I welcome the Minister for Justice, Equality and Law Reform.
International War Crimes Tribunals Bill, 1997: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
We have all been appalled by the reports of the atrocities committed in the territories of former Yugoslavia and Rwanda. The depth and scale of the savagery visited on countless innocent men, women and children which these reports revealed almost passes human comprehension. I know Senators will fully agree that vigorous action by the international community was needed.
The UN did act and this Bill will implement United Nations Resolutions setting up War Crimes Tribunals for the former Yugoslavia and Rwanda. As you will know, the function of the tribunals is to put on trial and punish, as appropriate, persons who were guilty of war crimes. The Government fully supports the efforts to bring to justice those guilty of war crimes. This Bill will equip the appropriate authorities here with the legal means to arrest, detain and surrender persons found in the State who are wanted by the tribunals. I have no doubt that Senators will welcome this legislation.
The background to the Bill is as follows. In 1992 the UN Security Council became alarmed at continuing reports of violations of international humanitarian law in the territory of the former Yugoslavia, especially in Bosnia and Herzegovina. A commission of experts, established at that time to investigate the reports, came to the conclusion that grave breaches and other violations of international humanitarian law had been committed, including mass killings, ethnic cleansing, torture, rape, pillage and arbitrary arrests.
The Security Council decided that the situation constituted a threat to international peace and security, expressed its determination to put an end to such crimes and to take effective measures to bring to justice those responsible for them. In 1993, the International Tribunal for the former Yugoslavia was established by Security Council resolutions for the prosecution of persons responsible for crimes against humanity committed in the territory of the former Yugoslavia since 1991. The tribunal sits in the Hague. It has three trial chambers and one appeal chamber.
The United Nations Security Council, by resolution of 13 May 1998, provided the third trial chamber to expedite the conduct of its business and for the election of three additional judges to bring the number of judges to 14. It is expected that the three additional judges will take their oath before the end of this year.
Under the resolutions establishing the tribunal all member states of the UN are obliged to comply with the resolutions and take whatever action is required to give effect to that obligation. This binding obligation is further specified in Article 29 of the statute of the tribunal, contained in the Third Schedule to the Bill, which provides that all states shall co-operate with the tribunal in the investigation and prosecution of persons accused of crimes within the jurisdiction of the tribunal and comply without undue delay with any request for assistance issued by the tribunal, including the surrender of the accused at the request of the tribunal. A similar obligation is imposed by Article 28 of the statute of the Rwanda tribunal, contained in the Fourth Schedule to the Bill.
The most recent statistics show that in the legal proceedings to date 20 public indictments against 58 individuals together with a number of sealed indictments have issued. Initial arrest warrants have issued against all the accused, including eight international arrest warrants. A total of 26 of the accused are currently in custody. One person was sentenced to five years' imprisonment last March; an appeal has been lodged in another case and five other trials involving 14 individuals are ongoing. The tribunal expects to use 340 witnesses this year — up from 200 in 1997 — and operates a witness protection and relocation programme. The UN bears the expenses of the tribunal and levies contributions from member states. This year's budget is almost $65 million. Ireland's assessed contribution this year was just over $104,000. In addition Ireland has made a contribution of $120,000 to a voluntary fund to which states may subscribe.
The International Criminal Tribunal for Rwanda was established under a resolution of the Security Council in 1994 for the purpose of prosecuting persons responsible for acts of genocide or other serious violations of international humanitarian law committed in the territory of Rwanda and, also, Rwandan citizens responsible for such violations committed in the territory of neighbouring states between 1 January 1994 and 31 December 1994.
The seat of the tribunal is in Arusha, Tanzania, where it conducts trials and holds suspects. It has three trial chambers and an appeals chamber — the UN Security Council by resolution of 30 April 1998 provided for the third trial chamber comprising three additional judges. Elections to this chamber will take place as soon as possible and the elected judges are expected to assume duty early next year. Both tribunals share the same prosecutor. The statutes and rules of procedure of the tribunals are similar. They are both subsidiary organs of the Security Council but are not subject to its authority or control in the performance of their judicial functions and they are independent of any state or group of states.
The investigations of the Rwanda tribunal have focused mainly on the 400 identified suspects and are being conducted both inside and outside Rwanda, notably in other African countries, Europe and America where the principal planners of the genocide are thought to be located. The most recent statistics show that 28 indictments have been issued against 45 individuals. A total of 32 indicted individuals are in custody — 31 of them in the detention facility in Arusha and one in the United States. Two trials are under way involving three individuals. The Rwanda tribunal delivered its first verdict on 1 May 1998, finding the former Rwandan Prime Minister, Mr. Jean Kambanda guilty on all six counts of genocide and crimes against humanity. Mr. Kambanda was given a life sentence by the Rwandan tribunal in early September. In a statement following the imposition of sentence, Justice Louise Arbour, prosecutor of the Rwanda tribunal stated:
This completed process will serve to keep alive the memory of the thousands who died, for the whole of the international community to remember. One can only hope that it will also offer a measure of peace and serenity to those who survived. An unequivocal message has been sent, not only in Rwanda, and in the neighbouring countries, but also in the former Yugoslavia and elsewhere in the world, that once-influential politicians are not immune from the reach of international criminal justice.
In another development the Rwanda tribunal on 2 September 1998 gave a precedent setting judgment in which genocide, as defined in the Geneva Convention of 1948, was interpreted for the first time by an international court. The judgment was welcomed by the Secretary General of the United Nations. Mr. Kofi Annan. He commented:
This is a landmark decision in the history of international criminal law. This judgment is a testament to our collective determination to confront the heinous crime of genocide in a way we never have before. It is a defining example of the ability of the United Nations to establish an effective international legal order and the rule of law.
In the course of delivering its judgment in this case the trial chamber concluded, inter alia, that:
The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. Furthermore, these rapes were accompanied by a proven intent to kill their victims. At least 2,000 Tutsi were killed in Taba between 7 April and the end of June 1994 while the accused was in a position of authority at the Taba commune.
That extract from the judgment sets out in chilling terms the scale of the misery inflicted on innocent victims.
A Tribunal Victims' and Witnesses Protection Unit has operated since November 1996. This year the tribunal expects to use 330 witnesses, almost three times the number used in 1997. There was some dissatisfaction last year with the working of this tribunal but steps taken by the UN, including the appointment of a new registrar, a new deputy prosecutor and, as I have mentioned already, the establishment of a third trial chamber, have helped to restore confidence in the tribunal. Sadly, genocidal violence has not yet ceased in Rwanda.
As with the tribunal for the former Yugoslavia the UN bears the expenses of this tribunal — this year the budget is almost $57 million. Ireland's assessed contribution to the cost of the Rwanda tribunal for this year was in the region of $107,000. We also provided £150,000 in start-up assistance to this tribunal.
It is noteworthy that these tribunals are the first international fora established to try war crimes in the 50 years since the Nuremberg and Tokyo trials at the end of the Second World War.
While the Bill deals specifically with the two tribunals I have mentioned it contains provision in section 37 to enable regulations to be made to apply the provisions of the Bill to any other war crimes tribunal or court that may be established by the United Nations in the future.
During the debate on this Bill in the Dáil, it was suggested that the absence of a permanent international criminal court made it impossible to try Pol Pot for his part in the genocidal campaign in Cambodia in the 1970s. Indeed, several speakers expressed strong support for the establishment of a permanent court to deal with such situations. The establishment of a further ad hoc tribunal to deal with the perpetrators of the atrocities in Cambodia was raised at the UN earlier this year but was left aside on the basis that the international criminal court, due to be established following the successful negotiation earlier this year of a statute to establish such a court, would be in a position to bring to justice the perpetrators of the atrocities that have taken place in various parts of the world. I will refer later to the negotiations to establish a permanent court and to Ireland's strong support over many years for the establishment of such a court.
I visited Bosnia and Croatia in the last few weeks. The purpose of my visit was to meet the Garda contingents working with the United Nations. While there I received detailed briefings from people on the ground and saw at first hand the devastation that had been inflicted on Sarajevo, the evidence of ethnic cleansing in the surrounding countryside and the proliferation of mines in the area. It forcefully brought home the futility of war and the absolute necessity to deal with war criminals.
Fortunately, fighting there has stopped and we are now at what might be called a "constructive stage". In particular, we are trying to restore ethnic balance in the local police forces, improve their training and, most importantly, inculcate them with respect for human rights. Faith in the justice system and respect for law and order cannot be fully restored until people see that war criminals have to account for their crimes and that no distinction is made on the basis of their ethnic background.
The two tribunals have jurisdiction over the very serious crimes against humanity which are listed in Articles 2 to 5 of the Statute of the former Yugoslavia Tribunal, set out in the Third Schedule to the Bill, and in Articles 2 to 4 of the Statute of the Rwanda Tribunal, set out in the Fourth Schedule. In this Bill these crimes are referred to as international tribunal crimes. Section 4 of the Bill provides that none of these crimes can be regarded as a political offence or an offence connected with a political offence. The penalties which the tribunals may impose are limited to imprisonment and to orders for the return to their rightful owners of any property and proceeds acquired by criminal conduct. Capital punishment is not an option.
