Charles Flanagan (Laois, Fine Gael) | Oireachtas source

The purpose of this Bill is to make necessary provision in Irish law to enable the State to ratify the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and the 1999 protocol that supplements it. The 1954 convention and the 1999 protocol are instruments of international humanitarian law, which is the branch of international law that regulates armed conflict in the interests of humanity. It has been developed over a period of more than 150 years and its principal rules are currently set out in the four 1949 Geneva Conventions and their 1977 additional protocols, supplemented by a range of other instruments on specific issues such as anti-personnel mines, the International Criminal Court and the protection of cultural property.

International humanitarian law does not determine whether war or armed conflict in any particular case is lawful - that is a question of general international law. Instead, it recognises that armed conflicts take place, whether lawful or not, and it has developed rules to limit the consequences of armed conflict on its victims. Without international humanitarian law, the barbarity of war would be unmitigated. Although humanitarian law has developed a very large and detailed body of rules, they can be reduced in summary to two basic concepts: first, the means and methods that parties to armed conflict may employ are not unlimited. Indiscriminate attacks are prohibited, for instance, and certain weapon systems are unlawful. Second, parties to conflicts are required to protect civilians, the sick and wounded, prisoners of war and civilian property.

There are regularly calls for the development of new rules imposing greater restrictions on parties to armed conflicts and Ireland has been prepared to join with others to develop the law where necessary. For instance, Ireland took a leading role in the development of new rules prohibiting the use of cluster munitions, hosting and chairing the diplomatic conference in 2008 in Croke Park, Dublin at which the Convention on Cluster Munitions was adopted. A hundred countries are now parties to that convention and such is its success that even for those states that have refused to become parties to it, the use of cluster munitions has been so stigmatised that they will avoid or deny using them.

However, notwithstanding the need to develop new rules from time to time, the greatest challenge to protecting human life in modern armed conflicts is the frequent, and often shocking, failure by both the armed forces of states and non-state armed groups to respect the existing rules. We need only look at the appalling behaviour of all sides in the conflict in Syria. Failure to respect the rules of international humanitarian law may occur for a number of reasons - lack of knowledge of the law, absence of political will to ensure respect for the law, or the promotion or tolerance of a culture of impunity. In the case of Daesh there has been a clear rejection of the law. In addition to destroying the ancient and important cultural heritage in Palmyra and elsewhere, it has been responsible for the rape, enslavement and murder of civilians among other reprehensible acts. I share the dismay of all Members of this House at the flagrant violations of the international humanitarian law committed in Syria and elsewhere.

It goes without saying that if the existing rules were respected, much of the dreadful human suffering in contemporary armed conflicts would not occur, but where they are not respected there must also be a measure of accountability. Successive Irish Governments have sought to ensure effective investigation and prosecution of violations of international humanitarian law. Ireland has been a leading supporter of the International Criminal Court and the Government has consistently supported referral of the situation in Syria to the International Criminal Court.

The 1954 convention was negotiated to prevent the type of extensive destruction and loss of cultural property during the Second World War that resulted from looting, bombardment and vandalism. Countless historic buildings and monuments were destroyed in that war and artefacts were lost and stolen and never recovered in many cases. The 1954 convention imposes a number of obligations on states, including to make preparations in time of peace to safeguard cultural property against the foreseeable effects of armed conflict; not to use cultural property for purposes likely to expose it to destruction or damage during armed conflict, and to refrain from any hostile act against cultural property, except in cases of "imperative military necessity".In addition, states are obliged to prohibit, prevent and stop theft and pillage of cultural property during armed conflict.

The convention also establishes a system allowing states to nominate specific monuments for a type of enhanced protection called special protection, although in practice the system has been essentially unworkable. The blue shield is recognised as a distinctive emblem that can be used to identify cultural property in the event of armed conflict. Ireland signed the convention in 1954 but did not proceed to ratify it. Although the convention was regarded as a welcome development in international law at the time, it is broadly recognised as having failed to provide effective protection for cultural property during armed conflict. This is because ultimately the key obligations it imposes on states could be set aside in circumstances of imperative military necessity. It did not act as an effective restraint on the extensive damage to cultural property during conflicts in south-east Asia in the 1960s and 1970s.

The 1954 negotiations took place not long after the end of the Second World War at a time when blanket bombing of cities was still regarded as a legitimate military tactic. It was not until 1977 that humanitarian concerns were given greater weight and agreement was reached in the First Protocol Additional to the Geneva Conventions that only military objectives could be attacked during armed conflict. Military objectives must be more clearly defined and carefully selected. Parties to armed conflict were now required to take precautions in attack, indiscriminate attacks were prohibited and attacks against civilian property, including schools, hospitals, places of worship and cultural property, were prohibited unless they were being used for military purposes by the other side.

