Micheál Martin (Cork South Central, Fianna Fail)

We considered amendments No. 4 and 7 on Committee Stage. The effect of both would be to prevent the participation of the Defence Forces in peacekeeping operations with countries that may not be parties to the Convention on Cluster Munitions. They would affect the provisions of the Bill concerning inter-operability, dealt with in Article 21 of the convention and section 7 of the Bill. As I said during the course of the Second Stage debate on the Bill, Article 21 of the convention was the most difficult to resolve in the negotiations at Croke Park, an agreement was only reached literally at the last moment. Given the importance all Members attach to Ireland's continued involvement in international peacekeeping operations, it would be useful if I were to go into some detail on Article 21 and the provisions of section 7 which will implement it.

Article 21 states, "States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not parties to this 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 parties to the convention and that some may continue to retain cluster munitions. This was a particular concern of members of NATO, for example, because the United States had 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 a party to it and, where it engages in military co-operation or operations with these states, to notify them of its obligations under the convention, promote the norms established by the convention and make its best efforts to discourage them from using cluster munitions.

Article 21 does not specifically authorise a state party to develop, produce or otherwise acquire cluster munitions; to stockpile or transfer cluster munitions; to 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, as I said, become established as a new norm of international humanitarian law. This will happen when states begin to feel obliged to behave in accordance with it, regardless of whether they are parties to it. As we know, it has happened very successfully in the context of the anti-personnel mine ban convention, even though a number of states which now observe its norms are not party to it. We will tend to work internationally with our partners to ensure the Convention on Cluster Munitions will have a similar effect.

Article 21 is implemented by section 7 of the Bill, of which subsection (4) provides for particular circumstances that may arise in relation to the participation of members of the Defence Forces in peacekeeping missions with states which are not parties to the convention. As I said both on Second Stage and Committee Stage, we expect the likelihood of participation in missions such as this to be very low. Section 7(4) provides that on such admission, a member of the Defence Forces 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. However, if he or she does any of the political things prohibited — use, develop, induce etc. — he or she will be guilty of an offence. That subsection (4) is intended to address only exceptional and very unlikely circumstances such as where an Irish contingent of a UN-mandated peacekeeping force, for example, finds itself under attack and needs to call for support, either from the air or land-based artillery, to relieve it. It may happen that fire support 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 might 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.

I have to emphasise, as I did on Committee Stage, that everything possible will be done to avoid such a scenario. As I said during the Second Stage debate, our preference in considering contributions to peacekeeping missions will be to join with states that are parties to the convention. In such circumstances the question of inter-operability with states not party to it will not arise. However, even where we define ourselves as a member of a peacekeeping mission that includes the armed forces of a state not a party to the convention, every effort will be made, in the elaboration of codes of conduct, rules of engagement, caveats and similar agreements, to ensure there is no prospect of cluster munitions playing any role. Therefore, it is highly unlikely that section 7(4) will ever apply. However, all Members of the House will agree on the importance of ensuring 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.

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