Amendments Nos. 1 and 2 are related and may be discussed together by agreement.
International War Crimes Tribunals Bill, 1997: Report and Final Stages.
Dr. Upton
I move amendment No. 1:
In page 5, line 26, after "(1993)" to insert "of 25 May 1993".
These amendments simply seek to insert in the Bill the dates of the two UN resolutions which we are implementing. This is in line with normal practice. I understand the Minister did not accept the validity of this point on Committee Stage, but I ask him to reconsider what I am suggesting.
The phrases used in section 2, namely, Resolution 827 (1993) and Resolution 955 (1994), is the accepted way in which UN resolutions are identified and referred to. It is the identifying method used by the UN and other countries. For example, the British, Australian, New Zealand and German legislation enacted to give effect to the Yugoslavia and Rwanda tribunals identify the resolutions in this way. Readers of the Bill interested in knowing the actual dates on which the resolutions were passed will find them in the First and Second Schedules to the Bill where the texts of the resolutions are set out.
Since Committee Stage I have again examined whether any useful purpose would be served by inserting the dates of the resolutions. Following that examination I have concluded that to include the dates as proposed by Deputy Upton would create an undesirable precedent and the proposed amendments are accordingly opposed.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Amendment No. 3 arises out of the Committee Stage proceedings and seeks that the word proposed to be deleted stands.
Dr. Upton
I move amendment No. 3:
In page 8, line 4, to delete "commencement" and substitute "passing".
This is a drafting amendment. As there is no commencement section the Bill comes into operation on passing. Therefore the term "passing" is more appropriate than "commencement". While I did not press this amendment with great vigour on Committee Stage, I am advised it is legally correct and I urge the Minister to accept it.
The amendment proposed by Deputy Upton to section 5 of the Bill is of a drafting nature. I consulted with the parliamentary draftsman's office which advised it was unnecessary.
(Mayo): While the amendment may not be necessary, it has merit from the point of view of clarity. I do not understand why the Minister cannot accept the amendment and the technical point it makes in regard to the difference between ‘commencement’ and ‘passing’.
This legislation will effectively result in the establishment of two international war crime tribunals, one to deal with the situation in Bosnia and the other with that in Rwanda. We have witnessed appalling atrocities in Rwanda with some 800,000 people dead. In Bosnia, 200,000 people had died before the Second Stage debate; that number had increased by Committee Stage and, in light of the Kosovo massacres, has now increased even further. We effectively appear to be closing the door after the horse has bolted.
I made the point on Committee Stage that we expected these kinds of crimes to cease after the Holocaust and the Nuremberg Trials. Since then, we have witnessed a series of international atrocities where people like Idi Amin have effectively gone unpunished. In regard to the Central African Republic, Emperor Bokassa, installed by the outgoing imperialists, carried out appalling atrocities but no sanctions were imposed on him. I had the pleasure of visiting Cambodia to assist in the supervision of elections there and witnessed a people with a proud and sad past still experiencing the ravages and suffering of the Pol Pot regime.
An international war crimes tribunal was to be established last June in an attempt to end the ad hoc approach we are witnessing here with tribunals being set up after hundreds of thousands of people have been brutalised. A permanent international war crimes tribunal was to be put in place which would deal with individual cases as they arose and also act as a deterrent to such atrocities occurring in the future. We should be talking about the international war crimes tribunal which has effectively been agreed by the international community but has not yet been established. If the tribunal had been in place, much of the current bloodshed and barbarism in Kosovo might have been avoided.
I pay tribute to The Irish Times which highlighted the situation in Algeria week after week, chronicling atrocities such as the cutting of 11 Algerians' throats. Thousands of Algerians were physically and mentally maimed, thus destroying the spirit of a nation. One article points out that in a normal country, a government would be free to resign but people in Algeria were left to suffer and die in silence. Algerians asked why the authorities allowed massacres to occur. One headline informs us that attackers, screaming like jackals, massacred 87 people and injured 100 others in a three hour ordeal. Another states that attackers drilled holes in people's hands and bodies with electric drills and burned their beards. An exarmy conscript admitted to being part of the regime which saw many villagers tortured and murdered. Unspeakable barbarities were carried out in Algeria with babies being thrown into cauldrons and pregnant women having their entrails turned out on the desert sand.
There seems to be a lingering commitment to the establishment of an international war crimes tribunal. A series of deadlines were laid down, of which last June was to be the definitive one, yet nothing tangible appears to be happening. I welcome the establishment of these two tribunals and believe they are very important as they are beginning to bring the perpetrators of these war crimes to justice. However, a permanent institution must be put in place to deal with problems as they arise and act as a clear deterrent to anyone who might contemplate committing such atrocities.
