International Criminal Court Bill 2003: Committee Stage.

Section 1 agreed to.
SECTION 2.

Amendments Nos. 1 and 2 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 8, line 30, to delete "choses" and substitute "any chose".

These are technical amendments designed to introduce an element of consistency to the definitions section of the Bill. The Minister will be aware that other paragraphs in this section use singular or collectively singular nouns whereas "choses in action" or "proceeds" are unnecessarily plural. Since the more commonly used term is "chose in action", it would add uniformity and clarity and if the word "any" were inserted to define each term in the singular.

This is a drafting point. I agree with the Senator that the use of the plural is slightly unusual. If the Senator withdraws the amendment, I will consider that it be changed on Report Stage to "a chose in action" or "any chose in action". I take the point being made by the Senator.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 2 agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7.

Amendments Nos. 3 and 6 are cognate and may be discussed together by agreement.

I move amendment No. 3:

In page 12, subsection (1), line 4, to delete "who" and substitute the following:

", whatever his or her nationality, who, whether in or outside the State,".

These are extremely important amendments which tie in with my opposition to section 12. The essence of amendment No. 3 is to convert genocide and crimes against humanity into crimes of universal jurisdiction rather than of national jurisdiction. Universal jurisdiction has been exercised world-wide for over a century and has its origins in the criminalisation of piracy and slavery. Just as pirates and slave traders were denied safe haven by universal jurisdiction in the past, those who would perpetrate genocide, crimes against humanity or war crimes, are denied it now. These three crimes covered by the Rome Statute are the most despicable of our time and sadly, those who commit them too often do so with absolute impunity. The more universal jurisdiction is extended by responsible nations to these crimes, the greater the likelihood that such impunity will be shattered.

On 29 April 2004, Amnesty International published a set of comments and recommendations on the Irish International Criminal Court Bill 2003. Foremost among these were the recommendation that universal jurisdiction, already provided for in the Bill with regard to war crimes, should also be extended to cover genocide and crimes against humanity. These amendments will extend the jurisdiction of all three of the crimes within this Bill to cover crimes committed by any perpetrator of any nationality who commits one of the crimes within or without the State.

In order to do this, the amendment proposes two changes, the first being to replace the word "who" in sections 7 and 8, with the phrase "whatever his or her nationality, who, whether in or outside the State,". This is the crucial change which extends the scope of the Bill to include any person of any nationality in any location in the world who commits any of these three offences under the Bill or any ancillary offence.

I refer to the Second Stage changes to remove section 12 which deals with the extra-territorial jurisdiction of the Bill as it stands. The section currently provides for universal jurisdiction for war crimes but only provides for extra-territorial jurisdiction over genocide and crimes against humanity where such crimes are committed by Irish nationals or on Irish ships or aircraft. I hope that sections 7 and 8 will be amended as section 12 will then no longer be necessary. This amendment will extend the jurisdiction of the Bill to cover heinous crimes committed all over the world.

The Bill accepts the right to use universal jurisdiction for war crimes. This amendment is not introducing any new legal principle. The effect of it is to make the same provision on jurisdiction for crimes against humanity and genocide as are applied to war crimes. The Rome Statute of the ICC is clear that domestic efforts are crucial to international justice. The preamble of the statute states that effective prosecution must be ensured by taking measures at the national level by enhancing international co-operation. It also states that it is a duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. It is only by harmonising domestic and international efforts that we can be certain that those who perpetrate these evil and despicable crimes will be brought to justice.

The enforcement of the law in any community is not the sole responsibility of central authorities. In order for a law-abiding community to exist, all members of that community must take seriously their role in upholding the law and the international community is no different. The International Criminal Court cannot of itself prevent the commission of these horrendous international crimes unless individual states fulfil their responsibilities and do everything in their power to see that the law is enforced.

As a democratic, peace loving nation, Ireland has a moral responsibility to see that these heinous crimes do not go unpunished. We have already lived up to that moral responsibility with regard to torture and war crimes. We now have the moral responsibility with regard to genocide and crimes against humanity. I hope the opportunity will be seized by the adoption of these amendments.

The proposed amendments would extend the jurisdiction of the State with respect to International Criminal Court offences to any ICC offence committed by a non-Irish national outside the State. This would mean, in effect, that the Irish court would have just as much jurisdiction as the International Criminal Court itself in dealing with International Criminal Court cases.

