Vol. 166 No. 7
No. 5, motion pursuant to section 23 of the Referendum Act, 1994, prescribing a formal statement for the information of voters to be included on the polling card will be debated in conjunction with Second Stage of the Bill and will be formally moved when the debate on the Bill is concluded.
Tairgeadh an cheist: "Go léifear an Bille an Dara hUair anois."
On 17 July 1998 the Statute of the International Criminal Court was adopted in Rome by the United Nations Diplomatic Conference of Plenipotentiaries. Ireland was an active participant at that conference and subsequently signed the Rome statute on 7 October 1998. I have been advised that before the State may ratify the statute, and thereby become a party to it, an amendment of the Constitution is required. It is the purpose of the Twenty-third Amendment of the Constitution Bill, 2001, to provide for this amendment. If the proposed amendment is approved by the people in a referendum, as I sincerely hope it will be, the Constitution will be amended to enable the State to ratify the Rome statute.
The adoption of the statute in 1998 was the conclusion of over 50 years of work towards an international criminal court, the need for which was recognised as early as 1948 by the United Nations General Assembly. A draft statute was prepared by the International Law Commission in the early 1950s but work was not resumed on it until 1989 at the request of Trinidad and Tobago. Events in the former Yugoslavia and in Rwanda in the 1990s prompted the United Nations Security Council to establish ad hoc tribunals to bring to justice those responsible for the atrocities committed in those places. The establishment of such tribunals for the first time since the Second World War focused minds on the need to establish a permanent international criminal court with the power to deal with such crimes in the future. In 1994 the International Law Commission submitted its draft statute to the General Assembly and from then on progress was swift. The General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court to consider major substantive issues arising from the draft and this committee met twice in 1995. After considering the committee's report, the General Assembly created the Preparatory Committee on the Establishment of an International Criminal Court to draw up a draft text for submission to a diplomatic conference. That committee held its final session and completed the drafting of the text in March and April of 1998.
The United Nations Diplomatic Conference on the Establishment of an International Criminal Court was held in Rome from 15 June to 17 July 1998, and the result was the statute which we now seek to ratify. This statute provides for the establishment of a permanent international criminal court, related to the United Nations system, with jurisdiction over persons in respect of genocide, crimes against humanity, war crimes and the crime of aggression. The statute of the court is an international agreement which will enter into force approximately two months after 60 states have become party to it. By 31 December 2000, 139 states, including Ireland, had signed the statute and to date 29 have ratified it or acceded to it.
Great progress has been made in international human rights law and international humanitarian law during the twentieth century. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and, in Europe, the European Convention on Human Rights, all provide guarantees of respect for human rights, including during time of armed conflict. There have also been significant developments in international humanitarian law, the rules specifically intended to protect persons in time of armed conflict. The four Geneva Conventions of 1949 are the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, the Treatment of Prisoners of War and the Protection of Civilian Persons in Time of War. Two Protocols to these conventions were adopted in 1977 and relate to the protection of victims of international armed conflicts and of non-international armed conflicts respectively. While these international agreements establish clear rules which must be observed, even in a time of war, until now these have not been supported by an adequate international enforcement mechanism. The need for such a mechanism was recognised early on as illustrated by the Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948. Article 6 of that convention allows for trial by the courts of the state where an act of genocide occurs or by "such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction".
When the UN General Assembly adopted this convention in 1948 it invited the International Law Commission to study the desirability and possibility of establishing a judicial organ for the trial of persons charged with genocide. That was found to be both desirable and possible and a draft statute was prepared in 1951 and revised in 1953. Although the question of the establishment of an international criminal court was considered periodically thereafter, Cold War politics hindered significant developments and it was not until 1989 that the General Assembly asked the International Law Commission to resume work on a statute for an international criminal court.
While work was progressing on the draft statute, events in the former Yugoslavia and in Rwanda prompted the United Nations Security Council to establish ad hoc tribunals to try those responsible for the grave violations of human rights and humanitarian law occurring there. The International Criminal Tribunals for the former Yugoslavia and for Rwanda have certainly done great work, nevertheless ad hoc tribunals of this sort suffer from many disadvantages. Such tri bunals can only be established after crimes have been committed so there may be delays between the commission of the crime and the establishment of the tribunal. The jurisdiction of such tribunals is limited to the events which prompted their establishment and questions will always be raised as to why ad hoc tribunals are established to deal with some situations and not with others. This is particularly unsatisfactory as it allows both the victims and the perpetrators of international crimes to challenge the motivation behind the establishment of tribunals. The victims of crimes for which no tribunal is established will complain that tribunals are not established in the interests of justice or to vindicate their rights, but only when it is politically expedient, while accused persons brought before an ad hoc tribunal will claim to be the victims of victor's justice. Criticism of this sort undermines the work of ad hoc international criminal tribunals and the Rome Statute of the International Criminal Court addresses these difficulties by providing for a permanent independent institution within the United Nations system.
In 13 parts and 128 articles, the statute deals with the establishment of the court, its jurisdiction and the general principles of criminal law to be applied. It sets out the composition of the court, its administration, the procedures for investigation, prosecution and trial, the penalties which can be imposed on conviction and provides for appeals. States parties are under obligation to co-operate with the court and provision is made for the enforcement of judgments and the carrying out of sentences. The statute further provides for an assembly of states parties and for the financing of the court. The court will sit at the Hague in the Netherlands and the assembly will be established when the statute comes into force. The assembly will consist of one representative from each state and elect 18 full-time judges who will be persons of high moral character, impartiality and integrity possessing the qualifications required in their respective states for appointment to the highest judicial offices.
As is to be expected, the judges will be independent in the performance of their functions. There may not be more than one judge of the same nationality and in selecting judges the states parties will take into account the need for the membership of the court to represent the principal legal systems of the world, equitable geographical representation and a fair representation of female and male judges.
There will also be an independent Office of the Prosecutor and the prosecutor, like the judges, will be elected by the Assembly of States Parties by secret ballot. A situation in which a crime appears to have been committed may be referred to the prosecutor of the court by a state party or the Security Council of the United Nations acting under Chapter VII of the UN charter, or the prosecutor may initiate an investigation. Where a state party has referred a situation to the prosecutor or the prosecutor has initiated the investi gation, the court may exercise its jurisdiction if the state on the territory of which the alleged crime was committed is a party to the statute or if the person accused of the crime is a national of a state party. States parties are obliged to co-operate fully with the court in its investigation and prosecution of crimes within its jurisdiction. The statute contains numerous provisions governing the conduct of a trial and the rights of an accused which will ensure due process will be observed.
The court will be complementary to national legal systems. The primary obligation to investigate crimes covered by the statute and prosecute the perpetrators will remain with the states parties. Only where the state party in question is unwilling or unable genuinely to investigate the crimes alleged or prosecute the accused person may the court exercise its jurisdiction. In this way, the court provides an additional means of administering justice, where serious international crimes are committed, without in any way detracting from existing domestic structures which states may have put in place.
