I remind Senators that all amendments on Report Stage must be seconded and only the proposer may reply. Each person, other than the proposer, may speak only once. Amendments Nos. 1 to 3, inclusive, are related and may be discussed together by agreement.
International Criminal Court Bill 2003: Report and Final Stages.
I move amendment No. 1:
In page 8, line 30, before "choses" to insert "any".
These three amendments of a technical nature were tabled on Committee Stage. They were designed to introduce an element of consistency into the definition section of the Bill. The Tánaiste and Minister, Deputy McDowell, stated he would have a look at the matter. We believe that these are proper amendments which would improve the Bill technically. I am disappointed that similar amendments are not proposed by the Minister of State, but I would like to hear what he has to say on it at this stage.
I second the amendment.
The Tánaiste and Minister for Justice, Equality and Law Reform, Deputy McDowell, stated he would look at this again. While I appreciate that Senator Cummins is attempting to achieve consistency, the advice of the Parliamentary Counsel is that these amendments would create an inconsistency in the drafting of the section as a whole. He has not, in the preceding lines 28 and 29, referred to any money or any other personal property.
The Parliamentary Counsel was consulted on the matter since the conclusion of Committee Stage, but the consensus is that the acceptance of the amendments would create an inconsistency in the drafting of the section as a whole. It is, therefore, preferable to leave the position as it stands and to retain the Parliamentary Counsel's consistent approach.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
I move amendment No. 4:
In page 21, line 2, to delete "ne bis in idem,” and substitute the following:
"ne bis in idem1,”.
1autrefois acquit, autrefois convict or double jeopardy.
This is a point I made on Committee Stage. The Minister of State will be aware that "ne bis in idem” is a Latin phrase meaning “not twice for the same”. On Committee Stage I made the point that we commonly refer to ne bis in idem as autrefois acquit or autrefois convict depending on the circumstances, and most laymen would know it as double jeopardy. It is a legal principle that has been well established in Irish law for a considerable time.
As far as I am aware, there is no mention anywhere in Irish law of the doctrine of "ne bis in idem”, either in statute or in case law, as this comes to us from civil law and yet it appears here in section 25 of the Bill. I assume that this is the case because there is an effort to mimic the terms used in Articles 20 and 89 of the Statute of Rome, and this is not unreasonable. However, I must ask if it is wise for this term to enter our Statute Book out of the blue without any definition of what it means and how it should be applied.
In this respect, a simple footnote in the Bill offering alternative terms for what is effectively the same doctrine would help to place the term, especially since this Bill will operate in a common law jurisdiction. Failing that, as I mentioned on Committee Stage, the Minister needs to make an amendment — I thought such an amendment would be tabled here — to define the term "ne bis in idem” in the Bill.
The Tánaiste and Minister for Justice, Equality and Law Reform, Deputy McDowell, mentioned he would look at this amendment, felt it was a good one and stated that if it was necessary to define the term, he would do so in the Bill. I am surprised that such a Government amendment is not forthcoming here and I would be interested to hear what the Minister of State has to say on the matter.
I second the amendment.
Senator Cummins proposed the amendment on Committee Stage, as he stated, and the Tánaiste referred to the difficulties which might arise with the legal interpretation of footnotes in the event of a challenge to the provision in question. The Parliamentary Counsel recommends, therefore, that the generally accepted practice of not accepting amendments that include explanatory footnotes be adhered to. The application of the principle of ne bis in idem relating to persons who may be tried for crimes under Articles 6, 7 or 8 of the Statute of Rome and may subsequently be convicted or acquitted is set out clearly and concisely in Article 20 of the Statute of Rome. The statute in its entirety is attached as a Schedule to this Bill. In addition, section 3 specifically provides for judicial notice to be taken of the statute. It is important that we stick to the wording of the Statute of Rome, the international instrument on which the Bill is based.
It should also be borne in mind that in interpreting the Act and the Statute of Rome, section 3 states a court may, among other things, consider the travaux preparatoires, in effect the explanatory memoranda, relating to the provisions of the Statute of Rome and to give them the weight the court may consider appropriate. It is unlikely, therefore, that in the event of an interpretation of the term ne bis in idem arising, there will be any doubt as to the meaning of the term as set out in Article 20 of the statute. Consequently, I cannot accept the amendment.
I am concerned that the term, ne bis in idem, could be challenged because it is not on the Statute Book. I am not satisfied with the Minister of State’s explanation. It may be correct but I am still not satisfied, based on the advice I received.
I can add nothing more.
Amendment put and declared lost.
I move amendment No. 5:
In page 25, line 32, after "State" to insert the following:
", or for the service of the person's sentence, or balance of the person's sentence, outside the State,".
The amendment is designed to avoid a shuttlecock situation whereby a person who is 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 then be returned to Ireland to serve the balance of the sentence. We are suggesting that, with the consent of the person, arrangements could be made to serve all sentences together. We have reworded the amendment to make clear that only arrangements agreed with the International Criminal Court, ICC, or state of enforcement are permissible. Has the Minister of State considered this further?
I second the amendment.