Section 12, which Senator Cummins proposes to delete, concerns the jurisdiction of the State in respect of ICC offences committed outside the State. Section 12(1) relates to taking jurisdiction for ICC offences committed by an Irish national outside the State. Subsection (2) provides this State with jurisdiction with regard to a person of any other nationality who commits an act outside the State that, if done within it, would be an offence both under section 3 of the Geneva Conventions Act 1962, as amended, and as a war crime under Article 8.2 of the Rome Statute.

The question of the jurisdiction to be adopted by the Bill was subject to legal advice from the Attorney General. The advice given to the Department concluded that Ireland could only exercise universal jurisdiction for crimes already attracting universal jurisdiction under the generally recognised principles of international law. This is a constitutional argument.

Universal jurisdiction, extending jurisdiction to any offence committed in any state by a person of any nationality, was previously adopted in respect of grave breaches in international armed conflict of the Geneva Convention of 1949 and the first additional protocol of 1977, as implemented by the Geneva Conventions Acts of 1962 and 1998. As many of the grave breaches under the Geneva Conventions are comparable with ICC offences, universal jurisdiction is, in effect, also adopted in the Bill for those ICC offences that are also offences under the Geneva Conventions Acts of 1962 and 1998.

Ultimately it will be a matter for the Irish courts to decide, depending on the facts of a particular case, on whether an ICC offence is comparable with a grave breach for the purposes of exercising universal jurisdiction. As the proposed amendments would extend the jurisdiction of the State with respect to ICC offences beyond the universal jurisdiction adopted in the Bill for those ICC offences which are also offences under the Geneva Conventions legislation, on the basis of legal advice from the Attorney General I cannot accept the amendments.

It is unfortunate the amendments cannot be accepted. I accept the Attorney General has given an opinion on the matter but I still feel the amendments put forward would put us in a better position in acting against genocide and other heinous crimes. Although it is unfortunate they cannot be accepted, I realise the position the Minister is in with regard to advice he has taken.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Amendments Nos. 5, 21 and 22 are related to amendment No. 4 and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 12, subsection (3), line 11, to delete "is set out in the Schedule to the 1973 Act" and substitute the following:

"in the English language is set out for convenience of reference in Schedule 2”.

The purpose of this amendment, which seems to have been accepted by the Minister, is to pick up on the fact that if the 1973 Act were to be repealed, the Schedule to the Act would also be repealed. Therefore, it would seem appropriate to set out a reference to the text of the genocide convention in the Bill. That is what we set out to do in amendments Nos. 4 and 21.

I see the Minister has put forward alternative amendments. I accept he is entitled to do so. Amendment No. 5 may have better wording, but why did the Minister put forward the alternative to amendment No. 21? I believe amendments Nos. 21 and 22 are the same. Was there any reason amendment No. 21 could not have been accepted?

I welcome that the Minister has seen the same issue that we have pointed out and that he has, in effect, accepted our amendment in principle.

I express my gratitude to Senator Tuffy for tabling the amendments. On reflection and reconsidering the issues that arose in respect of Opposition amendments tabled on Committee and Report Stages in the Dáil, it is appropriate to publish the text of the Schedule.

With regard to the differences between amendments Nos. 21 and 22, I am not certain they are totally identical. I will give the Senator the courtesy of saying that it is her amendment that we are, effectively, copying in amendment No. 22.

Amendment, by leave, withdrawn.

I have to do my job or I might get my P45.

Government amendment No. 5:
In page 12, subsection (3), line 11, to delete "the Schedule to the 1973 Act" and substitute "Schedule 4”.
Amendment agreed to.
Section 7, as amended, agreed to.
Amendment No. 6 not moved.
Sections 8 to 11, inclusive, agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."

I have spoken on this matter previously when dealing with amendments Nos. 3 and 6.

Question put and agreed to.
Sections 13 to 16, inclusive, agreed to.
SECTION 17.
Government amendment No. 7:
In page 16, subsection (5), line 17, to delete "commencement" and substitute "passing".
Amendment agreed to.
Section 17, as amended, agreed to.
Section 18 agreed to.
SECTION 19.

I move amendment No. 8:

In page 18, subsection (4), line 7, to delete "with" and substitute the following:

"and the court shall, unless it sees sufficient reason to the contrary, give".

