I move: "That the Bill be now read a Second Time."
I apologise to all the staff being dragged in here at this hour on a Thursday evening.
The Bill will provide for a universal jurisdiction of human rights; enable the charging and conviction of persons who breach international human rights law in cases of, but not limited to, genocide, war crimes, torture and crimes against humanity, whether these breaches have occurred inside or outside the State; and, for these purposes, amend the Criminal Justice (United Nations Convention against Torture) Act 2000 and the International Criminal Court Act 2006.
The principle of universal jurisdiction is an essential tool to reduce the unevenness in the sphere of international justice. Currently, officials and decision makers from powerful states are at a remove from justice, while those from weaker states are not afforded this unfortunate layer of protection. The responsible use of universal jurisdiction is essential if we are to work towards a world in which crimes against humanity do not go unpunished, no matter where the perpetrators come from.
The jurisdiction of the International Criminal Court is limited, with only 110 states parties. The Rome Statute of the ICC is not universally ratified and it does not have jurisdiction over crimes committed before July 2002. Without the principle of universal jurisdiction, this situation leaves us with safe havens all around the world and no justice for crimes committed over 15 years ago. These are just the technical issues, completely overshadowed by the political reality that the ICC is being, and has been, strangled by the UN Security Council and that it is no longer fit for purpose. The veto powers have corrupted both the council and the ICC so that the acceptable face of terrorism - the US, the UK, France, NATO and others - can protect themselves from justice.
Universal jurisdiction plays a central role in the enforcement of international humanitarian law and the conditions for opening criminal proceedings or justifying a refusal to open them must be clearly defined at national level. It is essential that the legislation be properly used to prosecute war crimes, using both national and extraterritorial jurisdiction.
We have the Geneva Conventions, the United Nations Charter, the Universal Declaration of Human Rights, the Convention on the Rights of the Child and many other fundamentally important laws that are abused every day, so often without consequence. The world order to which successive complicit, right-wing Governments of Ireland have unfortunately subscribed, whereby, to paraphrase Denis Halliday, powerful states use military might to make the rules for their exploitive, political and natural resource greed, is palpable and explosive in the Middle-East, Africa and elsewhere, and makes a mockery of the notion of international justice and accountability.
In 1984, the United Nations Convention against Torture was signed by all nations bar a small handful. In recent years, we have seen the travesty of Abu Ghraib, the CIA dark site prisons, Guantánamo Bay, the rendition programme and the CIA torture report, and there has been no justice. About four years ago, a debate even opened in America about the legitimacy of torture. The current US President, the man our leader is going over to have an awkward handshake with next week - said that torture "absolutely" works. This is an insane situation. We are moving backwards and humanitarian law is not being upheld. Torture is a crime under any circumstances, irrespective of whether one calls it "enhanced interrogation techniques" or something equally ridiculous. Perpetrators cannot continue to operate with immunity.
The most glaring case of top-down institutional torture in recent years is, sadly, one in which Ireland played a part by allowing the American military the use of Shannon Airport, yet no one has faced justice for the crimes surrounding the Iraq and Afghanistan invasions and the ICC refuses to carry out its function in this respect despite a wealth of evidence.
In 2005, the Prime Minister of Malaysia appointed a war crimes commission to investigate, among other matters, crimes of torture. The former co-ordinator of the UN humanitarian programme in Iraq, Denis Halliday, was a member of the commission. The trial held in Kuala Lumpur heard harrowing witness accounts from victims of torture who suffered at the hands of US soldiers and contractors in Iraq and Afghanistan. The commission met many victims of torture who had been detained in the prisons of Bagram, Abu Ghraib and Guantánamo. These included Satar Jabar, the man in the now infamous photo of the tortured man in the hood.
In May 2012, the commission found George W. Bush, Dick Cheney, Donald Rumsfeld and their legal advisers, Alberto Gonzales, David Addington, William Haynes, Jay Bybee and John Yoo, guilty of war crimes in absentia.
Prime Minister Mahathir sent two volumes of compelling torture evidence to the International Criminal Court, ICC, in The Hague. The Office of the Prosecutor of the ICC in The Hague responded months later with a standard letter pointing out that the court did not consider itself "competent" in this matter. In June 2014 Halliday and other members of the Commission presented the same evidence to a joint Iraq hearing of members of the UK House of Lords and the House of Commons. So far there has not been an acknowledgement of the receipt of this material.
We are looking at a situation where these legal tools, that are designed to level the playing field in the fight to uphold humanitarian justice, are being used very selectively, or being fought against when used against criminals from more powerful countries. Politicians love to speak about justice and peace, but when they, in their role as salespeople for the corporate sector, are confronted with war criminals and murderers they are silent. In Ireland we only have to look at our cosy relationship with Saudi Arabia, the United Arab Emirates, UAE, and friends, and our complete silence about the atrocities in Yemen. The message is a very sad one, but it is very clear: murder, death and destruction are of no consequence when weighed against economic imperatives. Moral values, and ethical codes, are easily bought.
It is precisely this backdrop of collusion on the part of the political class that necessitates the use of the universal jurisdiction mechanism. Under this law, cases could be brought to the Director of Public Prosecutions, DPP, by civil society, and usually it has been done by victims, and non-governmental organisations, NGOs, which are frequently the principal sources of evidence, or of witnesses that could establish responsibility for the crime alleged.
Landmark universal jurisdiction cases, such as the opening of a prosecution against Augusto Pinochet in Spain and the request for his extradition from the United Kingdom, and a Belgian court's indictment and extradition request for former Chadian dictator Hissne Habre, have been initiated through complaints lodged by private parties.
