Amendments Nos. 1 and 2 are related and may be discussed together by agreement.
International War Crimes Tribunals Bill, 1997: Committee Stage.
Section 1 agreed.
SECTION 2.
I move amendment No. 1:
In page 5, subsection (1), line 26, after "(1993)" to insert "of 25 May 1993".
These amendments propose to insert the dates of the two UN Resolutions which are being implemented, in line with normal practice in Bills.
The phrases used in section 2, namely, "Resolution 827 (1993)" and "Resolution 955 (1994)" are the accepted way in which UN Resolutions are identified and referred to and is the identifying method used by the UN and other countries. For example, legislation enacted in Britain, Australia, New Zealand, Germany giving effect to the Yugoslavian and Rwandan tribunals identified the resolutions in this way. Those interested will find the dates on which the resolutions were passed in the First and Second Schedules where the text of the resolutions is set out. For these reasons we do not propose to accept the amendments as they would create an undesirable precedent.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Question proposed: "That section 2 stand part of the Bill."
We are effectively co-operating with two international tribunals, one dealing with genocide in the former Yugoslavia and the other with genocide in Rwanda. In Yugoslavia at least 200,000 people died and in Rwanda at least 800,000 died in the most appalling circumstances. On Second Stage the desirability of establishing an international war crimes tribunal was raised. We are reacting after the event in each case. The Minister agreed there was much substance in the proposal and there is broad international agreement to it. For example, Britain pushed very hard for it in the UN. Have there been any developments since our discussion on Second Stage? I understand a conference is taking place in Rome at present. The issue has existed since the Nuremberg trials. If there was an international tribunal Pol Pot, for example, would never have got away with the murder of 1 million people in Cambodia and many other atrocities would not have occurred as there would have been a clear signal of international vigilance and a permanent mechanism in place.
The Deputy has raised a very important issue and what he says is correct. If there was an international mechanism in place it would not be necessary to establish tribunals for individual issues. Since the debate on Second Stage a five week international conference has been taking place in Rome to discuss the matter. We attended it for one day to show Irish support for an international criminal court. The conference is due to conclude tomorrow.
We are talking about tribunals for people guilty of war crimes. Presumably many refugees and asylum seekers in Ireland come from Bosnia and Rwanda. Are there statistics relating to these numbers?
We can provide that information to the Deputy. An issue is whether the matter dealt with in the legislation is relevant to that referred to by the Deputy.
There is a fundamental conflict in the context of this issue. Under current legislation there is a prohibition on the right of asylum seekers to work. The Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, said the prohibition on asylum seekers taking up employment results in many of them being labelled scroungers. She clearly supports the idea of people who have applied for asylum being allowed work. On the other hand the Department of Justice, Equality and Law Reform says that under no circumstances should asylum seekers be allowed work. There is a clear major conflict in Government policy.
The Deputy has raised a very important issue, but I do not think it is relevant to the Bill.
There is a direct link as we are dealing with the consequences of war crimes. We have a considerable influx of people who fled both jurisdictions on the basis of the atrocities carried out. Yet, there is a fundamental difference between two Departments regarding Government policy. Perhaps the Minister of State will clarify the issue.
The issue is not relevant but I do not wish to avoid it. The joint committee will invite Hope Hanlan of the UNHCR and groups which have discussed the issue of employment, thus providing an opportunity for Members to raise such issues.
Regarding Yugoslavia, will the provisions overcome the problem of citizens from certain countries requiring visas to come to Ireland? For example, the tribunal was given as one excuse for insisting on Croatians having visas according to the Department of Foreign Affairs. Croatians do not require visas to travel to most European countries. This issue will come to a head when a major sporting event takes place in September.
The legislation is not relevant to visa requirements.
According to the Department of Foreign Affairs it is relevant.
It is not relevant. Visa requirements are the concern of the Department of Foreign Affairs. The legislation enables us to send people from Ireland to a tribunal. Visas for entry to the country are a different matter.
The Department of Enterprise, Trade and Employment is responsible for work permits, but our Department would be very concerned about allowing asylum seekers take up employment prior to their status in the country being properly addressed in terms of legitimacy. The Department's view is that we cannot open the door in the manner being suggested.