I empathise with the comments made by Deputy Higgins in regard to the necessity for a permanent international war crimes tribunal. It is fair to say that successive Governments have campaigned for the establishment of such a tribunal. The two current tribunals are ad hoc ones set up to deal with atrocities in former Yugoslavia and Rwanda.
Since publication of the Bill, negotiations to set up a permanent international court have been successfully concluded. The establishment of such a court has been mooted for the best part of 50 years. In June and July, the diplomatic conference in Rome adopted a statute for the establishment of a permanent court and I am pleased to inform Deputy Higgins that it will be based in The Hague. This is a very significant development. The statute will enter into force once it has been ratified by 60 countries. Coincidentally, the statute is due to be signed on Ireland's behalf at a signing ceremony in Rome today. I am confident the establishment of this independent permanent court will eliminate the need for the establishment of ad hoc tribunals into the future. However, should such a need arise, it can be dealt with under section 37 of the Bill.
Dr. Upton
I agree with the points made by Deputy Higgins and the Minister in regard to the appalling atrocities which have occurred. This Bill goes some way towards dealing with those and, while I hope it is unlikely that a large number of war criminals will turn up in Ireland, it is important we have the necessary legislation in place to deal with such an eventuality.
Perhaps the Minister will reconsider the position he has taken on the amendment. I doubt the future of the world will hinge on whether he accepts it but perhaps he will do so as a gesture of goodwill.
Unfortunately, the solid legal advice available to me is that the amendment is unnecessary. I regret, therefore, I cannot accept it.
Amendment, by leave, withdrawn.
Dr. Upton
I move amendment No. 4:
In page 8, line 25, after "made," to insert "and upon the Court being satisfied that such certificate has been presented in accordance with this Act,".
This amendment is intended to remedy what seems to be a clear unconstitutionality in the Bill. Section 9 states that on being given a Minister's certificate the court shall make an arrest order. This seems to fly in the face of repeated court decisions on the powers of the courts and their independence, especially in regard to the Sinn Féin funds case in 1950. In addition, the Minister's certificate may contravene the recent ruling in the case of the Employment Equality Bill. The amendment would introduce a degree of discretion which may save the section from a finding of unconstitutionality.
On Committee Stage, the Minister of State said the amendment was of a drafting nature. I presume that is an oversight.
No.
Dr. Upton
I hope the Minister will accept that there is rather more to it than that it is of a drafting nature. It is highly undesirable that a Minister can order arrests without the intervention of the court. There is a very strong risk that this section will be found to be unconstitutional.
The situation is much the same as that in regard to amendment No. 3. We consulted the parliamentary draftsman who advised that the amendment was not necessary. However, I would not want Deputy Upton to feel, at this early stage of the proceedings, that all his amendments will be rejected.
Dr. Upton
The Minister is quite right when he says it is of a drafting nature. Every amendment has an element of drafting, otherwise it would not be on the paper. In that sense what the Minister is telling me is like telling me today is Wednesday. However, I take the point. Sometimes, as we would all acknowledge, it is necessary to state the obvious. I appeal to the Minister to reconsider this. The risk that the section will be found unconstitutional is quite high. Also, it is undesirable that a Minister should be able to make arrest orders without the intervention of the court.
Acting Chairman
In summary, on Report Stage each Member may speak once only on each amendment. The proposer make speak a second time in reply. There is also a procedure for a further two-minute intervention by any Member, including the proposer and the Minister. I thought it appropriate to remind the House of the rules agreed in the recent modification of Standing Orders. Does the Minister wish to come in? Deputy Upton will have the right of reply.
Deputy Upton said that sometimes it is necessary to state the obvious. The converse of that is also true. It is obvious that what is necessary must be outlined. The problem is that Deputy Upton's amendment is of a drafting nature and the parliamentary draftsman has advised that it is not necessary. In those circumstances I regret the amendment cannot be accepted.
Dr. Upton
Lest we get into some truly terrifying word game, I withdraw the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
We now come to amendment No. 5 in the name of Deputy Upton. Amendment No. 6 is cognate. Is it agreed that amendments Nos. 5 and 6 be taken together? Agreed.
Dr. Upton
I move amendment No. 5:
In page 9, line 43, to delete "Minister" and substitute "High Court".
These amendments are necessary for constitutional reasons. It is wrong to allow a Minister to cancel a court order. The cancellation of a court order which requires the arrest of a person should be ordered by the court itself.
