Paul Kehoe (Wexford, Fine Gael) | Oireachtas source

I am joined by Mr. Ciaran Murphy and Ms Bernie Maguire. I will make a short opening statement, outlining the motion I will bring before the Dáil for final consideration in the coming weeks. I will also highlight the need for the approval of the terms of both the EU status of forces agreement, SOFA, and the NATO Partnership for Peace. I will explain throughout this statement that such approval will not and does not detract from our national policy of military neutrality.

As the committee is aware, the following motion has been placed on the Dáil Order Paper and copies of the agreements concerned, along with Ireland’s proposed reservations, were laid in the Oireachtas Library earlier this month, on 2 January.

The motion I moved reads:

"That Dáil Éireann approves the terms of:

(i) the Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of the tasks referred to in Article 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context, done at Brussels on 17 November 2003, a copy of which was laid before Dáil Éireann on 2 January 2019; and

(ii) the North Atlantic Treaty Organisation Partnership for Peace Status of Forces Agreement, done at Brussels on 19 June 1995, a copy of which was laid before Dáil Éireann on 2 January 2019, subject to the respective reservations, copies of which were laid before Dáil Éireann on 2 January 2019;

subject to the respective reservations, copies of which were laid before Dáil Éireann on 2nd January, 2019."

Approval of this motion will allow Ireland to become party to the SOFAs and thereby will afford our Defence Forces the same immunities, rights and privileges as their military colleagues while serving overseas on peacekeeping and crisis management operations.

I want to ensure that we have a shared understanding of what a SOFA is throughout our discussion this morning. A status of forces agreement, SOFA, is designed to regulate the legal and administrative arrangements applied to members of foreign forces operating within the State where they are deployed. In relation to the Defence Forces, SOFAs relate to the immunities and privileges extended to members of the Defence Forces when serving on overseas missions as part of a UN-authorised or UN-mandated force.

Specific SOFAs also relate to the immunities and privileges extended to members of the Defence Forces when engaged in exercises in EU or NATO and Partnership for Peace member states, or on standby for the EU battle groups. This will be the case for the EU and Partnership for Peace, PfP, SOFAs.

All international organisations, including the UN, the EU and NATO, have concluded SOFAs with the states where they have deployed forces or engaged in training missions. The SOFAs provide for the rights, obligations, entitlements, privileges and immunities of deployed military personnel and deal with matters such as jurisdiction, claims and applicable law between the sending organisation or state and the host state where these personnel are deployed.

SOFAs are designed to protect military personnel deployed in terms of accidents, third party liability claims, potential prosecutions and other actions which may be covered by legislation in the host country. The ratification of the SOFAs simply means that the Defence Forces can acquire the rights and privileges of these arrangements as a matter of right, rather than having to rely on a difficult or contentious exchange of letters between jurisdictions which may or may not be concluded on their behalf. We cannot continue to operate on this basis. Our Defence Forces should be protected in the same manner as all other military personnel with whom they operate on missions and exercises when deployed outside the State.

In the past, issues have unnecessarily arisen in relation to the completion of an exchange of letters through no fault of either party concerned. To resolve such issues requires that Ireland depends on the goodwill of our EU or other partners. Situations have arisen where no exchange of letters is agreed and our Defence Forces are restricted in their participation or operate without the relevant protections.

This was a reality in 2016, when, as part of Ireland’s participation in the German-led battle group, Germany advised that it could not facilitate the exchange of letters arrangement in the time required due to legal, constitutional and parliamentary requirements. In the case of this battle group, the immunities and privileges afforded to foreign militaries could only be extended through the PfP SOFA. As a result Ireland could not participate in the field exercises undertaken by all other battle group participants in the German battle group. This is unsatisfactory from a training and interoperability perspective but also resulted in some reputational damage. We also had to rely on the goodwill of partners and members of the Defence Forces in respect of the deployment to the battle group operational headquarters for the standby period.

Irish troops have on occasion been deployed to the mission areas or operational or force headquarters prior to the conclusion of letters of exchange. This was experienced in the case of the three-month deployment to the EU Artemis mission in the Congo in 2003. For this mission the relevant exchange of letters was never completed as the troops had been deployed, completed the mission and withdrawn before the exchange of letters could be completed with France, the then lead nation.

I would like to get these matters resolved before our proposed participation in the German led battle group in 2020. Planning is currently under way for this battle group and Defence Forces personnel should be able to participate in the same manner and with the same protections as the military personnel from other participating member states.

The EU SOFA has been ratified by all EU member states except Ireland. It can only come into force upon ratification by Ireland. The committee will appreciate that our current situation is especially evident given that all other non-aligned or neutral member states, including Finland, Sweden and Austria, have ratified the EU SOFA.

I would like to highlight that approval from the Dáil is not required in relation to ratification of the EU SOFA as this is covered by the Lisbon treaty. I have included the approval of the EU SOFA in the motion for the sake of transparency.

In relation to the PfP SOFA, it is important to note that EU crisis management operations and battle groups have operated under this agreement where there has been third state participation in operations. Very often Common Security and Defence Policy missions and operations also involve third state participation from non-EU member states. These third states are usually parties to the PfP SOFA but not party to the EU SOFA therefore making it more appropriate to apply the PfP SOFA in such a context.

These SOFAs will only extend to members of the Permanent Defence Force deploying overseas where these SOFAs apply. They cannot apply within the State. Article 15.6.2 of the Constitution states that: "No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever." Taking the Attorney General's advice on this provision in relation to the application of the SOFAs in Ireland, as well as the policy advice that I received from my Department, I have decided to include reservations to both agreements.

Ireland will not be a receiving state for foreign troops based on its territory, and there is no situation in which the SOFAs could have application in Ireland, including forces in transit or visiting personnel. The proposed EU SOFA reservation and the NATO PfP reservation explicitly articulate Ireland's constitutional and policy position in respect of foreign troops. There is no scope for ambiguity given the inclusion of the following clause in both reservations: "Ireland shall not be a receiving state for the purposes of the present Agreement". These reservations will be associated with Ireland’s instrument of ratification in respect of each of the SOFAs should this motion be approved by Dáil Éireann.

I cannot stress enough that Ireland's policy of military neutrality is not diminished, circumvented or reduced by our ratification of the SOFAs. If anything our national position is more strongly discernible following this process, given the reservations we are attaching to our instruments of ratification. The reservations, as I have stated, do not allow for any ambiguity.

Our Defence Forces and the wider defence organisation continue to make an invaluable contribution to international peace and security, and conflict resolution. In doing this, we rarely act alone. Our positive contribution is achieved through our ongoing and professional engagement with the UN, the EU, NATO, the OSCE and other international engagements within a bilateral and multilateral context. Security and defence today must be considered in the light of new threats and security challenges which are beyond the capacity of an individual state acting alone, challenges such as cyber, hybrid, radicalisation, and uncontrolled migration, among others. In addressing these challenges, while working with partners and host states, operating under the EU, NATO, PfP or SOFA would place our Defence Forces on an even legal footing with their military colleagues from other states participating in such missions, which is only right and proper.

I state again that approval of the terms of the SOFAs does not adversely affect our military neutrality. The SOFAs will allow for our Defence Forces to be protected in the same manner as all other military personnel with whom they operate on missions and exercises when deployed outside the State, all the while making an invaluable contribution to international peace and security, and conflict resolution.

I thank the members for their attention. I look forward to discussing this matter and I hope we can have a constructive discussion.