Micheál Martin (Cork South Central, Fianna Fail)

I welcome the opportunity to present this Bill in the Seanad. I value the support of this House for the role played by the Government in international efforts to end the use of cluster munitions. The principal purpose of the Bill is to provide in domestic law for the obligations the State will assume under the Convention on Cluster Munitions. As the House will be aware, the convention was adopted by consensus at the conclusion of the Dublin diplomatic conference on cluster munitions last May at Croke Park. It will be opened for signature at a ceremony in Oslo on 3 December and will enter into force six months after 30 states have ratified it.

The Government is committed to promoting the earliest possible entry into force of the convention and, as a demonstration of that commitment, we have prioritised the early passage of the Bill such that Ireland will be in a position both to sign and ratify the convention next week. The programme for Government commits us to campaign for a complete ban on cluster munitions. This priority is also shared by all Members of this House. Senators are aware of the loss of life and limb due to these horrendous weapons and have expressed previously their support for action to bring an end to this scourge.

The successful conclusion of negotiations on the Convention on Cluster Munitions under Irish chairmanship represents one of the most significant contributions to the development of international humanitarian law in recent years. International humanitarian law is the branch of the law concerned with the conduct of armed conflict. Once an armed conflict begins, international humanitarian law applies to limit its effects. Without it, the barbarism and brutality of armed conflict would be without restriction. International humanitarian law limits the right of the parties to an armed conflict in their choice of methods and means of warfare. It also requires them to spare those who do not, or can no longer, take a direct part in hostilities, thereby protecting civilians in addition to captured and incapacitated combatants, from the effects of conflict.

The basic rule of international humanitarian law in the protection of the civilian population in times of armed conflict is that the parties to the conflict must at all times distinguish between civilians and combatants and between civilian objects and military objectives. The rule permits them to direct their operations against combatants and military targets only. Indiscriminate attacks are prohibited.

Where a weapon is incapable of distinguishing between civilian and combatant or where it is prone to use in such a manner that the effect is similar, it will tend to violate this general basic rule. It has been found, however, that just as with anti-personnel mines, the general rule has not been sufficient in itself to prevent the atrocious humanitarian consequences arising from the use of cluster munitions. A number of states continued to insist that it was possible to observe the basic rule and still use cluster munitions. For Ireland and our partners in the Oslo process, and for the many like-minded countries that joined us, it was clear that a new instrument of international humanitarian law dealing specifically with cluster munitions was essential.

Historically, cluster bombs have had significant humanitarian consequences in every conflict in which they have been used, and they have repeatedly caused excessive harm to civilians. Among the first uses of cluster munitions was an attack on Grimsby during the Second World War, where many civilians were killed and injured by munitions that had not exploded upon impact. The weapons subsequently formed part of NATO arsenals during the Cold War. They were used on an enormous scale during the Vietnam war, with Laos, which was not even a declared participant in that war, becoming the most affected country in the world. In excess of 260 million submunitions were dropped during that conflict and, at its end, it was estimated that 80 million of them were left unexploded. They continue to cause civilian casualties, restrict access to land and impede social and economic development in that country.

Cluster munitions were also used extensively during the conflict in Kosovo. Almost 235,000 submunitions were dropped across the region against a range of mobile and static targets during the NATO campaign in 1999. Human Rights Watch has documented 75 civilian deaths and injuries as a direct result of cluster munitions during the bombing campaign. They continued to affect civilians there even after hostilities had ceased. To date, at least 152 post-conflict casualties are estimated to have been caused by unexploded bomblets. In 2002 Landmine Action published detailed case studies of social and economic impacts resulting from cluster munitions contamination in western Kosovo. These case studies highlighted issues such as the abandonment of traditional pastoral practices due to contamination of high summer pastures; extensive contamination that made agricultural subsistence doubtful, and hampered infrastructure renovation which, in turn, acted as a barrier to the return of displaced populations.

The high failure rate, large numbers of submunitions and an extremely wide strike pattern means that even a single cluster munitions strike in or near an agricultural area can pose a significant long-term, socio-economic and physical threat to the population. Reports by the Iraq Landmine Impact Survey in 2006 revealed that in some areas of southern Iraq, 100% of agricultural land and 95% of pasture land was inaccessible due to explosive remnants of war, a high proportion of which were cluster bomb submunitions. Due to desperation, necessity and the long time it takes to clear affected areas, many people take the conscious risk to return to their land before it has been cleared. All too often, this results in the most tragic of consequences.