The policy of the Minister's Department is not to allow those seeking asylum take up employment while the Minister of State at the Department of Foreign Affairs has clearly stated they should be entitled to work. Has the Minister for Foreign Affairs, Deputy Andrews, discussed the matter with the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue? Is there a clear Government policy? A very confused signal is being sent to employers who have the impression the Department of Foreign Affairs is in favour of these people being entitled to work, while in the eyes of the Department of Justice, Equality and Law Reform it is illegal for them to do so. There is a conflict.
The Minister, Deputy O'Donoghue, takes a clear line on this. I understand he has been in discussion with the Minister, Deputy Andrews, but I do not know what occurred. The Minister for Justice, Equality and Law Reform believes we need to identify whether an asylum seeker has a right to be in this country before we open the floodgates to work permits, etc.
Question put and agreed to.
Sections 3 and 4 agreed to.
SECTION 5.
I move amendment No. 3:
In page 8, subsection (4), line 4, to delete "commencement" and substitute "passing".
This is a drafting amendment. As there is no commencement section the Bill comes into operation on its passing, therefore the word "passing" seems appropriate.
As the Deputy said, the amendment proposed is of a drafting nature and on receipt of it we consulted the parliamentary draftsman's office to check whether it was necessary or would be beneficial to include it. That office has advised us that it is not necessary and does not necessarily add anything to the Bill, so the amendment is opposed.
Given the cost of ink I accept the Minister's view.
Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9.
I move amendment No. 4:
In page 8, line 25, after "made", to insert "and upon the Court being satisfied that this Act has been complied with,".
This amendment is designed to remedy what seems to be a clear unconstitutionality in the Bill. At present section 9 provides that on being given a Minister's certificate the court should make an arrest order. This seems to fly in the face of repeated court decisions on the powers of the courts and their independence, especially the Sinn Féin funds case of 1950. In addition, the Minister's certificate may contravene the ruling on the Employment Equality Bill, 1997. The amendment introduces a certain discretion which may save the section from being found unconstitutional.
The same applies here as in the last case. This amendment is of a drafting nature and we brought it to the attention of the parliamentary draftsman's office, which advised it was unnecessary and for that reason it is opposed.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
Amendments Nos. 5 and 6 may be taken together by agreement.
I move amendment No. 5:
In page 9, subsection (3), line 43, to delete "Minister" and substitute "High Court".
This is necessary for constitutional reasons. The section allows the Minister to cancel a court order but the cancellation of such an order requiring the arrest of a person should rest with the court itself. On amendment No. 6, one of the extraordinary features of the Bill is that it does not provide for bail for persons arrested. This is incompatible with the right to bail which follows from Article 44 of the Constitution. The recent amendment to that Article would not authorise anything like this provision because it left the ultimate decision to the courts in each case. We do not seek to encourage giving bail to persons arrested under this Bill but it is unconstitutional to deprive the courts of their power to grant bail, as this Bill proposes.
The framing of section 11(3) follows the precedent established in the Extradition Act, 1965. As the Minister explained on Second Stage it has been modelled closely on our general extradition legislation. Section 27(5) of the 1965 Act provides that, where the judge issues a warrant for the provisional arrest of a person, he shall inform the Minister who may, if he thinks fit, order the warrant to be cancelled and the person arrested under it to be released. This is pursuant to the Minister's general power to refuse extradition and to released a person from custody, which is contained in section 35 of the 1965 Act.
The power given to the Minister in section 11(3) of this Bill follows from the general power to release given to the Minister in section 22. The power is given to the Minister so that action to set a person free or to prevent him or her being arrested can be taken immediately such action becomes necessary - for example, the Minister is informed by the international tribunal that it is no longer interested in the individual and will not pursue a request for his or her surrender. The amendment is opposed.
I expressed my concerns and had hoped the Minister would take them on board but I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Section 11 agreed to.
Section 12 agreed to.
Amendment No. 7 not moved.
Section 13 agreed to.
SECTION 14.
I move amendment No. 8:
In page 10, subsection (1), line 43, to delete "shall" and substitute "may".
The amendment is designed to allow courts to remand people in custody rather than obliging them to do so, which preserves the right to bail in appropriate circumstances. It is based on the concerns I expressed earlier.
This is also a drafting amendment and we have consulted the parliamentary draftsman's office which says it is not necessary, so it is opposed.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Amendments Nos. 12 and 13 are consequential on amendment No. 10, so all three may be discussed together by agreement.
I move amendment No. 10:
In page 11, lines 20 to 22, to delete subsection (5).
