Dáil Éireann debate -
Wednesday, 24 Oct 1973

Vol. 268 No. 4

Genocide Bill, 1973: Second and Subsequent Stages.

Minister for Justice (Mr. Cooney)

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to make certain changes in the criminal law which will enable this country to accede to the Genocide Convention— or, to give it its full title, the "Convention on the Prevention and Punishment of the Crime of Genocide"—which was adopted by the General Assembly of the United Nations on 9th December, 1948. The text of the convention is set out in full in the Schedule to the Bill.

"Genocide", as is well known to the house, is the name which has been adopted for the odious international crime which is defined in article II of the Genocide Convention. Article II reads as follows:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

There is no need to add to this definition or to rehearse the terrible crimes which caused the General Assembly of the United Nations to adopt the convention. I shall merely refer to the preamble of the convention, which reads as follows:—

The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world;

Recognising that at all periods of history genocide has inflicted great losses on humanity; and

being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,

Hereby agree as hereinafter provided ...

Then follow the various articles of the convention, which I shall summarise as far as is necessary for the purpose of the Bill.

Article I contains the confirmation of the contracting states that "genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."

Article II contains the definition of the crime of genocide which I have already quoted; and article III provides that genocide itself, together with complicity in it and with ancillary offences such as conspiracy to commit genocide, shall be punishable.

Article V contains the undertaking of the parties to enact the necessary legislation to give effect to the convention and, in particular, to provide effective penalties for offenders.

Article VI provides for the trial of offenders. Trials are to be either by the courts of the country where the offence has been committed or by such international penal tribunal as may have jurisdiction.

Article VII, which relates to extradition for genocide, is probably the most important provision for the purpose of the Bill. It reads as follows:—

Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

By article XI the convention was open for signature until the end of 1949 and was made subject to ratification. Since that time it has been open for accession on behalf of states which had not signed it.

The Convention came into force, in accordance with article XIII, on 12th January, 1951.

Up to now 78 countries have become parties to the convention, including almost all of the states of Western Europe.

In the Government's view it is highly desirable that this country should accede to the convention. To delay doing so any longer is likely to give the unfortunate impression that this country is lacking in interest in, and respect for, the objects of the convention. This is so especially when so many countries have become parties to it. It is right to say, and emphasise, that any such impression would be wholly mistaken and that the reason for the long delay in acceding to the convention has been quite different. The reason is that successive Governments, though entirely in sympathy with the objects of the convention, have hitherto felt difficulty about introducing the legislation which is necessary in order to give effect to the convention.

The difficulty is twofold. First, the very wide and general terms in which the offence of genocide is defined in article II are obviously out of line with the precision with which it has always been the practice to define offences in our legislation. Second and more important, the requirement in article VII that genocide shall not be considered as a political crime for the purpose of extradition involves a complete departure from the strict rule, at present contained in section 11 of the Extradition Act, 1965, that a person shall not be liable to be extradited for a political offence. The first difficulty, if it had stood alone, might have been avoided by not creating a new offence of genocide but relying on the offences in the existing criminal law on the ground that they cover the ground sufficiently. But owing to the requirement concerning extradition it is necessary, in any event, to include in the Bill provision relating to genocide and for this purpose to include the substance of the definition of genocide in article II.

It is noteworthy that in Britain, where the criminal law is basically similar to our own, the difficulties to which I have referred were regarded as so great that in 1962 the Government decided not to accede to the convention—a decision which was announced in the House of Commons on 18th July, 1962. Later, however, it was decided that it would be right to accede to the convention, and this was done after the necessary legislation had been enacted in the Genocide Act, 1969. The Government here are satisfied that the difficulties I have mentioned are outweighed by the considerations in favour of accession to the convention, and this Bill has been prepared accordingly.

I shall now summarise the provisions of the Bill, and in view of what I have already said I can do so briefly.

Section I defines the expression "the Genocide Convention" by reference to the Schedule to the Bill, where the text is set out. Although not all the articles are relevant for the purpose of the Bill, it will be convenient to have the complete text of the convention available in the same document as the Act.