The 2006 Lebanon war offers a substantial example of the destruction and devastation that the widespread use of cluster munitions can cause. Some four million submunitions were fired into South Lebanon by Israel. This left around one million unexploded individual submunitions in the area. Areas contaminated included agricultural land and water and power infrastructure. The UN Food and Agriculture Organization estimated that in large areas of southern Lebanon at least 25% of the cultivated area was contaminated by unexploded cluster submunitions. By December 2007, 217 civilians in Lebanon had been killed or injured by unexploded ordnance, almost all by submunitions.

Most recently, it has been reported that both sides in the Russian-Georgian conflict engaged in the use of cluster munitions. It is our hope that even states which do not immediately become party to the new convention will nonetheless be inhibited from using cluster munitions by the stigmatisation effect of widespread adherence by others. The initial denials of use by both sides — despite clear evidence to the contrary — suggest that there is already a stigma attached to these weapons.

In the light of the absence of progress in the Geneva forum offered by the Convention on Certain Conventional Weapons, and inspired by the process which led to the conclusion of the Ottawa Convention on the Prohibition of Anti-Personnel Mines, Norway convened a meeting in Oslo in February 2007 of countries that were ready to explore ways to address the issue of cluster munitions in a determined and effective manner. Ireland was among the 46 states, including some cluster munition users and-or producers such as France, Germany and the United Kingdom, which committed themselves in the Oslo declaration to complete an international treaty by the end of 2008 to, "prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians."

The Oslo Process, as it became known, was driven forward by a core group of like-minded countries comprising Norway, Ireland, Austria, the Holy See, Mexico, New Zealand and Peru, and was characterised by a strong partnership between governments, international organisations and civil society. From the outset, there was a strong humanitarian focus to ensure that any agreement reached would address adequately the numerous relief and development issues that are left in the wake of the use of cluster munitions. The attitude taken was that this was not a classic disarmament negotiation, where both sides face each other in an atmosphere of mutual distrust, but rather a humanitarian one in which there was general agreement and commitment to our objective. How best to achieve this had still to be established. I am pleased to say this spirit of collaboration prevailed throughout and contributed to the excellent outcome.

Significantly, at the second international conference of the Oslo Process in Lima, in May 2007, the composition of the process began to evolve and expand, with 68 countries represented. Many were developing states from Latin America, Africa and Asia, including many states affected by cluster munitions. An enduring feature of the Oslo Process would be the increasingly widespread participation from developing and affected states.

Momentum for the Oslo Process continued to grow exponentially and the third international conference in Vienna in December 2007 was attended by 138 countries. The core group discussion text tabled at the conference resulted in collective indications of support for a strong treaty that would focus not only on a widespread ban on cluster munitions but also on support for victim assistance and co-operation. The discussions also identified a number of potentially contentious issues, including the definition of cluster munitions and the so-called "interoperability" issue of military co-operation with states not party to a future treaty. Far from derailing the Oslo Process, these difficulties served to encourage us to redouble our efforts in order to achieve a successful outcome to the penultimate conference in Wellington in February 2008. Wellington was an extremely important stage in the process because the anticipated final declaration was intended to act as a basis on which formal treaty negotiations could be held in Dublin.

Although the conference saw some tense and even difficult exchanges, much was achieved. The draft convention text was discussed in detail. While major differences remained on key issues of scope and definitions, and on interoperability and transition periods, prospective solutions for many less contentious issues were identified. The Irish delegation worked extremely hard to encourage support for the Wellington declaration and by the conclusion of the conference there was an overwhelming endorsement by 82 states to associate themselves with the text. Japan and South Africa, neither of which had signed up to Oslo, also endorsed the declaration and committed to attend the Dublin conference. Commitment to the Wellington declaration was, in effect, the entry ticket to the Dublin conference, and many more states committed themselves in the run-up to Dublin.

