Geneva Conventions (Amendment) Bill, 1997: Committee Stage.
I welcome the Minister of State at the Department of Finance, Deputy Cullen, and his officials. We will continue our consideration of the Bill until 6 o'clock in the hope that we will be finished by then, if not, we will adjourn.
This is long Bill, 77 pages, but the bulk of it is made up of the Protocols to the Convention. They cannot be amended as this State, in common with many others, has signed it. We can only adopt it into domestic law. For that reason amendments to the Schedule will have to be disallowed. We can discuss it, but the bulk of the discussion will concern the sections of the Bill as opposed to the Schedule.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 3, line 25, to delete "Part IV of".
This provision will provide the protected internee with the protection provided in Protocol I. It is a strengthening measure.
Amendment agreed to.
Amendment No. 4 is cognate and amendments Nos. 2 and 4 will be taken together by agreement.
I move amendment No. 2:
In page 4, line 10, to delete "10" and substitute "8".
The published UN Collection of Human Rights Instruments mentions 8 June 1977 as the operative date. This is just a factual correction.
That amendment is acceptable; the Deputy is correct.
I have had time since the Bill was originally published to check that.
There is another part in which the same situation arises, page 3, line 8. That could be taken as amendment No. 42 later.
That will have to be taken at the end.
Yes. I am signalling it now in case anyone points it out.
Amendment agreed to.
Amendments Nos. 3, 5 and 6 form a composite proposal and will be taken together by agreement.
I move amendment No. 3:
In page 4, line 11, after "Act" to insert "which said Protocol shall have the force of law in the State".
I am seeking clarification of the terms of the amendments proposed. Rather than being selective we should ensure that all have the force of law. Perhaps the Minister will clarify whether, on passing this Bill, we are ratifying all or being selective. I believe the Protocols should have the force of law in the State.
I understand the Deputy's point but it would be a radical step requiring consultation with other Departments. It is a fundamental matter and if it was to go that far it would require a Cabinet decision. It may be for another Bill to deal with this. In terms of the effect of the Bill, we are in line with what has been done in other states and there is no reason at this stage to go beyond that.
I accept what the Minister says. We might consider this on Report Stage.
Report Stage will be taken in the House.
I will come back to it then.
Amendment, by leave, withdrawn.
Amendments Nos. 4 to 6 inclusive, not moved.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 7:
In page 4, between lines 34 and 35, to insert the following subsection:
"(1A) Any person, whatever his or her nationality, who, whether in or outside the State, fails to act, under a duty to do so, to prevent the commission by another person of a grave breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence and on conviction on indictment shall be liable to imprisonment for a term not exceeding 10 years.".
Section 3 of the Geneva Conventions Act, 1962, deals with the punishment of grave breaches of the four Geneva Conventions. Section 3 of the Bill seeks to amend section 3 of the Act. The Conventions in Protocol I require that grave breaches be repressed. Section 3(1) provides for the punishment of a person who, either inside or outside the State, commits, aids, abets or procures the commission by any other person of a grave breach. Article 86 (1) of Protocol I deals with grave breaches of Protocol I and the Conventions owing to a failure to act when under a duty to do so. The proposed amendment is designed to give effect to this provision in Article 86 (1) of Protocol I. It is a strengthening amendment once again, inserting the word "failure".
Does the term "grave breach" have a specific meaning distinct from a"breach"?
There is a difference in definition between grave breaches and minor breaches. Grave breaches are specified, minor breaches are not.
I see that is explained later in the section.
Amendment agreed to.
I move amendment No. 8:
In page 4, line 35, to delete "of subsection (1)".
This is a drafting correction.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Amendments Nos. 9 and 10 are related and may be taken together.
I move amendment No. 9:
In page 5, subsection (1), between lines 6 and 7, to insert the following:
"(b) the insertion after subsection (1) of the following subsection:
'(1A) Any person, whatever his nationality, who, in the State, fails to act, when under a duty to do so, to prevent the commission by another person of a minor breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence.'.".
These amendments are similar to the amendments proposed to section 3 of the Bill. Section 4 of the Geneva Conventions Act, 1962, deals with the punishment of minor breaches of the four Geneva Conventions. Section 4 of the Bill seeks to amend section 4 of the Act. Section 4 (4) of the Act defines a minor breach as a breach which is not a grave breach. Article 86 (1) of Protocol I also deals with the suppression of all other breaches of the four Conventions or Protocol I arising out of a failure to act when under a duty to do so. The proposed amendments are designed to give effect to this provision in Article 86 (1) in Protocol I as I outlined a few moments ago.