This amendment is necessary for constitutional reasons. As the section stands, a criminal court would be obliged in all circumstances to give liberty to re-enter were the proceedings postponed in favour of a request from the International Criminal Court. This could cause serious interference with the independence of the Judiciary, where, for example, a judge could take the view that by reason of excessive delay any further adjournment would be contrary to the constitutional rights of the accused.

As a result, some measure of discretion is necessary to save the section from being struck down as unconstitutional. We are providing this discretion by means of this amendment. On Committee Stage in the Dáil I understand the Minister indicated that the court has an inherent jurisdiction, but we believe the Bill does not state this.

This amendment deals with a situation where the Director of Public Prosecutions withdraws proceedings with liberty to re-enter. The amendment would amend the subsection to provide that the proceedings be withdrawn "and the court shall, unless it sees sufficient to the contrary, give, liberty to re-enter".

The Office of the Attorney General advised that the proposed wording is too prescriptive and could be capable, curiously, of being seen to interfere with the Judiciary's independence. We are all very concerned to preserve the Judiciary's independence.

The Office of the Attorney General feels in trying to redress the issue raised by Senator Tuffy, we might end up trenching on the independence of the Judiciary from the other direction. It would be better to leave it as it is for the reasons I mentioned in the Dáil.

Did the Attorney General have an opinion on the grounds of our concerns about the constitutionality of the section as it stands?

I did not hear any advice from the Attorney General different from what was stated in the Dáil on that matter.

Amendment, by leave, withdrawn.
Government amendment No. 9:
In page 18, subsection (7), lines 16 and 17, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".

This is a drafting amendment. The phrase "Act of 2003" is uncertain and "European Arrest Warrant Act 2003" should be substituted.

Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.

I move amendment No. 10:

In page 18, subsection (1), line 24, after "shall" to insert the following:

", on being satisfied as to the authenticity and sufficiency of the documents submitted to it,".

For constitutional reasons, we believe the High Court should not be made a rubber stamp and should be given some discretion in the matter of inquiring into the authenticity and sufficiency of documents presented to it. Under the section as it stands, the High Court would be obliged to order the arrest of a person merely based on the production of certain documents without any evidence in the conventional sense being offered to it. Will this comply with the Constitution, particularly the right to personal liberty? I understand on Committee Stage in the Dáil, the Minister stated the court has an inherent jurisdiction but the Bill does not state that and it should.

I am advised the court has inherent jurisdiction and therefore it will be surplus and perhaps counterproductive to provide for it in the Bill.

Amendment, by leave, withdrawn.
Section 20 agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25.

I move amendment No. 11:

In page 21, subsection (2)(a)(ii), line 2, to delete “ne bis in idem,” and substitute the following:

"ne bis in idem1,”.

1autrefois acquit, autrefois convict or double jeopardy.

The Minister is aware the term “ne bis in idem” is a Latin phrase meaning “not twice for the same”. It describes the legal doctrine which comes to us from Roman civil law and prevents the trial of a person twice for the same offence. It is more commonly referred to as autrefois acquit and autrefois convict depending on the circumstances. Most laymen know it as double jeopardy. It is a legal principle which has been established in Irish law for a considerable time.

The first mention of it in statute was in section 14 of the Interpretation Act 1937. It has been referred to in case law since 1963, including in well-known cases such as Attorney General (O'Maonaigh) v. Fitzgerald which effectively established the doctrine of autrefois acquit at common law and the State (Attorney General) v. Judge Deale, which recognised autrefois convict. However, as far as I am aware, there is no mention of the doctrine of ne bis in idem in Irish statute law or case law. It comes to us from civil law but it appears in section 25 of the Bill.

I assume this is due to an effort to mimic the terms used in Articles 20 and 89 of the Rome Statute which is not unreasonable. However, I must ask whether it is wise that this term enters our Statute Book out of the blue without any definition of what it means or how it should be applied. In this respect, a simple footnote to the Bill offering alternative terms for what effectively is the same doctrine would help to place the term in common law perspective, particularly since the Bill will operate in a common law jurisdiction. Failing that, the Minister must make an amendment to define the term ne bis in idem in the Bill.