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. Provision is made that the 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. For instance, it provides that any such imprisonment will be subject to the supervision of the ICC and the court 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. It would, perhaps, be an undue interference with the provisions of the statute to include in this Bill consideration of a domestically applied custodial sentence among the responsibilities of the ICC. For these reasons, I do not propose to accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 31, line 38, after "may," to insert the following:
"if it appears to the Court that the sum or any part of it is a sum which might be realised by the person to whom the order is directed,".
This important amendment relates to the issue of 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 inability to pay monetary sums.
This section is taken and adapted from the Criminal Justice Act 1994 which relates to imprisonment for failure to pay confiscation orders made following convictions for drug trafficking offences. However, the critical feature of the imprisonment system under the Criminal Justice Act 1994 is that a confiscation order may be made only for such amount as the court thinks might be realised, as opposed to the total profit 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 own consumption and is left with only €5,000 in cash or 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 the person is unable to comply with it because he or she has spent 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 40 of this legislation. Under section 40(9), the High Court is being empowered to order a person to pay the full amount of an ICC order with imprisonment for up to ten years in default. This is objectionable in principle and constitutionally and, accordingly, we suggest the insertion of a qualifier that the amount would have to be an amount which the court considers could be realised. We have reworded the amendment following Committee Stage to make clearer that the court must be satisfied that the sum can be realised so that, in other words, the person will not be imprisoned for mere inability to pay
I second the amendment.
This amendment relates to section 40(9) which 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 is similar in intent to an amendment dealt with on Committee Stage in that the purpose is to ensure 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.
As the Minister stated on Committee Stage, the amendment is unnecessary. Section 40(10) provides that no order under section 40(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, and, therefore, the person is given the opportunity, if required, to outline to the court any facts which might affect his or her ability to pay a sum payable under an ICC order. Section 40(9) is modelled on section 19(3) of the Criminal Justice Act 1994, which deals with the general enforcement of confiscation orders and it is sufficiently flexible to deal with such issues.
Amendment, by leave, withdrawn.
Government amendment No. 7:
In page 150, line 20, to delete "Geneva" and substitute "Scheduled".
The purpose of the amendment is to correct a typographical error in Schedule 3 to the Bill relating to a reference to section 3 of the Geneva Conventions Act 1962, as amended by section 3 of the Geneva Conventions (Amendment) Act 1998. It is a technical amendment.
Amendment agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Minister of State and his officials. It is worth recalling the savage and brutal events that led to the creation of the International Criminal Court. Conflict among nations has resulted in great loss of life and destruction. In an effort to afford justice to the victims of this devastation, ad hoc tribunals have been established to ensure legal responsibility. It is not least where power is greatest. The trials of the last century, Nuremburg, Tokyo, the former Yugoslavia and Rwanda, are testament to the efforts to stop violations of international human rights and to protect the most innocent and vulnerable victims of such attacks.
The International Criminal Court is a new departure in this struggle. Unlike previous tribunals, it is the first court to be established on a permanent international basis and it will be the first to be in existence before a conflict breaks out. This permanency should ensure a proactive rather than a reactive response to such atrocities in future. It will also let those who intend to perpetrate atrocities know — as we speak a serious situation exists in Darfur — that they will be brought to account sooner or later.
I commend the Minister of State on bringing the Bill to the House. As he is aware, my party has long been a supporter of the establishment of an international criminal court. We have espoused such a body since the issue was agreed in Rome. The establishment of the International Criminal Court is the most important development in international law since the founding of the United Nations.
Fine Gael tabled a number of amendments on Committee Stage, one of which related to the issue of war crimes. Ireland has a moral responsibility to see that the most heinous crimes do not go unpunished. We have already lived up to our moral responsibility with regard to torture and war crimes, but we must also meet the moral responsibility with regard to genocide and crimes against humanity. I am disappointed we did not seize the opportunity to include those crimes and act on them while introducing the Bill. However, we welcome its passage. While I am disappointed that some of our amendments were not accepted, we support the establishment of the International Criminal Court, which will be of tremendous benefit to all nations of the world. I commend the passage of the Bill.
I am glad to have the Bill passed and congratulate the Minister on bringing it before the House. Like Senator Cummins, I wish we had gone further in the area of genocide in particular. I hope this will follow as soon as possible.
I was particularly grateful to the Minister for accepting my two amendments on Committee Stage, especially the amendment regarding the removal of fingernails, even by a medical practitioner. I would hate to see torture instituted in the Bill and the removal of fingernails is usually considered such. I wish the Bill success in the courts. I hope we will not need it often and can revisit it if required, as Senator Cummins stated.
I support the Bill and thank the Minister, the Minister of State and their staff for their work on the issue. I welcome the Minister's acceptance of some of the points the Labour Party raised in its amendments, including those on Committee Stage, although he did not necessarily accept the points we made in other areas. This area needs to be monitored to ensure that the legislation will be amended if necessary.
I thank the Minister of State and his officials for bringing this important Bill through the House. I express my thanks to the Opposition parties for their help in ensuring the Bill had a speedy passage.
I thank the Senators for their contribution on this important Bill. As Senator Hanafin stated, it is the result of significant events in recent history. It is good for this country that we are now up to speed and have the legislation to deal with these issues.
Question put and agreed to.
When is it proposed to sit again?
At 2.30 p.m. on Wednesday,18 October 2006.