According to the list before me, amendments 10 to 13, inclusive, are related to amendment No. 9 and all may be taken together.
Amendment No. 11 proposes to increase the figure from £1,500 to £5,000 and amendment No. 12 proposes an increase from £5,000 to £15,000. Amendment No. 13 proposed to extend the time period from two to four years.
Amendments Nos. 9 and 10 are similar but amendments Nos. 11 and 12 are different.
I am inclined to agree with the Minister. The listing before me is wrong. Amendments Nos. 9 and 10 should be taken together, as agreed, and not with amendments 11 to 13, inclusive.
Amendment No. 10 has the same effect as amendment No. 9.
The position regarding someone found guilty under this subsection of failing to prevent a commission is a slightly new concept in criminal law. A person with his hands tied and a gun to his head is hardly in a position to prevent the commission of either a grave or a minor breach.
I accept the point. However, we have included the provision because it is in the Protocol. The word "failure" in included; we cannot change the Protocols. We want to strengthen the position. However, I could include a specific reference to the Protocol.
Amendment No. 9 states:
Any person, whatever his or her nationality, who, in the State, fails to act, when under a duty to do so, to prevent the commission. . . .
Perhaps it would be an unreasonable interpretation of someone failing to act if they were subject to the kind of pressure mentioned by the Chairman.
They may be under less obvious but still considerable duress.
I am reliably informed it applies specifically to a military commander who fails to suppress a breach or fails to take action. It is more in the military domain.
Amendment agreed to.
I move amendment No. 10:
In page 5, subsection (1), between lines 8 and 9, to insert the following:
"(d) the insertion after subsection (2) of the following subsection:
'(2A) Any citizen of Ireland who, outside the State, fails to act, when under a duty to do so, to prevent the commission by another person of a minor breach of any of the Scheduled Conventions or Protocol I shall be guilty of an offence.'.".
Amendment agreed to.
I propose to take amendments Nos. 11 to 13, inclusive, together. Is that agreed? Agreed.
I move amendment No. 11:
In page 5, subsection (1)(c), line 10, to delete "£1,500" and substitute "£5,000".
I outlined the reason for these amendments when we considered amendments Nos. 9 and 10.
I am unable to accept amendment No. 11. The maximum jurisdiction for summary offences has been kept at £1,500 in other Acts. It would be inappropriate to break with this long standing approach.
While it would be unconstitutional to accept it, the spirit of the amendment is correct. A fine of £1,500 is derisory, but an increase in the penalty from six to 12 months would cover the point. It would be within the Constitution to do so.
That cannot be done on this Stage, but perhaps the Deputy could move an amendment on Report Stage. Does the proposal to increase the figure in amendment No. 12 from £5,000 to £15,000 refer to the penalty on indictment?
There is not the same bar on that.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 5, subsection (1)(d), line 12, to delete "£5,000" and substitute "£15,000".
There is no objection to the amendment.
Amendment agreed to.
I move amendment No. 13:
In page 5, subsection (2), line 18, to delete "two" and substitute "four".
I am unable to accept the amendment on the basis that it would be unfair to bring a person before the District Court more than two years after the offence and to expect him or her to produce evidence in his or her defence. A period of two years is reasonable; there is no need to extend it to four.
Amendment, by leave, withdrawn.
Section 4, as amended, agreed to.
SECTION 5.
I move amendment No. 14:
In page 5, subsection (1), line 22, before "If," to insert the following:
"(1) A report of the Commission established by Article 90 of Protocol I shall be admissible in any proceedings as evidence of its contents until the contrary is shown.".
This refers to disputes regarding the application of the Convention. Will the Minister consider a declaration under Article 90? It would strengthen the Bill.
The Deputy's proposal is acceptable, but it is more appropriate that the Principal Act be amended. Accordingly, I have drafted an amendment which I will circulate. It will add a new section amending the Principal Act under section 5 and will provide for judicial notice of a report of the international fact finding commission in a new section 5A. I can move it on Report Stage.
