Joint Committee on Foreign Affairs discussion of Motion laid down by Senator Norris - 6th December 2005

Joint Committee on Foreign Affairs:
6th December 2005
Foreign Conflicts: Motion.

Chairman: A motion on recent events in Iraq has been submitted by Senator Norris and Deputy Michael D. Higgins. I call on Senator Norris to move the motion.

Senator Norris: I move:
That the foreign affairs committee, in the light of recent revelations concerning the use of white phosphorus and the disclosure of widespread and severe torture in Iraq, calls for the establishment of an international inquiry into:
(a) the attack by US forces on Fallujah, and
(b) the use of torture against both military and civilian personnel in Iraq.

Chairman: An amendment to the motion has been submitted by Deputy Mulcahy. I call on Deputy Mulcahy to move the amendment.

Deputy Mulcahy: I move amendment No. 1:
To delete all words after "That" and to substitute the following:
"the Oireachtas Joint Committee on Foreign Affairs
(a) notes with concern the reports of the use of white phosphorus by elements of the multinational force currently in Iraq pursuant to UN Security Council resolutions;
(b) condemns any use of chemical weapons in Iraq or elsewhere and the use of any conventional weapons in a manner which is contrary to international law;
(c) notes the intention of the Government of Iraq to investigate conditions of detention following the recent deeply disturbing discovery of 170 detainees in an Interior Ministry building and supports the call by the UN High Commissioner for Human Rights that, in light of the apparently systematic nature and magnitude of the problems with the system of detention, the Iraqi authorities should consider calling for an international inquiry;
(d) calls for full investigation of all allegations of torture, ill-treatment and other abuses of human rights in Iraq;
(e) condemns the indiscriminate use of violence against civilians and government officials in Iraq which has caused such terrible suffering in recent months and is aimed at creating further divisions between the communities in Iraq;
(f) welcomes the outcome of the 15 October referendum which approved the new constitution for Iraq and looks forward to the democratic elections on 15 December for a sovereign Iraqi Assembly and Government;
(g) notes the unanimous adoption of Security Council Resolution 1637 on 8 November 2005 which, responding to a request from the Government of Iraq, reaffirmed the authorisation for the multinational force and decided to extend its mandate until 31 December 2006;
(h) expresses the hope that sufficient progress will be made in the political transition of Iraq to enable the democratically elected, sovereign government to assume full responsibility for security and stability in its country at the earliest possible date;
(i) expresses the hope that in the near future all UN authorised forces in Iraq will be in a position to leave Iraq and leave the running of Iraq to the sovereign people of Iraq as represented by their democratically elected politicians.

Chairman: In accordance with procedure, the committee is obliged to dispose of the amendment first. I will, therefore, call on Deputy Mulcahy to speak to the amendment. Thereafter, the debate may deal with the substance of both the motion and the amendment. At the conclusion of the debate the amendment will be decided by one question put to the committee.

Deputy Mulcahy: I thank Deputy Higgins and Senator Norris for tabling the motion which is extremely timely. It is important not just for Ireland but for the international community that there be an extensive debate on Iraq. Of course, the origins of the intervention are controversial. Some say they date from a few years ago, others that they date from the end of the first Iraqi war and the war reparations and alleged non-access to weapons facilities and so forth arising from it, but there is no need to repeat the arguments here.
From the public's perspective, this issue affects us in Ireland in two ways. First - quite legitimately - there is the issue of which aircraft are going through and what is happening at Shannon Airport. Again, there are two legitimate sides to the argument. Second, there is the issue of what is happening in Iraq, the terrible attacks and the killing of civilians-----

Senator Norris: By the forces.