The Minister's reply was that the matter is based on the Extradition Act. It would seem appropriate to change the Extradition Act rather than use it as a basis for broadening an undesirable feature of legislation.
As I explained on Committee Stage, the framing of section 11(3) follows the precedent established in the Extradition Act, 1965. As I explained in my Second Stage speech, this Bill is modelled closely on our general extradition legislation. Section 27(5) of the 1965 Act provides that where the judge issues a warrant for the provisional arrest of a person he shall inform the Minister who may, if he thinks fit, order the warrant to be cancelled and the person arrested under it to be released. This is pursuant to the Minister's general power to refuse extradition and to release a person from custody contained in section 35 of the 1965 Act. The power given to the Minister by subsection (3) of section 11 follows from the general power to release given to the Minister by section 22.
The reason the power is given to the Minister is so that action to set a person free or to prevent him or her being arrested can be taken immediately such action is necessary where, for example, the Minister is informed by the International Tribunal that it is no longer interested in a particular individual and will not be pursuing a request for his or her surrender. The proposed amendments are, therefore, opposed.
Dr. Upton
I will not press the amendment. We have been over the track already.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
The next amendment is amendment No. 7 in the name of the Minister. Amendment No. 9 is consequential on it. Amendments Nos. 8 and 13 are related. Is it agreed to take amendments Nos. 7, 8, 9 and 13 together? Agreed. Recommittal is necessary in respect of this and the other related amendments as they do not arise out of committee proceedings.
Bill recommitted in respect of amendments Nos. 7, 8 and 9.
I move amendment No. 7:
In page 10, to delete lines 1 and 2 and substitute the following:
(b) if the warrant has been executed and the person arrested under it is in custody, require that he or she be released.".
In moving this amendment I am also accepting amendments Nos. 8 and 13 in the name of Deputy Upton. Amendment No. 9 is consequential on these amendments. I am accepting Deputy Upton's amendment No. 8 because the provision as it stands in conjunction with section 15 would mean that the Bill would be excluded, even in the case of persons who are only suspected of war crimes but not yet charged or convicted. In some instances this could be seen as unacceptable in the particular circumstances of the case. Under the provision as amended by acceptance of the proposed amendment No. 8 it will be for the High Court to decide whether the person arrested shall be detained having regard to all of the circumstances of the case, including the international obligation imposed by the tribunal Statute to co-operate with the tribunal in its investigation and the fact that the application is made on the ground of urgency with the implication that if the person is not detained he or she may flee the country.
The acceptance of amendment No. 8 means that amendment No. 13, which is consequential on my accepting amendment No. 8, is also accepted. My own amendments Nos. 7 and 9 arise from the acceptance of amendments Nos. 8 and 13 from Deputy Upton. Section 11(3)(b) and section 13(2) of the Bill were drafted on the basis that all persons would be remanded in custody. Given that I am accepting amendments Nos. 8 and 13 this will not now be the case. Accordingly, amendments Nos. 7 and 9 which are purely drafting amendments are necessary.
Dr. Upton
I thank the Minister for accepting the two amendments. It is a very wise and good decision. While the provision for bail is now being included in the Act, and that is desirable, neither I nor anybody in the House would encourage giving bail to war criminals. However, it is important that the provision be there to meet the constitutional requirements. I thank the Minister for accepting the two amendments.
Amendment agreed to.
Dr. Upton
I move amendment No. 8:
In page 10, line 26, to delete "in custody".
Amendment agreed to.
Dr. Upton
I move amendment No. 9:
In page 10, lines 32 and 33, to delete "be released if not released earlier under section 11(3)(b)." and substitute, "if in custody, be released.".
Amendment agreed to.
Amendments Nos. 7, 8 and 9 reported.
Dr. Upton
I move amendment No. 10:
In page 10, line 43, to delete "shall" and substitute "may".
This amendment provides that the court may remand a person in custody rather than that it shall do so, thus preserving the right to bail in appropriate circumstances. This point has already been largely covered in the previous four amendments. I will, therefore, withdraw the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 11 is out of order as it does not arise out of Committee proceedings. However, if the Deputy wishes it to be recommitted that can be done.
Bill recommitted in respect of amendment No. 11.
Dr. Upton
I move amendment No. 11:
In page 10, line 43, after "subsection (2)" to insert "and section 15".
The purpose of this amendment is in broad accord with the other amendments. While I have proposed that it be recommitted, I am simply doing that to cover a formality and I do not intend to press it any further. The substance of the amendment has already been covered.
