Micheál Martin (Cork South Central, Fianna Fail)

We discussed this. Section 6 of the Bill creates certain criminal offences regarding cluster munitions and explosive bomblets in accordance with the obligations the State will assume under the Convention on Cluster Munitions. Section 9 creates similar offences for anti-personnel mines and both provisions extend the jurisdiction of the State for these offences beyond the territory of the State to acts committed on board Irish registered ships or aircraft, or committed by members of the Defence Forces. This is in accordance with the established principles of international law.

The Deputy's proposed amendments as I said on Committee Stage would further extend the jurisdiction of the State to cover cases in which the perpetrator of the act is an Irish citizen. My advice is that as a matter of legal policy Ireland has only ever extended criminal jurisdiction in such a manner on a very limited basis. This is primarily because of the large number of Irish citizens around the world, many of whom have dual nationality.

Accordingly, the State has been very conservative is exercising jurisdiction on this basis and has only done so where there is broad international consensus on the character of activity concerned, such as murder, manslaughter and certain sexual offences involving children. It would be very problematic to extend the State's criminal jurisdiction over acts that are lawful if committed in another state of which the perpetrator is a citizen. An Irish citizen with dual citizenship could be serving in the US army and commit an act that would be legal in a state not party to the convention, yet we would seek to prosecute.

The main focus of Deputy Higgins's amendment was to try and target mercenaries. Irish citizens may participate as mercenaries in armed conflict outside the State. We considered the issue of mercenaries between Committee and Report Stage and it is a wide and complex issue. In general terms the status of mercenaries is governed by the first protocol additional to the Geneva Convention which provides that mercenaries shall not have the right to combatant status. In practice it is open to a party to an armed conflict to accord a mercenary combatant status. A person granted combatant status is not subject to criminal prosecution but is entitled to prisoner of war status if captured. If not granted such status a person will come within the criminal jurisdiction of the state on whose territory he or she acts. There are complexities involved and we know some states use mercenaries. It is an issue that falls outside the specific scope of this Bill and we are not in a position to accept the amendment because of this reason.

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