Deputy Mulcahy: This is a matter of concern to everyone. On any objective reading, this is a year in which there has been substantial progress in Iraq. First, democratic elections were held on 30 January. The transitional Iraqi Government under Prime Minister Ibrahim al-Jafaari was formed in May. It included representatives of all the major groups in the assembly, including six members from the Sunni community. After this there was a lengthy negotiating process in the assembly which resulted in the adoption of a draft constitution at the end of August which was approved in a national referendum on 15 October by a margin of 79% to 21%. There is, however, a continuing concern about the lack of engagement by elements or parts of the Sunni community in the constitutional process. Fresh elections are due to take place on 15 December and one of the Sunni parties intends to participate. For those who want a free, independent, sovereign Iraq or any non-Iraqi occupying forces in Iraq, this is a year in which there has been significant progress.
The failure of the mandated forces in Iraq to set a deadline for their withdrawal is somewhat disappointing. At this stage, given the level of political progress to date, it would not be unreasonable for those forces to state a deadline of one or two years could be met in all circumstances. There has been much progress in training the Iraqi army but, unfortunately, there does not appear to have been the same degree of progress in training the Iraqi police force.
[Deputy Mulcahy]
It is correct that on Sunday, 13 November, US forces searched an Iraqi Interior Ministry interrogation centre in Baghdad and found approximately 170 prisoners, at least some of whom appeared to have been severely beaten, while others were under-nourished. The prisoners were Sunni Iraqis and foreign nationals who had been detained as suspected insurgents. The committee must express its abhorrence of torture in any circumstances. The amendment follows through on this. It is not a question of dictating a standard of behaviour in a civilised society from our cosy desks hundreds of thousands of miles away from Iraq. In a widely broadcast series of interviews yesterday former President Mary Robinson made it clear that torture could not be an ambiguous concept that wavered from jurisdiction to jurisdiction but must be solidly condemned wherever found.
Iraq's Interior Minister has admitted that abuse took place but only in a small number of cases and will not be tolerated. The media reports and photographs have been a serious setback for the domestic and international image of the new Iraqi authorities and played into the hands of elements of the Sunni community which oppose a new constitutional framework for a democratic Iraq. The UN Human Rights Commissioner, Louise Arbor, has suggested that in view of the damage done Iraq should consider asking for an international inquiry to be established to examine the treatment of detainees. It is important that Iraq calls for such an inquiry into the abuse of detainees. Here the amendment respectfully differs from the motion.
I wish to refer to specific items included in the motion and the amendment. One of my problems with the motion is the phrase "the disclosure of widespread and severe torture in Iraq". While I accept there has been torture, I am not sure it has been widespread. Perhaps Deputy Higgins and Senator Norris might inform us on the issue.
I also have a problem with the section that "calls for the establishment of an international inquiry into (a) the attack by US forces on Fallujah and (b) the use of torture against both military and civilian personnel in Iraq". An international inquiry, the impetus for which comes from outside Iraq, would not be good at this stage. Given the progress made in 2005 in constitutional development, such an inquiry should be called for from within Iraq. The time has come for less interference in its affairs and more development of its structures and society.
My amendment reads:
(a) notes with concern the reports of the use of white phosphorous by elements of the multinational force currently in Iraq pursuant to UN Security Council resolutions;
(b) condemns any use of chemical weapons in Iraq or elsewhere and the use of any conventional weapons in a manner which is contrary to international law [I hope my colleagues will see this as very strong, plain and forthrigh];
(c) notes the intention of the Government of Iraq to investigate conditions of detention following the recent deeply disturbing discovery of 170 detainees in an Interior Ministry building and supports the call by the UN High Commissioner for Human Rights that, in light of the apparently systematic nature and magnitude of the problems with the system of detention, the Iraqi authorities should consider calling for an international inquiry [I again stress that it should be the Iraqi authorities, supported by us, which should call for an international inquiry];
(d) calls for full investigation of all allegations of torture, ill-treatment and other abuses of human rights in Iraq;
(e) condemns the indiscriminate use of violence against civilians and government officials in Iraq which has caused such terrible suffering in recent months and is aimed at creating further divisions between the communities in Iraq [Here I refer to the recent bombings];
(f) welcomes the outcome of the 15 October referendum which approved the new constitution for Iraq and looks forward to the democratic elections on 15 December for a sovereign Iraqi Assembly and Government [Nobody could object to this];
(g) notes the unanimous adoption of Security Council Resolution 1637 on 8 November 2005 which, responding to a request from the Government of Iraq, reaffirmed the authorisation for the multinational force and decided to extend its mandate until 31 December 2006 [It is important that the Security Council was responding to a request from the Government of Iraq as constituted stemming from the democratic elections held on 30 November];
(h) expresses the hope that sufficient progress will be made in the political transition of Iraq to enable the democratically elected, sovereign government to assume full responsibility for security and stability in its country at the earliest possible date;
(i) expresses the hope that in the near future all UN authorised forces in Iraq will be in a position to leave Iraq and leave the running of Iraq to the sovereign people of Iraq as represented by their democratically elected politicians.
I admit that the last paragraph is aspirational. I hope my amendment adds to motion and elaborates on the motion rather than overriding it. Its tone is meant to emphasise the point that significant progress has been made in Iraq, that there has been torture which has been condemned, that there has been the illegal use of chemical weapons which is condemned by the international community, and that in the near future we would like to see all foreign forces leave Iraq, leaving its people to decide the country's destiny. I strongly commend the amendments to my colleagues and the Chairman.

Senator Norris: I seek the Chairman's assistance on a technical matter. Is it usual practice for a motion such as this to be referred either by the Chairman or committee staff to the Department of Foreign Affairs for comment or amendment?

Chairman: The normal procedure is to request briefing material from the Department of Foreign Affairs. That material has been circulated to members. That is all we had to do.

Senator Norris: Was my motion forwarded to Iveagh House for a briefing on the issue?

Chairman: Yes, where it is relevant to do so. The briefing material which includes background notes has been circulated to members.
Senator Norris: That is welcome. I ask the question because this committee is valuable as it is non-partisan and its members assess issues on their merits, not by direction from Iveagh House. I was involved with Deputy Michael D. Higgins in establishing the first Joint Committee on Foreign Affairs which came about because we wanted foreign affairs policy to be accountable to the people. The committee acted as a ginger group. The Government wisely felt that, whatever the drawbacks in having a committee with members from all parties duly selected, it was better than one run by Deputy Michael Higgins and me. One could not tell in which direction such a committee would go. I am sure Deputy Mulcahy will agree that a good facet of this committee is that it has been non-partisan.
The motion was forwarded to the committee some time ago. Due to an error, for which this committee has no responsibility, it was sent initially to the Sub-Committee on Human Rights. It has since been put on the long finger in a number of ways. I tabled a similar motion in the Seanad. I am grateful to Deputy Mulcahy for making the Shannon Airport issue part of this discussion, particularly its use for the "Guantanamo Express" and rendering people for the purposes of torture. I intend to briefly skirt around the issue raised by the Deputy.

Chairman: Is the Senator coming to the motion in his name?

Senator Norris: Yes.

Chairman: While the joint committee has always been non-partisan, as the Senator has noted, it has also been informed. On every issue it receives background notes and updated information from the Department of Foreign Affairs.

Senator Norris: That is very helpful.

Chairman: That is all that is involved.

Senator Norris: I do not think it is quite so.

Deputy M. Higgins: I can clarify that matter.

Senator Norris: The amendment originated from the Department, as I am sure Deputy Mulcahy will confirm.

Chairman: The Senator will have a chance to reply. He is making an allegation, about which I wish to be clear. Any member is entitled, in his or her own right, to table an amendment. The Chair has not been involved in the preparation of an amendment.

Senator Norris: I have no quarrel with the Chairman who I am sure will withdraw the inaccurate statement that I have made an allegation; asking a question is not the same as making an allegation. I asked a question and have received a reply from the Chair. It was not an allegation.

Chairman: I am pleased to hear it. The normal procedure was followed and the motion taken as quickly as it could have been. To facilitate this debate we asked members to come here at 1 p.m. knowing that this would be difficult for some and that some would have to stay late.

Senator Norris: Absolutely. I was asked if I would facilitate the committee by putting back the debate for a few weeks. I stated I would not. That is why we are meeting at this time.

Chairman: I wish to be clear about the information provided.