It is difficult to deal with amendment No. 14 when we have not seen the Minister's further amendment. I suggest both be left for Report Stage. Perhaps the Minister's proposed amendment could incorporate amendment No. 14 at that stage?
I will circulate a copy of my proposed amendment.
Amendment, by leave, withdrawn.
Sections 5 and 6 agreed to.
SECTION 7.
Amendments Nos. 16 to 19, inclusive, are consequential on amendment No. 15 and all may be taken together. Is that agreed? Agreed.
I move amendment No. 15:
In page 5, subsection (1), line 39, to delete "subject to any reservation or".
The purpose of these amendments is to strengthen the Bill and to ratify without reservation. There was a problem with this in the UK, primarily because of the nuclear issue. I ask the Minister to accept the amendment.
I cannot accept the amendments. As I am sure the Deputy understands, they would tie the hands of the Government. Many of the countries which have ratified the convention have included reservations. It would go too far to tie down the position so specifically in our legislation when it is not required. It would be wiser to keep open the position in the Bill as it stands. Therefore, I cannot accept the amendments.
Amendment by leave, withdrawn.
Amendments Nos. 16 to 19, inclusive, not moved.
Section 7 agreed to.
SECTION 8.
I move amendment No. 20:
In page 6, lines 5 to 13, to delete subsection (1) and substitute the following:
"(1) It shall not be lawful for any person-
(a) other than a person involved in civil defence, to use or display the
sign of an equilateral blue triangle on, and completely surrounded by, an orange ground, being the international distinctive sign of civil defence, or
(b) other than a person attached to a medical unit or transport, to use
any of the distinctive signals specified in Articles 8 and 9 of Chapter III of Annex I to Protocol I, being the signals of identification for medical units and transports.".
Section 8 deals with the restriction of use of the international distinctive sign or emblem of civil defence and other distinctive signals whether it is for the purpose of trade or business or any other purpose. Article 18.6 of Protocol I states that the signals designated in Chapter III of the Annex to the Protocol shall not, save as provided therein, be used for any other purpose than to identify the medical units and transports specified in that chapter.
Regarding Annex 1 of Chapter III to Article 6.2, it should be noted that the signals are to be used exclusively by medical units and transports. It is necessary, therefore, to emphasise that the effectiveness of the protection depends on the trust that can be placed in the sign and signals. Thus, the exclusive use of the sign and the signals for the purpose of the identification of medical units and transports is the only way of removing all ambiguity and allaying all doubt. The amendment is designed to ensure that the distinctive sign and signals are to be used solely for medical purposes. It will make the section more explicit and tie down the position.
Amendment agreed to.
The acceptance of amendment No. 20 means that amendments Nos. 21 and 25 cannot be moved.
Amendment No. 21 not moved.
Amendments Nos. 23 and 24 are consequential on amendment No. 22 and may be taken together by agreement.
I move amendment No. 22:
In page 6, between lines 26 and 27, to insert the following subsection:
"(4) The Minister for Defence may make regulations to supervise the display of the international distinctive sign of civil defence.".
It is appropriate that the Minister for Defence should have the power to make regulations in regard to the display of the international civil defence sign. This is the purpose of the amendment in relation to the Protocols. The Minister can make regulations under the Defence Acts but the amendment will give him power under this Bill.
Amendment agreed to.
I move amendment No. 23:
In page 6, subsection (4), line 27, after "section" to insert "or regulations made under subsection (4) of this section".
Amendment agreed to.
I move amendment No. 24:
In page 6, subsection (5), line 32, after "offence" to insert "or anything on which the sign is displayed".
Amendment agreed to.
Amendment No. 25 cannot be moved.
I understand amendment No. 25 relates to a different subsection and should be accepted.
I move amendment No. 25:
In page 6, subsection (8), line 49, after "any" to insert "other".
Amendment agreed to.
Section 8, as amended, agreed to.
Amendment No. 26 not moved.
SECTION 9.
I move amendment No. 27:
In page 7, subsection (1)(a), line 8, after "Protocol II" to insert "and regulating their use".
This is consequential on an earlier amendment.
Amendment agreed to.
I move amendment No. 28:
In page 7, subsection (1)(b), line 10, after "effect to" to insert "any of the Scheduled Conventions or".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 29:
In page 7, between lines 15 and 16, to insert the following subsection:
"(2) For any purpose relevant to this Act, the Minister for Defence may make regulations to enable the United Nations Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 to have effect.".