In addition to its function in electing judges and the prosecutor, the Assembly of States Parties will also be responsible for the budget of the court and provide management oversight to the president of the court, the prosecutor and the registrar regarding the administration of the court. Draft rules of procedure and evidence were adopted by the preparatory commission for the court in June last year. These provide further detail on the way in which the court will function. It is envisaged that the assembly will adopt these rules and the financial rules and regulations. The court will be funded by contributions from states parties and the United Nations and may also accept voluntary contributions.
That sums up how the court will function. I will now discuss the crimes within the court's jurisdiction.
Under Article 5 of the statute the court's jurisdiction shall be limited to the most serious crimes of concern to the international community as a whole, namely, the crime of genocide, crimes against humanity, war crimes and the crime of aggression. The court will exercise jurisdiction over the crime of genocide, crimes against humanity and war crimes committed after the statute enters into force. The court will not, however, exercise jurisdiction over the crime of aggression until the provision is adopted by the states parties defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to this crime. A review conference is to be held seven years after the entry into force of the statute and a provision governing the crime of aggression may be adopted at that conference. The definitions of genocide, crimes against humanity and war crimes contained in the statute codify existing international law.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide provides that genocide means any of the following acts committed with intent to destroy in whole or in part a national, ethical, racial or religious group such as killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. This definition of genocide has been incorporated in the Rome statute.
Like genocide, crimes against humanity can be committed both in time of war and peace. Particularly serious violations of human rights such as murder, extermination, slavery, forcible transfer of population, unlawful imprisonment, torture, sexual violence, persecution of a group, enforced disappearance and apartheid constitute crimes against humanity when committed as part of a widespread or systematic attack directed against the civilian population.
War crimes, for the purpose of the statute, include grave breaches of the Geneva Convention of 1949 as well as attacks during armed conflict against civilians and humanitarian and peacekeeping missions, attacks directed against religious, educational and cultural buildings, pillaging, rape, sexual slavery and enforced prostitution and the use of child soldiers.
The disgust we all feel at such crimes was illustrated by the debate in the Dáil. Many Deputies cited shocking examples of these crimes which have taken place within the past ten years. It is our duty to do all within our power to prevent the commission of such crimes and ensure that if they are committed, their perpetrators are brought to justice. The establishment of the International Criminal Court should act as a deterrent to individuals and governments contemplating the commission of such crimes in that they will be aware that if they carry out the crimes, they can no longer confidently expect to escape punishment.
As I have explained, the Rome statute creates a new international jurisdiction for the trial of persons suspected of having committed the most serious crimes of concern to the international community. Article 34.1 of the Constitution provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution. I have been advised by the Attorney General that the Rome statute of the International Criminal Court provides for the administration of justice outside the terms of this constitutional provision and that, consequently, an amendment of the Constitution is needed before the State may ratify the statute. It is, therefore, proposed to amend the Constitution by the addition of a new section 9 to Article 29 of the Constitution allowing the State to ratify the Rome statute of the International Criminal Court. This provision will read as follows: "The State may ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998".
Careful consideration should be given to any constitutional amendment. The Constitution is, after all, the foundation upon which the State is built. A proposed amendment should not be examined in isolation, but in the light of the Constitution as a whole. The amendment proposed in the Bill stands up to such examination and complements existing provisions of the Constitution. Under the heading "International Relations", Article 29 begins by affirming Ireland's "devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality", continues by affirming our "adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination", and then states that "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States".
By ratifying the Rome statute and participating in the International Criminal Court we will demonstrate our belief in the principles set out at the beginning of Article 29 of the Constitution. In the Preamble to the Rome statute, the states parties recognise that the grave crimes within the court's jurisdiction threaten the peace, security and well-being of the world, determine to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, and resolve to guarantee lasting respect for and the enforcement of international justice. We committed ourselves to these principles when we enacted the Constitution over 60 years ago. The court will provide an international mechanism for the enforcement of these principles.
The establishment of the International Criminal Court will be one of the most significant developments in international law since the Second World War. It is intended that the court will have the power to enforce human rights law and humanitarian law throughout the world. The events of the past 100 years, particularly over the past ten years, highlight the need for an international judicial body with such powers. By amending the Constitution as proposed in the Bill we take the first and most important step towards ratification of the Rome statute and demonstrate once again our support for the statute and the principles it embodies. I, therefore, unreservedly recommend the Bill to the House.
I welcome the Minister and particularly the fact that we are enacting this legislation to allow the constitutional amendment to be put to the people. The Cathaoirleach is aware that on numerous occasions on the Order of Business I inquired when the Government would present this House and the Lower House with the legislation necessary to ratify the Rome statute of the International Criminal Court. I understand that, yesterday, Andorra – a small European country – ratified the statute, bringing to 30 the number of states which have done so. Only when 60 of the 160 states which signed the treaty in Rome in July 1998 have ratified the statute and incorporated it into their domestic laws will we be in a position to establish the court. We are, therefore, only halfway there. Those monitoring the situation predict that during the next year up to 50 states will have ratified the statute and that it may take 18 months before the requisite 60 states ratify it. I hope the referendum in this country will pass and that whatever further legislation may be necessary will be introduced in order to incorporate the statute into law here. Nothing will be done on this side of the House to impede progress.
The Minister was correct in describing this as a seminal step forward in terms of establishing human rights law throughout the world and also in engendering respect for the rule of law. Kofi Annan, the Secretary General of the United Nations, closed the Rome conference in 1997 by stating that this would be a giant step forward in the march towards universal human rights and the rule of law. In the past 100 years we have witnessed the worst violence in the history of humankind. In the past 50 years alone more than 250 conflicts have erupted around the world, more than 86 million civilians – mostly women and children – have died and more than 170 million people were stripped of their rights, property and dignity in these conflicts. Most of these victims have been forgotten and few of the perpetrators brought to justice. The figures to which I refer surely make the case in favour of the establishment of this particular court institution.
The United Nations General Assembly first recognised the need for a permanent mechanism to prosecute mass murderers and war criminals as long ago as 1948, in the aftermath of the famous trials at Nuremberg and Tokyo. This matter has been under discussion at the United Nations since that date but, as the Minister stated, the advent of Cold War politics meant that agreement could not be reached. There were echoes of Cold War politics in Rome when the negotiations on the statute took place. Two ad hoc tribunals were established by the Security Council in recent years to deal specifically with the egregious crimes committed in the Former Yugoslavia and Rwanda during periods of internal conflict. Outrages, albeit lesser in nature to those which occurred in the 1990s, continue to occur in parts of the Former Yugoslavia such as Kosovo, Macedonia, etc., but few of the perpetrators of the most serious crimes committed there have been arraigned before the special court in The Hague. This is a great pity.
I sympathise with the new regime in Belgrade regarding the position it has adopted in respect of Mr. Milosevic. Immediately after his removal from office, the international community began a campaign to have Mr. Milosevic arrested and transported to The Hague for trial. However, the new Yugoslav authorities have indicated that he must first stand trial for the crimes he committed in his own country and it appears that there is ample evidence against him in this regard. I am inclined to sympathise with the position of the new Yugoslav Government. If serious charges are levelled against someone such as Mr. Milosevic in his home country, the international community must recognise the right of that state to bring him to trial in the first instance.