My reply is in broad accord with some of my earlier replies. The draftsman's office was asked to comment on this and he stated the amendment was unnecessary. In those circumstances, I regret that it cannot be accepted.
Acting Chairman
Is the amendment being withdrawn?
Dr. Upton
Yes, it was tabled on a contingency basis. As I said, its substance has already been covered.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments No. 14 and 15 are consequential on amendment No. 12 and all may be discussed together by agreement. Is that agreed? Agreed.
Dr. Upton
I move amendment No. 12:
In page 11, to delete lines 20 to 22.
Under the Constitution, all High Court decisions can be appealed to the Supreme Court, save where restricted by law. This subsection purports to limit appeals in these important criminal custody cases, save on a point of law, which I believe is wrong. An important issue, such as personal liberty, should always be capable of being made the subject of a full appeal. Accordingly, I am proposing to delete section 14(5). It is also worth noting that this provision restricts the prosecution as well as the defence and could be a major liability in years to come.
Amendments Nos. 14 and 15 are complementary and need nothing further to be added.
The amendment proposed to section 14 by the deletion of subsection (5) is opposed. If that amendment fails, the proposed amendments to sections 18 and 19 will fall as a consequence.
The deletion of section 14(5) would fly in the face of established practice in extradition generally. Section 29 of the Extradition Act, 1965, provides that no appeal shall lie against the decision of the court committing a person to prison, there to await the order of the Minister for his extradition.
In regard to similar orders under section 14 it was decided because of the nature of the international tribunals and the serious issues which could be involved, that an appeal on a point of law should be allowed. However, while an ordinary appeal will not be available to the person who has been committed to await his or her surrender, it will be open to that person to make a complaint under Article 44.2 of the Constitution. He or she will have been specifically informed by the High Court of his or her right to make such a complaint. That fact, and the possibility of an appeal on a point of law, constitutes adequate safeguards for the person and I do not accept that anything more is needed.
As I mentioned, if subsection (5) remains, the amendments proposed to sections 18 and 19 fall as a consequence.
Amendment, by leave, withdrawn.
Bill recommitted in respect of amendment No. 13.
Dr. Upton
I move amendment No. 13:
In page 11, line 26, to delete "Subject to section 13, the" and substitute "The".
I accept the amendment.
Amendment agreed to.
Amendment reported.
Amendments Nos. 14 and 15 not moved.
Dr. Upton
I move amendment No. 16:
In page 16, line 3, after "The" to insert "Attorney General and the".
This is a technical amendment. The Attorney General has certain prosecution functions by statute. In addition, case law has made clear that the DPP's powers are in addition to the Attorney General's powers under the Constitution. Therefore, the Attorney General should be included in this section because he has a right of prosecution.
This amendment is opposed. The Director of Public Prosecutions will be the prosecuting authority for the crimes we are concerned about in the event of a prosecution being considered in relation to a person found in this country. There is no need to involve the Attorney General.
A case might arise where the consent of the Attorney General might be required before a prosecution could be mounted but there is no need to refer to such cases. The Attorney General, as chief law officer and conscious of the international obligation imposed on the State to assist and co-operate with the international tribunal, would clearly have regard to that aspect when considering whether to give his consent.
Amendment, by leave, withdrawn.
Dr. Upton
I move amendment No. 17:
In page 17, line 2, to delete "Minister" and substitute "Commissioner of the Garda Síochána".
The section provides that the Minister can order a garda to apply for a search warrant. That is highly unusual and highly undesirable. Any orders to a garda should come down through the ranks from the Garda Commissioner. The Minister cited on Committee Stage a precedent from 1994 but it is a highly undesirable precedent which should be changed.
Has the Minister consulted the Garda on its attitude to this matter being included in the Bill? It allows for the Minister to some extent to politicise the Garda, which is highly undesirable. I am not suggesting for a minute that this is a serious risk, given the type of matter about which we are talking, but there is an important matter of principle involved. It is very undesirable for the Minister to take upon himself powers to engage in day to day Garda functions which are rightly within the control, and at the discretion, of the Garda Commissioner and the various officers down the line from him.
On face value, Deputy Upton might be thought to have an argument but he does not have one. The provision that search warrants may be applied for only after a direction by the Minister follows from the fact that it is to the Minister that the international tribunal will address any requests for assistance and co-operation or any requests for surrender or provisional arrest of persons sought by it.
It is necessary that the Minister, the representative of the Government on whom the statutes of the tribunal impose the obligation of co-operation with the tribunals, should have a general supervisory role over action taken in aid of the tribunals. If difficulties arise in connection with any requests for assistance from a tribunal, or if there is a need for further information or clarification, the Minister of the day should be the one to deal with the tribunals.