One of the great aspects of having a computerised statute book is that someone such as Senator Cummins can stand up and assert with confidence that the phrase ne bis in idem does not appear anywhere else in the statute book. Ten years ago he would have been brave to state it but one can make such statements with far more confidence. I see the point the Senator makes. However, if we are to deal with unprecedented activity, I am told it would be unprecedented to incorporate a footnote in this way.

I will consider the matter between now and Report Stage. The problem is that ne bis in idem has a Rome Statute meaning. I am slightly wary of accepting a common law variant of it on the hoof. It is interesting to note that when we were in law school the word autrefois in the phrases autrefois acquit and autrefois convict was pronounced with a silent “s”. However, a book by Glanville Williams states that in England the “s” is pronounced.

I hope the French do not hear that.

Amendment, by leave, withdrawn.
Section 25 agreed to.
Sections 26 to 30, inclusive, agreed to.
SECTION 31.

I move amendment No. 12:

In page 24, subsection (1), to delete lines 1 and 2 and substitute the following:

"31.—(1) The Minister shall postpone the making of an order under section 30 where the period referred to in section 27 has not expired, and may, on or following the conclusion of that period, postpone the making of such an order—”.

This section is necessary because a contradiction arises between sections 30 and 27. Section 27(a) requires a certain timelag, namely, a minimum of 15 days, between the making of a surrender order by a court and the surrender of a person, in addition to any period during which the court’s jurisdiction is challenged. However, section 31(1) states the Minister may postpone the making of an order which would give an authorised person custody over the defendant where the court’s jurisdiction is challenged. If the Minister decided not to postpone the making of an order, section 30(2) would come into play and the authorised person would be entitled to convey the defendant out of the State. This is inappropriate until such time as the period specified in section 27 has expired. The relationship between sections 27 and 30 and whether the minimum period still stands should be clear.

As the Senator implies, paragraph (a) of section 31(1) provides that the Minister can postpone the making of a surrender order until the ICC has determined any challenge to the admissibility of a case or to its jurisdiction. The proposed amendment will have the effect of altering the wording of the first two lines of section 31(1). The result would be an explicit reference to the Minister postponing the making of an order for the surrender of a person to the custody of the ICC or a state of enforcement as the case might be where the time period referred to in section 27 had not expired.

The matter was examined by the Office of Parliamentary Counsel which takes the view that the suggested alternative wording is unnecessary as section 27 already provides for a mandatory time lapse before a person committed under a surrender order made by the High Court will be surrendered. Under the scheme of the Act, the Minister will make the necessary arrangements for transfer pursuant to an order under section 30. Any such order is subject to the mandatory time lapse provisions provided in section 27. The Minister cannot direct that the person be surrendered until the requirements of the part including section 27 have been complied with. Reflecting on the matter and taking into account the advice of the Parliamentary Counsel, I do not believe the amendment is necessary and I do not propose to accept it.

I accept that the Tánaiste obtained advice on the issue. However, as sections 30 and 31 do not mention section 27, it could be interpreted that they override section 27 in that it relates to the Minister's order. Does the Tánaiste have any concerns over the issues we have raised or is he totally satisfied that the amendment is not needed?

One of the articles in today's newspapers made the point that it is not possible to be slightly ethical or slightly pregnant. I am totally satisfied for the time being, if I can put it that way. If any doubt enters my mind, I will reconsider it on Report Stage.

Amendment, by leave, withdrawn.
Section 31 agreed to.
Sections 32 to 34, inclusive, agreed to.
SECTION 35.

I move amendment No. 13:

In page 25, subsection (3), between lines 31 and 32, to insert the following:

"(a) with the consent of the person and of the state of enforcement, that any sentence or balance of a sentence which the person is liable to serve in the State shall be served in the state of enforcement,”.

This amendment is designed to avoid a shuttlecock situation whereby a person liable to a sentence in Ireland is surrendered on the basis that following the processing of that person in another country he or she will be returned to Ireland to serve the balance of the sentence. We suggest that with the consent of the person arrangements could be made to serve all sentences together.

Section 35 applies to a person who is already serving a sentence of imprisonment or detention in the State and is also subject to a surrender order pursuant to a request from the International Criminal Court. The surrender order may include conditions in respect of the return of the person concerned into the custody of the State following the completion of the ICC proceedings.