Under the Constitution all High Court decisions can be appealed to the Supreme Court save where restricted by law. The Bill limits appeals in these important criminal custodial cases, save where a point of law arises. That is wrong because an important issue like personal liberty should always be capable of being the subject of a full appeal, and accordingly we have proposed amendments to cater for that possibility.
The amendment proposed to section 14, the deletion of subsection 5, is opposed and if that amendment fails the proposed amendments to sections 18 and 19 fail as a consequence. The deletion of section 14(5) would fly in the face of established practice in extradition generally. Section 29 of the Extradition Act, 1965, provides that no appeal shall lie against the decision of the court to commit a person to prison to await the order of the Minister for his or her extradition. As to similar orders under section 14 it was decided that, because of the nature of the international tribunals and the serious issues which could be involved, an appeal on a point of law should be allowed. However, while an ordinary appeal will not be available to the person who has been committed to await his or her surrender, it will be open to that person to make a complaint under Article 44.2 of the Constitution and he or she shall have been specifically informed by the High Court of his or her right to make such a complaint. The possibility of an appeal on a point of law constitutes an adequate safeguard for the person and we do not consider anything more is needed.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Amendment No. 11 not moved.
Sections 15 to 17, inclusive, agreed to.
Amendment No. 12 not moved.
Section 18 agreed to.
Amendment No. 13 not moved.
Sections 19 to 26, inclusive, agreed to.
SECTION 27.
I move amendment No. 14:
In page 16, line 3, after "The" to insert "Attorney General and the".
This is a technical amendment. The Attorney General has certain prosecution functions by statute. In addition, case law has made clear that the DPP's powers are in addition to the Attorney General's powers under the Constitution, therefore, the Attorney General should be included in this section because he also has the right of prosecution.
This amendment is opposed. The Director of Public Prosecutions will be the prosecuting authority for the crimes we are concerned with. In the event of a prosecution being considered in relation to a person found in this country there is no need to involve the Attorney General. A case might arise where the consent of the Attorney General might be required before prosecution can be mounted, but there is no need to refer to such cases. As chief law officer, and conscious of the international obligation imposed on the State to assist and co-operate with the international tribunal, the Attorney General would have regard to that aspect when considering whether to give his consent.
Amendment, by leave, withdrawn.
Section agreed to.
Sections 28 and 29 agreed to.
SECTION 30.
I move amendment No. 15:
In page 17, subsection (1), line 2, to delete "Minister" and substitute "Commissioner of the Garda Síochána".
This section provides that the Minister can order a Garda to apply for a search warrant. This appears to be highly unusual. Any orders to the Garda should come from the Garda Commissioner.
This provision is not new. There is a similar provision in section 55 of the Criminal Justice Act, 1994. This deals with search warrants with regard to materials sought in connection with investigations arising out of criminal proceedings in other states with which we have judicial co-operation agreements. In section 55, as in section 30 of this Bill, applications for search warrants can be made only after a direction by the Minister given in response to a request for assistance from a foreign government.
It is extraordinary that the Minister should take to himself powers to interfere in this way. I understood there was a distinction between the Minister's function and the day-to-day functions of the Garda regarding Garda operational decisions. The Minister appears to be taking to himself the powers of the Garda Commissioner with regard to day-to-day operational decisions. That is an unhealthy development.
The provision of search warrants may be applied for only after a direction by the Minister. It follows from the fact that it is to the Minister that the international tribunal will address any request for assistance and co-operation or any request for surrender or for provisional arrest of the person sought by it. In view of this, it is necessary that the Minister, as representative of the Government and on whom the statutes of the tribunal impose the application of co-operation with the tribunals, should have a general supervisory role over action taken in aid of the tribunals. If difficulties arise in connection with any request for assistance from a tribunal or if there is a need for further information or clarification the Minister should deal with the tribunals.
The Minister appears to be taking to himself powers that were traditionally vested in the Garda Commissioner. He will become a hands on Garda officer. That is very unusual and disturbing.
It is not unusual. There is a similar provision in section 55 of the Criminal Justice Act, 1994.
I would imagine it is not used much. There is a principal involved here.
The location of war criminals in the jurisdiction would be a rare occurrence.
While the legislation is important, I hope it will not be used regularly.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 34, inclusive, agreed to.
SECTION 35.
I move amendment No. 16:
In page 20, subsection (2)(a), line 24, to delete "£500" and substitute "£1,500".