Incidentally, the provision is not new. There is a similar provision in section 55 of the Criminal Justice Act, 1994. This deals with search warrants in regard to materials sought in connection with investigations arising out of criminal proceedings in other states with which we have judicial co-operation agreements. In section 55, as in section 30 of this Bill, applications for search warrants can be made only after a direction by the Minister given in response to a request for assistance from a foreign government.
In reply to Deputy Upton's query, I did not consult the Garda on this section. There was no need to do so and I trust my explanation fully outlines why that was the case.
Dr. Upton
I accept the technical reasons put forward by the Minister — they are plausible when stated in the context he mentioned. However, it would have been desirable to obtain the views of the Garda on this matter. There is an important principle at stake here in relation to the power given to the Minister to direct the Garda, which is highly undesirable. I will not press the amendment but it would have been desirable to have found some way around the difficulty rather than leaving the power with the Minister to direct the Garda in what one might call operational matters.
Amendment, by leave, withdrawn.
Bill recommitted in respect of amendment No. 18.
Dr. Upton
I move amendment No. 18:
In page 20, after line 39, to insert the following:
"37. — The Minister shall notify each House of the Oireachtas within two months after the passing of this Act of the implications of the Act for the Attorney General's scheme of legal aid.".
The purpose of the amendment is to highlight that there is no reference in the Bill to legal aid. We propose that the Attorney General's scheme of legal aid should be amended to cover this Act. Perhaps the Minister can clear the ambiguity and let us know the exact position on this. It is not something I would envisage being of great importance but circumstances might arise where it would be relevant and I would like to hear the Minister's response.
At face value I was not sure what the amendment sought to achieve but Deputy Upton has elaborated on that. The Attorney General's scheme of legal aid is nonstatutory and it would be inappropriate to refer to it in this statute, as the amendment proposes. The principle of providing legal aid is wellestablished and I assure the Deputy that an appropriate scheme of legal aid will be put in place to deal with applications under this Bill. Pending a policy decision on the appropriate scheme for this purpose ad hoc arrangements will have to apply. The amendment is opposed for the reasons outlined.
Dr. Upton
I accept the Minister's point and am glad he has clarified the issue. I do not propose to press the amendment. As I understand what he said, it is possible that legal aid would extend to these people if necessary and at the discretion of the appropriate person.
Amendment, by leave, withdrawn.
Dr. Upton
I move amendment No. 19:
In page 21, line 4, after "Nations" to insert "or any organ thereof".
This is a drafting amendment designed to reflect that a tribunal may be set up by an organ of the United Nations — for example, the Security Council — rather than the UN as a whole. In responding on Committee Stage the Minister of State, Deputy Wallace, did not accept this amendment but I was not happy with her response. I ask the Minister to reconsider it.
The addition proposed by this amendment is not considered appropriate. I am not clear what "any organ thereof" means in this context. The Bill envisages that the Minister may make regulations declaring any tribunal and court established by the United Nations to be an international tribunal for the purposes of the Act. The two ad hoc tribunals we are dealing with were established by resolutions of the Security Council and if further ad hoc tribunals are established it will presumably be through the Security Council also. They will clearly come within the phrase “established by the United Nations” and nothing more is needed. In those circumstances the amendment is opposed.
Amendment, by leave, withdrawn.
Dr. Upton
I move amendment No. 20:
In page 21, to delete lines 8 to 11.
This amendment removes the Minister's power to amend the Bill by regulation. Even though the regulations would have to be approved by the Oireachtas I believe this is a highly dubious and undesirable power. It is probably unconstitutional also, having regard to the Supreme Court decisions in cases such as Cooke v. Walsh and Cityview Press v. AnCO.
If further tribunals are to be established it is to be expected that they will follow the form of the Yugoslavia and Rwanda tribunals, so that this legislation can be applied with minor modifications made by regulation, thus obviating the need for separate legislation. That is the purpose of section 37(1)(b) which the proposed amendment would delete. This provision can be found in other legislation; for example section 56 of the Criminal Justice Act, 1994 has a similar provision to that in this Bill, and no question was or has been raised about that. Any regulations made under section 37(1)(b) would have to be approved by both Houses before they could take effect. This is a safeguard against any unduly wide exercise of the regulation-making power. I believe this is a useful provision which should be retained. The amendment is opposed.
Amendment, by leave, withdrawn.
Bill, reported, with amendment, and passed.