Section 2 creates the offence of genocide as defined in article II of the convention and provides for the penalties. These will be the fixed penalty of imprisonment for life if the offence consists of the killing of any person and a maximum penalty of 14 years' imprisonment in other cases. These penalties have been selected as being adequate to comply with the obligation under article V to provide "effective penalties" for persons guilty of genocide. The section makes no provision as to the ancillary offences referred to in article III of the convention, because once genocide itself is made an offence under Irish law, it will follow, in the ordinary way, that the other acts mentioned will also be offences under that law. The section also provides that the consent of the Attorney General shall be necessary for a prosecution for genocide and that trials shall be before the Central Criminal Court.

Section 3 relates to extradition. The section does not provide for liability to extradition for an offence of genocide, because this will follow, by virtue of section 10 of the Extradition Act, 1965, under which offences involving at least one year's imprisonment are extraditable offences. It will, of course, be necessary, under section 8 of that Act, that an extradition agreement, or reciprocal facilities for extradition, should be in force between this country and the country seeking the extradition of the offender.

Subject to this requirement, subsection (1) of section 3 provides that genocide and the ancillary offences mentioned shall not be considered as political offences for the purposes of the Extradition Act. The result will be that the prohibition in section II of the Extradition Act of extradition to other countries generally, and the corresponding prohibition in section 44 of the Act of endorsing a British warrant of arrest for execution in this country, if the offence is a political one will not apply to offences of genocide. The subsection makes a similar exception, for these offences, from the rule that the procedure—which is still governed by provisions of the Extradition Acts of 1870 and 1873— for the compulsory taking of evidence in this country for the purpose of foreign criminal proceedings shall not be resorted to in the case of political offences.

Subsection (2) of section 3 provides that a person shall not be exempt from extradition for genocide or for an ancillary offence on the ground that, under the law in force at the time when, and in the place where, he is alleged to have committed the act in question, he could not have been punished for it. The subsection makes a similar provision in relation to the procedure which I have just mentioned for the compulsory taking of evidence for the purpose of foreign criminal proceedings. The subsection is not required, at least expressly, by any provision in the convention, but it is included because of the possibility that a person might be wanted by a foreign country for genocide committed at a time when its government was itself pursuing a policy of genocide and, therefore, what he did had been made lawful by that government. Unless the subsection is included, the offender might be able to frustrate the proceedings for extradition—or the compulsory taking of evidence—on the ground that it is a necessary condition that the conduct in question should have been an offence at the time and place where it occurred.

Section 4 to 7 are technical and I can deal with them very shortly. Sections 4 and 5 relate to courts-martial. Under the Defence Act, 1954, a person who commits an offence against the ordinary criminal law is thereby guilty also of an offence against military law. Section 4 provides that a person convicted by a court-martial of an offence of genocide shall be liable to the same punishment as is provided in the Bill in the case of a conviction before the Central Criminal Court. Section 5 excludes the offence of genocide from the jurisdiction of a limited court-martial and also provides that no court-martial shall have jurisdiction to try a person for genocide unless the offence was committed on active service. Section 6 adds genocide to the list of serious offences in respect of which the procedure available under section 13 of the Criminal Procedure Act, 1967, where the accused pleads guilty in the District Court to an indictable offence does not apply; and section 7 of the Bill adds genocide to the list of serious offences in respect of which, by section 29 of the 1967 Act, a person may not be admitted to bail except by order of the High Court.

With this explanation I hope that the Bill will commend itself to the House.

Mr. Andrews

The difficulty in which one finds oneself in Opposition on the Second Stage of a Bill is that one has not got a really adequate opportunity to scutinise and examine the Minister's Second Reading speech. While I appreciate that the Minister and other Ministers who were in Opposition in the past faced the same difficulty, perhaps the Minister, in conjunction with his collegues in Government, might consider the possibility of giving Opposition spokesmen a sight of a Second Reading script some 30 or 60 minutes before the introduction of that speech.

I can appreciate the difficulties involved. I can understand that if the Minister wanted to make a far-reaching statement relating to his Department, by being given a presight of the script Opposition spokesmen could pre-empt anything new the Minister might have to offer. The Minister might consider an honour system on the principle of confidentiality in relation to providing Opposition spokesmen with a sight of his script some time before the introduction of his Second Reading speech. This would make for a more informed debate and would raise the general tenor of the debate. However, in the context of this Bill I have no complaint because it formalises a convention on the prevention and punishment of the crime of genocide adopted by the General Assembly of the United Nations on 9th December, 1948.

