Commentary on Sections Section 9: International military operations and activities
51.This section provides defences for persons involved in conduct that takes place in the course of certain international military co-operation and operations with States not party to the Convention. This defence will be referred to in these notes as “the interoperability defence.”
52.The intent of the interoperability defence is to give effect to Article 21(3) of the Convention which is quoted in paragraph 44 above. Article 21(4) of the Convention qualifies Article 21(3) by stipulating that:
“Nothing in paragraph 3 of this Article shall authorize a State Party:(a)To develop, produce or otherwise acquire cluster munitions;(b)To itself stockpile or transfer cluster munitions;(c)To itself use cluster munitions; or(d)To expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control.”
53.Subsection (1) provides a defence (the interoperability defence) to a person charged with any offence specified in Schedule 2, paragraphs 1 to 6. Paragraphs 7 and 8 of Schedule 2 set out limits to the application of the defence in the case of offences relating to the use and transfer of prohibited munitions and offences relating to conduct by visiting forces (see subsection (6)). The interoperability defence is not available, in accordance with Article 21(4) of the Convention, if a person is charged with the offence of: using a prohibited munition; developing or producing a prohibited munition; acquiring a prohibited munition; making arrangements under which another person acquires a prohibited munition; or transferring a prohibited munition. For the interoperability defence to apply the conduct must be in the course of or for the purposes of an international military operation or an international military co-operation activity as defined in subsections (2) and (3). This reflects Article 21(3) of the Convention.
54.Subsection (2) defines an “international military operation” as any military operation with the following characteristics: it involves members of UK armed forces and the armed forces of one or more other States; at least one of the other States is not a party to the Convention; it involves (or might involve) conduct by armed forces of a State not a party to the Convention, or by persons under its authority, that, if it was done by armed forces of a State which is a party to the Convention, or by persons under its authority, would contravene the Convention.
55.Subsection (3) defines “an international military co-operation activity” as any activity, other than a military operation, with the following characteristics: it involves the UK and another State or States in which their governments co-operate for purposes related to the defence or the armed forces of either the UK or any of those States; at least one of the other States is not party to the Convention; it involves (or might involve) conduct by armed forces of a State not a party to the Convention (or by persons under its authority) that, if it were done by armed forces of a State which is a party to the Convention or by persons under that State’s authority, would contravene the Convention.
56.Subsections (4) and (5) provide that, if a question arises in any judicial or similar proceeding as to whether subsection (2)(a) or (3)(a) applies the certificate of the Secretary of State about any fact relating to the question will be conclusive evidence of that fact so far as the court or tribunal is concerned.
57.For the purposes of this section “Her Majesty’s armed forces” is to be given the same meaning as that given in the Armed Forces Act 2006 (subsection (7)). Subsection (7) also provides that a “military operation” includes any operation by a navy or an air force.