Senator Norris: I was asked if the debate on the motion could be postponed and stated in reply that I would prefer if it was taken today.

Chairman: As far as the secretariat is concerned, the normal information was requested.

Senator Norris: That is clarification to a certain degree. I understand Deputy Mulcahy will clarify the matter further later.
Paragraph (a) of the amendment is inaccurate and I am sure Deputy Mulcahy will not mind if it is amended. It reads: "...by elements of the multinational force currently in Iraq pursuant to UN Security Council Resolutions". The Secretary General of the United Nations, Kofi Annan, described the war as illegal. It was also described as such by the Leader of Seanad Éireann. The forces are now in Iraq as a result of a retrospective motion; they are not in the country pursuant to a UN resolution. This inaccurate statement should be withdrawn.
Paragraph (b) deals with the general condemnation of the use of chemical weapons anywhere. This is a bland point and my problem with it is that the focus is blurred. I am discussing a specific series of actions which greatly concerns many, including people in America who include former President Jimmy Carter. I say this because I do not want anybody to suggest we are anti-American. If former President Carter can state these actions are not indicative of the America he knew, with torture openly espoused, endorsed and used, and that rendition presents a problem, we would be pusillanimous if we did not take this view.
Apart from paragraphs (a) and (b), the amendment is taken from the amendment tabled to the motion in my name during Private Members' Business in the Seanad.

Deputy Mulcahy: Paragraph (i) is different.

Chairman: The Deputy will have an opportunity to reply.

Senator Norris: There may be one change, but six of the nine paragraphs are identical to the amendment tabled to the relevant motion during Private Members' time in the Seanad. I make this point because when the issue was briefly discussed previously, there was an opportunity before the discussion was terminated for Fianna Fáil Members to indicate their preference. They indicated they had no problem with the motion. When it was discussed, individual Members, independent of an direction from Iveagh House or the Minister, had no problem with it.
Deputy Mulcahy spoke about getting Iraqi authorities, such as they are, to inquire about this issue. There would be considerable difficulties with this. The Deputy himself has stated he would be concerned if the behaviour was considered to be general. The report on the incident in the basement of the Iraqi building was accepted. The responsible Iraqi Minister indicated that she found it impossible to investigate such matters, that such behaviour was systemic. If the record of Seanad Éireann is consulted, one will see I provided very considerable evidence of widespread torture in Iraq and its systemic nature. When the Minister responsible states she is being blocked and stymied at every avenue and cannot properly investigate, although she is aware of widespread torture, it would be foolish to expect those in charge of a system under which torture is widespread to investigate themselves. This vitiates a cardinal principle of law, that an accused person does not stand in judgment of himself or herself. The authorities in Iraq stand accused of, at least, tolerating this torture and being involved in it in many cases. This is not just waterboarding, which Vice President Cheney appears to believe is legitimate. This is a practice, developed by the Gestapo, whereby people are drowned, medically resuscitated with their lungs bursting and then interrogated. Apparently, according to Mr. Cheney, this is tolerable. The practices engaged in are even worse than this and people have died. In the motion I call for an international and, therefore, independent investigation into the use of white phosphorus, which has been denied.
Three weeks ago I spoke to Mr. Harry Cohen, MP, who showed me correspondence on the matter which he discussed with me. He had asked about the use of white phosphorus and been given an inaccurate reply by a British Minister, Mr. Adam Ingram, who had been lied to by the United States authorities at the highest level, as he had to acknowledge in a letter I have seen. The use of white phosphorus was denied categorically and Mr. Ingram had to apologise on the basis that he had misled the House of Commons because he had not been told the truth.
There is also the question of the attack on Fallujah and the damage and injury to civilians. Deputy Mulcahy expressed, quite correctly, his abhorrence and discusses in the amendment the attacks on civilians which are obviously carried out by militants.
However, I am highlighting the actions of sovereign governments and the so-called coalition forces, their responsibility for the deaths of 100,000 civilians and their deliberate attempt to conceal this fact. Reports in The New York Times, which can hardly be described as anti-American, indicate that the attack on the hospital aimed to stop leaks about the number of civilian casualties. It is worrying when governments which claim to defend our ethos become involved in these practices and attempt to prevent information about them leaking out. Making these allegations against people who are intimately connected with this country is a serious and painful matter. Many of us have friends and relations in the US so we are part of its system and share many values with it. However, these values have been betrayed and traduced and if we are afraid to say so, we have surrendered the pass.
I will not linger as I wish to leave time for my colleagues who have important things to say. I accept that section (a) of the amendment represents a welcome advance, for which I am grateful to Deputy Mulcahy. Most of the remaining parts of the amendment come from a document that originated in the Department of Foreign Affairs. I am concerned about this because we should make up our own minds on the matter here.
Deputy Mulcahy raised the issue of Shannon Airport, which is not mentioned in the motion but which I will continue to revisit in the Seanad. The issue is very clear and the argument does not have two sides. One of the Gulfstream 5 jets that landed at Shannon Airport has been used for no other purpose than rendition flights. Rendition flights have been condemned by a report from the Swedish parliament because of the kidnap of two people in Stockholm Airport who were substantially rendered to Egypt where they were tortured.
Before she left the US, the US Secretary of State, Dr. Condoleezza Rice, stated that the US expected its allies to believe it. Why should they? There has been a consistent pattern of lies, denials and eventual acceptance that particular allegations are true. A parliamentary committee found that this Gulfstream 5 jet was used for rendition flights. Airplanes that regularly land at Shannon Airport have been used for the filthy purpose of extraordinary rendition - one should note the euphemism - and this Government is liable under international criminal law for this. This is the advice given to a committee of the House of Commons in the UK. This committee had asked whether it would cause a legal problem if such an airplane merely refuelled at a UK airport and the official reply was that such a practice would make the UK government complicit in an international crime. This is what we are dealing with and this is why I am so grateful to Deputy Mulcahy for raising this issue. I will pursue this matter in the Seanad.
I welcome the excellent contribution of Deputy Mulcahy but am concerned that we should not lose or blur the focus. I welcome section (a) of the amendment but wonder whether it would be possible for this committee to come up with a composite motion which would cater for both sides. It is important for us to look at the way in which the Department of Foreign Affairs attempts to control the business of this committee.