It was interesting that 160 countries were represented at the Rome convention in 1997, but seven of these – including the United States of America, China and Israel – did not sign the statute. The vote on the statute was unrecorded. Some states indicated the reason they did not vote, while others failed to say why they voted against it. It was interesting that Israel stated that it failed to comprehend the reason the action of transferring populations into an occupied territory was included in the list of war crimes and this was the reason it offered for voting against the establishment of an international criminal court. The United States had many misgivings because, on foot of its international role, it believed that many of its operatives abroad who work with the CIA and other agencies might be arrested and arraigned before the court. The statute was agreed during the regime of President Clinton and the excuses offered by the United States for not signing it were lame.
It is a great pity that one of the world's greatest powers found itself in a position of being unable to sign such a statute. The same is true of China and Israel, a state which seeks sympathy and support from the international community in respect of its conflict with the Palestinians and the Arabs. It did not do much for Israel's case when it did not sign the statute, particularly in view of the lengthy discussions which took place in respect of it since 1948.
I have a number of difficulties with the statute and would like the Minister to clarify some aspects of Ireland's position. During the conference in Rome, huge pressure was exerted to have aggression included as a crime to be prosecuted and dealt with by the court. It was not included, however, because there was insufficient agreement among the states negotiating at Rome on what should be the definition of aggression.
Aggression is a particularly serious crime. Some of the most appalling things that happened in the 20th century resulted from acts of aggression. I refer, for example, to attacks by powerful countries on weaker states. Aggression remains a threat. I accept that wars have become more localised and are more civil or regional in nature, but major acts of aggression remain prevalent. The potential for such acts to occur remains great. I am aware that a review conference will take place seven years after the ICC comes into force. That is a long period in terms of, perhaps, finally deciding that the serious crime of aggression can be dealt with by the court.
A great deal of discussion took place in Rome in relation to the crime of terrorism. Again, no agreement was reached or on how it should be approached. That is a great deficiency of the statute because terrorism is a most serious crime. Acts of terrorism are usually carried out against humanity. Terrorism can also be part of genocide or a war crime. It is a great pity that it was not included in the statute and that a definition could not be agreed during those three days in Rome in 1997.
Another matter to which I wish to refer is drug trafficking, which is a most serious crime. Nothing is more responsible for destroying the lives of great numbers across the globe than drug trafficking. This trade is carried on by some of the best organised criminal gangs in the world, which, as a result of the profits they accrue from their activities, can deploy huge resources. In Rome there was no agreement that drug trafficking should be included in the list of crimes to be dealt with by the court. That is a pity.
The Minister dealt with the definitions of genocide, crimes against humanity and war crimes. My definition of genocide closely coincides with that of the Minister, for example, killings and acts causing serious harm or committed with intent to destroy in whole or in part a national, ethnic, racial or religious group. The term ethnic cleansing, which is a new term, is not used. The removal of a population from a territory is ethnic cleansing, but the term should be clearly defined. That is a new phenomenon of war. The use of sexual violence as an instrument of war is also new. The rape of women in Yugoslavia was used as a systematic weapon of war. That is not included in the definitions.
There will be preliminary negotiations before the International Criminal Court starts its operations and I know the review conference cannot take place for seven years. However, we must draw attention to ethnic cleansing and to the use of rape as a systematic weapon of war, which is a serious crime. Rape is mentioned but the systematic use of rape as a weapon of war, as we saw in Yugoslavia probably for the first time, must be clearly defined.
Crimes against humanity cover those specifically listed, such as prohibited acts committed as part of a widespread or systematic attack against civilian populations. Such acts include murder, extermination, rape, sexual slavery, the enforced disappearance of persons and apartheid. Sexual slavery is mentioned but all forms of slavery should be defined. Thanks to Trócaire, there is a new awareness of the international crime of slavery. Millions of people are sold every year into various forms of slavery.
I work with the Parliamentary Assembly of the Council of Europe on domestic slavery in Europe. We have found that hundreds of people are kept in servitude in diplomatic and consular missions in Europe. Certain countries bring people to work with them and they use their diplomatic immunity under the 1961 Vienna Convention, which means they are not governed by the labour laws of the host state relating to the time spent at work, minimum wages, etc. People are kept in servitude and their passports are taken from them.
Domestic slavery is one aspect of slavery, but sexual slavery is the only one mentioned. Slavery is wider than that and it is a serious crime against humanity. We need to broaden the definition and to give a lead in that regard. These definitions were supplied by a leading NGO which has tracked the progress of the International Criminal Court towards ratification. This is a narrow definition, although sexual slavery is a serious crime. The definition of slavery, whether sexual, domestic or otherwise, must be clearly outlined so that people committing these crimes are answerable before this court.
As regards reparations, I do not know to what extent the court would have competence to make reparations to individuals or groups of people who have been the victims of war crimes and of crimes against humanity. It appears the statute is weak in that regard and that it needs to be strengthened. There was much argument in Rome that the competences of the court could be pushed too far to the extent that it would not have the resources to deal with such issues. That was the argument made when discussing the case for including the crime of drugs trafficking. We now pay more attention to the concept of restitution and restorative justice than we did and rightly so. This court should have a strong hand in terms of restitution, reparations and restorative justice.
Some of the worst criminals who can be brought before this court are high Government officials, military leaders or leaders of their own country. One knows of many such people. How strong is the statute in terms of prosecuting military leaders who may take refuge in their own country? What is the power of the United Nations Security Council in relation to a member state which may not wish to turn over a leading army general who may have a lot of political influence where the state of democracy is weak? I hate to mention a country such as the Philippines, but there are countries around the world where the military elite is as powerful as the political elite. The political elite should not be called that if it is elected. The Minister might deal in his reply with the issue of how amenable a state party can be made to turn over someone where there is serious evidence they have committed any of the crimes mentioned.
I am delighted the court will not have the power to enforce the death penalty. This afternoon we discussed the final elimination of the death penalty by a Bill to amend the Constitution. I am delighted we will not have the death penalty in this country again. I am also delighted in the context of this legislation that it is specifically outlawed. The International Criminal Court sitting in the Hague cannot impose the death penalty, irrespective of how heinous the crime with which it is dealing. That is an enlightened and civilised approach. People will get long sentences, which they will deserve. We must always respect everyone's human dignity, irrespective of whether they have committed heinous crimes. We cannot sink to their level. I am delighted that matter has been dealt with.
I raised questions about compensation for victims. If there are shortcomings, this country should highlight them. We should highlight the need to outlaw all forms of slavery, not just a narrowly defined form of sexual slavery, as is included in the definitions. There is more known today about the modern international slave trade than there was three years ago when the participants in the conference enacted this statute in Rome. Some of its definitions might be slightly dated. They must be updated before the court starts its operations, not seven years after it has come into effect. These are fundamental points.
I am delighted this has been introduced. It says something about our Constitution that of the 30 states which have ratified it so far, none has had to hold a referendum before ratification. I understand that other states will not do so either. The NGO I spoke to this morning found that Ireland was the only state where it was necessary to hold a referendum to amend its Constitution or basic law. This makes us unique. It is a tribute to our Constitution in that it is very strong on sovereignty, including that of our courts.