The history of genocide is rather interesting. Apparently an American scholar of Polish extraction or Polish origin, Lemkin, is credited with having coined the term "genocide". He inspired and promoted action on the international plane to outlaw genocide. The origin of the word, which is a hybrid word, is "genos" from the Greek meaning race, nation or tribe, and the Latin suffix "cide". The realities of European life in the years 1933 to 1945, Lemkin said, called for the formulation of a legal concept on the destruction of human groups. Again, in 1946, under the impact of the crimes which had been revealed in the Nuremberg and other war crime trials, General Assembly of the United Nations affirmed as follows: That genocide is a crime under international law which the civilised world condemns and for the commission of which principals and accomplices are punishable.

Two years later the Assembly gave us what the Minister has brought into the House this afternoon. That was on December 9th, 1948. It became effective on January 12th, 1951. Many nations have become parties to that convention since then. It is interesting to note that the Minister states that the United Kingdom became a party to the convention in 1969 only. The Minister might inform us whether the United States of America are signatories to this convention. My information is that they are not.

In the words of the International Court of Justice, the convention was manifestly introduced for humanitarian and civilising purposes. Apparently in the convention the contracting states confirm that genocide, whether committed in time of peace or war, is a crime punishable under international law. The fact that the crime of genocide can be committed in time of peace or war distinguished the concept of genocide from that of "crimes against humanity" under the 1945 charter of the International tribunal—the Nuremberg tribunal which tried the major defeated warlords—as interpreted by that tribunal.

The Bill before us is desirable. It is formalising the convention. It is very helpful indeed that the convention was enshrined in the same cover as the Bill itself. This makes for easy reference from the Bill to the convention and, in other words, to learn what it is all about in an easy fashion. I do not know whether it was the Minister's intention to do that; if it was, it is a most helpful and progressive manner of presenting a Bill to the House, particularly as it relates to a particular convention.

There is one matter on which I should like to comment again. It comes back to the matter of receiving the Minister's Second Reading speech when he is getting to his feet to introduce it. This Bill did not find its way into the hands of Deputies until last Friday. If it were a more comprehensive and detailed Bill, in the time available from Friday, with the consequent interruption over the weekend having regard to one's constituency work, it would be very difficult to study the full implications of the various sections of the Bill. Luckily, however, it is what might be described as a short Bill. Nevertheless it does not take away from its importance as a Bill. It will be effectively the law of the country when it is signed by the President in the not-too-distant future.

Genocide is a foul crime which seeks to corrupt and pervert the fundamental relationship between nation and nation, between ethnic group and ethnic group, between racial group and racial group and between man and man, no matter what religious belief, colour or creed is represented. It is based on hate, mistrust and, by definition, irrationality. Wrong reason is apparently the criteria.

I believe that any person or group of persons who attempt to make the case that genocide can, in some sophisticated fashion, be justified is sick and perverted and society, national and international, should be protected from such persons or group of persons. We understand that this Bill seeks to give nations such protection. The Concise Oxford Dictionary defines "genocide" as follows: "The extermination of a race". The Oxford English Dictionary, Supplement A to G, defines it as "a deliberate and systematic extermination of the ethnic or national group". This is the accepted layman's understanding of the word. As the Minister stated in his Second Reading speech, this Bill would appear to be giving a far wider and broader meaning. While in no way whatsoever condoning the offence of genocide as set out in the convention, perhaps the Minister would specifically deal with the reasons for the board scope on the matter of definition as set out in the Bill.

It would be as well to define again Article 2, which is the definition section:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

I think "as such" is an important expression.

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

I understand that the definition as outlined by me in Article 2 of the Convention will have like effect in the Bill. Again the Minister might clarify that point briefly in his reply.

We are parties to other conventions. These conventions have the aim of protecting human life and human rights. Nothing in this Bill can operate to defeat the aims and intentions of any other convention—for example, the Convention on Human Rights and the European Convention on Extradition. When the Minister is replying he might clear up this matter for me. I repeat that the present Bill and Convention in no way contravene our obligations under the two conventions mentioned.