Deputy M. Higgins: I wrote an article in 1982 for Studies which traced the history of our attempts to found a foreign affairs committee. The former Senator, James Dooge, was the Minister for Foreign Affairs at the time. In the article, I quoted from an interesting debate in the Seanad. Senator Dooge had attended a conference of the speakers of the Houses of Parliament and he quoted with approval the views of an individual named Dr. Steerkamp who believed that foreign policy should be left to the diplomats unless members of the public with egalitarian and moralistic tendencies would become involved. The Fianna Fáil Party in the Seanad, which had promised to support my resolution, decided to abstain; Fine Gael voted against it and the Labour Party and the university Senators both voted for it. Approximately 23 Senators abstained, 21 Senators voted against the proposal and 12 Senators voted for it. I recorded all of this to demonstrate the difficulties involved in establishing a foreign affairs committee that would operate at a distance from the mandarins of the day. I am glad I produced a written record in light of the information given by Senator Norris.
I wish to clarify some points in this important motion. The fundamental point is that it is in everyone's interest to defend international law. To this end, I welcome the speech given by Deputy Mulcahy. International law is under serious threat in a number of circumstances. I do not wish to be pedantic but I must correct section (b) of the amendment. White phosphorous is not classed as a chemical weapon in the UN Chemical Weapons Convention. This is enormously important because all signatories to the convention automatically signed up against the use of chemical weapons in any circumstances. White phosphorous is referred to as an incendiary weapon. I will not go into the gruesome details as to whether a person implodes gradually or whether his or her flesh is burned off following exposure to white phosphorous. I understand that the Third Protocol to the Convention on Certain Conventional Weapons has not been signed by the US, which is, therefore, outside the discipline of the convention.
One then turns to how this matter has been handled. The use of an incendiary weapon in conditions where civilians may be present is a clear breach of the convention. States have a clear and irrevocable obligation to ensure that where incendiary weapons such as white phosphorous, are used, there is no possibility of civilians being present. Matters were not helped by the different forms of denial. It was stated that the US did not own white phosphorous, that it did not use it, that white phosphorous was used for the illumination of a point of conflict and, after news leaks occurred, that white phosphorous was only used against combatants.
There were breaches in every circumstance protected explicitly by the convention. There is no doubt that civilians were killed in the attack on Fallujah and that white phosphorous was not used simply to illuminate a conflict zone but, rather, was used against enemy combatants. We must conclude that there is a serious question mark over conditions of trust, which leads on to the second part of the motion.
There has been a fundamental change with regard to the use of torture since we put down the motion.


I constantly ask when Ireland will sign the optional protocol against torture which would create the capacity for an external body to visit us. The convention requires us not only not to be involved in torture but under the protocol, which we have not signed, there is a positive obligation not to assist torture in any way and to work to prevent it taking place anywhere. Even though we have not signed that, we have serious obligations under international law.
I am talking about a United Nations convention against torture and two European conventions for which the Council of Europe is responsible, namely the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
Two fundamental changes are suggested here. There is the suggestion of those surrounding the US Vice-President Cheney that what is taking place is something less than torture. Deputy Mulcahy adverted to this too. We agree on all sides on that point. The European Convention is not just against torture, however narrowly defined, but against "inhuman or degrading treatment". We heard en passant in both of the contributions so far, that the Council of Europe monitors its conventions through the committee appointed. The Government, in reply to questions to different Ministers, said the Council of Europe's monitoring committee has contacted it. The monitoring committee may seek assurances, for example, on the use of the CIA planes in Shannon.
How can we co-operate fully with the monitoring committee from the Council of Europe if we never inspect what is on the plane or seek to discover the purpose of the planes landing and taking off? Even the Minister for Agriculture and Food, Deputy Coughlan, said this last night on television. This raises another fundamental question, namely, where one stands on the general concept, taking into account what I have already said, of "extraordinary rendition" as an instrument of international security?
We can leave that issue aside for the moment because we will be able to pursue it next week in questions to the Department of Foreign Affairs. Even there is no one on the plane when it lands in Shannon, if we allow ourselves to become part of a flight plan that lends itself to extraordinary rendition we inescapably place ourselves within the ambit of that illegal act.
Deputy Mulcahy referred to the comment of the former United Nations High Commissioner for Human Rights, Mary Robinson, that if one starts redefining torture or narrowing its definition and so forth surely one damages one's acceptability and trust in respect of the other matter. This is akin to the question of the use of white phosphorus in certain circumstances.
I am not an international lawyer but I read the texts. It was my business as a political scientist to know something about them. I know what a positive obligation is. How can positive obligation be defined as other than seeing that one is able to give something based on fact rather than the acceptance of a verbal assurance from sources that have systematically damaged their credibility? In this way they have politicised human rights law such that it has become a kind of project.
In respect of the amendment before us, I have no difficulty in condemning the use of chemical weapons. They are prohibited absolutely. Incendiary weapons perhaps need to be added. They are outside the disciplines suggested in the international conventions. I have dealt with the issue covered in (d). I would like to retain the usage of the Council of Europe in respect of allegations of torture, namely "torture, inhuman or degrading treatment". We are talking about an appalling activity.
I know something about torture through cases with which I dealt 20 years ago when techniques of torture were moved from Vietnam to Chile under General Pinochet. Torture techniques were exported. In all these cases I prefer the wider usage of "torture, inhuman or degrading treatment".
In addition to (e), while I respect Deputy Mulcahy's views, and he has been at pains to suggest how much he respects mine, he will excuse me if I differ with him on the referendum on 15 October. Two states in which the predominant population is Sunni voted against the constitution in insufficient numbers to be a blocking mechanism. It is possible that in December, after the elections, this issue will be revisited which may bring about some inclusion of the Sunni population.
It is important to realise there was a fundamental point at stake, which was at the root of the constitutional consultation. The Sunni objection is not that of insurgents but for a unitary state. The issue upon which the debate in the two states took place was federalism versus the unitary Iraq.
In respect of (g) and the circumstances of resolution 1637, these resolutions are of their time. The achievement of the vote at the United Nations was based on the then current circumstances. There has been no suggestion that one can reach back and use it as a rationalisation of the original actions which took place without any UN Security Council mandate. That creates the practical problem for international human rights observers of how to define when forces are operating under the new mandate, and when they are residual to the illegal invasion. In what circumstances have people who invaded illegally without any mandate made themselves right ex post facto by some kind of resolution?
That is not what happened and that is not the purpose of the original motion which immediately preceded the invasion, resolution 1441. When that was announced to the Dáil and the Seanad the Taoiseach referred to it as a motion that achieved peace. Within weeks it was used as a pretext for invasion by others who wanted to construe it differently. That is history, but these resolutions as referred to do not put an action right retrospectively.
In respect of the expressed hope I do not want the endless conflict in Iraq to continue or there to be any further loss of life on any side. I have visited Iraq four times, before 1991, during the sanctions, before this war, and in times when it was stable under Saddam's oppressive rule. I certainly share the aspiration for the future of Iraq but there is a long way to go in achieving that. One cannot slide away from international obligations in law.