This is not an issue about which the public will get too excited. I hope the results of these referenda are given credibility by the fact that more than 50% of the people will vote in them. People may find the issues are remote and they may not know that a referendum will take place. However, as public representatives, we should do everything in our power to increase public awareness of these issues, particularly this very important human rights issue. We live in a free democracy, unlike millions of people.
It is good that there will be a debate on the Nice Treaty. Clearly, I will ask people to vote yes, but others will call for a no vote and this will cause a public debate. This will increase public participation in the four referenda. People will vote on four ballot papers rather than just one, so the debate on the Nice Treaty might do us a service in getting a larger number of people out to vote.
I was speaking without notes and may not have been very coherent. However, I hope the Minister understood the points I made and I ask him to take them on board.
I welcome the Minister here to discuss the Twenty-third Amendment of the Constitution Bill. This is a historic day for the Seanad with two proposed amendments being dealt with. The people will vote on them and they are two very important elements in ensuring our adherence to human rights throughout the world.
I welcome the fact that the Minister for Justice, Equality and Law Reform was here earlier to discuss formally abolishing the death penalty in all circumstances. This amendment is also extremely welcome.
It is a pity we have to set up an International Criminal Court. It shows that there has been a failure in the past and that the international community has not learnt lessons from past wars and other problems such as slavery. The establishment of the International Criminal Court is an advance on what we had in the recent past. The United Nations set up two ad hoc courts to deal with Rwanda and the former Yugoslavia. In the case of Rwanda, the tribunal met in Tanzania, under the chairmanship of Nelson Mandela at one stage. I am not sure who the previous chairman was, I believe he died. One of the chief advisers to the chair of that body was from the Department of Foreign Affairs and she played a vital role. She could see that there were huge problems with that court. It was difficult to find out who had caused the genocide and to get them to court.
There was considerable publicity over the recent court appearance of people including nuns. We do not know whether these people are guilty, but the evidence against them seems quite strong. However, that tribunal has not got to the people who really created the problems in Rwanda.
I visited the court in The Hague when some soldiers were brought before it. It was difficult to make certain that the right people were brought before the court and to get evidence from what was an internal conflict. Setting up the International Criminal Court, with the participation of so many states, is very important. It will ensure that if somebody comes here having escaped from a country where they might have been charged, even if we have no extradition treaty with that country, they could be brought before the courts here.
There was mention of the instigators of international crimes and plunder. It is a pity major economic powers or entities will not be brought before the International Criminal Court. There have been cases of plunder on states, which subsequently descended into civil war. As mentioned by Senator Connor, in the past month or two, Trócaire has highlighted the problem of economic slavery and this needs to be looked into. In many cases, economic slavery is helped by companies from developed countries. Within the chocolate industry, there are slaves in Sierra Leone and the Côte-d'Ivoire who are involved in the production of the cocoa bean.
I am glad Senator Quinn is here. I did a survey in Kilkenny about fair trade products and found that apart from the Oxfam office, they were only available in the Superquinn stores. This is very important when discussing the crime of international plunder.
The Minister said that the states parties will take into account the need for the membership of the court to represent the principal legal systems of the world, equitable geographical representation and the fair representation of female and male judges. It is important that the geographical representation element of setting up the court is adhered to in a fair manner. Most international bodies have not adhered to a policy of equitable geographical representation. One need only look at the United Nations and the unfortunate situation where too few countries, the permanent members of the Security Council, control what happens. The UN General Assembly will elect 18 full-time judges to sit on the court, although getting full-time judges is a current difficulty. Language is also a problem as we do not know who will come before the court. The impartiality of judges is of extreme importance as the court will stand or fall by the actions of the judges appointed.
It is unfortunate that some major countries have not signed up to or ratified the treaty setting up the International Criminal Court. There will be major problems if these countries do not sign up. I do not want to discuss particular countries, although I could speak lengthily about the Middle Eastern situation and Israel's actions towards the Palestinians. However, we must make an attempt to get as many influential countries involved as possible, as there is no point having a group of countries which do not have the ammunition and strength to push the implementation of the working of the court. If the major powers are not involved it will be difficult to make progress.
I am unsure whether the financing of the court will come through the participating states. Individual or outside donations can be given and the United Nations will give some payment, but there could still be a veto if a country not involved in ratification of the treaty were to attempt to block the workings of the court.
The crime of genocide is endemic in many parts of the world. The situation in East Timor is an example of an attempt to eliminate a population. No effort has yet been made by the international community to curb the power of Indonesia because of its action in East Timor. The disgust that is felt at the situation in many parts of the world is something of which we should be cognisant. In conjunction with the setting up of the court we must try to protect cultures in areas where genocide has taken place. We must strengthen conflict prevention measures around the world. Little effort has been made in this area in the past, even in cases where it was known that conflict was imminent. Conflict prevention must go hand in hand with the setting up of the International Criminal Court.
I am glad the people have the opportunity to vote in this referendum and I hope that there will be a good turn-out. The people will react to the two areas raised in the House today, the removal of the death penalty from the Constitution and the setting up of the International Criminal Court. We do not have to sell these issues very hard to the people. They are mature enough to realise that aggression and other problems need to be tackled. The International Criminal Court will be a way of demonstrating that the actions of aggressors will not go unnoticed as in the past. The court might prevent many of the crimes committed against peoples in recent years.
Senator Connor said that the greatest crimes against humanity occurred in the past 100 years, but some of the worst wars and killings happened long before this century. We must ensure that there is a change in attitude by the end of this century. This will be difficult. I welcome the proposed amendment of the Constitution. I hope that there is a large turn-out and a resounding yes vote on the question of the International Criminal Court.
I wish to share my time with Senator Norris.
Is that agreed? Agreed.
I welcome this Bill and I hope and expect that the people will approve this amendment in the referendum. I was tempted to congratulate the Government and the Minister but I will refrain from making that gesture. I am impressed by the relative speed with which this important issue is being dealt with. The Rome statute was agreed nearly three years ago and 30 countries have already completed the ratification process, including a majority of our partners in the EU. Yet, by the lamentably slow standards with which Ireland normally approaches ratification of international agreements, to get to this point after only three years could almost be regarded as speeding.
However, I reined in my enthusiasm when I realised that putting this issue to the people does not mean that ratification of the Rome statute by Ireland is imminent. Domestic legislation must first be put in order. It is clear from a parliamentary reply by the Minister for Foreign Affairs on 30 January last that this will be neither simple nor quick. In that reply the Minister pointed out that, apart from the people's approval, "an in-depth analysis of the statute by the Department of Justice, Equality and Law Reform together with my Department, the Office of the Attorney General and other appropriate bodies is also necessary to determine the exact legislative and administrative measures which may need to be adopted for Ireland to be in a position to meet its obligations under this very complex statute." From the detached, timeless nature of that phrasing I deduce that the in-depth analysis referred to has not yet begun. I also suspect that a gentle warning is being sent that this analysis is an open-ended process and that nobody has an idea of how long it will take to complete. Are we talking about months or years? My hunch is that it is the latter. Perhaps the Minister can be more specific as to the likely schedule. I hope that the process of in-depth analysis has already begun.