The amendment would bring the Bill in line with the White Paper on Foreign Policy and the ratification of measures relating to human rights. It would strengthen the Bill.
The Bill does not relate to the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment. The amendment is outside the scope of the Long Title of the Bill and, therefore, I cannot accept it.
I accept the Minister's point. A motion relating to this issue is before the committee and probably will be dealt with this year.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 7, between lines 28 and 29, to insert the following subsection:
"(5) This section is without prejudice to any power of the Minister for Defence to make regulations under the Defence Act, 1954, in relation to any matter relevant to the Conventions or the Protocols thereto and in particular to any matter requiring to be determined by a competent authority of the State under those Conventions or those Protocols.".
The amendment would broaden the scope of the Bill and I hope the Minister will accept it.
The amendment is unnecessary because the Minister for Defence already has powers under the Defence Acts.
I disagree. Time will tell which of us is correct.
Does the Minister for Defence already have power under the Defence Act in relation to matters relevant to the Conventions or Protocols?
The Minister for Defence has powers specifically under the existing Defence Acts. The Minister will also have powers under this Bill. The point of Deputy Spring's amendment is already met.
Will the Minister accept the amendment to ensure the position is copperfastened?
No, because it is superfluous.
I will reluctantly withdraw the amendment. However, time probably will prove me right.
Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11.
I move amendment No. 31:
In page 7, paragraph (a), line 36, after "1949," to insert "and".
This is a drafting amendment and I hope it will be accepted.
Amendment agreed to.
I move amendment No. 32:
In page 7, paragraph (b), line 43, after "war" to insert "or armed conflict".
This is a drafting amendment to make the provision more specific.
Amendment agreed to.
I move amendment No. 33:
In page 7, paragraph (b), line 46, to delete "Paragraph I" and substitute "paragraph 1".
This is a printing correction.
Amendment agreed to.
I move amendment No. 34:
In page 8, line 8, before "but" to insert "and in accordance with Article 47 of Protocol I does not include a mercenary,".
The amendment makes the Bill more compatible with the 1989 Protocols.
This is not required. A mercenary is covered by Article 47 and the fundamental guarantees stated in the Protocol must be given.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 8, line 13, after "status of" to insert "prisoners of war under".
This is a technical amendment to provide further clarification.
Amendment agreed to.
Amendment No. 36 is out of order. It seeks to oblige the State to ratify the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries. The subject matter of this Bill, however, is the changes required to domestic law to enable Ireland to ratify two Protocols to the Geneva Conventions on the Protection of Victims of International and Non-international Armed Conflicts. Accordingly, the ratification of a Convention dealing with mercenaries is beyond the scope of the Bill as read a Second Time and an amendment to that effect must be adjudged out of order.
Amendment No. 36 not moved.
Section 11, as amended, agreed to.
NEW SECTION.
I move amendment No. 37:
In page 8, before section 12, to insert the following new section:
"12.-The restriction on granting extradition contained in section 12 of the Extradition Act, 1965, does not apply in the case of an offence involving a grave or minor breach of any of the Scheduled Conventions on Protocol I.".
Article 88(2) of Protocol I obliges states to co-operate in the matter of extradition. Section 12 of the Extradition Act, 1965, lays down a restriction on extradition; it states that a person may not be extradited for offences under military law which are not offences under ordinary criminal law. The modern trend is to regard violations of the Protocol and other rules of international humanitarian law as matters primarily of military penal law - this relates to violations by combatants. The proposed amendment is designed to give effect to the provision in Article 88(2) of Protocol I to enable consideration to be given to a request for the extradition of a combatant which is received from a state in whose territory an alleged grave or minor breach has occurred.
Amendment agreed to.
SECTION 12.
Amendment No. 38 is also out of order because it is outside the scope of the Bill. It seeks to oblige the Minister to lay before each House a report on the Government's further proposals for ratification of international human rights and humanitarian law instruments. This is beyond the scope of the Bill as read a Second Time having regard to its content and subject matter and must also be adjudged out of order.
Ministers for Foreign Affairs do not like having their hands tied in advance.
Amendment No. 38 not moved.
Question proposed: "That section 12 stand part of the Bill."