[Deputy M. Higgins]
It is a sad day if a country that claims it has friendly relations with another is in danger of losing that friendship if it asks a simple question. Our questions must be answered to show us international law is not being broken. How can such a request be regarded as a non-friendly act?
There is overwhelming support among the public to have these questions answered factually. In the case of Shannon Airport, they can only be answered by way of an examination of what is taking place on aeroplanes. In the case of torture, they will only be answered when torture is redefined to include degrading and inhuman treatment of prisoners and so forth but that will only come about when we make clear demands as a state that wants to see international law upheld. It is our sole protection. Small countries benefit from international law, even more so than large powers.

Deputy Allen: It is a pity there is a division on the motion. On the last occasion when there was an attempt to move it I objected to it being taken without notice on the day and asked that it be put back on the agenda. There was support from all sides for it. At the time the question was about the procedures adopted. I am sorry I did not ignore them and allow the motion to be taken as it would have received unanimous support. I now regret the change of mind on the part of Government members. I thought we could be adult enough to deal with this tragic and serious issue and not divide on it. However, these are the facts of political life.
There is no doubt white phosphorus was used in Iraq. As a chemical technologist, I am familiar with using it in laboratory conditions and understand the horrific effect it can have on a person's body. If one gets it on one's hand, the skin has to be excised to get rid of it. If it comes in contact with human beings in a war, it is kaput for them. From the evidence available, it is obvious it was used in the November 2004 attack on Falluja. Darrin Mortenson, a reporter embedded with US marines, wrote about the matter for a local Californian newspaper. He graphically described what he called the "Shake 'N Bake" procedures adopted.
The debate about white phosphorous centres on whether it is deemed to be a chemical weapon. I describe it as a weapon on the edge. Such weapons are outlawed by the chemical weapons convention to which the United States is a party. The convention is monitored by the Organisation for the Prohibition of Chemical Weapons which is based in The Hague. Its spokesperson, Mr. Peter Kaiser, when asked if white phosphorous was banned by the CWC, stated:
No, it is not forbidden by the CWC if it is used within the context of a military application which does not require or does not intend to use the toxic properties of white phosphorus. White phosphorus is normally used to produce smoke, to camouflage movement. If that is the purpose for which the white phosphorus is used, then that is considered under the convention legitimate use. If, on the other hand, the toxic properties of white phosphorus [the ones I described] are specifically intended to be used as a weapon, that of course is prohibited, because the way the convention is structured or the way it is in fact applied, any chemicals used against humans or animals that cause harm or death through the toxic properties of the chemical are considered chemical weapons.
Eye witness accounts prove the use of white phosphorus at Falluja. As a result, there will have to be an international investigation into what happened. It is a dirty and nasty war for all sides. UN Security Council Resolution 1441 did not authorise this war because, in accordance with the UN charter, force should only have been used as a last resort. Senator Edward Kennedy said it was the wrong war at the wrong time. It is a wrong war at any time. However, after the events of 11 September 2001, the United States was hurting. That hurt has prevented it from allowing the United Nations and Dr. Blix to take their course. If Dr. Blix and his colleagues had been given space and time, there would subsequently have been a UN Security Council decision one way or the other. However, the war went ahead without authorisation.
The Fine Gael Party supported the 1991 Iraq war because it had United Nations support but this war is different because it does not have a UN mandate. In that context, how can it be claimed that an aeroplane full of military equipment passing through Shannon Airport does not contribute to, if not represent participation in, war activity? In the Dáil debate on the war Deputy Kenny said that to allow traffic through Shannon Airport would betray our commitment to the United Nations. The passage through the airport has been raised by several members.
It is estimated there have been 38 landings of CIA-chartered aeroplanes in Ireland since 2002. It would be intolerable if it were shown that Irish facilities had been used to covertly transfer prisoners to countries where they would be subject to illegal forms of interrogation, torture or ill treatment. As a fundamental principle, the Government must make it absolutely clear that the use by any state of any Irish facility for the transfer of prisoners from and to any state must be in accordance with Irish and European law. The covert transfer of detainees cannot be supported under any circumstances.
Ireland has important legal obligations to ensure this does not take place at any time on our territory. I acknowledge the firm assurances given by the US Administration that Shannon Airport has never been used for rendition flights. I welcome that statement because Ireland and the United Sates historically have long commercial and political ties. However, such is the level of concern about this issue that it would helpful for the US ambassador to attend the committee to discuss the matter. There is a precedent for such a move. Rather than have a debate in the Seanad, there must be a more hands-on approach to the issue by the committee.

Senator Norris: The Seanad will move towards a more hands-on approach, particularly given today's developments.