Given the uncertainty, the question arises whether this is the right time to put the issue before the people. We should agree a process by which matters would be put to referendum only after necessary and relevant legislation was already passed. I am not sure if we have even started that process in this instance. If we adopted that as a practice, it would greatly improve the referendum process. In some cases it is desirable to publish the relevant legislation because it actually affects the question being put to the people. I am not suggesting that is the case in this instance, although it might well be in regard to the amendment on judicial behaviour which we will discuss later in the week.
In the case of this Bill, the principle the people are being asked to endorse is fully spelt out in the Rome statute. However, by putting the question now rather than when the enabling legislation is ready we are asking the people to sign a cheque which, although not blank, is undated. The democratic process demands that we show our citizens greater respect. Rather than congratulate the Government on the relative speed with which it is proceeding on this matter, I question the wisdom of taking the referendum step of the process at this time. To do so is to put the cart before the horse. We should ensure all the legislation is ready before asking the people to decide on a particular issue. In that way they will be fully aware of what they are deciding on.
Speed is important in ensuring the eventual success of the International Criminal Court. However, 60 ratifications are required to establish the court. The process has now reached the halfway point with some 30 ratifications having occurred. Ratification is, clearly, proceeding at a faster rate than many expected and it is important to maintain that momentum. The best way we could add to it would be to ratify the statute very quickly. As that does not seem likely, I suggest to the Minister that Ireland should make a financial contribution to the campaign for worldwide ratification. I am not sure whether such a financial contribution would be particularly helpful, but it would have a worthwhile impact on the campaign while firmly establishing Ireland's bona fides in the interval prior to us ratifying the statute.
It is important that the court is established as soon as possible as it will not have any retrospective powers to try crimes committed prior to its establishment. I understand it will be unable to try crimes in a particular territory prior to the time that territory signed up to accept its jurisdiction. We must work towards obtaining the 60 ratifications necessary to bring the statute into force and push as quickly as possible for its universal adoption. Speed is of the essence in order that criminals can be apprehended and punished at an early stage and in deterring the commission of crimes in the first instance. The latter should be the court's primary objective. The law's real power is its ability to deter people from committing unlawful acts. If people know they are likely to be held responsible for their actions, they are more likely to think twice before committing crimes. It is always preferable to deter rather than punish. That is the reason it is important to have a permanent court rather than rely on ad hoc tribunals of the type used in Rwanda and the former Yugoslavia.
As tribunals are, invariably, established after the event, if at all, the possibility of being hauled before a tribunal is not likely to feature in a person's decision to commit a crime. If the International Criminal Court is established on a permanent footing, if the crimes within its remit are clearly defined and if it develops a good track record of investigating crimes and punishing those who commit them, it will become an effective deterrent. It will not eliminate war crimes or crimes against humanity, but it may contribute to their reduction.
Such a situation is a long way down the road and today we are taking an early step on that journey. In supporting the Bill, I urge the Government to address the task of preparing the necessary legislation to make ratification possible and to give it real meaning by publishing a timeframe to complete the process. I hope the Minister will grasp that opportunity.
I welcome the Minister and offer my unqualified support for the Bill and the proposed referendum. This is referendum season in the House and the referendum on the Rome statute is to be particularly welcomed. Some years ago I tabled a motion on the Order Paper seeking precisely what the Minister is delivering today. In 1996 I was one of a group of 800 parliamentarians from all over the world who signed a petition calling for the establishment of an international criminal court. The names of the petitioners were printed in newspapers on both sides of the Atlantic. I subsequently wrote to the then Minister in August 1997 seeking Ireland's support for the court and received a reply within three days from the then Minister's private secretary, Mr. James McIntyre, in which he indicated the positive attitude of the Department of Foreign Affairs to the matter. Earth Action and other groups have lobbied consistently for this legislation.
We are really only beginning this process as a substantial number of countries are still required to ratify the statute. I visited Jerusalem during the Christmas period and was heartened to learn that the Clinton administration, prior to leaving office, decided to sign up to the statute. Its decision had a multiplier effect and, within one week, the Israelis overcame their serious reservations. That act, one of President Barak's last in government, was quite astonishing.
It is essential that the court be established. The first of these tribunals were established on an ad hoc basis in Tokyo and Nuremberg following World War II and we have had some similar arrangements since then. Such tribunals are not satisfactory because they convey the impression of victors' justice. They are also selective and lack the necessary machinery and consistency. I recently watched an interview with Mrs. Carla del Ponti, the Swiss female prosecutor in The Hague. She was quite convinced that she would get hold of Milosevic. She also made the worrying statement that as far as she was aware, the whereabouts of people such as Ratko Mladic and Radovan Karadzic were well known. There was, however, a reluctance to apprehend them and Mrs. Ponti intended to make a direct request at the United Nations that an energetic attempt be made to secure the trial of these men before the appropriate tribunal in The Hague. Such practical issues would be considerably advanced by the creation of a permanent court.
The Minister, helpfully, listed the definitions of the crimes which would be tried before the court. He referred to the 1946 Convention on the Prevention and Punishment of the Crime of Genocide. It is astonishing that in 1948 the first steps were taken towards the creation of this international court, the necessity for which was then recognised. It has taken more than 50 years to get to this stage.
The Minister refers to forcibly transferring children of a group to another group. I would like him to bear this aspect in mind. Deputy Michael D. Higgins tabled a motion at a recent meeting of the Joint Committee on Foreign Affairs on the infringement of the human rights of the Australian Aboriginals. There was a suggestion that it would be useful if the Australian Government took action in the matter. By some mechanism which is unclear to me it was noised abroad as far as Canberra and the Australian ambassador to Ireland intervened on the issue. There was a friendly exchange of views as a result of which the motion was partly amended.
The Senator is straying.
I am not and I will make it perfectly clear why this is the case. Although the motion was amended, I now read in the newspapers that there is a further row on the matter. One of the matters about which we were concerned was the well documented forcible transfer of children from the Aboriginal indigenous people of Australia within the last 50 years to white families. This comes under the description of genocide in the Minister's speech. We have, therefore, no apologies whatsoever to make to the Australians on the matter. We behaved in a most mature and responsible way and adapted the resolution, which the Minister should bear in mind. It is a squeak out of the Australians. The Minister's speech makes it quite clear why we intervened. He usefully talks about the question of genocide and states that crimes such as sexual violence, persecution of a group, enforced disappearance and apartheid constitute crimes against humanity when committed as part of a widespread or systematic attack directed against the civilian population.
It will take a long time, but I would like to see sexual orientation included. Let us remember that during the period of Hitler's regime not only were there racial hygiene laws, there were sexual hygiene laws. The Gay community was specifically targeted and given its own emblem of the pink triangle. Its members were the first to be medically experimented on, the first to be incarcerated and the first to be murdered. I have been asked by German groups and gone with Polish members of parliament to lay a wreath at the Nollendorf-Platz underground station entrance from where Gay people left.
I dealt with the horrible attacks on those accused of being homosexual in Iran. I was chastised in this House for describing Mugabe as a dictator. Look at what he did, not just against the Gay community in his country, but against various easy target groups. I hope eventually there will be a possibility of real progress in all these areas, many of which are uncomfortable for particular cultural groups or political blocs. That is the test of something which is effective. If it makes people feel uncomfortable, it is, probably, more likely to be effective.