The amendment proposes that if the person and the state of enforcement consent then any sentence, or balance thereof, which the person is liable to serve in the State, will be served in the state of enforcement. It relates to sentence enforcement issues which are distinct from, and broader than, the relevant provisions of the Rome Statute. The amendment seeks to combine two discrete areas — enforcement of ICC sentences and existing arrangements for transfer of sentenced persons, pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons. The advice given to me is that these two matters should be kept separate. The objective of the Bill is to ensure that the State and the organs of the State meet their obligations to give effect to the provisions of the Rome Statute.

The Rome Statute deals specifically with the enforcement of sentences following conviction of persons by the ICC for ICC offences. It provides, for example, that any such imprisonment will be subject to the supervision of the ICC. In addition, the ICC may, at any time, decide to transfer a sentenced person to a prison of another state. The Rome Statute does not address the enforcement of any domestic sentence which a person is liable to serve. We are mixing two concepts and the concern is that the ICC would have no jurisdiction under its statute to supervise or make arrangements in respect of domestic sentences that someone might be serving.

If a person serving a sentence here wishes to serve the remainder of the sentence in the person's home state, the person can apply for transfer under the Transfer of Sentenced Persons Acts. The transfer procedure is entirely voluntary. However, EU proposals to provide for involuntary transfer are under consideration. At the moment Ireland is unconvinced that this would be appropriate. The sentenced person, the state to which he or she is seeking a transfer and the state where he or she is serving a sentence all must consent to the transfer under the present law.

The proposed amendment does not address issues such as the level of sentence to be transferred. For example, the Council of Europe Convention on the Transfer of Sentenced Persons uses two concepts regarding the level of sentence to be transferred. On the one hand, there may be continued enforcement which means the sentence as originally imposed is transferred. On the other hand, the sentence may be converted through a judicial or administrative procedure into a decision which substitutes a sanction prescribed by an administering state's own law for the sanction imposed in the sentencing State, which shows that complexities exist. Whereas I appreciate that the Senator's proposal is intended to avoid shuttlecock situations, my concern and that of the Department is that we do not somehow purport unilaterally to create a situation in which the ICC would end up acting in some sense ultra vires the Rome Statute.

I ask the Tánaiste to consider addressing the concerns raised in a different way or in other legislation.

I will consider it to ascertain if anything in the ordinary domestic law of transfer could be adapted to fit the situation mentioned.

Amendment, by leave, withdrawn.
Section 35 agreed to.
Sections 36 and 37 agreed to.
SECTION 38.

I move amendment No. 14:

In page 28, between lines 10 and 11, to insert the following subsection:

"(5) Where a freezing order is made, and proceedings are pending in the High Court or another court, in which relief referred to in the definition of "realisable property" in section 41 is claimed, the High Court shall, on the making of a freezing order under this section, order the discharge of those proceedings and any interim or interlocutory order in the nature of a freezing order made in those proceedings.”.

The purpose of this amendment is to avoid many applications for freezing orders related to the same property. Section 36 already provides that where a freezing order is made under other legislation an order cannot be made under section 37 of the Bill. However, the Bill does not deal with cases where an application for a freezing order under the legislation is pending at the time that a freezing order is sought under this Bill. We suggest that a freezing order in favour of the International Criminal Court should take priority and accordingly, on the making of such a freezing order, any application for a freezing order related to the same property under other legislation should be discharged. We do not believe it would be right to seek several inconsistent and incompatible applications relating to the same property, only one of which could succeed in practice.

The amendment proposes to insert a new subsection (5) in section 38. The existing subsections (4) to (10) of that section provide that the High Court may issue a freezing order prohibiting any person from dealing with the property of the person to whom the request relates, provided that the High Court is satisfied that the ICC has or is likely to impose a fine, forfeiture or reparation order against the person concerned.

The amendment proposes that when a freezing order is made and proceedings are pending relating to the relief referred to in the definition of realisable property in section 37, the High Court, on the making of the freezing order, must order the discharge of those other proceedings. It effectively proposes that ICC freezing orders will discharge interim or interlocutory orders made under other enactments. However, if the ICC does not impose a fine, or make a forfeiture or reparation order against the person concerned at all, then the opportunity is lost for freezing assets for domestic purposes as the other orders will have been discharged. For example, if the CAB got a freezing order against a person in Ireland and the ICC showed an interest in the same property on the same basis, the effect would be that the CAB's freezing order would be extinguished by the making of an order by the Irish courts. If the ICC decided not to order a fine or reparation, the CAB would have lost its freezing order and, provided it found out in time, would have to rush into court before the person in question could dispose of the property.

