Peter Power (Limerick East, Fianna Fail)

As the Senator will be aware, this amendment was also considered in detail in conjunction with amendment No. 7, which is closely related. The cumulative effect of this amendment and amendment No. 7 is, effectively, to prevent the participation of Irish Defence Forces in peacekeeping operations with countries that may not be parties to the convention on cluster munitions. These amendments will affect the provisions of the Bill concerning interoperability, which is dealt with in Article 21 of the convention and in section 7 of the Bill.

As was pointed out in the Dáil during the course of the Second Stage debate, Article 21 was an even more difficult issue to resolve than the definition section of the Bill in terms of the negotiations that took place in Croke Park, and agreement on it was reached literally only at the last minute of those negotiations. Given the importance which all Members of the Chamber have attached over the years to Ireland's continued involvement in international peacekeeping operations, it would be useful at this stage if I were to go into some detail, with the indulgence of the House, on Article 21 of the convention on cluster munitions and on the provisions of section 7 of the Bill which will implement it.

Provision is made in Article 21 of the convention for state parties to engage in military co-operation and operations with states that are not party to the convention and that might engage in activities which are prohibited to a state party. This provision takes account of the fact that, at least initially, not all states will be party to the convention. Some of these may continue to retain cluster munitions. This was a particular concern for members of NATO because the United States had been quite clear in its opposition to the Oslo process. Members will be aware of that opposition over the years.

When considering Article 21, it is important to note that each state party has a clear international obligation to encourage states that are not party to the convention to become parties to it, and where it engages in military co-operation or operations with these states, to notify them of its own obligations under the convention, promote the norms established by the convention and make its best efforts to discourage them from using cluster munitions.

Article 21.4 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.

We believe that the convention's prohibition on cluster munitions will in time become established as a new norm of international humanitarian law in the same way as Ireland's position on other areas of international human rights and international human law, on which we took a lead role over many years, has become the norm in recent years. One could cite many instances in that regard. We believe this will happen when states begin to feel obliged to behave in accordance with it regardless of whether they are parties to it. It has happened already very successfully in the case of the anti-personnel mine ban convention, even though a number of states that observe its norms are not party to it. We intend to work internationally with our partners to ensure the convention on cluster munitions will have a similar effect.

Article 21 of the convention is implemented by section 7 of the Bill. Subsection (4) of that section provides for particular circumstances that may arise in the participation of members of the Defence Forces in peacekeeping missions with states that are not parties to the convention. As I said on Second Stage and today, we expect the likelihood of our participation in such a mission to be very low.

Section 7(4) provides that, on such a mission, a member of the Permanent Defence Force shall not be guilty of the offence of assisting, inducing or encouraging the commission of any of the offences created by section 6(1), that is, to use, develop, acquire, produce, retain or transfer to any person a cluster munition or an explosive bomblet. However, if he or she does any of those things himself or herself, that is, uses, develops, produces etc., he or she would be guilty of an offence.

Subsection 7(4) is intended to address exceptional and very unlikely circumstances, such as where an Irish contingent of a UN-mandated peacekeeping force finds itself under attack and needs to call in fire support, either from the air or from land-based artillery to relieve it. It may happen that fire support is provided by the forces of another state in the mission that is not a party to the convention and it is conceivable that it would 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). I am sure Members will agree that is something that in conscience the Oireachtas could not but insert in legislation to bring the convention into effect. Everything possible will be done to avoid such a scenario occurring.

Our preference in considering future contributions to peacekeeping missions would naturally be to join states that are parties to the convention and in those circumstances the question of interoperability with states not party to it would not arise. However, 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 would be made in the elaboration of codes of conduct, rules of engagement, caveats and similar agreements prepared for the mission to ensure that 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 of the House will 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.

Amendment No. 7 specifically raises the issue of Defence Forces training. Section 7(l)(a) permits acquisition, possession, use, retention or transfer of a cluster munition or explosive bomblet by the Defence Forces, where authorised by the Minister for Defence under section 7(2), for the purposes of developing or training in techniques for the detection, clearance and destruction of cluster munitions or explosive bomblets, or for the development of counter-measures against them. I am sure Senators will agree that this sort of training is essential for members of the Defence Forces participating in peacekeeping missions, such as the recent mission in south Lebanon where upwards of 1 million unexploded cluster munitions had to be cleared before people were able to return to their homes and farms. Members will recall that the Irish Defence Forces played an honourable role in that area.

Section 7(3) makes it clear that the numbers of cluster munitions that can be acquired and used for those purposes are no more than is absolutely necessary, as required by Article 3, paragraph 6 of the convention. For the reasons set out, it is not possible to accept the amendment.