I accept your ruling, Chairman, but I think you see what I was trying to achieve. We have been slow to ratify treaties and honour our international obligations and I hoped that within six months of the Bill going through the House the Minister would outline his proposals for the ratification of international human rights and humanitarian law instruments. However, we can find another way of doing that.
We are working on that and we take the Deputy's point on board. We intend to deal with the matters he mentions.
Although the amendment is out of order and there should be no further discussion on it, I will avail of the opportunity of such discussion as we have to request the Department of Foreign Affairs to provide the committee with a list of all the conventions which Ireland has not yet ratified. We requested this previously and had great difficulty prising it from the Department, possibly because of the substantial number of such conventions.
As the Minister responsible for the Freedom of Information Act, I am happy to pass on that request.
On receiving the information it would be worthwhile if we had a discussion at this committee, and there may be a role for us in working with the Department to bring us up to date on our international obligations. That is not to underestimate the difficulty of the amount of work on an ongoing basis, and I take the Minister of State's point that the Department is trying to catch up with the workload.
When I get the list from the Department - which no doubt I will - I will circulate it to Members of the committee and we will put it on the agenda for discussion.
I appreciate the principle and sentiment behind the amendment. Although I understand the reasons for your ruling, Chairman, is it because the amendment relates to international human rights and humanitarian law instruments or could it relate to this Bill alone? I support the view that we have passed so many regulations and instruments that we do not know the state of play with regard to each one, which means this can drag on.
My view is that an amendment of this type to this Bill would be in order if it were drafted specifically to relate only to matters referred to in the Bill. The way this amendment is drafted, it extends into the general area of human rights and humanitarian law instruments, which is much broader than the Bill.
Given that you allowed the discussion on the matter, perhaps the Department could tie in a regulation of this nature to all Bills coming before us so that in the future we could get a report on what is referred to in the amendment. Rather than having to put down amendments we should deal with it by way of regulation.
Perhaps an amendment of that type, confined to the instruments specifically referred to in the Bill, could be considered between now and Report Stage. I hope - and have suggested - that irrespective of this amendment, this committee would get from the Department a full list of the unratified instruments.
So many instruments have not been ratified that I am at a loss to know which have been and which have not. Could the Department of Foreign Affairs not provide that a report would be laid before the House in respect of all future Bills and regulations within six months so that the House would be aware of the position in this regard? Can we provide for that in all Bills, by way of a regulation or whatever, rather than having to table amendments to particular Bills?
A separate amendment or section would have to be put into all Bills to compel that. Irrespective of its statutory obligations, I hope the Department of Foreign Affairs would, as a matter of courtesy to the committee, provide it with a list of the unratified instruments to which Ireland has subscribed.
Is the Chairman referring to human rights?
Yes, I am referring particularly to instruments in regard to human rights but there are others which would not fall into this category. I would like a complete list of the unratified conventions, protocols and agreements signed by Ireland.
That is a meritorious point but could departmental officials arrange that a report would be laid before the House within a specified period after the passing of Bills on the matter of ratification and Ireland's adherence to that?
It would be for the Department to include such a provision in future Bills.
Can we convey that message to them?
I am sure the officials have taken note of that.
Question put and agreed to.
SCHEDULE.
Amendment Nos. 39 and 40 seek to amend the Schedule which contains the Protocols additional to the Geneva Conventions done at Geneva on 10 June 1977.
Amendment No. 39 proposes to insert in Article 32 of Protocol 1 a provision providing that section 3 of the Protocol on missing and dead persons shall be reported on annually to Dáil Éireann specifically in relation to relatives of families in both jurisdictions in Ireland. Amendment No. 40 proposes to include sexual abuse among the acts prohibited under Article 75 on fundamental guarantees. It is a longstanding practice that international agreements are not open to amendment on the basis that the legislative powers of the Oireachtas extend to domestic law only. For this reason, the amendments have been ruled out of order.
Amendment Nos. 39 and 40 not moved.
Schedule agreed to.
TITLE.
Amendment No. 40a is the same as one moved earlier by Deputy Spring to change an incorrect date.
I move amendment No. 40a:
In page 3, line 8, to delete "10" and substitute "8".
Amendment agreed to.
I move amendment No. 41:
In page 3, line 11, after "AND" where it firstly occurs, to insert "SECTION 1 OF THE".
This is purely a drafting amendment.
Amendment agreed to.
Title, as amended, agreed to.