The Minister spoke about attacks against religious, educational and cultural buildings, pillaging, rape and so on. I have just come back from Dubrovnik and Zagreb where a dinner was hosted – I regret that I cannot understand the name of the distinguished gentleman who hosted it. Following the dinner he gave me a copy of a book he had written about the situation in the area. The raw wound of the war was clear in every single line of the book which was a chilling, chilling read. When one is in cities like Zagreb and Dubrovnik one is aware of their wonderful European heritage and the fact that the people are closely culturally connected to us. The same applies to Serbia, yet these very ordinary people were capable of the most appalling crimes and it is necessary that they are brought to justice.
The Armenian massacre in 1915 when 1.5 million people died was genocide. Yet, the Turkish Government introduced legislation discriminating in business matters and trading partnerships against any country the parliament of which dared to describe in an official resolution what took place as genocide. There is an interesting human story about that particular genocide because a German officer – they were allies of the Germans at that point – recorded what was happening in notebooks, letters and photographs which he sent to Berlin at the risk of his own commission and, possibly, the risk of being arraigned as a traitor. He appealed to the German Government during the World War One to do something about the matter, but it did nothing. In the 1930s the man wrote to Hitler and said that if he did not stop going down the road he was going, he would wind up doing the same thing. History tells us that is exactly what happened. As a result of this correspondence, Hitler said that nobody noticed when they did it to the Armenians. That was one of the arguments he used for continuing with the appalling programme against the Jews. That is the reason it is absolutely necessary to establish this permanent court the seat of which I understand will be in the Hague. It is rather curious, but not entirely surprising that it was impossible to agree on a definition of terrorism. This illustrates the old adage that one person's freedom fighter is another person's terrorist.
Dealing with drug offences would be a waste of time. It is another debate. I am pleased that the court is on the way to being established. Senator Lanigan suggested that a case cannot be heard against a citizen if the state to which that citizen belongs is not a party. I understand that is not correct and that the mechanism can be triggered in certain ways if the United Nations Security Council, for example, refers the matter to the court. The United Nations Security Council has the capacity to do so and, if that is so, let us have trials of those responsible for the invasion and genocide which is continuing in Tibet. It is an uncomfortable one. I said to the Minister that this law might be seen to be working at its best, its most moral and its most efficient when people, Governments and senior politicians are made uncomfortable. I look forward to a very uncomfortable period afterwards in international terms. I hope it will be effective in bringing to justice those who committed these appalling crimes against suffering and vulnerable humanity.
I, too, welcome the Minister. It is always nice to have someone come to the House who knows what he is talking about.
The most important section in the Minister's speech relates to the adoption of the 1998 statute. It has taken 50 years for the court to be put in place, which is a long time.
It is not yet in place.
I am aware of that. I can see many difficulties in relation to the issue. It is absolutely essential to have this type of international body in place, but I wonder if we will ever see leaders of some western nations coming before it, rather than leaders of smaller nations. It is good that it will do away with ad hoc tribunals. We have all heard of the Nazi war criminals, but there were also criminals on the other side who were never brought to justice. For example, the bombing of Dresden was a terrible and totally unjustified act of war by the Allies which killed thousands of innocent people. In such situations, some people will never be brought to justice.
I hope the effort to get rid of the victors of war is successful. People may be brought into line if the court is put in place gradually. Senator Norris said the Clinton administration signed up to this measure and that is good. However, I foresee difficulties with a representational body of judges. I read that the legal systems throughout the world are so different and complicated that this will be practically impossible. I hope it will not be a western world body because there are many systems of justice in the world, although Ireland's is probably one of the best.
The crimes mentioned include where there is an attempt to destroy in whole or in part a national, ethnic, racial or religious group. The indigenous Indians in Brazil are forbidden to vote under the Brazilian constitution. There is a pronounced and definite campaign against these people. They are shot and also poisoned by meat thrown from helicopters. Their land has been sequestered and their mineral wealth has been taken from them. All their rights have been taken from them, but I do not believe the Brazilian president will ever be brought before the court as a result. I hope the rights of the Indians will be recognised.
I doubt an American president or general will ever be brought before the court although the United States contributed to the downfall of the democratically elected, albeit left wing, president of Chile, Mr. Allende. I doubt anybody in America will be prosecuted for the experiment in Nicaragua or the use of Agent Orange in the Vietnam War. I doubt the president of Israel will be brought before the court although there is a definite campaign against Palestinians. I have been in Israel twice and I saw where people were rolled over and their houses wiped out. Lands where Palestinians lived for 300 years have been taken.
Regarding particularly serious violations of human rights, such as murder, if the referendum discussed earlier is passed, Ireland will abolish the death penalty. If the referendum on the International Criminal Court is passed, can there ever be a case where an Irish citizen could be brought before it and receive the death penalty although that penalty is banned in the citizen's own country? My point is not whether the person would deserve it, but I recognise there is a long way to go. When I first read the Bill, I thought it was a simple referendum. However, that is not the case. It is a most complicated, although necessary, referendum and I hope it can be explained adequately to the population.
Regarding enforced prostitution, the use of children for prostitution is endemic in Thailand. Who would be prosecuted there? Would it be the king or the gangsters who do it? These questions must be answered and I worry at one level that an international court of this type, although it must be established, will be a tool in the hands of very powerful interests. Is there any way this can be avoided? My belief is that many of what I call the junior wars throughout the world are engineered so that stockpiles of arms can be used up and jobs can be created to manufacture more weapons. This is not a fantasy, but the court is a good idea. Many nations have signed up to it and, as the Minister said, it fits in well with Article 29 of our Constitution which deals with a devotion to the ideal of peace and friendly co-operation among nations. This is a step in that direction.
If such a court is not established, some people will never be brought to justice. There are other players in the field aside from Slobodan Milosevic. For example, should something be done about the US sanctions against Iraq which result in the deaths of thousands of Iraqi children? Even the Pope has called for the lifting of the sanctions. However, we all know it is unlikely that anybody will be brought before the international court for this crime in the immediate future. Nevertheless, mechanisms must be put in place because, if an international system of law is recognised by the many signatories and I hope eventually by all the United Nations, it will be a useful step forward. We should urge the people to accept the referendum. Senator Quinn said it will be necessary to put through a raft of legislation, but that can be done. The draftsmen are well able to prepare it and I am sure that Ministers in various Departments can fall into line with it.
I welcome the legislation which is necessary. It is not foolproof by any means and it may be used in the future against smaller rather than larger nations. However, it is a necessary step forward and I urge people to support it.
I welcome the Minister and the Bill. It is a great development because the International Criminal Court has been needed for a long time. It is good that countries are signing up to it rapidly. I take Senator Quinn's point that the public is being asked to sign up to a concept in the absence of legislation. However, my disappointment at the speed at which Ireland ratifies UN conventions leads me to believe that it is better to put this constitutional amendment to the people now and have it carried. The ratification of the Rome statute should be made possible as quickly as possible afterwards. A considerable amount of legislation must be introduced to enable the statute to be ratified.
