Geneva Conventions (Amendment) Bill, 1997: Committee and Remaining Stages.

Thursday, 2 July 1998

Seanad Éireann Debate
Vol. 156 No. 9

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Section 1 agreed to.

SECTION 2.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendments Nos. 1, 2, 19 and 22 are cognate and are to be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 1:

In page 4, line 10, to delete “done” and substitute “adopted”.

Minister of State at the Department of Finance (Mr. Cullen): Information on Martin Cullen Zoom on Martin Cullen Both additional Protocols were adopted by consensus by the diplomatic conference on the reaffirmation and development of international humanitarian law applicable to armed conflicts on 8 June 1977. The final act of that diplomatic conference was signed on 10 June 1977 by way of authentication, and the texts of the two Protocols were annexed to the final Act. The view could be taken that the present wording of the Bill “done at Geneva on 8 June 1977” is sufficiently clear to indicate the precise Protocols in question; on the other hand, to be absolutely precise, the text should be changed either to “done at Geneva on 10 June 1977” or “adopted at Geneva on 8 June 1977”. I have chosen the second alternative for this technical amendment.

Amendment agreed to.

Government amendment No. 2:

In page 4, line 16, to delete “done” and substitute “adopted”.

Amendment agreed to.

[692] Section 2, as amended, agreed to.

Section 3 agreed to.

SECTION 4.

Government amendment No. 3:

In page 5, line 27, after “substitution” to insert “for ‘six’ of ‘12’ and”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen Section 10 of the Extradition Act, 1965, provides that extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting State and of this State by imprisonment for a maximum period of at least one year. This amendment enables the State to process requests from abroad for extradition of suspects for offences under the conventions and Protocols so that the State does not become a haven for persons wanted under these conventions and Protocols.

Amendment agreed to.

Section 4, as amended, agreed to.

SECTION 5.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendments Nos. 4, 5, 6 and 7 are related and are to be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 4:

In page 5, line 47, after “Protocol I” to insert “or Protocol II”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen These amendments enable the Minister for Foreign Affairs to issue a certificate determining the circumstances in which the additional Protocol II applies. This additional Protocol supplements common Article 3 of the four Geneva Conventions of 1949. The advantage of these insertions is certainty and clarity in any proceedings involving a minor breach of additional Protocol II and would avoid any difficulties with court proceedings in the future.

Amendment agreed to.

Government amendment No. 5:

In page 5, line 48, after “Article 2” to insert “or 3”.

Amendment agreed to.

Government amendment No. 6:

In page 5, line 49, after “Protocol I” to insert “or Article I of Protocol II”.

Amendment agreed to.

[693] Government amendment No. 7:

In page 6, line 2, to delete “Protocol” and substitute “Protocols”.

Amendment agreed to.

Section 5, as amended, agreed to.

Sections 6 to 8, inclusive, agreed to.

SECTION 9.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendment No. 8 is consequential on related amendments Nos. 9, 10, 11 and 12 and are to be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 8:

In page 6, subsection (1)(a), line 35, to delete “or”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen Article 56, paragraph 7, of the additional Protocol I of 1977 prescribes the international special protective sign for works and installations containing dangerous forces; Article 17 of Annex I can also be consulted. The amendment makes provision to restrict use of this dangerous forces sign such as that required for the Red Cross emblem or the distinctive international sign for Civil Defence. The additional Protocol I does not require States to restrict use or compare Article 66, paragraph 8, regarding Civil Defence with Article 56, paragraph 7, concerning the dangerous forces sign. Nevertheless, the amendment restricts use of the dangerous forces sign to help it ensure it retains its protective value if it is ever needed in an armed conflict.

Amendment agreed to.

Government amendment No. 9:

In page 6, subsection (1), between lines 35 and 36, to insert the following new paragraph:

“(b) other than a person involved in the protection of works and installations containing dangerous forces (within the meaning of Article 56 of Protocol I), to use or display the sign consisting of a group of three bright orange circles of equal size, placed on the same axis, the distance between each circle being one radius, being the international special sign for works and installations containing dangerous forces, as provided for in paragraph 7 of that Article, or”.

Amendment agreed to.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly The reference to subsection (1)(b) in amendment No. 10 is a reference to subsection (1)(b) as inserted by amendment No. 9.

