The effect of these amendments is to prevent the participation of the Defence Forces in peacekeeping operations in countries that may or may not be parties to the convention on cluster munitions. These amendments will affect the provisions of the Bill concerning interoperability which, as I have said before, is the most difficult part of the convention. Article 21 of the convention is the most difficult to resolve and was only resolved at the last moment. I will go into some detail on Article 21 of the convention as it is an important background, and the provision of section 7 of the Bill which will implement it.
Provision is made in Article 21 of the convention for state parties to engage in military co-operation and operations with states which are not party to the convention that might engage in activities prohibited to a state party. This provision takes account of the fact that, at least initially, not all states will be party to the convention, and some states not party to it may wish to continue to use cluster munitions. It was a particular concern to members of NATO because the United States has been clear in its opposition to the Oslo process.
When considering Article 21 it is important to note that each state party is obliged to encourage states not party to the convention to become party to it, and where it engages in military co-operation or operations with these states to notify them of its own obligation under the convention, promote the norms established by the convention and make its best effort to discourage them from using cluster munitions.
Article 21(4) specifically does not authorise a state party to develop, produce or otherwise acquire cluster munitions, to itself stockpile or transfer cluster munitions, to itself use cluster munitions, or to expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.
We believe the convention's prohibition on cluster munitions will, in time, become established as the norm and a new norm of international humanitarian law. This will happen when states begin to feel obliged to behave in accordance with it, whether they are party to it or not. This is what has happened in the context of the anti-personnel landmine convention and we hope to have a similar effect with the cluster munitions convention.
Article 21 of the convention is implemented by section 7 of the Bill and subsection (4) provides for particular circumstances which may arise on the participation of members of the Defence Forces in peacekeeping missions with states not party to the convention. On Second Stage I said the likelihood of our participation in such missions would be very low, so it is an unlikely scenario but one we have to provide for.
Section 6(1) of the Bill makes it an offence to use, develop, produce or acquire a cluster munition. Section 7(4)(i) deals with the situation in which a contingent of the Defence Forces is dispatched abroad for service in an international United Nations force in accordance with the Defence (Amendment) Act where the UN force concerned is one which has been authorised by the United Nations Security Council, and if the contingent consists of more than 12 members of the Permanent Defence Force its dispatch has normally been approved by Dáil Éireann.
The core is subsection (4)(ii) which deals with the situation in which a contingent or permanent member of the Defence Forces has, with the approval of the Government, been dispatched for service outside the State to carry out duties as a military representative, or fill an appointment or posting outside the State in accordance with the Defence Act. In both of these cases subsection (4) provides that a member of the Permanent Defence Force shall not be guilty of the offence of assisting, inducing or encouraging the commission of any of the offences created by section 6(1) of the Bill, which is to use, develop, produce, acquire, possess, retain or transfer to any person a cluster munition or an explosive bomblet. If he does any of these things himself he will of course be guilty of an offence.
Subsection (4) is intended to address only exceptional and very unlikely circumstances, such as where an Irish contingent of a UN-mandated peacekeeping force finds itself under attack and needs to call in air cover to relieve it. It may happen that air cover is provided by the forces of another state participating in the mission which is not a party to the convention, and it is conceivable that it would be delivered without the knowledge of the Irish contingent in the form of cluster munitions. The Bill provides that in such a scenario no member of the Defence Forces could be prosecuted for inducing or encouraging the use of cluster munitions contrary to section 6(2) of the Bill.
Everything possible will be done to avoid such a scenario occurring, and as I said during the debate on Second Stage, our preference in considering future contributions to peacekeeping missions will naturally be to join with states that are parties to the convention, and in these circumstances the question of interoperability with states not a party will not arise.
If we were to find ourselves as members of a peacekeeping mission that included the armed forces of a state not party to the convention, every effort will be made in the elaboration of codes of conduct, rules of engagement, caveats and similar agreements prepared for the mission to ensure there is no prospect of cluster munitions playing any role.
It is highly unlikely that section 7(4) will ever apply, but all Members of the House agree on the importance of ensuring that no member of the Defence Forces should ever face prosecution for simply carrying out his or her duty as a member of a peacekeeping mission. In essence it is an ar eagla na heagla provision.