilities.

Senator O'Toole has left the Chamber but he would not wish to see an inaccuracy placed on the record of the House. Mr. de Valera did not go to the German embassy in 1945 but to the residence of the ambassador.

The practice of removing organs from prisoners of war without their permission or knowledge has become a feature of warfare in the very recent past. I do not know if this practice is covered by the Geneva Conventions. I shall get clarification on that matter.

I welcome Senators' comments on children. Their treatment by states is often unacceptable and sometimes outrageous. The question has been raised of Ireland's body of legislation in the area of international humanitarian law. When I concluded my speech on this matter in the Dáil I read a long and detailed list of conventions, protocols and so on dealing with this area which are part of Irish law. I would like to place that list on the record of the House. Can you advise me, a Chathaoirligh, on how that can be done?

An Cathaoirleach

If the Minister can provide the list to the Seanad Office it can be circulated to Members and it would then be included in the record of the House. We can take a decision now that the list will be included in the record of the House. Is that agreed? Agreed.

Mr. Cullen

I am happy to do that and I am sure Members will find it beneficial. Senator O'Toole would be incorrect in his assessment that we are slow to ratify international conventions on humanitarian law. There are outstanding matters which remain to be dealt with but we have ratified a substantial body of law and great credit is due to officials in many Departments for that.

I thank Senators who spoke on this important Bill. The contributions were well presented and important and I look forward to teasing out some specific points on Committee Stage. I thank the officials for their assistance.

TABLE OF INTERNATIONAL CONVENTIONS AND AGREEMENTS ON HUMAN RIGHTS AND HUMANITARIAN LAW IN CHRONOLOGICAL ORDER OF ADOPTION AND IRELAND'S STATUS IN RELATION TO THOSE INSTRUMENTS

Year of Adoption	Instrument	Position
1904	International Agreement for the Suppression of the White Slave Traffic	Party thereto
	International Convention for the Suppression of the White Slave Traffic	Party thereto
1926	Slavery Convention	Party thereto
1930	Forced Labour Convention	Party thereto
1948	Freedom of Association and Protection of the Right to Organise Convention	Party thereto
	Convention on the Prevention and Punishment of the Crime of Genocide	Party thereto
1949	Right to Organise and Collective Bargaining Convention	Party thereto
	Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field	Party thereto
	Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea	Party thereto
	Geneva Convention relative to the Treatment of Prisoners of War	Party thereto
	Geneva Convention relative to the Protection of Civilian Persons in Time of War	Party thereto
	Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others	Not Signed
1950	European Convention for the Protection of Human Rights and Fundamental Freedoms	Party thereto
1951	Equal Remuneration Convention	Party thereto
	Convention relating to the Status of Refugees	Party thereto
1952	Convention on the International Right of Correction	Not signed
	Convention on the Political Rights of Women	Party thereto
	Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms	Party thereto
1953	Protocol amending the Slavery Convention signed at Geneva on 25 September 1926	Party thereto
1954	Convention relating to the Status of Stateless Persons	Party thereto
1956	Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery	Party thereto
1957	Convention on the Nationality of Married Women	Party thereto
	Abolition of Forced Labour Convention	Party thereto
1958	Discrimination (Employment and Occupation) Convention	Not Signed
1960	Convention against Discrimination in Education
1961	Convention on the Reduction of Statelessness	Party thereto
1962	Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages	Not Signed
	Protocol Instituting a Conciliation and Good Offices Commission to be responsible for seeking a settlement of any disputes which may arise between States Parties to the Convention against Discrimination in Education
1963	Protocol No. 2 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, conferring upon the European Court of Human Rights Competence to give Advisory Opinions	Party thereto
	Protocol No. 3 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 29, 30 and 34 of the Convention	Party thereto
	Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those included in the Convention and in Protocol No. 1	Party thereto
1964	Employment Policy Convention	Party thereto
1965	International Convention on the Elimination of all Forms of Racial Discrimination	Signed
1966	International Covenant on Economic, Social and Cultural Rights	Party thereto
	International Covenant on Civil and Political Rights	Party thereto
	Optional Protocol to the International Covenant on Civil and Political Rights	Party thereto
	Protocol relating to the Status of Refugees	Party thereto
	Protocol No. 5 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 22 and 40 of the Convention	Party thereto
1968	Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity	Not Signed
1969	European Agreement on “Au Pair” Placement	Not Signed
1970	European Convention on the Repatriation of Minors	Not Signed
1971	Workers' Representatives Convention	Not Signed
1973	International Convention on the Suppression and Punishment of the Crime of Apartheid	Not Signed
	Convention concerning Minimum Age for Admission to Employment	Party thereto
	European Agreement on the transfer of Corpses	Not Signed
1977	Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)	Signed
	Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)	Signed
	European Agreement on the Transmission of Applications for Legal Aid	Party thereto
1978	Labour Relations (Public Service) Convention	Not Signed
1979	Convention on the Elimination of All Forms of Discrimination against Women	Party thereto
1981	Convention (No. 154) concerning the Promotion of Collective Bargaining	Not Signed
1983	Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty	Party thereto
1984	Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	Signed
	Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms	Signed
1985	International Convention against Apartheid in Sports	Not Signed
	Protocol No. 8 to the European Convention for the Protection of Human Rights and Fundamental Freedoms	Party thereto
1987	European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment	Party thereto
1988	Convention (No. 168) Concerning Employment Promotion and Protection against Unemployment	Not Signed
1989	Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries	Not Signed
	Convention on the Rights of the Child	Party thereto
	Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty	Party thereto
1990	International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families	Not Signed
	Protocol No. 9 to the European Convention for the Protection of Human Rights and Fundamental Freedoms	Party thereto
1992	Protocol No. 10 to the European Convention for the Protection of Human Rights and Fundamental Freedoms	Party thereto
	European Charter for Regional or Minority Languages	Not Signed
1993	Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment	Party thereto
	Protocol No. 2 to the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment	Party thereto
1994	Protocol No. 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Controlled Machinery established thereby	Party thereto
1995	European Convention for the Protection of National Minorities	Signed
1996	European Convention on the Exercise of Children's Rights	Signed

Question put and agreed to

Committee Stage ordered for Friday, 3 July 1998.

The Seanad adjourned at 7.40 p.m. until 10.30 a.m. on Wednesday, 24 June 1998.