Deputy Allen: The European Union has made contact with the US Administration to seek information on the possible existence of secret prisons or detention centres within the Union. This is a matter of grave concern to us. All details, if the allegations are proved true, must be placed in the public arena. We have a responsibility to ensure Irish facilities are not used for the covert transfer of prisoners. We also have a broader responsibility to ensure the European Union is not supporting any system of secret detention or network of secret prisons. The Guantanamo Bay model of detention is unacceptable to us and runs contrary to our principles of justice.

It must not be imported and, for this reason, I will support the motion as originally tabled. I ask for a meeting of minds on this fundamental issue on which we should not be divided politically. I propose that the meeting suspend for a few moments to try to come to some accommodation. We should not divide on the motion.

Chairman: I advise members at this stage that we must begin discussing another item on the agenda by 2.30 p.m.

Senator Kitt: As Deputy Allen noted, when we discussed these issues at our previous meeting I regarded the motion tabled by Deputy Michael Higgins and Senator Norris as worthy of support. Deputy Mulcahy has made a valid point on the use of the word "widespread" as it is probably not accurate. The reference to the use of severe torture is clearly accurate, as demonstrated by the use of white phosphorous to which Deputy Allen alluded. The people of Iraq who experienced severe torture under Saddam Hussein have faced further torture since the attack was launched in 2003.
Language has been terribly abused since the introduction of Resolution 1441 and during the period when Mr. Hans Blix worked on the Iraq issue. While I do not wish to address the history in detail, as Mary Robinson has stated people are not defining issues in the way one would normally expect. The abuse of language has been unfortunate.
I, too, hope we will reach some form of an agreement on the motion. As Senator Norris noted, the Seanad has already debated the issue. I appreciate the Senator's decision to table a Seanad motion for which I had considerable sympathy, although I did not vote for it owing to the Whip system. Perhaps we could draft a motion on which all members can agree because I also disagree with some aspects of the amendment tabled by Deputy Mulcahy, particularly with regard to Security Council resolutions.
It may be a terrible analogy but during a report on the Meath county football convention last night someone asked whether a way could be found to agree on a motion without holding a vote in Navan. Oddly enough, the convention decided not to vote on a resolution which contained nine clauses. Deputy Mulcahy's amendment contains nine sections, including an interesting one which notes that "in the near future all UN authorised forces in Iraq will be in a position to leave Iraq". The Minister of State at the Department of Foreign Affairs, Deputy Treacy, did not mention such a withdrawal during the Seanad debate but referred instead to a phased withdrawal before the end of 2006. The amendment may be somewhat presumptuous in implying that United Nations forces will leave Iraq.
Many of us warned what would happen if the invasion proceeded. As it transpired, the war has ended in tears. Will any decision to withdraw forces in the near future result in a civil war and catastrophe, particularly in light of President Talabani's statements on a phased withdrawal? I do not propose to dwell on the issue but I hope we will find a motion on which all members agree.

Deputy Mulcahy: On Deputy Allen's point that I am somehow being partisan on this issue, that is not the case. I was not consulted about the original motion and if I had been consulted, I would have made an input and tried to agree on a composite motion. For this reason, I believed it behoved me to table a more comprehensive motion, albeit perhaps not as telling and to the point as that tabled by Senator Norris and Deputy Michael Higgins.
As Senator Norris pointed out, section (a) of the amendment is stronger than the wording of the motion as the latter does not express concern about or condemn the use of white phosphorus.

Senator Norris: It does.

Deputy Mulcahy: It does not refer to white phosphorus.

Senator Norris: The motion includes the line that the Committee on Foreign Affairs, "in light of the recent revelations concerning the use of white phosphorous".....

Deputy Mulcahy: Yes, but the Senator must accept that the motion does not comment on the use of white phosphorus, whereas section (a) of the amendment states the committee "notes with concern the reports of the use of white phosphorous". As the Minister of State, Deputy Treacy, stated in the Seanad, white phosphorus is not outlawed under the chemical weapons convention. If it were illegal under the convention, it would be easy for the joint committee to condemn its use but the best advice available is that this is not the case.

Senator Norris: As a point of fact, the use of white phosphorus is illegal in certain applications. If it is used for illumination or smoke cover, it is legal but it is clearly illegal when used against civilians. Eyewitness reports indicate this occurred. It is also illegal under United States domestic law, namely, under the rules of the military handbook.

Chairman: It is illegal under the protocol on prohibitions or restrictions on the use of incendiary weapons (protocol III), signed in Geneva on 10 October 1980.

Deputy M. Higgins: That is correct.

Deputy Mulcahy: If that is the case, I have no problem with incorporating an amendment to that effect in my amendment. I want to condemn the use of white phosphorous and have taken a clear stance on the issue.
It was implied that I was somehow nobbled by Sir Henry in the Department of Foreign Affairs. I am not for nobbling by anybody and those who are familiar with how I operate on committees will know that if a Minister or an official telephoned me and told me to say "A", I would sing "B" from the top of my hymn sheet for as long as I am able. I can pooh-pooh that suggestion. I did research and read the record of the Seanad debate. If I had not done so or had failed to read the resolution passed by the Seanad, my amendment would not have been up to the minute. The majority of the amendment is identical to the wording of the resolution passed by the Seanad. I am surprised that Deputy Allen is seeking to rewrite what has been effectively agreed by the Seanad.

Senator Kitt: The Seanad did not divide.

Deputy Mulcahy: My amendment is substantially the same as the resolution passed by the Seanad. I accept, however, that section (I) is aspirational and perhaps requires amendment.

Deputy M. Higgins: The matter could be resolved. Senator Norris and I do not have a difficulty with deleting from the motion the words "widespread and severe" given that all torture is of its nature severe. I suggest Deputy Mulcahy agree to remove the line "expresses the hope that in the near future all UN authorised forces in Iraq will be in a position to leave Iraq" because it leaves open the possibility of a future United Nations force for peacekeeping. If the Deputy gives way on that matter, Senator Norris and I will have no difficulty amending the text of the motion in the manner I have suggested.

Deputy Allen: Rather than negotiate in public, the meeting should suspend for five minutes.