The Bill provides that the persons whose surrender may be sought are persons who have been accused or convicted of international tribunal crimes and in respect of whom a warrant of arrest has been issued by the relevant tribunal. The purpose of surrender will be either to have the person brought before the tribunal for trial or brought to a place where he or she is to undergo imprisonment under a sentence imposed by the tribunal. That place may be in any one of the countries which have indicated to the Security Council of the United Nations their willingness to accept and imprison persons sentenced by the tribunals.
The arrangements which the Bill proposes to put in place for the surrender of war criminals or alleged war criminals found in the State are based on and are similar to the arrangements for the extradition of persons under our general extradition law and contain similar safeguards for constitutional rights. There are, however, some differences. For example, the arrangements in the Bill are limited to international tribunal crimes. In addition, while applications for extradition are made to the District Court, it was considered, given the novel nature and the scope of the tribunals, that applications for surrender under the Bill should go to the High Court.
The Bill also provides for the arrest and detention of suspects for a maximum of 18 days. This is not a feature of general extradition law. However, while a suspect may be detained, the Bill does not permit surrender until an arrest warrant, showing that the person is wanted for trial, has been received from the tribunal. There are a number of provisions in the Bill to ensure that applications by the tribunals for surrender are given priority and precedence over other matters. This reflects articles in the statutes of the tribunals and represents the seriousness which states attach to the pursuit and punishment of persons who commit the heinous crimes with which we are concerned.
In accordance with section 5 of the Bill a request by an international tribunal for the surrender of a person will be made to the Minister for Justice, Equality and Law Reform. The person must have been accused or convicted by the tribunal of an international tribunal crime and there must be in existence a warrant of arrest for the purpose of bringing him or her before the tribunal or to a place where he or she is to undergo imprisonment under a sentence imposed by the tribunal.
The request will be in writing and will contain an accurate description of the person wanted and information helping to establish his or her identity. It will include a statement of each international tribunal crime with which he or she is charged specifying the date and place of commission of each crime, the legal description of the crime and the provision of the tribunal's statute which applies. It will also be accompanied by the original or certified copy of the warrant of arrest issued by the tribunal with an indication of the purpose of the arrest.
When the Minister is satisfied that the request complies with the requirements of section 5 — if necessary by seeking further information from the tribunal under section 8 — the Minister will certify that a request for the surrender of the person has been made by the tribunal. When that certificate is produced to the High Court, the court is required by section 9 to issue a warrant for the arrest of the person, unless the person is already under arrest under the provisions dealing with provisional arrest.
In keeping with our general extradition law, provisions are included for the provisional arrest on grounds of urgency of persons wanted by an international tribunal. In this case sections 10, 11 and 13 of the Bill are relevant. An international tribunal may make a request for the provisional arrest of a person who has been accused by the tribunal of having committed an international tribunal crime or who has been convicted by it of such a crime or who is suspected by it of having committed such a crime. The request will be in writing and, in addition to containing information necessary to identify the person, will also contain a statement of the international tribunal crimes in question specifying time and place of commission of each crime.
Provisional arrest warrants may be issued by the High Court on the sworn information of a member of the Garda Síochána not below the rank of inspector that an international tribunal has made a request for the person's provisional arrest on grounds of urgency and that the person is accused of having committed an international tribunal crime, has been convicted by the tribunal of such a crime or is suspected by the tribunal of having committed such a crime. The inspector will also indicate that the purpose of the arrest is to detain the person pending receipt by the Minister from the tribunal of a warrant of arrest issued by the tribunal in respect of the person.
If at a later time it appears to the Minister that a warrant for arrest will not be received from the tribunal in respect of the person named in the provisional arrest warrant or that proceedings will not be commenced against the person by the tribunal, the Minister may cancel the provisional arrest warrant and, if the warrant has been executed, direct that the person, if in custody, be released. If the tribunal's warrant of arrest and other necessary information is not received in time to enable the Minister's certificate that a request for surrender has been made, to be produced to the High Court within 18 days after the date of the provisional arrest, the person arrested, if in custody, will be released.
When, after receipt of a request for provisional arrest on the ground of urgency, the Minister subsequently receives from the tribunal the original or certified copy of a warrant of arrest indicating that the person has been accused or convicted by that tribunal of an international tribunal crime and the purpose of the arrest, together with other information required in connection with requests for surrender, the matter will be treated as a request for the surrender of the person and the procedures relating to such requests will then apply.
When the High Court is satisfied that the person has been accused or convicted of an international tribunal crime, that a request for the surrender of the person has been duly made and that a warrant that complies with the requirements of section 5 has been produced, the court under section 14 will commit the person to prison to await the order of the Minister for his or her surrender. Before committing the person, the court will inform him or her that he or she will not be surrendered except with his or her consent before 15 days have elapsed and also inform him or her of the provisions of Article 40.4.2º of the Constitution relating to the making of a complaint to the High Court that a person is unlawfully detained.
A person committed to await surrender may be released as a result of a successful application under Article 40.4.2º of the Constitution or as a result of an appeal on a point of law to the Supreme Court or if the surrender and conveyance out of the State of the person is unduly delayed, as indicated in section 21 — this is usual in extradition law — or if subsequent information satisfies the Minister that the person's surrender is prohibited by the Act. If the person is not released he or she will, under section 14, be surrendered to a person authorised to receive him or her by the international tribunal that requested his or her surrender or by the state in which the person is to undergo imprisonment for an international tribunal crime.
There are a number of provisions to accord precedence for requests from an international tribunal. A request from an international tribunal for the surrender of a person will have primacy over requests for the extradition or arrest and delivery of the person under the Extradition Act of 1965 whether the offence in question in the extradition request constitutes an international tribunal crime, as section 7 of the Bill provides. Section 4 provides that an application for asylum in the State by a person being sought by a tribunal will not prevent or postpone the surrender of the person.
In the event of a request being received for the surrender of a person who is serving a sentence imposed by a court in this jurisdiction, he or she may be surrendered on the Minister receiving adequate undertakings that the person will be returned here in due course to serve or complete the sentence imposed by the Irish court. Section 25 also makes provision that such a person will continue to be liable to complete any term of imprisonment here when he or she has been returned.
Section 27 requires the Director of Public Prosecutions, before deciding to commence any proceedings under the State's extra-territorial jurisdiction in respect of conduct constituting an international tribunal crime, to take into account the jurisdiction of any international tribunal. Where an international tribunal makes a request to the Minister that a court or military tribunal here defer to the jurisdiction of the tribunal by discontinuing proceedings here, section 28 provides that the Minister shall transmit that request to the High Court and if the proceedings are being taken under the State's extra-territorial jurisdiction in relation to conduct which constitutes an international tribunal crime, the High Court may order the proceedings to be discontinued.
It may be that a person who is in the State and is the subject of a request for his or her surrender made by an international tribunal has committed crimes in the State that do not amount to crimes within the jurisdiction of the tribunal. If that is the case, the Minister may postpone under section 20 the period for the making of a surrender order to enable criminal proceedings in the State to be instituted against the person. In deciding whether to postpone surrender in these circumstances the Minister will take into account the seriousness of the crimes committed here. If such a person is tried here, found guilty and sentenced to a term of imprisonment, it would, of course, be open to the Minister to order his or her surrender under the Bill on an undertaking that he or she would be returned here in due course to serve the sentence imposed by the Irish court.
Section 26 contains the usual provision, found in general extradition law, forbidding surrender where final judgment in respect of an offence has been passed here or in another state on the person sought by a tribunal and the conduct constituting the offence also constitutes the international tribunal crime for which his or her surrender is sought. However, unlike our general extradition law, this prohibition will not apply where the tribunal satisfies the Minister that the proceedings in the other State were, in effect, a sham, designed to shield the person from international criminal responsibility.
Various forms of assistance in aid of a tribunal's investigation and prosecution of war crimes are provided for in Part IV of the Bill. Section 29 provides that section 63 of the Criminal Justice Act, 1994, shall have effect as if references in that section to drug trafficking included references to conduct constituting an international tribunal crime. Thus a member of the Garda Síochána may apply to the District Court for an order for the production to a member of the Garda Síochána of material by the person who appears to the judge to be in possession of the material. Broadly, the application may be made where there are reasonable grounds for suspecting that a specified person has been guilty of an international tribunal crime and that the material is likely to be of substantial value to the investigation of the crime and that it is in the public interest that the material should be produced.
Where there are reasonable grounds for believing that there is in any place evidence in relation to the commission of the international tribunal crime, section 30 provides for the issue of search warrants by the District Court authorising entry, search and seizure.
