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.