Chairman: We will suspend for five minutes to allow the authors of the respective texts to discuss them and try to find an accommodation.


Sitting suspended at 2.20 p.m. and resumed at 2.28 p.m.

Chairman: As a compromise on the motion has been reached, I will ask Deputy Mulcahy to read out the compromise motion in full.

Deputy Mulcahy: The amendment reads as follows:
To delete all words after "that" and substitute the following:
"(that)... the Joint Oireachtas Committee on Foreign Affairs
(a) notes with concern the reports of the use of white phosphorus by elements of the multinational force currently in Iraq pursuant to UN Security Council Resolution 1637;
(b) condemns any use of chemical weapons in Iraq or elsewhere and the use of any conventional weapons in a manner which is contrary to international law;
(c) notes the intention of the government of Iraq to investigate conditions of detention following the recent deeply disturbing discovery of 170 detainees in an interior ministry building, and supports the call by the UN High Commissioner for Human Rights that in light of the apparently systematic nature of the problems with the system of detention, the Iraqi authorities should consider calling for an international inquiry;


[Deputy Mulcahy ctg]
If that requires bringing over specialists from the International Institute of Strategic Studies in London or from the Carnegie Endowment, I want that done because I want to know. Unfortunately, I am not yet in a position where I have full information. I want to be fully briefed. This should be a major part of our work for next year.

Deputy M. Higgins: I strongly support Deputy Mulcahy in what he seeks and has said. I agree that the NPT is in trouble. The point I would add is that it is in trouble in an appalling context. The treaty came into existence in 1970 and the review discussed here was the seventh review. When the public hears about the issue of Iran it asks the reasonable question of whether the treaty was not just about proliferation but about the elimination of weapons by those who have them. That is a lay opinion, but it is important.
It is not just a lay opinion because it is an opinion lodged in Article 6, which is the core founding principle of the NPT. To prosecute the non-proliferation side of Article 6 is an exercise in bad faith, particularly by some of the most powerful. Therefore, the language of the treaty is being defeated on the basis of force.
In looking at the seventh review, which covers to April-May 2005, it is useful to reflect on the previous reviews. Although it is controversial to say this, I put it that the reviews that took place prior to the collapse of the Soviet Union were more positive in terms of verification. If one looks at the history of the NPT in the context of the talks during the Reagan Presidency with the then Soviet Union, the possession of what was perceived to be a significant and increasing capacity led to significant movement in verification. One might also hypothesise that the later reviews have revealed that as we entered an atmosphere of a single superpower, the impulse to verification practically eroded.
This brings us to a practical point for this committee and the European Union, namely, the difficulty in retaining a position that is faithful to Article 6 in the common position of the Union. I suggest that the common position taken before the May review was overwhelmingly skewed towards non-proliferation and hardly dealt with the erosion of any movement towards verification. It was certainly weak on its language on elimination. That common position was itself distorted by the facts of the abuse of Article 6. With regard to the context in which this happens, it is one where new elements have been added to geopolitics, in particular a major fissure no longer based on the possession of the balance of armaments, but on the perceived rise of Islam and the resulting debate on what was called international terrorism.
Deputy Mulcahy is correct to raise this issue. We have not had sufficient or adequate debate on the NPT. Instead, we hear language used about rogue states as if they were our problem. They are not the problem. We have a far more serious problem with regard to verification and elimination. If I look back and ask whether the collapse of the Soviet Union and the changes that took place were seen as an opportunity for elimination on the other side of the equation which had prevailed earlier, the answer is "No". The position is that in many cases the failure and stalling on verification and the refusal of elimination led precisely to the creation of conditions into which materials would begin to flow to an uncontrolled international system. Therefore amidst that we get a discussion on Iran that is entirely unreal.
In every interpretation and every examination by the IAEA of the NPT we now leave aside half of its job undone. We now move over on the use of nuclear capacity for non-military purposes. There is no prohibition in the NPT or in any other treaty on this. I happen to disagree with nuclear energy. It is very difficult to point to international law on it and say what the situation is. We are now entitled to take the treaty, in its weak and declining days, and operate on the basis of suspicion. If these issues return to the Security Council, we better get agreement on what we favour.
I do not impute anything to the current Minister. He has made strong statements about the importance of the NPT as our departure point on this. However, there is no point in fooling us. I am concerned about the disastrously, weak, skewed and unreasonable statements issuing as the common position from Europe. They are issued under the influence of countries with a bad record in this regard, countries that are not committed to the NPT in the way we are. Indeed, some of these countries have, underhandedly, been involved in trafficking in capacity.

Mr. Montgomery: It is clear from what the three committee members have said that there is a wide political consensus on this question, a consensus that includes the Government. We agree that the issue of disarmament should be pursued as vigorously as possible. We also agree that the NPT is in difficulty. There is no doubt about that and I can, I think, speak for the Minister in saying that he would very much welcome efforts to give this issue a higher profile in the period ahead.
In terms of timing, the next step on the way is 2007, when we have the first preparatory conference for the 2010 review. However there are a number of events scheduled for the coming year into which this committee could feed. A group of NGOs has launched an "Article 6" forum to look at new and creative ways of taking this forward. There will be a meeting in the Hague in March on that and we would be happy to report to the committee on it. Ireland and Canada will co-sponsor a seminar in Geneva next May on the future of the NPT and perhaps the committee would be interested in that. A weapons of mass destruction commission was established by Anna Lindh, the former Swedish Foreign Minister, before she died. It is headed by Hans Blix and will bring forward a report on a range of WMD issues, including the NPT. This committee could follow this range of events over the coming years.
On the questions raised by Deputies, Deputy Allen spoke about how an agenda could take two weeks to agree. The agenda, as can happen on these occasions, is a proxy for the substance. One of the key issues was how to refer to what had been agreed in 2000. I remember taking part in the Northern Ireland negotiations on the Good Friday Agreement, where it took six to seven weeks to agree an agenda. All too often agendas are proxies for substance and that is what happened in May.