Section 31 provides, following the receipt by the Minister of an order from an international tribunal, for the making by the High Court, of orders for the preservation and protection of property or for the restitution of property unlawfully taken by a person convicted of an international tribunal crime. In effect, the section applies various provisions of the Proceeds of Crime Act, 1996, with necessary modifications.
Section 32 enables privileges, immunities, exemptions, etc., to be accorded to the personnel of a tribunal and to witnesses and counsel appearing before a tribunal, and section 33 deals with the transit through the State of a person who is being transported in custody from one state to another for the purposes of an international tribunal.
Part V creates an offence of interfering with or intimidating an international tribunal witness and, as I have mentioned already, enables regulations to be made applying the arrangements set out in the Bill with necessary modifications to any other tribunal or court established by the United Nations for the prosecution of persons responsible for serious violations of international humanitarian law committed outside the State.
I referred earlier to the setting up of an international criminal court. Members may be aware that a United Nations diplomatic conference on the establishment of an international criminal court was held in Rome from 15 June to 17 July last. That conference adopted a statute to set up an international criminal court. I believe that the reaching of an agreement to set up such a court represents a major development in international efforts to deal with the perpetrators of the most heinous crimes of concern to the international community given that such an initiative has been mooted in the United Nations for almost 50 years. Events in Rwanda and the former Yugoslavia which led to the establishment of the two ad hoc tribunals on the subject of this Bill had the effect of reviving interest in the establishment of a permanent court. Ireland has always been a strong supporter of setting up a permanent international criminal court and was represented at the Rome conference. The statute will establish the court as an independent international organisation. It will have a relationship agreement with the United Nations and will have its seat in The Hague. The crimes which are listed as coming within the immediate jurisdiction of the court are genocide, crimes against humanity and war crimes. The statute provides that the crime of aggression will also come within the jurisdiction of the court when a definition for that crime is adopted at a future review conference. The statute will enter into force when 60 states have ratified it. Ireland signed the statute at a ceremony organised by the Italian Government on Wednesday last, 7 October. I understand that as of now a total of 53 states have signed the statute. We will continue to support the efforts of the international community to ensure that the court is effective and independent.
This Bill honours an important international humanitarian obligation and furthermore it is a positive indication of the repugnance we feel at the genocidal atrocities that were inflicted on countless innocent men, women and children in the former Yugoslavia and Rwanda. It is also a demonstration of our willingness to do all we can to ensure that the perpetrators of those heinous crimes are brought to justice. I will follow the debate carefully and will take full account of all Members' contributions.
I am delighted to participate in this debate. The legislation was drafted by the previous Government in early 1997 and published by the current Government later that year. It passed Second Stage in the Dáil last April and is rather late coming to this House.
The Minister made many remarks — I will be repeating some of them in my contribution — in relation to the delays by the Rwanda tribunal and the tribunal governing crimes in the former Yugoslavia in getting off the ground. If member states who are party to this agreement do not ratify it and pass the necessary legislation with speed obviously the tribunals cannot function. It is only effective if all the countries party to the agreement carry out their obligations — to ensure no country becomes a safe haven for anybody wanted for questioning or indictment by any of the special courts.
I regret that we are not dealing with legislation for the ratification of the International Criminal Court which was agreed in Rome on 17 July and to which we are party. The Minister stated that the permanent international criminal court will deal with crimes against humanity, genocide and aggression. It will remain always and potential perpetrators will be aware of its existence unlike the ad hoc arrangements which we are talking about now. My regret is that after two months the Government has not drafted the legislation in order that Ireland can ratify it. Sixty countries are required to ratify this agreement before it comes into force. Ireland — and we have a very good record in this area — should be one of the first countries to enact the necessary legislation to ensure we are among the first to ratify the agreement. It may take up to two years before 60 national legislatures ratify it. Let us not wait two years; let us perhaps not wait until the end of this session to put this legislation on the Statue Book. I am sure such legislation will not be controversial in either House.
The UN Security Council passed a resolution on 8 November 1994 establishing a tribunal for Rwanda. The International Criminal Tribunal for Rwanda was established as a separate entity with trial judges, a registry system and administrative staff. The chief prosecutor and appeals judges perform the same functions for the International Tribunal for the Former Yugoslavia.
The Security Council decided on the jurisdiction of the international tribunal and national courts. One issue in regard to jurisdiction is that of capital punishment. The Government of Rwanda does and will impose the death penalty while the UN International Tribunal will not. I am delighted about that.
The statute of the Rwanda tribunal obliges all states to comply without delay — this has been my criticism — with any request by the tribunal for assistance in locating, detaining or transferring persons and to have the necessary legislation in place by which that can be done. However, the rules of the tribunal made it difficult to promptly issue requests for detention or transfer of suspects. Orders and warrants for the arrest, detention, surrender or transfer of persons cannot be issued until the prosecutor satisfies a tribunal judge that a prima facie case exists and the judge confirms the indictment. These are part of the delays within the mechanisms of the court which have led to an enormous amount of international criticism in relation to the pace with which the International Criminal Tribunal for Rwanda has proceeded. This greatly delays the issuing of detention orders, allowing the principal suspects to flee the refugee camps and disappear. The co-operation of countries hosting fugitive suspects is also essential. Critics could quote the example of Cameroon, a neighbouring West African country which held within its borders 12 prime suspects and refused in 1994 to extradite them. It took enormous efforts and several visits to the capital of Cameroon by the court registrar before Cameroon agreed to surrender the suspects. That is another example of the kind of problems which the tribunal has encountered.
The tribunal's focus is limited to senior leaders of the former Government, the military and militia. Falling outside that focus are tens of thousands of cases up for consideration by the Rwandan Government, Judiciary and society. The Commission of Experts decided the international tribunal should be located at The Hague to give some distance from where the worst atrocities had been perpetrated, for greater independence, objectivity and impartiality. Most of the senior perpetrators had fled the country complicating the problem of detaining them for investigation and prosecution. The reports of the Commission of Experts did not address the issue of locating and detaining potential defendants. That has been a major shock to the workings of the tribunal.
As of January 1998, there were only 28 indictments, as the Minister mentioned in his speech. Of those defendants, almost all are in custody in Arusha, Tanzania, where the prosecutor's office is located. Many others remain at large in neighbouring African countries; we believe quite a number are in the United States of America and Switzerland.
The Minister in his speech dealt with a recent judgment in Taba. He did not give the name of the person sentenced but I think he was referring to the trial of Jean-Paul Akayesu who was Mayor of Taba at the time of the genocide. This man stood accused of at least ten counts of genocide and crimes against humanity which included inciting Hutus to attack their Tutsi neighbours, rape and other horrible crimes. His trial started — and I hope it has concluded — in October 1996. The proceedings were postponed for the remainder of 1996 after the opening of the trial and remained adjourned in 1997. I am delighted if at long last a judgment has been delivered in that particularly atrocious case.
The Rwandan Judiciary was decimated, making it difficult to deal with the huge domestic case load. However, human rights organisations like Amnesty International and others argue that defendants who will be tried in national courts should receive due process and be given an early trial. If they do not get an early trial they should be released because, given the huge backlog in the Rwandan courts, it cannot be foreseen how long it would take to deal with the hundreds of cases involved; it would take years, at the very least. That position is absolutely unsustainable. One can sympathise with the position of human rights organisations which say that everyone has a right to an early as well as a fair trial. If one is not guaranteed an early trial one should be promised early release.
There is a major problem for the international community in assisting the Rwandan authorities to put in place a judicial system which would deal expeditiously with these cases. Many people have argued in favour of having foreign jurists serve as observers and advisers as well as judges, lawyers and investigators within the Rwandan legal system for the period of the national trials, which will be a long time.
The Rwandan case provides an argument for speed above all else. Delays in indictments, arrests, extradition and prosecution allow those who are guilty and bent on vengeance time to regroup for further violence. The accused have jumped borders, seeking asylum abroad — which they have been granted — and recruiting manpower in the refugee camps in Zaire. Major General Augustin Bizimungu, the former regime's military commander, waited in Zaire openly organising former Rwandan military and militia in the refugee camps with impunity. The where-abouts of many of the planners and leaders of the Rwandan genocide, as well as journalists responsible for the hate media, remain largely unknown, including some of the genocide's political leaders and Robert Kajuga, who was head of the Interahamwe militia.
While the international community responded to the Rwandan request for an international tribunal, there has been little pressure placed on the UN to ensure that it accelerates its work. The Minister gave us some positive indications in that regard but the progress of the international tribunal has been characterised by slowness and an inability to act.
One suggestion to address the backlog in indictments and cases in the Rwandan tribunal is to establish a truth commission to operate in tandem with the tribunal. Justice would be served with regard to the organisers of the genocide and others who participated would be named and their crimes would be exposed. The success of the international tribunal in Rwanda will have a significant impact on any eventual peace process as the party line in the Rwandan Government remains "no reconciliation until justice".
Turning to the former Yugoslavia, as long ago as 25 May 1993 the UN Security Council created the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. That tribunal sits, as has been stated, in the Hague and consists of 11 judges from 11 countries, divided into two trial chambers and an appellate chamber.