To save time on the Committee Stage it will be my intention to cooperate with the Minister in having this Bill dealt with in the Dáil this afternoon. I will cut short anything I might have to say on Committee Stage by making my offering now on Second Stage, subject to the permission of the Ceann Comhairle.

A person guilty of an offence of genocide shall, on indictment in cases where the offence consists of the killing of any person, be sentenced to imprisonment for life, and in any other case be liable to imprisonment for a term not exceeding 14 years. The law is quite clear there. The protections of the law are there and are adequate to meet the offence of killing any person. Equally, referring to Article 2 of the convention, which becomes part of the definition section of the Bill, killing members of the group is provided for in our existing law; causing serious bodily or mental harm to members of the group is provided for in Irish law; causing bodily harm to any person is an indictable offence, and any person who causes such grevious bodily harm, on being found guilty, is liable to the full rigours of our legal system. In regard to deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group, I believe, the protections are there in our existing law. This specific provision is to deal with the law between nation and nation. The Minister might clear that point for the benefit of the House.

As the Minister stated, the sections following section 3 are consequential and procedural. On close scrutiny we have found nothing we can raise on these sections. They are all matters which follow from the need to amend the Defence Act of 1954 and the Criminal Procedure Act of 1967. The convention is a well intentioned convention. It is a convention which was introduced in the spirit of the times. The second World War was coming to its conclusion and the people who intended to bring in this convention were making an effort to prevent in future the tragic occurrences of that period. Small as we are as a nation we are still equal partners with the other nations in the United Nations and over the years we have had and been found to have an influential voice in that particular forum: anything we can do as a nation to prevent the crime of genocide, or help in its prevention, we have a moral obligation to do. It is on those grounds that our contempt is based for any individual or group of individuals who seek to set one individual or group of individuals against another individual or group of individuals on the grounds of race, colour or religion. We consider any such exercise a reprehensible act and any individual or group who attempt such an act or seek to bring about such a situation should be dealt with to the fullest possible extent in the context of the law as it stands in relation to that particular crime. It is on these grounds we welcome this Bill as a necessary measure to enable us to fulfil our obligations as full and equal partners within the context of the Charter of the United Nations.

Mr. Briscoe

I, too, welcome the Bill, but I should like to ask the Minister a few questions. We are all agreed with the sentiment expressed in the Bill. In the course of his speech the Minister said:

... Subsection (2) of section 3 provides that a person shall not be exempt from extradition for genocide or for an ancillary offence on the ground that, under the law in force at the time when, and in the place where, he is alleged to have committed the act in question, he could not have been punished for it.

Do I understand that if genocide occurs as a policy of a country or with the acquiescence of a country the person responsible will not be subject to international law? I am not quite sure what the interpretation is. I think the person would be subject to international law but I should like to have the Minister's clarification of the point.

I should also like to know to what extent minorities in other countries, which even at this point of time are subject to persecution, can be protected. In some cases they are subject to genocide. Do we have extradition treaties with all the 78 countries and, if we do not, is it the intention of the Government to conclude extradition treaties with those countries with which we do not have such treaties at the moment? Is this merely a pious expression or will it have a real effect in law?

Mr. Cooney

I thank the Members opposite for their contributions. I sympathise with Deputy Andrews' point with regard to the time at which he got the Bill but I must say the shortness of the period did not prevent him making a contribution indicative of a great deal of interest by himself and by others at his direction in the terms of the Bill. He raised a number of points of interest.

The Bill, as he said, was circulated only on Friday and that may seem prima facie to be a short period but Deputy Andrews knows that, if a longer period were required to study the measure prior to Second Reading, that would have been available since this is not an urgent measure. The knowledge Deputy Andrews brought to the debate indicates that he certainly made a close study of the measure.

It is regrettable that in the middle of this, the 20th century, there is necessity for a convention on genocide. It is a reflection on the lack of progress of mankind towards reaching a civilised state that in this so-called enlightened century horrible crimes of genocide have been perpetrated. It is fair to say, looking at the appalling evolution in some areas, that the motive for these crimes was an adherence to a doctrine of nationalism and its pursuit either in the form of colonialism or aggressive nationalism. That has been the inspiration or the motivation for these crimes committed in this century. That is another reason why we in this country should continue to look askance at a doctrine of narrow nationalism. That doctrine has brought much harm to the world without any of the benefits that, in theory, it should bring.