The Dublin diplomatic conference was attended by 127 states, with 107 attending as participants and 20 as observers. A large number of international, intergovernmental and non-governmental organisations also attended as observers. Many significant differences required to be resolved on key issues such as definitions, any possible period of transition to a ban, and future military co-operation, including in UN-mandated missions, with states not party to the convention. However, following two weeks of intense work, and building on the preparatory discussions held at the earlier meetings, the conference adopted, by consensus, the text of the Convention on Cluster Munitions.

The main provisions of this ground-breaking convention are as follows. There is now a comprehensive prohibition on the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, and on assisting, encouraging or inducing anyone to engage in behaviour prohibited to a state party under the convention. The definition of a cluster munition under the convention is comprehensive and will lead to the prohibition of all cluster munitions that cause unacceptable harm to civilians. The convention prohibits all types of cluster munitions that have ever been used in an armed conflict. Furthermore, following proposals made by the Irish delegation, the convention also prohibits explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft, in the same way as it does cluster munitions proper. This is an extremely important provision which closes potential loopholes created by new technologies. The convention provides that a state party's stockpiles of cluster munitions must be destroyed within eight years of the convention's entry into force for that state party. This period may, under exceptional circumstances, be extended.

In view of the fact that some states may not have facilities suitable for destroying stockpiled cluster munitions, the transfer of cluster munitions to another state party for the purpose of destruction is permitted. In addition, the retention or acquisition of a limited number of cluster munitions and explosive submunitions for training purposes, as well as their transfer to another state party for such purposes, is permitted. The number of submunitions retained or acquired shall not exceed the minimum absolutely necessary and there is an obligation to report on the numbers retained or acquired and the use made of them.

Cluster munition remnants in areas under the jurisdiction or control of a state party are to be cleared and destroyed within ten years of the convention's entry into force for that state party, or within ten years of the end of active hostilities in cases where such remnants arise after such entry into force. Provision is made for the extension of this deadline where circumstances warrant it.

An important feature of the convention is the onus it puts on state parties that have used cluster munitions against other state parties to assist in the clearance of cluster munition remnants. They are strongly encouraged to provide technical, financial, material or human resource assistance to the latter state party, as well as providing the precise locations of any strike.

This element of the convention, as the International Committee of the Red Cross has stated, establishes a broader norm that those who engage in armed conflict can no longer walk away from the long-term consequences of the munitions they use, leaving the burden to devastated local communities. The convention includes comprehensive provisions on assistance by state parties to cluster munition victims in areas under their jurisdiction or control. They should adequately provide age and gender sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for social and economic inclusion.

Article 6 of the convention includes detailed provisions regarding international co-operation and assistance. This will be most relevant to the obligations regarding stockpile destruction, clearance and destruction of cluster munition remnants and victim assistance. The article also stipulates that states in a position to do so shall provide technical, material and financial assistance to state parties affected by cluster munitions. Furthermore, a state party may seek assistance from the international community, including state parties, the UN and NGOs, in developing a national action plan.

The provisions of the convention in regard to victim assistance have been acknowledged as setting a new benchmark in this area. Irish Aid is urgently examining how best to integrate this aspect into its funding and co-operation activities. Ireland is fully committed to support for victim assistance. A case in point is our dedication to the Ottawa Convention on anti-personnel land mines. In 2007 alone, we provided funding for 11 affected countries, including €1 million for integrated mine clearance projects in Laos.

The convention lays down detailed obligations regarding annual reporting by state parties on the implementation of their obligations. It also provides for meetings between the state parties. The first meeting must be convened within one year of the entry into force of the convention with subsequent meetings to be convened by the Secretary General of the United Nations annually until the first review conference.

Taking account of the fact that, at least initially, not all states will be party to the convention and that some states not party may wish to continue to use cluster munitions, provision is made in Article 21 for state parties to engage in military co-operation and operations with states not party to the convention that might engage in activities prohibited to a state party. This provision 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. When considering this article it should be noted 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 as referred to above, to notify the states concerned of its obligations under the convention, promote the norms established by the convention and make its best efforts to discourage states not party to the convention from using cluster munitions.