This tribunal is novel on two counts. It is the first time the United Nations is trying those accused of war crimes where there has not been a clear military victory, and it is also the first time in which the principal accused parties remain major participants — although behind the scenes — in the ongoing peace process. The Dayton Accords barred anyone indicted by the tribunal from seeking or holding a public office or position in Bosnia-Herzegovina, although that has not been observed at all times.
The international tribunal for the former Yugoslavia has faced tenuous financial circumstances throughout its existence as funding is held hostage by the General Assembly. Although established under the Security Council's Chapter VII peace enforcement mandate, funding for the tribunal was to come from the UN's regular budget rather than its peacekeeping budget. The tribunal's 1994 budget was $11 million.
However, there has been an ongoing debate about the funding of the tribunal for offences committed in the former Yugoslavia, in addition to the ongoing debate about the funding for the Rwanda tribunal. The Minister provided a figure today in the region of $63 million which is to cover both tribunals. It is estimated the Yugoslav tribunal will take almost two-thirds of that budget.
There is an ongoing debate between the Security Council and the General Assembly of the United Nations about from where adequate funding for these tribunals should come. The United Nations has very serious financial difficulties, but it is a great pity there has been such a long debate about funding for such an important matter.
We on this side of the House welcome this legislation, although it was late in coming to the House, and we will not be placing any obstacles in the way of its passage. However, I appeal to the Minister to return as speedily as possible to the issue of the permanent international court for trying these offences. That was agreed at the end of the United Nations diplomatic conference in Rome last July, at which this country was a very willing party. Ireland has long been a promoter of the idea of a permanent court to try these offences. I hope the Minister will be ready to bring the legislation before both Houses before the end of the year so that we can speedily enact it, enabling Ireland to be one of the first of the 60 countries which are required to bring it into force.
I welcome the Minister. Busy Ministers who are working on huge pieces of legislation are often not commended enough. Members may not be aware that 48 Bills have been through the Houses of the Oireachtas since the Government took office and 16 of them — one third — were introduced by this Minister, who is engaged in the most massive reform of the criminal and civil law in the history of the State. That must be emphasised because not enough people are aware of it or want to acknowledge it, for various reasons. However, I commend him for it and I laud him for his huge commitment to his portfolio, which is one of the most controversial, complex and difficult areas in modern life, not only in Ireland but internationally.
I welcome the Bill because it sets out to implement UN resolutions establishing war crime tribunals for the former Yugoslavia and Rwanda, to which the Minister and Senator Connor referred. I agree with a number of points raised by Senator Connor.
It is imperative that Ireland takes every step necessary to ensure this country never becomes a haven for anyone guilty of war crimes. It is unfortunate and regrettable, however, that the international action to which this Bill is giving legal status comes in the wake of the slaughter of more than one million people, most of whom met their deaths in unspeakably savage circumstances. The reports we have received since the beginning of the decade, and more recent reports from Kosovo, depict scenes of unbelievable savagery visited on men, women and children of a depth and scale which challenge human comprehension.
The perpetrators of these vile deeds must be brought to justice quickly. Senator Connor rightly emphasised this. If they are not, the moral force and authority of UN resolutions will not have the effect of safeguarding and protecting people from further breaches and atrocious violations of international humanitarian law. That point, which I wish to emphasise and fully support, was strongly and forcefully made by Senator Connor.
I fully accept that the appropriate authorities here must be equipped with the legal means to apprehend, arrest, detain and surrender persons found in the State who are wanted by the tribunals. That is the main purpose of the Bill, as the Minister articulated this afternoon. Everybody who supports human rights will also fully support efforts internationally to bring to justice those guilty of war crimes. While I welcome and applaud decisions to establish these two tribunals — the 1993 international tribunal for former Yugoslavia and the 1994 international criminal tribunal for Rwanda — and the UN's response to reports from commissions of experts who concluded that abominable war crimes, including arbitrary arrests, rape, pillage, torture, mass killings, ethnic cleansings and genocide were widespread in former Yugoslavia and Rwanda, I am far from satisfied that the UN and the international community generally acted quickly enough or with the necessary determination, force and effectiveness to confront the depth and scale of the atrocities.
While there was a clear acknowledgement that the situation unfolding constituted a threat to international peace and security and that there was an expressed determination to bring to justice those responsible, it is blatantly obvious to any observer, even one with only the slightest regard or concern for international human rights, that the workings of the tribunals to date have been far from successful, particularly in confronting the magnitude and depth of the atrocities.
One of the best known names in the most atrocious sense, Radovan Karadic, who was declared an international war crimes criminal, is still at large. To my knowledge, the authorities in this part of Europe do not know where he is, let alone trying to apprehend and bring him to justice. Until those most powerful and obnoxious symbols of what took place are apprehended and brought before the tribunal or the international criminal court to which the Minister referred, we cannot say with any degree of conviction that these international tribunals are successful. To me, Radovan Karadic, is one of the most potent symbols of these obnoxious and abhorrent set of regimes.
It took four years for the tribunal on former Yugoslavia to convict its first suspect, although, as the Minister informed us, there have been further developments since. I welcome the progress since then which the Minister reported in relation to the working of the tribunals. These tribunals, however, are not even scratching at the surface of the magnitude, scale and depth of the problem. Indeed, the workings of both tribunals appear to me to be lacking so blatantly in force and effectiveness, they are having little obvious effect in deterring ongoing human rights violations. One example is the highly arbitrary system of justice in Rwanda where there are massive detentions on grounds of alleged genocide. I am not in a position to say whether the alleged genocide is well founded but massive detentions are the order of the day there and the international community seems content to ignore the fact that Rwanda is incapable — to which Senator Connor referred — in terms of its expertise, resources and, indeed, commitment to operate the due process in an objective, fair and expeditious manner, even taking account of the culture in that part of the world. Reports from there of the most appallingly inhuman and degrading treatment of prisoners — one rarely hears me championing the cause of prisoners in this jurisdiction — are of equal concern to all concerned about human rights as are the atrocities and genocide which preceded these developments.
I do not want to trivialise the difficulties of dealing with extremely complex situations in this case, for example, Tutsi led rule of Hutus followed on ethnic cleansing by Hutus. That is an extremely complex situation. The vicious spiral of slaughter and counter-slaughter continues and will continue in the absence of ethnic reconciliation. There can be no prospect of ethnic reconciliation given the situation on the ground and until there is significant and widespread international intervention.
It is easy to be long on analysis and short on solutions when it comes to conflict resolutions of intense complexity, particularly where there are ethnic differences and hostilities which have festered, in some cases, for many decades and centuries. It is an undeniable and inescapable fact that these tribunals, far from achieving the objective of bringing the many perpetrators to justice, appear to have been dogged by corruption — allegations, in certain cases — bureaucratic incompetence and lack of international political will. It is this lack of political international will which is to be condemned and unpardonable. Invariably, it is motivated by political or, more likely, economic considerations. We, as parliamentarians, need to articulate those concerns.
Anybody who takes an interest in current affairs knows that when a powerful nation sees its economic interests seriously threatened in a country where conflict arises, that nation takes or calls for swift decisive action. We do not have to look back any further than Kuwait where swift decisive action was taken. Conflict resolution was engaged in and that was the end of the story. Some, including parliamentarians, are of the view that further action should have been taken and that Sadam Hussein should have been taken captive. I will not go into that argument but I am merely making the point, which stands on its own.
I would not over-estimate human rights in Kuwait.
We will let the point stand on its own.
It is equally unpardonably true that these same world economic interests can invoke the paralysis of complexity or disagreement about the nature of intervention in the service of self-interest. They may also move in another direction. When it suits their political or economic interests not to move, they will say there is no consensus and a situation is too complex. The world is littered with recent examples. I could refer to subjects popularised by Senator Norris such as East Timor and Tibet and to British arms sales to Iraq and so on. I already referred to Kuwait.
Sadly, Kosovo is the current most newsworthy example of where political considerations caused paralysis, it is a further example of President Milosevic's cynical disregard for human rights and brazen contempt for international concern and outrage at his actions. This man has strung the international community, the United Nations and even NATO along over a number of years with a litany of broken promises. He was able to exploit political inertia because he had the devious ability to read in their numerous pronouncements the politics of fudge and the diplomacy of the politically paralysed.
We, as a country and member of the international community, must face some most unpalatable facts. The catastrophe in Kosovo is an inevitable consequence of UN and international failure to take on Milosevic and his fellow travellers when the advance warning signals were flashing bright red. Hundreds have been slaughtered and tens of thousands have been left homeless in this southern Serbian province of the former Yugoslavia.
Returning to the two tribunals, they appear to be incapable of dealing with the enormity of the task which the UN resolution constituted them to undertake. The reported breakthrough over the past 24 hours in the discussions with Milosevic is certainly welcome, but every supporter of human rights hopes desperately that it will lead to a permanent peace in Kosovo. People with those concerns are also concerned that we have not yet passed the post and that there is still a long way to go.