The Bill does not contravene the Declaration of Human Rights. It actually supports that declaration and adds weight to our acceptance of it by confirming our full agreement with the spirit of the declaration. The protection of people on an ethnic basis is a human right just as much as is the protection of the individual. In that sense it is on all-fours with the Convention on Human Rights and the Declaration of Human Rights. It adds weight to our support and is entirely consistent with our views in regard to that particular declaration. Neither does it contravene the European Convention on Extradition. The exemption provided for in section 3 merely provides that a person shall not put up as a defence to being extradited the plea that genocide is a political offence. That is all that is provided there. It is common cause that the offence of genocide is so horrible and so abhorrent that this is a plea that should be removed from a person accused of that offence. Guilt or innocence is a separate matter, but certainly the political exemption normal to the extradition code should not be availed of where the crime complained of is that of genocide. It is a normal requirement of the extradition code that the offence in respect of which extradition is sought should be an offence punishable under the law of both countries, the country seeking extradition and the country giving extradition.

The point which Deputy Briscoe raised on page 6 is to get over that difficulty in this case. It provides that a person may be extradited for genocide even though it might not, strictly speaking, be a crime punishable in both countries, as is normally required in an extradition code, and there is nothing unusual in making that provision. It would make our accession and the convention somewhat pointless if that exemption were not also closed off. It follows from closing off the exemption in favour of political crime.

Mr. Wilson

Is there not a certain exercise of judgement on the part of the country from which the person is being extradited? Has there to be a judicial kind of procedure in the country?

Mr. Cooney

How a person will be extradited will depend on the law relating to extradition in that country. Most extradition laws give a right to the person whose extradition is sought to go to the courts in the land to see if they are satisfied that the offence is properly extraditable. It is not entirely an executive decision; the judicial process also comes into it.

Mr. Wilson

What happens if the judge or the court decides that the person has a case to answer?

Mr. Cooney

This is inherent in every extradition procedure. The very fact that a warrant issues could be interpreted as a prima facie case. A trial has to take place and all that happens is that a warrant or a summons is issued alleging the offence.

Deputy Andrews asked if the United States had become a party, but my information is that by January 1st this year they had not acceded. Whether they have acceded in the meantime I am unable to say.

Mr. Briscoe

Would it be possible for the Minister to circulate a list of the countries that are parties to this convention?

Mr. Cooney

That information can be obtained and circulated. We have extradition treaties with about 13 countries. There are some countries who have acceded to this convention with whom we have not got extradition arrangements. The question of accession is for the national conscience of an individual nation. Our conscience, perhaps, might appear to be blunt having regard to the length of time it has taken us to introduce this Bill. This should not be interpreted as meaning that we are in any way disposed at all or that we could be held in any way not to be firm on this subject. Any civilised nation must abhor the offence of genocide.

The offence of genocide is purposely, and I think rightly, defined wider in the convention than in the strict literal meaning of the word as would be found in a dictionary as quoted by Deputy Andrews. The offence in the convention is more than killing—it is causing harm to groups or the bringing about of conditions of life that could injure a group, imposing measures intended to prevent births within the group or transferring children of the group to another group. These are all designed to harm ethnic or other groupings and the crime is wider in the convention than the literal definition of the word "genocide" presupposes.

There is not anything else I have to say. I believe I have covered the points raised by the speakers opposite. Deputy Andrews made the point that it would be helpful to speakers opposite to have Ministers' scripts some time in advance of the speech and possibly on the basis of confidentiality. This raises political questions of some delicacy, to put it no stronger than that, but I have no doubt that in cases such as the Genocide Bill it would be possible to accede to the Deputy's request.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill put through Committee, reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Wilson

Where the legal system would be the same in the country from which the extradition is being made as the country to which the person is being extradited this would not be quite so serious, but if the legal system was not the same the very fact of extradition might even weigh more heavily against a person who is extradited when he would come up for trial in that particular country.

Mr. Cooney

I suppose, if one was to compare legal systems, we could say ours is the best and that a person going from ours to another part of the world might be in an inferior position. The contrary could also be alleged by a person in that part of the world. We normally have extradition arrangements with countries where we are satisfied that the rule of law will prevail.

Question put and agreed to.