I accept the general proposition that it is undesirable to have a number of orders in respect of the same property when they are not all capable of being reconciled but this provision could have a negative effect if it simply extinguishes all domestic freezing orders once the ICC mechanism is triggered. The tidiness intended by the Senator's amendment would come at the expense of the certainty that people would not be able to escape a freezing order simply by reference to an order made by the High Court in favour of the ICC which was later discharged when it was not possible to intervene immediately to re-establish the first order. Effectiveness requires that we allow existing domestic orders to continue in respect of the same property.

Amendment, by leave, withdrawn.
Section 38 agreed to.
Section 39 agreed to.
SECTION 40.

I move amendment No. 15:

In page 31, subsection (9), line 38, after "order" to insert the following:

"which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed".

This is an important amendment which concerns the circumstances in which a person may be imprisoned for failure to pay a fine. There are strong international legal prohibitions against the imprisonment of individuals for the inability to pay monetary sums. This section is adapted from the provisions in the Criminal Justice Act 1994 with regard to imprisonment for failure to pay confiscation orders made following convictions for drugs trafficking offences. However, the critical feature of the imprisonment system under that Act is that a confiscation order may only be made for such amounts as the court thinks might be realised, as opposed to the total amount of profit gained from the drug trafficking. For example, where a person makes a profit of €10,000 from drug trafficking but spends €5,000 on drugs for his or her own use and is left with €5,000 in realisable assets, the Circuit Court can only make a confiscation order for the €5,000 which is capable of being realised. In other words, under the Criminal Justice Act 1994, a person is not liable to be imprisoned for failure to comply with a confiscation order in circumstances where he or she is unable to comply with the order because he or she has spent or otherwise used the money. There should therefore be no question under the Criminal Justice Act of imprisonment because of inability to pay.

However, this safeguard is conspicuous by its absence from section 39. Under subsection 39(9), the High Court is empowered to order a person to pay the full amount of an ICC order with imprisonment of up to ten years for default. As this is objectionable in principle and raises concerns with regard to constitutional implications, we propose the insertion of a qualifier so that the amount would have to be an amount which the court considers to be realisable.

The amendment proposes to insert an additional wording in section 40(9). Subsection (9) already provides that if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the court may order the imprisonment of the person to whom the ICC order relates. The amendment proposes that the provision will only apply in cases of sums payable under the ICC order which appear to the High Court to be a sum which might be realised by the person to whom the order is directed.

I am advised that the amendment is unnecessary. A court is not going to imprison a person if that person cannot realise his or her assets. Subsection (10) provides that no order under subsection (9) can be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the court. In that context, the person can outline to the court any factors which affect his or her ability to pay in compliance with the ICC order and we believe that the capacity to make submissions to the court necessarily implies that a person who cannot realise the asset cannot be imprisoned or punished for failing to do so.

Subsection (9) is modelled on section 19(2) of the Criminal Justice Act 1994, which deals with the general enforcement of confiscation orders. In practice, it has been found that the existing wording is sufficiently flexible and that the issue raised by Senator Tuffy does not warrant an amendment.

While I accept the points made by the Tánaiste, we do not know for certain that the courts will not make an order in respect of moneys that cannot be realised. The purpose of our amendment is to provide a protection so that the court will not make such an order. If that protection is provided for in, for example, the Criminal Justice Act 1994, should it not also form part of this Bill?

Under the other legislation, we are satisfied that the difficulty to which the Senator refers does not arise. I will reconsider the matter between now and Report Stage, although I do not believe a problem really exists.

Amendment, by leave, withdrawn.
Section 40 agreed to.
Sections 41 to 49, inclusive, agreed to.
SECTION 50.

Amendment No. 17 is an alternative to amendment No. 16 and amendment No. 18 is related. Therefore, amendments No. 16 to 18, inclusive, may be discussed together by agreement.

Government amendment No. 16:
In page 37, subsection (1), to delete line 6 and substitute the following:
"(b) the whole or part of a nail or of any material found under it;”.