There is no doubt that what is urgently required is an international criminal court, as promoted by the Minister for Justice, Equality and Law Reform, and by previous Governments. We have listened to pronouncements and witnessed posturings in this direction for many years. It is time all nations concerned with the upholding of international humanitarian law set aside sectional self-interest and put such an independent prosecution system in place on a permanent basis and with structures which would enable it to take on and confront atrocities of the magnitude we have witnessed in recent years. This action is an essential first step to give a profoundly new and unambiguous signal to all those who ignore human rights that the rest of the world will no longer tolerate their inhumanity, ethnic cleansing, pillaging and mass displacement and dislodgement of large numbers of peoples and groups. That message must be clearly and unambiguously sent to the world community. Anything which has happened recently has not sent that message. Consequently, ethnic cleansing, genocide and massive dislodgement of people is continuing apace.
However, it is a heartening and significant development that the statute to establish such an international criminal court was adopted at a conference in Rome last July. I understand that when this is up and running, there will no longer be a need for further ad hoc tribunals. I concur fully with Senator Connor's point that we need to move quickly from the idea of such tribunals which are well intentioned but lack the financial, political and legal muscle to confront the magnitude of the problem in a swift, effective and forceful way.
I commend the Minister for introducing this important Bill. It is a clear and unambiguous statement of the State's determination to give priority to facilitating the work of current and future international war crimes tribunals. Section 7 is one of the many important elements of the Bill. It gives primacy to a request from an international tribunal for the surrender of a person over requests for the extradition or arrest and delivery of the person under the Extradition Act, 1965. Section 4 will prevent a person sought by a tribunal from frustrating the workings of the tribunal by invoking the device of applying for political asylum. Section 25 is most important. It provides for the surrendering of a person who is serving a sentence imposed by our courts once the Minister of the day receives an adequate undertaking that the person will be returned in due course to serve the remainder of their sentence.
Irrespective of the many reservations I and others have about the effectiveness of the tribunals to date, it is imperative that the State fulfils its international humanitarian obligations. We must send a clear and potent message to all perpetrators and would be perpetrators of genocidal atrocities of the abhorrence and repugnance with which we regard their vile deeds. Our actions must clearly and unambiguously demonstrate our utter determination to do everything to bring them to justice.
I also welcome the Bill. However, I am not sure how practical it is in terms of the establishment of these two tribunals and I regret that it is part of an ad hoc process. In terms of its practicality, it deals principally with the surrender of war criminals, assistance in investigations, etc. Luckily, Ireland has succeeded in remaining marginal to these issues, although it is possible that a war criminal might slip into the country and would have to be arrested and sent back to stand trial. The Bill includes much legal machinery, including an examination of the hierarchy of requests in terms of which extradition request takes precedence.
However, the Bill's importance is related to the signal it sends that the international community is gearing itself up to deal in some measure with the issue of genocide, crimes against humanity and war crimes. The principle rather than the practical effectiveness of the Bill should legitimately concern the House. Therefore, I, in common with other speakers, intend to consider more centrally the issue of an international criminal court.
I placed on the Order Paper two motions — one of which regrettably no longer appears on it — on this subject. The reason one of the motions is gone is probably that it urged a particular attitude and approach by the Government at the Rome conference in July. I am glad the Government took that approach. It is important that the Bill strengthens the principle of responsibility and the point that senior political figures cannot escape responsibility for their crimes. This should also apply to senior military personnel.
Reference was made to Mr. Karadic. I presume Mr. Mladic would also be involved. Senator Fitzgerald suggested that people did not know where they were, but that is not the case. The extraordinarily cynical point is that people knew where they were but, because of what they know about the Machiavellian dealings in that area, their arrest would be as embarrassing to some of their accusers as themselves. That is a weakness in the international community. There are a number of mechanisms by which interested parties can weaken such a court and tribunal and one must be concerned about that aspect.
In terms of the strength of tribunals, the United Nations bears the expense of the tribunals and levies contributions on member states. This suggests to me once more that this type of apparatus might be vulnerable to starvation of funds if sufficient major powers were interested in frustrating the activities of tribunals. I do not know a way round it; I am only pointing to a weakness.
It is welcome that the Rwanda tribunal delivered its verdict in the case of the former Rwandan Prime Minister, Jean Kambanda. I note that the Minister referred to the judgment given on 2 September last in which genocide as defined in the Geneva Convention, 1948, was interpreted for the first time by an international court. This is an extremely important point. Perhaps the material was too lengthy but it would be useful if the significant elements of the definition were placed on the record of the House. If the Minister has that at his disposal, perhaps he could put it on the record in his reply. The interpretation is important because it is central to the issue.
Mention was made of the rape of the Tutsi women. Tragically, mass rape appears to have become a political instrument. I will not deal with that matter in detail because it will be more effectively dealt with by my distinguished colleague, Senator Henry.
The Minister referred to the debate in the other House where it was stated that the absence of a permanent international criminal court made it impossible to try Pol Pot. Many Members spoke passionately in favour of the establishment of such a court. The Minister said he understood the establishment of a further ad hoc tribunal to deal with the perpetrators of the atrocities in Kampuchea was raised at the UN earlier this year but left aside on the basis that the international criminal court due to be established following the successful negotiations earlier this year would be in a position to bring to justice the perpetrators of atrocities in various parts of the world.
However, the Minister is misinformed and it is important that he is made aware of this. Perhaps I have misinterpreted the position and I am open to correction, but I understand that under the draft statute adopted in July the principle of non-retrospectivity has been accepted. This is a fundamental principle of the statute to which 53 nations agreed. Therefore, it cannot apply retrospectively and, ironically, we are starting from a legal year zero. We should not fool ourselves into thinking that the Khmer Rouge regime can be dealt with under this legislation. Some other mechanism must be found, but the Minister may have a different view.
I wish to make a number of points to put the tribunals and the international criminal court, which I would prefer, in context. We always say "never again". The notion of an international court and such tribunals originated in this century at Nuremberg. People said then "never again", but as our former President, Mary Robinson, pointed out in an article in The Irish Times yesterday, we have been saying “never again” during a period when these types of atrocities have continued to repeat themselves. This happens largely because leading figures have managed to get away with their crimes and have protected themselves from any responsibility for them.
The main activity of the international community has been to impose sanctions, embargoes or, occasionally, collective military force in response the most serious atrocities against humanity. However, as we saw in Iraq, such actions can often inflict greater harm on innocent civilians. An example is the large number of children in Iraq who suffer because of the embargo affecting medical supplies.
The idea of this kind of court dates back to the 19th century. In 1872, Gustave Moynier, one of the founders of the International Committee of the Red Cross, proposed a permanent court in response to the Franco-Prussian war. After the First World War, there were calls to try the Kaiser and his general staff. A court was established in Nuremberg and Tokyo after the Holocaust. In 1947, the French representative to the UN Committee on the Progressive Development of the International Law and its Codification proposed the establishment of an international criminal court. That was in 1947, over 50 years ago. In 1948, the UN General Assembly adopted a Convention on the Prevention and Punishment of the Crime of Genocide. It called for criminals to be tried by such international penal tribunals as may have jurisdiction, which was so vague that very little was to happen for a long time. Separately, members asked the International Law Commission to study the possibility of establishing an international criminal court. The ILC studied this for five years between 1949 and 1954, but it was held up by the lack of definition of the kind to which the Minister referred in his speech and for which I have sought clarification. On this occasion, it was the definition of aggression. In 1993, the establishment of a temporary tribunal for Bosnia-Herzegovina strengthened discussions for a permanent court. In 1994, the Security Council established a second temporary tribunal, this time for Rwanda.
I sound two notes of caution. Although we appear to be travelling in the direction of holding these people responsible, there have been significant backward steps. In December 1997, the United Kingdom defected from the position of other Security Council members and backed the Singapore compromise proposal to limit Security Council authority over the court. This year, on 26 March 1998, in a letter to the Secretary of State, Madeleine Albright, US Foreign Relations Committee Chairman, Jesse Helms, declared in the United States Senate that the international criminal court would be dead on arrival unless the United States was given control of veto over the court. The House should be aware that our friends, the Americans, decided they would do their best to sabotage the international court unless they had a veto over it.
In what circumstances would they use it? In last week's Sunday Independent, a person called George Dempsey, a diplomat who was employed by the Americans in Dublin, questioned our right to raise difficulties about the American use of landmines, a human rights issue. He also queried and complained about the attitude of the Irish people and Government to the situation in East Timor, a classic case of genocide. Presumably there was a degree of commercial interest on the Americans' part in this.