[694] Government amendment No. 10:

In page 6, subsection (1) between lines 45 and 46, to insert the following new paragraph:

“(b) any design so nearly resembling the sign referred to in subsection (1)(b) of this section as to be capable of being mistaken for that sign, or”.

Amendment agreed to.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly The reference to subsections (1)(b) and (2)(b) in amendment No. 11 are references to subsection (1)(b) as inserted by amendments Nos. 9 and 10.

Government amendment No. 11:

In page 7, subsection (3), line 1, to delete “subsection (1)(a) or (2)(a)” and substitute “subsection (1)(a) or (b) or (2)(a) or (b)”.

Amendment agreed to.

Government amendment No. 12:

In page 7, subsection (4), line 6, after “civil defence” to insert “or any of the international special signs for works and installations containing dangerous forces”.

Amendment agreed to.

Section 9, as amended, agreed to.

SECTION 10.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendments Nos. 13, 14 and 15 may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 13:

In page 7, subsection (1), line 30, after “may” to insert “, without prejudice to his or her power under section 4 (as amended by section 8 of the Red Cross Act, 1954) of the Red Cross Act, 1938,”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen These amendments are consequential on other amendments and relate to regulation making functions of the Minister for Defence.

Amendment agreed to.

Government amendment No. 14:

In page 7, subsection (1)(b), line 40, after “Chapter I” to insert “or V”.

Amendment agreed to.

Government amendment No. 15:

In page 7, subsection (3), line 50, after “section” to insert “or section 9(4) of this Act”.

[695] Amendment agreed to.

Section 10, as amended, agreed to.

NEW SECTIONS.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendments Nos. 16 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 16:

In page 8, before section 11, to insert the following new section:

“11.—(1) The Minister may, on behalf of the Government, issue, for the purposes of Article 79 of Protocol I, an identity card, similar to the model in Annex II to Protocol I, to a journalist, referred to in that Article, whom the Minister considers to be engaged or likely to be engaged as such in dangerous professional missions in areas of armed conflict.

(2) An identity card issued under this section to a journalist may be issued to the journalist subject to such terms or conditions as the Minister decides.

(3) The Minister may, from time to time, specify in regulations a fee to be paid by a person for the issue of an identity card under this section.”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen The current wording of the Bill, while providing for identity cards for Civil Defence personnel in the context of Chapter 5, Annex I, does not adequately provide for the issue of identity cards to journalists engaged in a dangerous professional mission in the context of Annex II, Protocol I. Neither does it cover the information card for children evacuated to a foreign country in the context of Article 78, Paragraph 3 of Additional Protocol I. Consequently, a separate section providing for identity cards for journalists and evacuee children is being inserted. The advantage of covering all identity cards and the information card is that all the possibilities for such items under Protocol I of 1977 will be covered.

Ms O'Meara: Information on Kathleen O'Meara Zoom on Kathleen O'Meara I see the sense of amendment No. 17, particularly the provision for a photograph of an evacuee child sent to the central tracing agency of the international committee of the Red Cross. Under what conditions will identity cards for journalists be issued? Does reference to a professional capacity infer journalists sent by Government or by newspapers? Subsection (3) states “The Minister may, from time to time, specify in regulations a fee to be paid by a person for the issue of an identity card under this section”. What type of fee is envisaged by the Minister and to whom will it be payable?

[696]Mr. Lanigan: Information on Mick Lanigan Zoom on Mick Lanigan There has been a civil war in Angola for many years. Under the Lusaka Protocols demilitarisation has taken place. UNITA rebels were issued with identification cards. However, the MPLA Government forces have taken away the cards and those issued with them have been killed. Does the Minister see identification cards as a safeguard for children or others in a former war situation? This is a very pertinent question, particularly in Angola and perhaps in other areas where there have been confrontations.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen The section refers to journalists acting in their commercial capacity and sent to areas on behalf of their newspaper. Journalists should be afforded protection. Many of them provide a valuable service in difficult areas and send out information which can often have a beneficial effect, particularly for the least protected people in a war.

The fee will be paid to the Exchequer and is simply to cover administrative costs. It is not a matter of making profit and the fee will not be prohibitive.