Ireland believes that the prohibition on cluster munitions contained in the convention will 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, irrespective of whether they are parties to it. It has happened already, very successfully, in the case of the anti-personnel mine ban convention. We hope the Convention on Cluster Munitions will have a similar effect. It would be difficult to over-estimate the importance of this convention and the positive impact it will have for present and future generations of civilians caught up in zones of conflict. With the ground breaking provisions for victim assistance and clearance of contaminated areas, it represents a major advance in international humanitarian law. At the conclusion of the Dublin conference, the International Committee of the Red Cross delivered a statement stressing its humanitarian significance in which it observed:

The implementation of this treaty will undoubtedly allow many children in future conflict zones the chance to grow up to be adults. It will also afford their parents the chance to feed those children from the harvests of lands not contaminated with cluster munitions.

The statement went on to note:

In adopting this Convention [we] have put in place the last essential element in an international legal regime to address the effects of weapons that can't stop killing .... we now have the tools to prevent or remedy the often tragic consequences for civilians of all explosive munitions used in armed conflicts.

The UN Secretary General, Ban Ki-moon, addressed the opening of the conference by video message and at the conclusion expressed his delight that the strong calls to address the humanitarian impact of cluster munitions had been answered. He described the convention as a new international standard that would enhance the protection of civilians, strengthen human rights and improve prospects for development. He also confirmed that he would accept depository functions and pledged the support and assistance of the entire United Nations system to state parties in implementing their treaty obligations.

On 30 October, the first committee of the United Nations General Assembly adopted by consensus a resolution brought forward by Ireland, which provides the mandate for the UN Secretary General to perform the administrative functions conferred on him by the Convention on Cluster Munitions.

The convention will be opened for signature in Oslo next week and will enter into force six months after the deposit of the 30th instrument of ratification. Given our involvement with the Oslo process and our leadership throughout, the Government considers it imperative for Ireland to be in a position to both sign and ratify the convention on 3 December. This would be in keeping with our record on the anti-personnel mine ban convention, where Ireland was one of only three states which signed and ratified on the first day. To be best placed to sign and ratify the Convention on Cluster Munitions the Government is seeking to enact this Bill within a very tight timeframe. Early enactment will ensure the State is in a position to meet its obligations from the moment of the convention's entry into force. It was with this aim in mind that, as soon as the convention was adopted on 30 May, the relevant Departments began work on preparing the Bill.

The primary purpose of the Bill is to create offences in respect of the use, development, production, acquisition, stockpiling, retention or transfer of cluster munitions and explosive bomblets as required under the convention. We are also taking this opportunity to make similar provision for anti-personnel mines in order further to implement the anti-personnel mine ban convention, which was ratified by Ireland in 1997. The current law on anti-personnel mines is set out in the Explosives (Land Mines) Order 1996, which was made under the Explosives Act 1875. This order is likely to be revoked by the Minister for Justice, Equality and Law Reform upon enactment of new explosives legislation and the consequent repeal of the 1875 Act and we wish to avoid a legal vacuum.

Section 1 sets out the Short Title of the Bill and provides for its commencement. Section 2 provides for the interpretation of key terms as defined in both conventions and other relevant terms. Many of the terms defined for the purposes of the Bill have been the subject of agreement in the negotiation of the two conventions and their reproduction in the domestic laws of state parties is necessary to ensure that their obligations are observed in a consistent manner among them. This is especially true for the definitions of a cluster munition, an explosive bomblet and an anti-personnel mine. If different states were to define key terms in their domestic laws in different ways, co-operation between the parties to the conventions would become extremely complex and problematic and would inevitably frustrate coherent implementation of the convention.

Sections 3 and 4 are standard provisions for the laying of orders and expenses. Section 5 allows the Minister to declare by order which states are parties to the Convention on Cluster Munitions. This is necessary for the purposes of co-operation with those states under section 7 of the Bill. A similar provision enabling the Minister to declare by order the states parties to the anti-personnel mine ban convention is made in section 8.

Section 6 makes it a criminal offence, with certain exceptions set out in section 7, to use, develop, produce, acquire, possess, retain or transfer a cluster munition or an explosive bomblet. It will also be an offence to assist, encourage or induce the commission of such an offence. Any such act committed outside the State on board an Irish ship or aircraft or by a member of the Defence Forces will also be an offence. Section 6 gives effect to the requirement under Article 9 of the convention to take all appropriate measures to implement the convention, including the imposition of penal sanctions to prevent and suppress any prohibited activity.