This amendment increases the fines for interfering with witnesses from £500 to £1,500. A £500 fine is rather small for interfering with witnesses. Even a fine of £1,500 is modest, given the kind of people involved and given the possibility that they may be able to wrangle their way out of proceedings by interfering with witnesses.
The crimes involved are grave. We consider it appropriate that a sum of £1,500 be substituted for £500. We will accept the amendment.
Amendment agreed to.
Section 35, as amended, agreed to.
Section 36 agreed to.
Amendment No. 17 is out of order because it involves a potential charge on the Revenue.
Amendment No. 17 not moved.
SECTION 37.
I move amendment No. 18:
In page 21, subsection (1)(a), line 4, after "Nations" to insert "or any organ thereof".
This is a drafting amendment designed to reflect the fact that the tribunal may be set up by an organ of the UN, for example, the Security Council, rather than the UN as a whole.
The addition proposed by the amendment is not considered appropriate. We are unclear about what "any organ thereof" means in this context. The Bill envisages that the Minister may make regulation declaring any tribunal and court established by the UN to be an international tribunal for the purposes of this Act. The two ad hoc tribunals we are dealing with were established by resolutions of the Security Council and if further ad hoc tribunals are established it will presumably be through the Security Council also. They will come within the phrase “established by the United Nations” and nothing more is needed. The amendment is opposed and the concern expressed by the Deputy is covered under the legislation.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 21, subsection (1), lines 8 to 11, to delete paragraph (b).
This deletes the Minister's power to amend the Act by regulation. Although regulations would have to be approved by the Oireachtas, I am concerned about this power. It may well be unconstitutional having regard to the Supreme Court decisions in cases such as Cooke v. Walsh and Cityview Press v. AnCO.
If further tribunals are established it is to be expected that the statutes will follow the form of the statutes of the Yugoslavian and Rwandan tribunals so that this legislation can be applied with minor modification made by regulations thus obviating the need for separate legislation. That is the purpose of paragraph (b), which the proposed amendment would delete.
The provision of section 37(1)(b) can be found in other legislation. For example, section 56 of the Criminal Justice Act, 1994, has a similar provision to what is contained in this Bill. No question was or has been raised about the 1994 provision. Any regulations made under paragraph (b) would have to be approved by both Houses of the Oireachtas before they can take effect. This is to safeguard against any unduly wide exercise of the regulation making power. We believe paragraph (b) is a useful provision which should be retained.
Does the Minister of State accept that there may have been doubts regarding the constitutionality of this provision and to what extent has this aspect been checked?
We have checked into the matter in detail. The Attorney General's office is satisfied with the provision.
Amendment, by leave, withdrawn.
Section 37 agreed to.
Section 38 agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
A number of Members expressed disquiet on Second Stage about the tardy manner in which both tribunals were proceeding. The Minister gave figures for 29 April on the tribunal in The Hague, which is dealing with war crimes in former Yugoslavia. These indicated that 74 persons have been indicted and 26 are in custody. Only two have been convicted of serious crimes. Preliminary pre-trial proceedings were ongoing with regard to 16 others. While that is not too bad, the position in Rwanda is worse. Of the 35 people indicted so far, 23 are in custody but very few have been convicted. In addition, 130,000 people are incarcerated in the most appalling circumstances. Tuberculosis, malaria and aids are widespread. Given the way cases are being dealt with it will be hundreds of years before their position is addressed.
We asked that Ireland use its influence to try and expedite matters to ensure that those detained on suspicion of carrying out appalling human rights violations are not themselves the victims of violations because of the manner in which they are detained and the tardy manner in which the proceedings are ongoing, especially in the case of Rwanda. Is anything happening in this regard?
Deputy Higgins has a good point, especially with regard to Rwanda where the process appears to be collapsing and falling into disrepute because of the appalling way in which prisoners are being treated.
We have checked into the matter since Second Stage. A new prosecutor has been established in Rwanda. Both tribunals have established a third trial chamber to speed up the hearing of cases. Since April, 28 are in custody in the former Yugoslavia. Pre-trial proceedings are in progress for 18 persons while eight persons remain on trial. In the Rwandan tribunal, 31 suspects and accused persons are detained under the authority of the tribunal.
The international tribunal for Rwanda delivered its first verdict on 1 May, finding the former Rwandan Prime Minister guilty on all six counts of genocide and crimes against humanity. I hope the establishment of a third trial chamber for each tribunal will speed up matters.
Question put and agreed to.
Second to Fourth Schedules, inclusive, agreed to.
Title agreed to.