Another difficulty is the issue of cultural sensitivities of different countries. In some countries, for example, it is regarded as perfectly permissible to treat women in a degrading and disgusting fashion, such as female circumcision and the exclusion by the Taliban of women from hospitals, education, etc. In Iran, a country with which we have friendly diplomatic relations and to which we hope to sell a good deal of beef, there have been a number of recent significant developments. One is the strengthening of the fatwa on Salman Rushdie by elements within Iran. Another is an attempt to execute a German businessman on the grounds that he had consensual sexual relations with an Iranian woman and he was not a Moslem. This may not fit into the category of war crimes but it suggests a very different cultural context in which human rights are viewed. There will be great difficulty in getting agreement across a broad spread of countries to pursue human rights abuses.
I pay tribute to the work of Amnesty International which has lobbied for this kind of legislation and gone further and lobbied for the kind of international criminal court about which many Members spoke this afternoon. I note from material received from it that it has tested the proposed international court against 16 fundamental principles which it enunciated before the draft statute was produced. I will list some of them. One is that the court should have jurisdiction over the crime of genocide. Obviously it will have that. Another is that it should have jurisdiction over other crimes against humanity. It has, but Amnesty points out that the threshold which must be crossed before the court may exercise its jurisdiction is too high and that some of the definitions of the crimes are not consistent with international law. Another is that the court should have jurisdiction over serious violations of humanitarian law in international and non-international armed conflicts. It has jurisdiction over them but again the definition of crimes is, in some cases, narrower than those in international treaties and there are high thresholds before the court can exercise its powers. The Minister is probably aware of the other points made by Amnesty International, so I will leave it at that.
I welcome the Minister. My party supports the legislation which demonstrates the determination of the people to co-operate fully and in every respect with the international tribunals in their efforts and attempts to bring to justice the perpetrators of some of the most appalling crimes which have been committed against humanity this century, if not ever.
If it were not for television, it may well be that the international community would never be fully appraised of the utter horror, sheer evil and depravity of the crimes under discussion this evening and which have given rise to the setting up of the ad hoc tribunals under consideration in the legislation. We often decry the fact that television sometimes cheapens values held by the last generation and which we would like to perpetuate in the next. However, we must pay tribute to television for the manner in which it has opened the eyes of the world to the atrocities of which we speak.
The legislation sends a strong signal to the perpetrators of the atrocities which have been so vividly described this afternoon that there will be no shelter, safe haven or refuge within our shores for them and that we will co-operate fully in the manner laid out in the legislation to ensure such people, if they do find themselves here, will be surrendered in accordance with the legislation without delay or remorse.
I hope the conviction, sincerity and passion of this debate will communicate the will of the Irish people to square up to these issues with a new set of urgencies, resolve and determination. It has been sad to witness the delay and ambivalence about establishing systems to bring to justice the perpetrators of genocide, war crimes and some of the most heinous crimes ever perpetrated against humanity.
Our consciences have been stirred to the core by what we have seen in Rwanda. The planned rape of Tutsi women has been one of the most depraved acts in history. It is difficult if not impossible to estimate the impact which this has had, and will continue to have, on an innocent community. Dealing with this issue will be as complex as the issue itself. The culture and tradition of Rwanda and its neighbours does not make it easy for tribunals to operate or for the perpetrators of heinous crimes to be brought to justice. Nonetheless, this should not mean that our efforts are not intensified. This situation must be tackled with urgency. What is done is done and the damage is irreversible. Two things must now take place, the criminals responsible must be brought to justice and initiatives must be taken to ensure that this never happens again. The prevention of such depravity must be as important an item on the agenda of every right-minded country and the international community as the prosecution and punishment of the perpetrators.
Events in the former Yugoslavia have been a blemish on the conscience of Europe. As Europeans we pride ourselves on being the inheritors of the great civilisations of Greece and Rome. We expect a higher standard than was witnessed in the atrocities which took place in parts of the former Yugoslavia. We support the initiative which has led to the agreement between the Serbs and the Kosovars. I hope that this agreement will provide a breathing space to enable some permanent solution to be worked out during the next three years to ensure that the quarrel will be settled amicably and permanently so that this kind of atrocity cannot repeat itself.
Adequate and proper protection must now be given to the thousands of Kosovars driven from their homes by the barbarity of the Serbs. As they make their way home, hopefully to be settled in before the savagery of the winter adds to their hardship, they must not be intimidated by Serb soldiers acting cruelly. I hope that civilian forces, backed by NATO, will ensure that the Kosovars will not be further intimidated as they make their way home. What has happened in our back yard has been horrendous.
Senator Liam Fitzgerald referred to the ambivalence in the international community. The lack of will to act in accordance with principles of justice has been a feature of the international community to date. Ireland has no agenda or ancient quarrel with any of those involved. We carry no political baggage and have no economic self-interest in the region. I hope that this will enable us to influence the international community to deal with these issues with greater speed and directness and a sense of justice and principle.
This Bill is only a stop gap, but it is an important and essential measure. I hope that the establishment of a permanent court of justice can be expedited and that it will be brought about with the minimum delay. Unless and until this is done, we cannot say that the international community is responding effectively and efficiently to atrocities, particularly those in Rwanda and the former Yugoslavia.
It is important that the Minister uses every opening and influence available to the Government to expedite the establishment of the permanent court. We are dealing with very complex issues which will take time to resolve. We have seen the difficulties encountered by Mary Robinson on simpler human rights issues. So many countries are entrenched in bad practices and evil and depraved ways of dealing with those they deem to be their enemies.
I hope that Ireland, as a country with a fairly good record, will be a major driving force in moving the agenda forward, so that procedures are put in place whereby those responsible for appalling atrocities are brought to justice. Not alone will that ensure that justice is done, it will also act as a deterrent to tyrants who would seek to continue to carry out this kind of depravity.
I welcome this Bill. It would be impossible for the international criminal tribunals to operate without legislation such as this. I share much of the concerns expressed by Senator Liam Fitzgerald about the workings of these tribunals, which have been extraordinarily slow. The situation may have improved in the past year, but is important to remember that the first chair of the Yugoslavian tribunal, Judge Richard Goldstone, left his post in October 1996 because he was so deeply disillusioned with the manner in which the tribunal was progressing. At a farewell lunch, he told journalists that if the tribunal was unable to do the job it was created to do, there was little point in keeping it going. Although the situation may have improved somewhat since, Senator Liam Fitzgerald was correct in saying that the lack of political will has been all too obvious.
I am very cheered by the fact that Ireland is making a bigger financial contribution than is necessary. I do not think the importance of obtaining forensic evidence for these tribunals is fully recognised. Many problems have occurred because forensic evidence has not been made available to the tribunals. The fact that mass graves have, for example, remained undug has prevented the collection of necessary evidence.
When one considers the level of protest here at the failure of the IRA and other paramilitary groups to identify the graves of the disappeared, one must remember that a huge number of people have also disappeared in Yugoslavia and Rwanda whose bodies are lying in unmarked graves. Their relatives have a right to expect the location of these bodies to be identified so that people can be given proper burials.
I gather only 20 of the 185 members of the United Nations have, to date, introduced legislation regarding Yugoslavia, with only 11 having introduced legislation on Rwanda. Senators Quill and Norris stated we should use moral authority to encourage other countries to introduce such legislation. Without such legislation, the tribunals are unable to act if they find suspects within their boundaries.
The international criminal court has been referred to by several Senators; I was delighted Ireland was so well represented in Rome when the legislation was being drafted. I recall the Minister for Foreign Affair's speech to the UN General Assembly some weeks ago in which he expressed Ireland's fervent hope that the international criminal court would be set up in the near future. I hope we will use our friendship with the US to encourage it to support the setting up of the court. It was most unfortunate the US decided it would have to exercise a veto over the court if it came into existence. It is always easier to listen to friends than to those with whom one is not on good terms and if we can encourage the US to change its views on participation in the international court, we should do so.
One issue about which we should all be concerned is that this legislation is constitutional; I am sure those who drafted it have done their best to ensure this is so. However, in some of the countries which introduced this legislation, there have unfortunately been cases where it has been found that the legislation did not comply with the constitutional requirements of that country. The experience of the US Government offers a cautionary lesson. Last year a Texan judge released an indicted Rwandan war criminal in spite of the fact that Congress had passed legislation similar to this Bill in 1995. A retired minister of a Seventh Day Adventist Church who was indicted for orchestrating the massacre of hundreds of men, women and children who had sought refuge in his church was freed. Even though our intentions might be honourable, I hope the Bill will stand the test of constitutionality.
There are many less obvious things we can do to assist the tribunals. I am aware there is a possibility of international jurists being involved with the tribunals. If I may boast on behalf of my own constituency, Trinity College is, with the backing of the Government, sending books from its law schools to Arusha. A library of material on human rights and humanitarian law was sent to Arusha and will be of use to prosecutors, defence lawyers and judges at the war crimes tribunal there. That represents a constructive contribution towards bringing the perpetrators of genocide to justice and we should welcome it.