In accordance with the Convention on Cluster Munitions, section 7 permits certain acts that might otherwise be offences under section 6, namely, retention or acquisition of a limited number of cluster munitions or explosive bomblets for development of and training in detection, clearance and destruction of these munitions, or for the development of counter-measures. This is in accordance with Article 3 of the convention. It also provides for their possession in the context of criminal investigations or proceedings and their transfer to the Defence Forces or another state party for the purposes of their destruction.

Provision is also made to enable the Defence Forces to participate in United Nations mandated peacekeeping forces with a state or states that may not be party to the Convention on Cluster Munitions,in accordance with Article 21 of that convention. This is the so-called "interoperability" provision of the convention, which was the most difficult issue to resolve in the negotiations at Croke Park. Agreement was reached on Article 21 only at the last moment. Section 7(4) of the Bill will ensure that future participation by the Defence Forces in UN mandated peacekeeping operations will be consistent with the convention. Its purpose is to ensure that no member of the Defence Forces, while serving abroad with military personnel of states that are not party to the convention, such as in a UN peacekeeping mission, may find himself or herself criminally liable for an inadvertent, unintended or unavoidable act that might otherwise be an offence. The Bill makes clear that under no circumstances may he or she expressly request the use of cluster munitions.

It is very unlikely that section 7(4) of the Bill will ever be invoked. It is important to recall that Article 21 obliges every state party to the convention to work to promote universal adherence to it and the Government will continue to urge all states to become parties to the convention. Our preference in considering future contributions to peacekeeping missions naturally will be to join with states that are parties to the convention and in these circumstances the question of interoperability with states not party will not arise. Even were we to find ourselves as members of a peacekeeping mission that included the armed forces of a state that is 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 therefore that section 7(4) will ever apply but I think all Members would 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.

Section 9 makes the use, development, production, acquisition, possession, retention or transfer of an anti-personnel mine an offence, in accordance with Article 9 of the Anti-Personnel Mine Ban Convention. Certain exceptions are permitted, in accordance with the convention, and these are provided for in section 10.

As the House may be aware, I introduced a new Part 4 of the Bill by way of amendment on Committee Stage covering sections 11 to 15, inclusive. That new part puts in place a clear legislative framework providing that any statutory investment mandate is qualified by a requirement to exclude investments in the manufacturers of cluster munitions and anti-personnel mines. Part 4 sets down the requirement to avoid initial investments of public moneys directly or indirectly in manufacturers of prohibited munitions. It also sets out clear requirements and guidelines for dealing with circumstances where such investments occur despite best efforts to avoid them.

Section 17 provides for penalties to be imposed upon summary conviction and conviction on indictment of an offence under sections 6, relating to cluster munitions, and 9, relating to anti-personnel mines. The maximum penalty for conviction on indictment is ten years imprisonment or a fine of €1,000,000, or both.

Section 18 provides for liability of a body corporate and is a standard provision to ensure that bodies corporate do not avoid responsibility for conduct prohibited to individuals. Section 19 allows for the forfeiture of items to the State and is necessary to ensure that a cluster munition, explosive bomblet or anti-personnel mine seized during the investigation of a suspected offence is not returned to a claimant under the Police (Property) Act 1897 but is sent for destruction. Subsection 2 allows the court to recover from the offender the cost of destroying cluster munitions or anti-personnel mines following a successful prosecution.

The texts of the two conventions are set out for ease of reference in the Schedules to the Bill. This comprehensive legislation was drawn up in consultation with the National Committee on International Humanitarian Law, which was established in advance of the diplomatic conference. My Department has also consulted closely with the International Committee of the Red Cross, which intends to publish a model law for the implementation of the Convention on Cluster Munitions.

I must reiterate that it is an absolute priority for Ireland to be in a position to both sign and ratify the convention in Oslo on 3 December and this legislation will facilitate that objective. I very much appreciate the co-operation and support of this House in what I am sure all here agree is a very important humanitarian endeavour.

I commend the Bill to the House.