It is not the Minister's fault, but it is dreadful that it took 25 years to ratify the UN convention on race because Ireland was so slow to introduce legislation. A few month ago I asked the Minister if, in our new position of power on the Security Council, he would try to address the need for a verification process under the 1975 UN Convention on Biological Weapons and Toxins. To my horror, after I raised the matter on the Adjournment, I discovered that Ireland has not yet ratified the convention. I doubt Ireland has dumps of anthrax or other biological weapons, but once a UN convention has been signed, the legislation should be put in place rapidly to ensure it can be ratified. I hope this is done as rapidly as possible with regard to the Rome statute. It would be a great pity if we missed the opportunity to have a judge in the court. It would also be a great pity for the court if it missed the opportunity of having an Irish judge.
Perhaps we could begin by the Minister initiating legislation in the Seanad so that our law could be brought into line as quickly as possible. I understand we must introduce legislation which will allow us co-operate with the court in the areas of extradition, investigation and arrest. We could modify our laws so that we could exercise jurisdiction over offenders for crimes committed within the remit of the court even where such crimes are committed outside our territory. However, the more modest approach of fulfilling our obligation of sending criminals in the State before the court is perhaps preferable. I hope this is done rapidly and it would be good to see an Irish judge as part of the court. As Senator Quinn said, we are at the half-way stage. Some 60 countries are needed to ratify the Rome statute and 30 have already done so. It would be good to see us making progress in this area.
Corporations can be very important where events in other countries where genocide, war crimes and crimes against humanity are concerned. This was recognised at the Nuremberg trials where some of those involved in the supply, if not the manufacture, of the gas for the death chambers were convicted of having been complicit in the crimes. I sought advice on this subject because I found it difficult to decide whether corporations could be sued. I had in mind companies such as Total in Burma, which has been involved in bringing large sections of the minority population into slavery in the laying of a pipeline across the country, and Shell in Nigeria, in the lower part of which we repeatedly see atrocities which are due in part to the fact that the area is so oil rich and yet the people of the area are so poor.
I sought the advice of William Schabas, professor of human rights law in the National University of Ireland, Galway. He pointed out some interesting facts to me, one of which was that, within days of the adoption of the Rome statute of the International Criminal Court at the conclusion of the Rome conference in July 1998, there was an article in the prestigious British business daily, the Financial Times, in which there was a warning to commercial lawyers that the treaty's encompassed liability provision could create international criminal liabilities for employees, officers and directors of corporations. The writer, Maurice Nyberg, referred to condemnation of violations of human rights involving multinational corporations by non-governmental organisations, such as Human Rights Watch, adding that it would take little imagination to jump from complicity with human rights violations to complicity with crimes covered under the International Criminal Court treaty.
He said that, besides the more obvious offences relating to involvement in arms trading and financing of security for overseas investments, the mistreatment of pregnant workers could become an area where foreign subsidiaries might attract liability as a crime against humanity as persecution based upon gender. Mr. Nyberg went on to say that, as gender discrimination is widespread and systematic in much of the world, the International Criminal Court treaty could require parent companies and financial institutions to police the global workplace under threat of the criminal liability of their senior executives. There is more than a suspicion that people could per haps be prosecuted by the court and I would be very pleased to see this being a possibility.
The UN High Commissioner for Human Rights, Mrs. Mary Robinson, has explored the question of international accountability for alleged corporate violations of human rights. She has requested the six treaty bodies, the special rapporteurs and the working groups appointed by the Commission on Human Rights to study the promotion of corporate accountability within the context of their mandates. The sub-committee on the promotion and protection of human rights has recently established a working group to examine the effects of the working methods and activities of the transnational companies on human rights. This is all extraordinarily important in the area of globalisation where corporations may find, because of weak domestic law, that it is much better to establish large factories in certain areas than in areas which have stricter laws on human rights. The first meeting of the sub-committee took place in August 1999 and it has made recommendations, including the development of a code of conduct, and is analysing the possible liability of states and transnational corporations which fail to fulfil their obligations. I hope Ireland supports these initiatives because they are very important.
Participation in war crimes and crimes against humanity at the level of supply and finance is usually covered by the corporate shell rather than by the individual names of perpetrators. Prosecutors will attempt to pierce the corporate shell, as Professor Schabas explained to me, to get at the individuals behind it. Where the evidence is clear, that should not pose any great problems. Crimes against international law are committed by men, not by abstract entities. It was said at the Nuremberg trials in 1946 that it is only by punishing individuals who commit such crimes that the provisions of international law can be enforced. It is not a new concept.
International law in this area has been relatively underdeveloped. Proposals were brought forward during the drafting of the Rome statute to develop it, but they were strongly resisted by some countries, although I understand the French delegation argued strongly about criminal liability of legal persons being promoted to include that of a corporation. I hope the Minister supports that because it would be dreadful to think a shield for vile acts could be brought forward by the fact that a corporation could not be sued even though it was perfectly obvious it supported grim crimes within an area. For example, the diamond traders in Sierra Leone, while extraordinarily important in the conduct of the multilateral civil war there, cannot be sued because it cannot be proved that genocide or other crimes which take place have been promoted by them.
I hope the Minister can see a possibility of our developing the proposals under the Rome statute rather than taking it as a fait accompli that it has gone thus far and no further. We should remember the words of Parnell, whose statue is at the top of O'Connell Street, and see that there can be no boundary to what we can do with this. I hope the Minister brings the legislation to this House – we are a co-operative group – so that we can ratify the Rome statute as quickly as possible to be in a position not only to be one of the early ones in the ratification stakes but also to be in a position to have an Irish judge on the International Criminal Court. It would benefit from having a member of the Judiciary on it. I congratulate the Minister on bringing forward the referendum.
I warmly thank Senators who contributed to the debate on the Bill. It has demonstrated the significance of the Rome statute of the International Criminal Court as a development in international law and its importance for the protection of human rights throughout the world. It falls upon us to provide an amendment to the Constitution which will be put to the people in early summer and which, if passed, as I sincerely hope it will be, will enable Ireland to ratify the statute.
It was not possible at the diplomatic conference in Rome to secure agreement on the inclusion of crimes such as international terrorism and drug trafficking within the jurisdiction of the International Criminal Court, but one has to start somewhere and those on which agreement was possible were genocide, war crimes and crimes against humanity. It was also possible to secure agreement that the court should have jurisdiction over the crime of aggression, but would not exercise its jurisdiction until the states parties agreed upon a definition of the crime.
The list of crimes over which the court may have jurisdiction is not closed. The inclusion of further crimes within the jurisdiction of the court will, certainly, be the subject of future discussions among states parties to which Ireland will be contributing. Senator Connor made the point that it is important that we make our voice heard in those fora and we will do so. The question of the review conference not being held for seven years does not preclude an attempt to build a political consensus on the possible increase in the number of crimes which would fall within the jurisdiction of the International Criminal Court. We must remember how things were in the past. The Cold War was a serious brake on the development of the concept of an international criminal court. Much progress was made between 1948 and 1953, but there was then little progress until 1999.
One must realise that the agreement of states parties is needed if one is to develop an international jurisdiction. This permissible jurisdiction must be created. When that is achieved enforcement mechanisms, such as an international criminal court, can be provided for in those areas which are particularly heinous and universally recognised to require an international response. If national jurisdictions, which have a primary role, do not enforce their own laws or are incapable of doing so because of a state of civil disorder or the institutions of state have col lapsed, as can happen in areas where genocide is taking place, the International Criminal Court can step in and complement national jurisdictions.