In Spain, private petitions, which routinely face resistance by the prosecutorial authorities themselves, have been the driving force behind universal jurisdiction cases. In the Spanish system, petitioners lodge a popular action directly with an investigative judge. This judge determines whether there is sufficient evidence to open an investigation, and is empowered to order necessary steps to enable the investigation to proceed. Generally, in such a system, the investigative judge will rule whether there is sufficient evidence, once the investigation is completed, for the case to proceed to trial. This popular action procedure was the basis for the international arrest warrant in the Pinochet case; the indictment, prosecution and conviction in Spain of former Argentine military officer Adolfo Scilingo; and the successful extradition from Mexico of former Argentine military officer Manuel Cavallo. The latter were both charged with crimes against humanity. In France and Belgium, private petitioners have initiated almost all complaints. Belgium's two major criminal trials involving universal jurisdiction - both concerning participants in the Rwandan genocide - were the result of complaints lodged with prosecutors by civil society. The process is very similar to how the Spanish system works. A popular action informs an investigative judge of the case, irrespective of the wishes of the prosecutor. All cases lodged thus far under French universal jurisdiction laws have been brought by civil society.
UK law used to permit private individuals to request an arrest warrant directly from a district judge in instances where the police fail to investigate an allegation that a crime has been committed. On 10 September 2005, based on evidence presented by a UK law firm acting on behalf of a Palestinian human rights NGO, Senior District Judge Timothy Workman issued the first ever warrant under the UK's Geneva Conventions Act 1957 against retired Israeli General Doron Almog. The warrant sought Almog's arrest for his alleged participation in grave breaches of the Geneva Conventions in Israeli occupied Gaza, where he had been a commander. Almog arrived at Heathrow Airport the following day, but did not disembark from his flight after he was informed of the existence of the warrant. He returned to Israel before the Metropolitan Police could execute the warrant. In an act of pitiful cowardice, both the UK Prime Minister and Foreign Secretary apologised to their Israeli counterparts concerning the incident, and efforts were made to change the law to preclude private parties from applying for arrest warrants in relation to international crimes. The law was eventually changed in 2011 under pressure from the Israeli Government. This kind of cowardice and collusion is one of the reasons the situation in Palestine is deteriorating. If the world looks away when the Israeli military bombs and murders hundreds of innocent women and children, if there is no consequence, no justice, for these recurring and grossly disproportionate air assaults on Palestinians, which, obscenely, the Israeli generals have taken to calling "mowing the lawn", what chance is there for peace? Every week Israeli forces unlawfully kill Palestinian civilians, including children, continue to detain thousands of Palestinians who oppose Israel's continuing military occupation and apartheid, and torture detainees with impunity.
There is no debate about the veracity of what I say, and there is no debate about these crimes. If the soldiers, military officials, and ministers that perpetrate these crimes set foot in Ireland they need to face justice, as they will not face justice where they operate. Without justice there will be no peace, but we in the West are trundling towards a world where, in the general discourse, peace means war, and justice is injustice. The original name given to the illegal wars of aggression against Afghanistan and Iraq was Operation Infinite Justice. The US military carpet bombed large areas of those countries, dropping white phosphorus on civilians, while politicians in here cheered them on and allowed Shannon to be used as a military base for this savagery.
On 28 December 2014, US-led coalition airstrikes killed over 50 Syrian civilians in the town of AI-Bab close to the Turkish border. It was days before civil defence workers could dig out the victims' bodies. The civilians were labelled collateral damage and no one was held responsible. It was barely reported. Approximately a week later, the offices of Charlie Hebdo were attacked and over a dozen people killed. The world mourned, people held vigils, there was a march supposedly to defend freedom of expression. In the words of the Guardian's Seumas Milne, the march:
was led by serried ranks of warmongers and autocrats: from Nato war leaders and Israel's Binyamin Netanyahu, to Jordan's King Abdullah and Egypt's foreign minister, who between them have jailed, killed and flogged any number of journalists, while staging massacres and interventions that have left hundreds of thousands dead, bombing TV stations from Serbia to Afghanistan as they go.
Here in the Dáil, with blatant disregard for the existence of historical or current events, the Taoiseach said that the rally in Paris was an important display of unity and a rejection of the use of terror in the pursuit of political or religious goals. As I have said, the function of the tool of universal jurisdiction is to level the playing field for those looking for justice for crimes against humanity. In the current political climate, where leaders routinely describe a world that has scant connection to reality, the field is increasingly uneven, and justice ever more elusive. I hope that this Bill can aid in some way to redress the balance.
There are some problems with the Bill, which I would like to correct on the next Stage. I would like to change the interpretation section, which is section 1, as the list of crimes that fall under the category of crimes against humanity are well documented and provided for in existing legislation. I would like to amend the Criminal Justice (United Nations Convention against Torture) Act 2000 in order to provide for the retrospective application of the law against criminal acts, including torture. Sadly when this Act was introduced it did not cover criminal acts which took place before the commencement of the Act in 2000. Also, I would like to amend section 9(4) of the International Criminal Court Act 2006 in order to extend not just extraterritorial effect, but retrospective effect, to all the international crimes covered. There are a number of changes to be made to the Bill, which is far from perfect. We want to stimulate debate on the subject and would be more than happy to take the thoughts and recommendations of others on board. We do not have a closed mind about what others feel they can bring to the table to improve things. It is far from perfect. We have a problem in the way international justice is organised and structured and the UN Security Council has made a laughing stock of it all because the US, Russia and China are never indicted for anything because they can veto resolutions at the UN Security Council. To date the ICC has indicted 36 people, and every one of them is from Africa. Only two were convicted but it is a huge problem that we do not have the means or the will, although I know there is legislation in place which would let us address much of what I have said but we are not doing it. I would like to think that by bringing this Bill in and talking about it we can highlight the fact things are not the way they should be and we can think seriously about our role in this area.