Regarding Senator Lanigan's point, the identity cards and their strengthening through the Protocols and domestic law are important. The more countries sign up to the different conventions and the Protocols the more one hopes the protection they offer will be respected. We are trying to make the identity cards as clear and as internationally understandable as possible in order to avoid confusion. We also wish to enshrine in law the specific distinctiveness of the different types of cards. One cannot guarantee who will respect the law. However, we expect it will be respected by all forces in armed conflicts, be they international or serious domestic conflicts as are currently taking place in the former Yugoslavia. The intention is to put in place the means of ensuring as much protection as possible is afforded.

Amendment agreed to.

Government amendment No. 17:

In page 8, before section 11, to insert the following new section:

“12.—The Minister may establish a card in respect of a child evacuated under Article 78 of Protocol I, containing a photograph of the child and the information required under paragraph 3 of that Article, which shall be sent to the Central Tracing Agency of the International Committee of the Red Cross.”.

Amendment agreed to.

SECTION 11.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly In amendment No. 18 there should be no comma after “convention” in subsection (2)(a). Amendment No. 23 is related and [697] both amendments may be discussed together by agreement.

Government amendment No. 18:

In page 8, between lines 8 and 9, to insert the following new subsection:

“(2) The Red Cross Act, 1954, is hereby amended—

(a) in section 3, after the definition of ‘the Civilians Convention’ of the following definitions:

‘Protocol I’ means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) adopted at Geneva on 8 June 1977;

‘Protocol II’ means the Protocol, additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims on Non-International Armed Conflicts (Protocol II) adopted at Geneva on 8 June 1977;

(b) in section 4(2)(a)(i), after ‘Wounded and Sick Convention’ to insert ‘, Part II of Protocol I and Part III of Protocol II’,

(c) in section 4(2)(a)(ii), after ‘Maritime Convention’ to insert ‘, Part II of Protocol I and Part III of Protocol II’,

(d) in section 4(2)(b), after ‘Prisoners of War Convention’ to insert ‘and Part III of Protocol I’,

(e) in section 4(2)(c), after ‘Civilians Convention’ to insert ‘, Part IV of Protocol I and Part IV of Protocol II’,

(f) in section 7(1),

(i) the deletion in paragraph (b) after ‘Convention,’ of ‘and’,

(ii) the substitution in paragraph (c) for ‘Convention.’ of ‘Convention, and’, and

(iii) the insertion after paragraph (c) of the following paragraph:

‘(d) the authorisation or assignments referred to in Articles 8 and 61 of Protocol I, or the facilities referred to in Article 81 of Protocol I’ and

(g) in section 7(2), the substitution for ’or commission’ of ‘, commission, assignment or facility’.”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen The powers and functions of the Irish Red Cross Society as contained in the Red Cross Acts, 1934-54, must include those powers and functions arising under the two additional Protocols of 1977. The same applies to the authorisation, assignments and facilities which can be [698] given to them. It does not seem possible to interpret the relevant sections in the existing legislation as including the two additional Protocols of 1997 and it is necessary to amend the current wording of those Acts so the position cannot be in doubt.

Amendment agreed to.

Section 11, as amended, agreed to.

SECTION 12.

Government amendment No. 19:

In page 8, paragraph (a), line 16, to delete “done” and substitute “adopted”.

Amendment agreed to.

An Cathaoirleach: Information on Brian Mullooly Zoom on Brian Mullooly Amendment No. 20 is consequential on amendment No. 21 and both amendments may be discussed together by agreement.

Government amendment No. 20:

In page 8, paragraph (b), line 19, to delete “subsection” and substitute “subsections”.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen This amendment provides for a purely grammatical correction. Regarding amendment No. 21, the problem of mercenaries first came to prominence in connection with the Katangese secession. Since then there has scarcely been any conflict involving military operations in which the presence of mercenaries has not played a part in one way or another. Article 47 of Protocol I contains the definition of “mercenary” but does not give a mercenary the right to claim prisoner of war status. The amendment enables the State to take steps to detain mercenaries who may enter the State on their way to an armed conflict. Hopefully, this will enable the State to make a contribution which will lead to a reduction in the violence and number of deaths in armed hostilities. The inverted commas are, accordingly, being deleted to permit the additional subsection.