The Office of Prosecutor is an important aspect of the development of the International Criminal Court enforcement mechanism because it allows a states party to ask the prosecutor to initiate an investigation into an alleged crime which comes within the jurisdiction of the International Criminal Court. That is a new development. Typically in international law, both parties must agree to the jurisdiction of the international forum before the jurisdiction becomes effective. In this case when 60 states parties ratify the international Rome statute will be an effective jurisdiction. There is a prospect of a prosecutor to work with the court and individual states parties to investigate alleged breaches of international law consistent with the need to bring forward indictments of crime in their own statute law. That is a very important development.
Since 1989 we have been able to secure that level of agreement. There are different views as to how one should accord human dignity to the individual. There are different cultural, religious and political beliefs and the ability to find a universal definition that meets that diversity without being diluted to the point of losing its credibility is an important achievement of the International Criminal Court enforcement mechanism referred to in the Rome statute. The international community is to be congratulated, despite that diversity of opinion and understanding of what human rights are, on being able to agree that genocide, crimes against humanity and war crimes must be dealt with and that aggression, on which a definition could not be agreed, is to be included while discussions on a common definition continue.
Concern has been expressed at the lack of reference to sexual violence in the statute. Grave forms of sexual violence are clearly stated to be a crime against humanity and a war crime. This is in recognition of the use of such violence, especially in the last ten years, to terrorise populations. I agree with what Senator Connor said about the extent and nature of modern slavery. I am glad to assure him that the definition of enslavement involves the exercise of any or all of the powers attaching to the right of ownership over persons. This includes the exercise of such powers in the course of trafficking in persons. Article 75 of the statute deals with the question of reparations to victims. The court shall establish principles relating to reparations to victims and may make an order directly against a convicted person specifying appropriate reparations to victims, including restitution, compensation and rehabilition. Where appropriate the court may also order that the award for reparations be made through the trust fund which will be established by the Assembly of State Parties for the benefit of victims and their families.
Concern has been raised at the perceived delay in processing ratification of the statute. The speedy ratification of the statute has been given a high priority by my Department. Implementing legislation will also be required before the State may ratify the Rome statute. A number of Senators have argued that the fact that the draft legislation has not been published diminishes people's undersanding of what it is intended to transpose into domestic law if the proposed amendment is accepted in the referendum. I do not accept that contention. What will be transposed into domestic law is what is contained in the Rome statute. The idea that domestic legislation must be in place in order for people to make an informed decision on the amendment does not stand up to scrutiny. Were it the case that further legislation was required which was different from or modified or altered the Rome statute there would be issues for debate. However, as I have outlined and as is the universal view of this House and all democratic assemblies in this country, the issues are not contentious.
Because of our constitutional law and our jurisprudence which has developed from it there is the prospect of a transfer of jurisdiction from the courts established under the Constitution to the International Criminal Court were, for example, at some stage in the future the shameful position to arise that a citizen of this country was arraigned before the court to be tried for any of these acts. It is, therefore, not possible for any legislation to be effective until we amend the Constitution and it is good constitutional practice to proceed with the amendment and give a commitment to transpose the Rome statute into domestic law when the people, the sovereign source of power in this republic, agree to make the statute part of our domestic law. When the people have spoken we will proceed to enact legislation. That is the logical and proper constitutional practice to adopt.
The question of efficiency and speed has quite rightly been raised by Senators. It will be the responsibility of the Minister for Justice, Equality and Law Reform to transpose the Rome statute into national law, if this amendment is adopted by the people. His record is comparable to that of any of his predecessors in terms of his ability to get legislation out of the Department. Let the record speak for itself. He has produced important, complex and detailed legislation that has been very effective in the area of the drugs trade and people acquiring assets through criminal activity. This was a pioneering piece of legislation which has been adopted and investigated, not only by countries within the EU but also further afield, because of its effectiveness in dealing with the proceeds of criminal activity. If as we hope the people proceed to adopt this constitutional amendment, as the Members of both Houses are urging and as is their sovereign right in this Republic, the Government of Ireland will proceed with all due speed and consideration to transpose the Rome statute into domestic law.
The Minister for Justice, Equality and Law Reform and I have been informed that a preliminary examination of the statute with a view to preparing the necessary legislation is already taking place within his Department. There was some concern arising from a reply to a Member of the other House in January 2000 that this process had not been started in the Department. I can confirm that a preliminary examination has started. The legal expertise of the Department of Foreign Affairs in the international area will be offered to the Minister for Justice, Equality and Law Reform. He has a busy schedule of legislation to put through on a whole range of areas in criminal law and we would be available to assist. We intend to co-ordinate that effort on a ministerial level to ensure the issue is dealt with as quickly as possible.
It is not possible to state definitively when Ireland will be in a position to ratify the statute but I will endeavour to ensure that we do so in a reasonable timeframe. It has been mentioned several times during this debate that the Rome statute is a long and complex document. As a result, all of the steps towards ratification require adequate time and consideration. That is not intended to justify undue delay but we need to adopt the proper approach to ensure that we transpose this important international legislation effectively and efficiently in accordance with our own Constitution.
The Government has approved the setting up of a referendum commission for this referendum and for each of the other referenda to be held on the same date. The referendum commission will provide information for the public on the implications of ratification of the Rome statute and I am sure they will perform their task well. This is another mechanism whereby detailed information can be made available to people so they can make an informed decision on this matter. The absence of the draft legislation at this stage is in no way an impediment to ensuring that the people will be fully informed as to what they are voting for in this referendum.
The European Union is a strong supporter of the early establishment of the court and has undertaken to assist countries associated with it to ratify the statute, and this is something we will be involved with. The European Union urges the United States of America to ratify its own statute. The Clinton administration signed the statute but it is now a matter for the current administration which would probably take a different view. Congress has a particular view on this subject and it is an internal matter whether the US ratifies the International Criminal Court. As members of the European Union we will be joining with our partners in urging the United States to ratify the Rome statute. Ireland continues to support the European Union and its president in these efforts.
The Rome Statute on the International Criminal Court represents one of the most important developments in international law since the Second World War. We should not try to diminish or underestimate that achievement. It establishes a permanent independent court with the jurisdiction to try persons for the most serious crimes of international concern. This statute draws on international and humanitarian and human rights conventions and instruments from the beginning of the twentieth century to the present in its definitions of these crimes. The states parties statute affirms their abhorrence of these most serious breaches of human rights and pledge themselves to co-operation with the court in its investigation and prosecution.
I am sure those present today and the Irish people in general share my belief that this country should join the 30 states who have to date ratified this most important statute. The proposed amendment to the Constitution constitutes a major step in our ratification process. It is a step but an important one whereby we will demonstrate our ongoing commitment to the international court and reaffirm the principles set out at the beginning of Article 29 of the Constitution. These pertain to co-operation on the basis of international justice and morality, adherence to the specific settlements of international disputes and the generally recognised principles of international law according to which the international relations of this State are to be conducted.
Cuireadh agus aontaíodh an cheist.
When does the House propose to sit again?
At 10.30 a.m. tomorrow.