Having considered amendment No. 16 and the horrific notion that somebody's entire nail could be taken as a sample, I am given to believe Senator Henry's amendment No. 17 is a better one and I will therefore accept it. While the term "iris identification" does not have a clear meaning, I am disposed to accept it because I do not think it can do any harm in this legislation.

It must be of great comfort to the Tánaiste to know that Members of the upper House are spending their evenings at home carefully scrutinising his legislation. I feared the original wording could give rise to a situation in which cruel and natural practices were inflicted by members of the medical profession, so I am glad my amendment has been accepted.

With regard to amendment No. 18, it would be a good idea to include iris identification in this era of biometric passports. It appears to be the most reliable form of identification, although some criminals are apparently able to make changes to biometric passports. I suggest we try to keep the legislation as current as possible.

The Senator is correct. When I noticed this issue, I realised I might end up reading a report in the newspaper that I was going to authorise doctors to remove people's nails. I may not have much of a sense of self-preservation but I would not like to have that put on the record.

Amendment, by leave, withdrawn.

I move amendment No. 17:

In page 37, subsection (1), line 6, after "nail" where it firstly occurs to insert "clipping".

Amendment agreed to.

I move amendment No. 18:

In page 37, subsection (1), line 24, after "print" to insert ", iris identification".

I am happy to accept this amendment.

Amendment agreed to.
Section 50, as amended, agreed to.
SECTION 51.

I move amendment No. 19:

In page 42, subsection (13), line 9, after "it" to insert the following:

", provided that where such material is to be transmitted out of the State, arrangements shall be made for the return of such material following the conclusion of proceedings before the International Criminal Court, and, where human remains are transmitted out of the State under this subsection, subject to arrangements for the reburial of such remains in the State or in such other place as is directed by the next of kin following the conclusion of such proceedings".

Under the section as it stands, bodies can be dug up in the State and transported to the International Criminal Court in the Hague with no provision for return or reburial. There is no provision for other material that may be seized within the State. I am interested in the Minister's response.

This is a very prescriptive amendment. A body that none of us knew about could be dug up in Ireland. We may not want it in Ireland and relatives might want to bury it elsewhere. The amendment would tie us down unduly.

Amendment, by leave, withdrawn.
Section 51 agreed to.
SECTION 52.

I move amendment No. 20:

In page 43, subsection (3)(a)(ii), line 11, after “intimidation” to insert the following:

"or to the prohibition of publication of information tending to identify any person the court considers ought not to be identified".

I am interested in hearing the Minister's response.

We revised section 14 in the Dáil to take this into account. The amendment is redundant at this stage.

Amendment, by leave, withdrawn.
Section 52 agreed to.
Sections 53 to 66, inclusive, agreed to.
Schedule 1 agreed to.
Amendment No. 21 not moved.
Schedules 2 and 3 agreed to.
NEW SCHEDULE.
Government amendment No. 22:
In page 151, after line 17, to insert the following new Schedule:
"SCHEDULE 4
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON 9 DECEMBER 1948
THE CONTRACTING PARTIES,
HAVING CONSIDERED the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world;
RECOGNIZING that at all periods of history genocide has inflicted great losses on humanity; and
BEING CONVINCED that, in order to liberate mankind from such an odious scourge, international co-operation is required,
HEREBY AGREE AS HEREINAFTER PROVIDED:
Article I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III.
Article VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Article VII
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Article VIII
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.
Article IX
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Article X
The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.
Article XI
The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.
The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article XII
Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.
Article XIII
On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up aprocés-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI.
The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.
Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.
Article XIV
The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.
It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.
Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.
Article XV
If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.
Article XVI
A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.
Article XVII
The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:
(a) Signatures, ratifications and accessions received in accordance with article XI;
(b) Notifications received in accordance with article XII;
(c) The date upon which the present Convention comes into force in accordance with article XIII;
(d) Denunciations received in accordance with article XIV;
(e) The abrogation of the Convention in accordance with article XV;
(f) Notifications received in accordance with article XVI.
Article XVIII
The original of the present Convention shall be deposited in the archives of the United Nations.
A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.
Article XIX
The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.".

This was discussed in the earlier debate.

Amendment agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Next Wednesday.

Report Stage ordered for Wednesday, 4 October 2006.

When is it proposed to sit again?

Next Tuesday at 2.30 p.m.