Cluster Munitions (Prohibitions) Act 2010

9 International military operations and activities

(1) It is a defence for a person charged with an offence specified in any of paragraphs 1 to 6 of Schedule 2 to show that the person’s conduct took place in the course of, or for the purposes of, an international military operation or an international military co-operation activity.

(2) A military operation is an international military operation if—

(a) both members of Her Majesty’s armed forces and members of the armed forces of one or more States other than the United Kingdom participate in the operation,

(b) at least one of the other States is not a party to the Convention, and

(c) the operation involves or might involve conduct by members of the armed forces of a State that is not a party to the Convention, or by other persons acting under the authority of such a State, which would be in contravention of the Convention if it were conduct by members of the armed forces of a State that is a party to the Convention or by other persons acting under the authority of such a State.

(3) An activity is an international military co-operation activity if—

(a) it is an activity, other than a military operation, undertaken in pursuance of co-operation between the government of the United Kingdom and the government of one or more States other than the United Kingdom for any purpose related to—

(i) the defence of the United Kingdom or any of those States, or

(ii) Her Majesty’s armed forces or the armed forces of any of those States,

(b) at least one of the other States is not a party to the Convention, and

(c) the activity involves or might involve conduct by members of the armed forces of a State that is not a party to the Convention, or by other persons acting under the authority of such a State, which would be in contravention of the Convention if it were conduct by members of the armed forces of a State that is a party to the Convention or by other persons acting under the authority of such a State.

(4) Subsection (5) applies if a question arises in any proceedings as to whether—

(a) subsection (2)(a) applies in relation to a military operation, or

(b) subsection (3)(a) applies in relation to an activity.

(5) A certificate issued by or under the authority of the Secretary of State stating any fact relating to that question is conclusive evidence of that fact.

(6) Paragraphs 7 and 8 of Schedule 2 make further provision about the application of the defence under subsection (1) in relation to particular offences specified in that Schedule.

(7) In this section—

• “Her Majesty’s armed forces” means any of Her Majesty’s forces within the meaning of the Armed Forces Act 2006;

• “military operation” includes any naval or air force operation.