[Mr. Montgomery]
On the general point made by three members of the committee as regards double standards, there is no doubt that the task we face, on Iran, would be a good deal easier if the other three countries mentioned by the Deputy, India, Pakistan and Israel, were members of the NPT. This issue of the double standard arises many times in debate, particularly with members of the G77 or the non-aligned movement, NAM. Equally, as I hope was made clear in my statement, if the nuclear powers were engaged more actively in disarmament, that too would send a very positive signal. There is no dispute between us on that.
On the question of Iran, specifically, it should be remembered that it was not originally an EU initiative. The E3, namely, Britain, France and Germany got together separately. It was largely after the debacle over Iran that we saw the divisions within the Union on that question and the E3 countries were looking for an issue on which to find common ground. It was very much the initiative of Mr. Joschka Fischer, the former foreign minister. They began, privately, outside the EU framework and then brought it inside. From a pragmatic viewpoint they probably are as well placed as any group of members of the EU, in this area, not least because they have the technology and other expertise that is required and to be frank, the political weight, vis-à-vis the Americans. One of the important aspects of the E3 issue was precisely the fact that the Americans held off pursuing an individual policy of their own on this question.
In addition, while the initiative was originally conceived independently outside the EU framework, to be honest, over a substantial period the E3 countries have been pretty good and open about sharing information with the rest of us. There have been regular debates in the Council. My political director colleagues and I have had lengthy discussions about this matter. In the margins at the International Atomic Energy Agency, IAEA, meetings in Vienna, there is much co-ordination and consultation as regards EU positions and so on. I believe the policy is broadly supported by the EU. However, it would be easier if more progress had been made on those other matters which the Deputy mentioned.
On Iran, I would not go quite so far as Deputy Mulcahy on the simple principle that two wrongs do not make a right. The failure of others to adhere to their obligations, or even sign up to them in the first place, is undoubtedly a matter of great concern and weakens the case that the rest of us have vis-à-vis Iran. However, I would not underestimate the potential threat from Iran, either. We heard what its president said about the state of Israel. There are credible reports linking Iran to the sponsorship of terrorism in a number of countries throughout the world. Too many countries already have nuclear weapons. Therefore the case for doing all we can to find a solution to the Iranian situation is very strong. It would be stronger, still, if we were in a better position more generally.
As regards what Deputy Michael D. Higgins said, I would not entirely agree with the proposition that more progress was made in the Cold War. Progress was made in the latter years of the Cold War, without question, after a very substantial escalation by both sides. However, the fact that the 1995 and 2000 review conferences both came out with quite substantial commitments in this area-----

Deputy M. Higgins: I spoke about numbers and quantification.

Mr. Montgomery: Qualification and verification was principally done, bilaterally, between the Soviets and the Americans, outside the NPT framework, previously.

Deputy M. Higgins: Exactly.

Mr. Montgomery: Even then, there was a 2002 Moscow agreement between them, which was quite important and helpful in reducing the number of nuclear weapons actually being deployed at any given time. Again, the G8 global partnership in 2002, which assisted with the destruction of nuclear material in Russia, was a positive step, so I would not be quite so negative about developments in recent years. There was a history of good progress up to 2000. However, after that much of that progress had either stalled or gone into reverse. It would be very helpful and important if the US and China were to ratify the test ban treaty, but they have not done so.

Deputy Mulcahy: Has there been a problem in Congress on the US side?

Mr. Montgomery: There might have been a problem in Congress, but this administration has made clear that it does not intend to pursue such a course.

Deputy Mulcahy: Is it not obliged to, having signed it?

Mr. Montgomery: As a general principle of international law, when a country signs a treaty, it commits to ratify it.

Deputy Mulcahy: We need to know this type of detail. I have not got all this, and I need it.

Chairman: We really have only five minutes to cover the rest of the business. Then we have to adjourn at that stage and a select committee comes in to meet the Minister. There is a need for a ten minute break between the two meetings.

Mr. Montgomery: I have a couple of other things to say. To return to the point made by Deputy Mulcahy about compliance, it is difficult to assess exactly whether member states are in compliance vis-à-vis Article 6, precisely because there is a level of detail as regards the non-proliferation obligations, especially when it comes to the additional safeguard agreements. The reports of the IAEA - the resolutions board reports or the submissions to the director general - on Iran are very specific about particular episodes. Judgments about Article 6 commitments are of a broader political character. It is difficult to define matters in black and white terms. What may be said is that following a period of encouraging progress, there has been very little or no progress in that area in recent times.
One matter on which I would take some issue with Deputy Michael D. Higgins is the question of the EU's common position. We can share all of this material with the members of the committee. In fairness, while the bulk of the common position, which was adopted on 27 April 2005, before the NPT review, related to non-proliferation-----

Deputy M. Higgins: That is right.

Mr. Montgomery:-----it contained a number of quite clear and specific------

Deputy M. Higgins: The issue was the balance. We will not argue about it now, but it is overwhelmingly balanced as regards non-proliferation.

Mr. Montgomery: That, however, relates to the nature of the treaty, where there is much more detail on the non-proliferation than on the disarmament side. However, the EU common position was not bad in that respect. It talks about a range of issues and again, commits itself to the comprehensive test ban treaty, the early inclusion of a treaty on fissile material as well as a whole range of other useful commitments. To be honest if what was in the EU common position had come out at the NPT review conference in May, that would not have been bad. I believe that covers most of the issues.

Chairman: We are now at the outer limit of our time. I thank Mr. Montgomery. As he can see from the members' responses and reactions, his explanation of matters is very helpful.

Deputy Mulcahy: We would welcome more technical briefings and documents if such are available.

Mr. Montgomery: I suggest that Mr. Adrian McDaid, here, is much more of an expert on all of this than I am, and he deals with these issues, full-time. If Deputy Mulcahy or the committee wants to make direct contact with him, vast amounts of briefing documents and papers in the public domain come to us, which we can share.

Chairman: I thank Mr. Montgomery and Mr. McDaid, as well, for coming before the committee today.

Mr. Allen: Mr. McDaid is the silent partner.

Chairman: The committee must now go into private session.