The Balkan and Afghan wars in the 1990s led to a growing sense that the 1954 convention needed to be replaced or at least updated to reflect developments in the law since 1977. A conference was therefore convened in Hague in 1999. It was decided there that rather than replace the convention, it should be supplemented by a new protocol. The 1999 protocol supplements the convention by making detailed provision for the steps to be taken in time of peace to protect cultural property. It restricts the scope for action in circumstances of imperative military necessity. It establishes a system of enhanced protection for specific monuments and introduces the element of individual criminal responsibility in cases of violation of the law. To date, 69 states have become parties to the protocol, including most EU member states as well as Canada and New Zealand.

The Bill has been developed in consultation with the Departments of Defence and Arts, Heritage, Regional, Rural and Gaeltacht Affairs as well as the Defence Forces. Many of the obligations the State will assume in becoming a party to the convention and the protocol are already met by a mixture of policy and administrative measures. For instance, the State's national cultural institutions have all developed disaster planning and emergency response plans to protect their collections. Defence Forces doctrine and training has long reflected the rules set down by the 1999 protocol. Legislation is required, however, to protect and regulate the use of the blue shield in law and to create specific criminal offences. This is the purpose of the Bill before the House.

Section 1 defines certain terms for the purposes of the Bill. Sections 2 and 3 create the offences. The protocol requires that certain acts committed during an armed conflict within the State shall be criminal offences here, and that criminal jurisdiction be extended over Irish nationals and members of the Defence Forces participating in armed conflicts outside the State. It also creates a rule of "extradite or prosecute" in respect of offences alleged to have been committed in the territories of other states parties to the protocol, such that if Ireland does not extradite a person present in the State for alleged offences under the protocol to another state party, it must have jurisdiction to try that person in this jurisdiction. Accordingly, under section 2 it will be a serious offence to attack, during an armed conflict in the State, any cultural property under enhanced protection, use such property in support of military action or to destroy extensively or appropriate any cultural property.

Section 3 makes it an offence in Ireland for any person to commit any of these acts during an armed conflict in a state to which the 1999 protocol applies. This means a person can be arrested and tried in Ireland for these offences. It will also be an offence under section 2 to attack, steal, pillage, misappropriate or vandalise cultural property during an armed conflict in the State. Section 3 makes it an offence for an Irish citizen, a member of the Defence Forces or a person ordinarily resident in Ireland to do these things during an armed conflict outside the State. Section 3 also makes it an offence for an Irish citizen or a member of the Defence Forces to export or otherwise remove cultural property from an occupied territory.

Section 4 provides for penalties upon conviction for an offence under sections 2, 3 or 8. The maximum penalty, on summary conviction, will be imprisonment for a period of 12 months, a class A fine - currently at a maximum of €5,000 - or both. To reflect the potentially serious nature of these offences, for conviction on indictment the maximum penalty is imprisonment for up to 30 years, a fine to be determined by the court or both.

Section 5 provides that commanders and other superiors are criminally responsible for offences committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary, appropriate and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to ensure investigation and prosecution of those responsible. This element of the 1999 protocol is regarded as essential to ensure that military commanders respect and ensure respect for protected cultural property.

Section 6 provides a defence in any proceedings under the Act where the person charged can prove that he was acting under an order which he was required by law to obey and believed the order to be lawful. Section 7 combined with section 10 applies the modern rule against double jeopardy.

Section 8 provides for the protection in law of the blue shield emblem and empowers the Minister for Arts, Heritage Regional, Rural and Gaeltacht Affairs to authorise use of the blue shield in our jurisdiction. The blue shield emblem is the distinctive emblem created by the 1954 convention as a means of identifying cultural property to protect it in the event of armed conflict as well as to protect personnel engaged in its protection. The conditions of its use and protection are set out in the convention. Of course it is important to appreciate that use of the blue shield is not essential for protection of cultural property which, as such, enjoys the protection of the protocol anyway. The main purpose of section 8 is to protect the emblem in law from misuse. Accordingly, section 8 enables the Minister to authorise use of the emblem subject to appropriate conditions and authorises its use where a person applies in writing to use it. In addition, section 8 makes it an offence to use the emblem without authorisation or contrary to the conditions set out by the Minister.

Section 9 enables the State to provide mutual legal assistance to another state party to the 1999 protocol in the investigation and prosecution in that state of offences under the protocol. To enable extradition of persons sought for prosecution by another state party to the protocol, a separate order under the Extradition Acts will be necessary.

Section 11 is a standard provision setting out the Short Title of the Act and providing for commencement. The texts of the convention and the protocol are set out in the Schedules to the Act.

Ratification of the 1954 convention and accession to the 1999 protocol would be a further demonstration of Ireland's commitment to support and promote international humanitarian law. The enactment of the Bill will enable the State to take that step and, accordingly, I commend the Bill to the House.