Senator Norris said that I would deal with the situation regarding rape. Once again, Ireland has made an effort in this area. With the support of the Department of Foreign Affairs, the Rape Crisis Centre has played a particularly important role in helping those in the former Yugoslavia to bring cases to the tribunal. It is important to remember that this is the first time rape has been considered a war crime and a crime against humanity. The number of complaints received from women who have to live in the same villages as their rapists is appalling. I had the doubtful privilege of watching a film entitled "Calling the Ghosts" which was brought to Ireland by Valerie Hughes, Fr. John Feighery and other members of Ireland Action for Bosnia-Herzegovina. It depicted events in the Omarska prison camp where men and women were tortured and where women from various parts of Yugoslavia were systematically raped. The kind of practical help which can be offered to people to bring cases to The Hague is very important.
I want to conclude on a slightly sour note. Some victims of human rights abuses, forced to flee their country because their lives are in danger, will make their way to our shores. The 1996 Refugee Act has not been implemented and the Department of Justice, Equality and Law Reform has created its own guidelines which do not allow a proportion of asylum seekers the right to independently appeal a negative decision, in spite of the fact that this is required by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment. While the war crimes tribunal legislation is very important regarding the surrender of indicted war criminals to the international tribunals, we must correct the faulty procedures currently operating in this State which could allow the victims of human rights abuses to be surrendered to the arms of their persecutors. Without the enforcement of the refugee legislation and its important safeguards, our human rights reputation internationally will be marred.
I welcome the Minister to debate this Bill which can be a help in resolving some of the current problems. I am glad that, even before passage of the Bill, we have paid our dues to setting up courts of international tribunal in Rwanda and Yugoslavia.
We talked about European civilisation and people's surprise that such atrocities should happen in Europe. European civilisation is a myth. We have seen some of the greatest war crimes being committed in Europe, be it in Germany, Hungary or Russia. We must give the lie to the idea that we are part of the most civilised area in the world.
The only future is through the establishment of the international criminal court. However, if the tribunals in Yugoslavia and Rwanda are not successful, the international community will not look very favourably at the setting up of the international criminal court in trying to protect people against crimes of genocide, crimes against humanity and war crimes. One hundred and twenty-two million dollars has been contributed to the cost of the tribunals, with the UN levying states. However, sometimes imposing a levy is as far as it goes. When one sees the amount of money owed by the US to the UN over the past number of years it is clear that levies do not count unless paid and there must be some means of ensuring this is done.
The question was asked as to whether the UN is capable of establishing courts or if it can be successful. The UN has been a very unsuccessful organ of world peace and its maintenance over the past number of years. This can be traced back to the historical roots of the UN when, after the Second World War the Security Council took over the running of the UN. The Security Council protected itself from getting involved in too many places because of the threat which existed in the context of the Cold War with Russia always balancing against the US. The influence of both nations balanced against whatever else was happening in the world.
The tribunal in Rwanda is not working simply because a sufficient number of international trial lawyers have not gone to Rwanda. Three courts have been established. I do not think there are sufficient judges and there definitely is an insufficient number of lawyers to deal with the problems in Rwanda. The jails in Rwanda are full of people who have not yet been brought before the courts. There are people in jail who may never be brought to court because it might be proved they were not involved in the genocide. Many people in jail will escape before they are brought before the tribunal and this is the source of a huge problem in Rwanda. Women and men have been incarcerated although an attempt is being made to get babies and young people out of the jails. Legislation was passed by the House providing that children should be isolated from the problems of war, but children are still involved and in Rwanda they are not being protected and remain in jail. My information is that the tribunal on Rwanda is not working.
I do not have as much information on the situation in Kosovo, but a very small number of cases — there have been 20 public indictments against 58 individuals — have come before the court. To believe that only 58 individuals were involved in genocide in the former Yugoslavia is going against the balance of all truth. In one very high profile case in Rwanda Jean Kambanda was jailed for life while the tribunal in Kosovo sentenced one person to five years' imprisonment for a genocidal crime. How can anybody justify giving a five year sentence to somebody accused of genocide? It might be said that the individual was not the leader of the pack. However, it makes no difference whether he was the leader or not — he took part and killed people. He received five years' imprisonment for this. Another person is appealing a case at the tribunal in Kosovo. This does not seem to provide justification for setting up a tribunal which costs about $57 million per year.
The future of international tribunals and the international court which I hope will be set up depends solely on the success of the two tribunals now being held. Today I received an article concerning Lebanon with a headline which says "The only protection is knowledge". Knowledge that an effective international court of justice will deal with people involved in genocide might prevent people from committing atrocities. The world is strewn with cases of people not being brought to court for crimes against humanity, genocide and war crimes. In Sudan, for example, the northern Government is trying to kill everybody in the south — there are not so many saints in the south either. Some people say the people in the south are Christian, that they are "our lads". We must take into account the perception that if people are Christian they are good and if they are anything else they are bad.
The public is more knowledgeable about what is happening in foreign parts than they were some years ago. Missionaries, who are no longer acknowledged in Ireland, have done exceptionally good work in human rights, the establishment of proper means of communication, water, sewerage, etc. We must not forget the work of NGOs, including Amnesty International, Trócaire, Oxfam, Concern, GOAL, etc., and the number of people who have gone to live in very difficult situations. They have been a help and are bringing back to Ireland the knowledge that the world is not like it is here. The Garda and Army have gone abroad. Sometimes politicians are denigrated for not doing things, but they have been listening, watching and seeing what goes on.
This legislation is extremely welcome. It is necessary and enables Ireland to fulfil its obligations to co-operate. I hope it will not be too long before we return to discuss the extension of the provisions of the Bill to facilitate the establishment of an international criminal court. Somebody said such legislation could not be retrospective. I do not think such a court could process cases retrospectively.
With lawyers making so much money it is very difficult to get them to help in situations outside Ireland. However, it is necessary for the legal profession to get involved and show more concern in international affairs such as the tribunals which have been established. A huge number of people, because of their age had to retire from State posts, solicitors' offices or the Bar and I am sure a number of these people would help if asked.
I again refer to the article on the Lebanon which states "The only protection is knowledge". This I believe to be true. If an emergency occurs there is no point theorising about what should be done, we should get in there and do the job. In this sense, I believe this Bill will have an impact not alone on the Irish people but on the international community in general.
Like other speakers, I welcome the Minister. I also welcome this important legislation which will allow Ireland play its part, small though that may be, on the international stage. There should be no hiding place here for war criminals. We must reflect on why such incidents happen worldwide and what we might do to change the opinions of some people. Historically there have been many instances of genocide and war crimes. There is no excuse for any of these crimes. In this modern age with its advanced telecommunications, advanced education systems and under the United Nations regime, most nations are aware of what needs to be done to stop what is happening in places like Yugoslavia and Kosovo. I believe the west is acting properly regarding what is happening in Yugoslavia and Kosovo at the moment.
I spoke to someone recently who has some knowledge of what is going on in Serbia. That person told me that if Slobodan Milosevic is "taken out" he will be replaced by even worse. I asked how could that be the case and I was told that what is happening there is unbelievable. I understand that Slobodan Milosevic has not got the support of all the Serbs in Serbia and that a significant body of opinion there opposes what he is doing. Nevertheless, these horrific crimes are being committed. President Clinton and NATO in particular are acting properly in this regard.
Historically the Balkans has been an area of great conflict between Christian and Muslim religions and for many centuries it has been the area where many vile acts have been carried out by both Christians and Muslims. The root of this conflict is lack of respect and understanding for other traditions and peoples. To any educated person in western society racial hatred and bigotry do not make sense. Nevertheless, there are examples in our own country where we ought to have a more Christian outlook and be more prepared to accept foreigners and strangers in our midst. As a nation many millions of our people emigrated over the years. It saddens me that there is a minority opinion in this country which is concerned about the refugee crisis. I received a letter today from one such person; I do not agree with the views of these people. When I see economic refugees selling the Big Issues magazine in our towns and cities, I know there are Irish people in other countries in the same position. Throughout history Irish economic refugees have gone to the United Kingdom, Europe and America where they have been welcomed. We ought to have more respect for economic refugees who come here. If these people are found not to be genuine refugees they do not have an entitlement to stay in the country. However, while they are in the country they should be treated with humanity and respect. What has been happening to some of these people is unacceptable.
This is a difficult problem for the Department of Justice, Equality and Law Reform. I know the Minister has tried to tackle the problem as best he can with the resources available to him. However it is important that while these refugees are in the country they are treated well, particularly by the arm of the State with which they come in contact, such as the Garda and officials of the Department of Justice, Equality and Law Reform. These people should have special training to deal with the refugees and put them at their ease while the process of their refugee status is being put in train. Refugees should be made to feel like proper human beings, treated with humanity and respect and, above all, with dignity.
Senator Quill mentioned television and how in this modern age we are instantly informed about war crimes when they happen. I believe this to be the case. The role of the media in bringing world attention to crimes of genocide is instant and is to be welcomed. However, the other side of the coin is that young children watch these images on television. There is a case to be made for organisations such as RTÉ and TV3 not to show some of these dreadful clips at certain times of the day, particularly before the news at 9 p.m. While it is important that adults see some of these dreadful photographs and visual clips, it is equally important that young people, particularly children, do not see them. The stories should be reported but it is wrong that children under the age of seven or nine should be exposed to these images, which even adults can find shocking.