Mr. Lydon: Information on Don Lydon Zoom on Don Lydon What would have happened to the Wild Geese if this had been in force? Mercenaries fight in armed conflicts with which people do not agree, but they may also fight on the side we support. If they took the latter course, would they be apprehended and arrested in the State?

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen Under these Protocols or Article 47 mercenaries do not have the status allowing them to claim the same rights as normal prisoners of war. They are viewed as people who engage in armed conflict. If somebody is found in the State on their way to an armed conflict a judgment can be made and the person can be arrested and detained, hopefully preventing them from [699] entering hostilities if the State does not desire them to do so.

Mr. Lanigan: Information on Mick Lanigan Zoom on Mick Lanigan In a sense I agree with what the Minister said. What constitutes a mercenary? Are the people on a US plane refuelling at Shannon Airport and on their way to a conflict considered to be mercenaries if we do not have an interest in the conflict?

There are mercenaries all over the world. What is the current definition of a “mercenary”? If I worked for the United Nations and was not invited to a particular country to deal with a conflict, I would be considered a mercenary by that country. I do not want the standard definition.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen That is an important question. A mercenary is any person who is specifically recruited locally or abroad in order to fight in an armed conflict; does in fact take a direct part in the hostilities; is motivated to take part in the hostilities essentially by the desire for private gain and is promised by or on behalf of a party to the conflict material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party; is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; is not a member of the armed forces of a party to the conflict and has not been sent by a state which is not a party to the conflict on official duty as a member of its armed forces. The definition of a mercenary is well covered.

Mr. Lanigan: Information on Mick Lanigan Zoom on Mick Lanigan I return to Angola where Cubans, Russians, South Africans, British and others took part in the civil war there. My question is when do mercenaries become legitimate? No conflict could take place without mercenaries because there is no Government which does not bring in forces and advisers. No conflict can stand alone. We supply mercenaries as do the Americans, the Russians and the British, who are brilliant at so doing. I would like to reinforce what is stated in the Bill by suggesting that the international community defines what is a mercenary and deals with them. Until now there has been no definition of a mercenary. No conflict can take place unless people from outside the area of conflict participate. That is the major problem.

Mr. Cullen: Information on Martin Cullen Zoom on Martin Cullen I understand what Senator Lanigan said. We are dealing with our legislation here. The definitions I read out in the context of how this State behaves are what concern us. Senator Lanigan is talking about a much wider issue, which I would not want to diminish. It is not, however, an issue with which I or the Government can deal in the context of this Bill. This legislation deals with how this State behaves as regards that particular issue.

[700] Looking at the number of definitions which cover what is defined as a mercenary, the Government or the State has certain criteria on which to make various judgment calls on how it would judge whether a person on their way to a conflict is, in the purest sense, a mercenary and the State would take a certain view on how it should act as regards that person. There are a number of definitions and the State has room to manoeuvre. It is important we have the ability to arrest somebody who, according to our judgment, will not contribute anything to an armed conflict but will cause even more serious injury for no other reason than personal gain. There are within the definitions judgments which the State may make.

Amendment agreed to.

Government amendment No. 21:

In page 8, line 46, to delete “tribunal.”.” and substitute “tribunal.

(2A) Any reference in this Act to prisoners of war includes a reference to mercenaries (within the meaning of Article 47 of Protocol I) who as such have fallen into the power of, or been received on the territory of, the State.’.”.

Amendment agreed to.

Section 12, as amended, agreed to.

Sections 13 to 16, inclusive, agreed to.

Schedule agreed to.

TITLE.

Government amendment No. 22:

In page 3, line 8, to delete “DONE” and substitute “ADOPTED”.

Amendment agreed to.

Government amendment No. 23:

In page 3, lines 10 and 11, to delete “SECTION 6(1) OF THE RED CROSS ACT, 1938” and substitute “THE RED CROSS ACTS, 1938 TO 1954”.

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments and received for final consideration.

Question proposed: “That the Bill do now pass.”

Minister of State at the Department of Finance (Mr. Cullen): Information on Martin Cullen Zoom on Martin Cullen I thank Senators for their contributions to this important legislation. I also thank the officials and everybody involved for their assistance in its passing.

[701] Question put and agreed to.


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