This is an important Bill whereby Ireland will be seen to play its part in world crises. Irish people abroad, particularly Irish missionaries, have done tremendous work for deprived communities in Africa and other areas. For many generations missionary societies have sent young Irish men and women abroad — particularly the Irish Medical Missionaries of Mary in Drogheda — who have done wonderful work in the Third World to help bring about mutual understanding and respect. At the end of the day it is all about respect and our society must reflect these values. The world community must insist on these values. This legislation will allow Ireland play its part, small though that may be, in this very important role on the international stage.
I welcome the Bill. I particularly welcome the space given to the Minister under section 37 to recognise further and similar tribunals of this type. The world has been taken aback in the last number of years by the imagery that comes into our sittingrooms at night. It brings what is happening close to home. In the late 1980s Senator Ryan and I were the first to raise the question of East Timor in this House. Some years ago a colleague who was teaching in a little known part of former Yugoslavia wrote to me about the problems of the ethnic group in what I now know to be Kosovo. I wrote to the Minister for Foreign Affairs at the time and I found that Government and the succeeding Government to be very understanding of the needs in that area. It is regularly being thrown in our faces that Ireland does not play its part in the important aspect of policing UN resolutions and decisions. This Bill is a perfect example of how Ireland is doing that effectively and it is important for us to be seen to be supportive of that. The influence of countries such as Ireland will eventually be of most significance. What is happening around the world defies and beggars belief. There was an article in The Guardian yesterday about the Taliban in Afghanistan. It is no different whether it is Afghanistan, Rwanda, or former Yugoslavia. Man's inhumanity to man is time and time again emphasised, illustrated and obvious. Humanity demands that we respond.
It should raise the question of people's views on issues such as neutrality and sovereignty. Views and attitudes to neutrality have changed. There are greater demands on us as part of the international community than was the case decades ago. Our traditional form of neutrality is no longer relevant. Whereas it is important for us not to take sides it is equally important to monitor and involve ourselves in international judgments on activities of people, groups and regimes who act contrary to the global common good.
Currently NATO are primed to act in the former Yugoslavia while the rest of the world has not made up its mind what it should do and people do not recognise what side they should take. However, nobody wants the world to stand by. The last time we stood by there was extraordinary criticism of the EU among others. At the same time people do not want us creating wars. There should be international intervention, but not by NATO. The UN should keep, enforce and police peace in various parts of the world by way of tribunals, such as those covered in the legislation.
One half of the coin is missing. We cannot have a situation where NATO is the enforcer and the UN provides police, courts and tribunals. I read the recent contribution of the Minster of Foreign Affairs at the UN and a previous speech given there by former President, Mary Robinson. The role of the UN needs to be strengthened so that our involvement in international activities, such as those in this welcome legislation, is matched by a UN authority in dealing with issues such as those currently being looked at in Kosovo.
The question of whether there should be intervention would be much easier for people to deal with it if were done by the international community acting as an international community and by people who represent all the groups in the world and not just the superpowers or those with big armies and major military forces. This Bill is hugely important but it comes at the end of the process and we missed the beginning. It deals carefully with issues such as people not being tried twice for the same offence The definition of "genocide" is wide ranging and for the purpose of operating internationally I presume it has been determined as such in other jurisdictions. I reiterate my support for the legislation and welcome the fact that we are signing up to this important international development.
I thank all Senators who contributed to the debate. It is an important Bill and I compliment them on the tone of the debate, which was very constructive and supportive. It is important that Ireland is seen to be fully honouring its international commitments by bringing forward this legislation. It is hard to find words which can express adequately the total abhorrence that must be felt by any right thinking person of the human misery and savagery inflicted on countless innocent men, women and children in former Yugoslavia and Rwanda.
As I stated earlier, I had the opportunity to view the devastation inflicted on Sarajevo during my recent visit to Bosnia and Croatia. The Government fully applauds the efforts to bring to justice those who are responsible for the atrocities. When the Bill is enacted the appropriate authorities here will have the necessary legal mechanisms to arrest, detain and hand over persons found in the State who are wanted by the Yugoslav or Rwandan tribunals. The work of both tribunals is succeeding in bringing evil perpetrators to justice. It is hoped that many more indictments and prosecutions will be seen over the coming months.
The Yugoslav tribunal has been mandated by the UN to investigate the atrocities that have been committed by Serbs and Albanians since March in Kosovo and to bring those responsible to justice. That was made clear in the resolution of 31 March and 23 September. Under the agreement between Ambassador Holbrooke and President Milosevic reached in recent days, the Federal Republic of Yugoslavia and the Albanian side will be expected to co-operate with the Yugoslav tribunal in bringing to justice those responsible for the atrocities.
I am glad that since the publication of the Bill there was a successful conclusion to the Rome diplomatic conference held during the summer. A statute to establish a permanent international criminal court was adopted. Ireland has already signed the statute, with 52 other countries. The establishment of the court is an important development in bringing the international community closer in its efforts to tackle and bring to justice those who commit the most heinous crimes in various parts of the world.
Senator Connor referred to the financial problems of the Yugoslav tribunal and said the $65 million figure mentioned by me covered the Yugoslav and Rwandan tribunals. It does not, nor did I suggest that was the position. The budget for the Yugoslav tribunal is $65 million while that for the Rwanda tribunal is $57 million. Senator Norris expressed interest in details of the judgment given by the Rwanda tribunal on 2 September. Unfortunately, I regret that I do not have the details of it to hand. He also referred to non-retro activity and seemed to suggest that any court or tribunal set up now could not deal with the atrocities committed in Cambodia. That is not my understanding of the position. The crimes in question — for example, genocide — are established under international law and are open to prosecution at any time. The Yugoslav tribunal was established in 1993, but it can, of course, deal with crimes committed from 1991 onwards.
Senator Henry and others referred to the situation regarding asylum seekers in Ireland. It must be clear to everybody that this has no direct bearing on the legislation before the House. Nonetheless it is important that we clear up misconceptions in relation to this matter. As an interim measure, I approved administrative procedures for processing asylum claims and I ensured details of this were circulated to all Members. These procedures, together with those sections of the Refugee Act which have been implemented, enable us to fulfil our duties. Ireland has fulfilled its international obligations to persons in need of protection and it will continue to do so.
A comparative study on the refugee legislation of Ireland and EU member states to be completed by the end of 1998 together with our experience to date are very important components in the review of the Refugee Act, 1996. There is a backlog of 6,252 applications for refugee status. These must be examined before decisions can be taken on the future of the Refugee Act.
In February 1998, officials in the Department of Justice, Equality and Law Reform met the UNHCR and several Irish non-governmental organisations to discuss outstanding concerns regarding procedures. On receiving the report of this meeting I agreed certain clarifications should be given and manifestly unfounded provisions should be amended to allow for a longer period in which to lodge an appeal and for an independent appeals mechanism. The new arrangements follow the procedural provisions of the Refugee Act very closely; the new procedures reflect the philosophy behind the Refugee Act.
Concern has been expressed regarding the length of time taken to process applications. This concerned me when I took office. Last year I obtained Government approval to employ an additional 72 staff to deal with the backlog of asylum cases and the ongoing intake of new asylum seekers. In July 1998, I obtained Government permission to recruit an additional 72 staff for the asylum, immigration and citizenship areas. At present almost 90 posts have been filled and the remainder will be filled in the coming months.
On the issue of asylum seekers being treated properly, everything possible is done to ensure the human dignity of asylum seekers is respected at all times. However, there is a distinction between a person who is found to be a refugee and entitled to asylum and a person who is found not to be a refugee. A person who is found to be a refugee is granted asylum and given all rights due in accordance with the United Nations convention of 1951. While the human dignity of a person who is found not to be a refugee is always respected, unfortunately he must leave the State.
I have made arrangements to establish a one stop shop in Mount Street for asylum seekers. The new premises opened on 12 October. At present it houses officials processing asylum applications, the appeals authorities, the United Nations High Commissioner for Refugees and the Eastern Health Board's refugee unit. In future it will also house the refugee legal service.
On the matter of staff training and whether those processing applications are equipped to deal with the areas in question, all staff, including retired public service servants recruited as temporary contractors, have undergone training. The office of the United Nations High Commissioner for Refugees has been involved in this training. The issue of an appeals authority has also been dealt with. Some people have already been appointed and if more are required in the future they will be appointed.
Our objective is to deal with applications as expediently as possible while ensuring great care is taken to ensure everybody gets a fair hearing. One has to accept the result of the process which is open, fair, transparent and accountable.
Question put and agreed to.
Committee Stage ordered for Tuesday, 20 October 1998.
The Seanad adjourned at 5.40 p.m. and resumed at 6 p.m.