Amendment No. 1 arises out of Committee Stage proceedings.
International Criminal Court Bill 2003: Report Stage.
I move amendment No. 1:
In page 7, line 28, to delete ", unless the context otherwise requires".
I did not deal with this matter on Committee Stage, but I understand it arises out of the debate there. I understand the phrase is unnecessary following the Interpretation Act 2005, which came into force since the debate on section 2 of the Bill.
The amendment seeks to delete from the general interpretations under section 2(1) the phrase "unless the context otherwise requires". This amendment may be proposed on the basis of the provisions in section 4 of the Interpretation Act 2005 in relation to that Act's application. However, that section only refers to provisions of the Interpretation Act itself and their application to other enactments. The parliamentary draftsman has advised it is necessary to keep this working in place. In the circumstances I do not proposed to accept the Deputy's amendment.
It is a technical arrangement. I was not involved in the debate on Committee Stage. If the Minister of State has had an opportunity to reflect again with the Parliamentary Counsel and feels it is a necessary component of the Act, I withdraw the amendment.
Amendment No. 2 is in the name of the Minister and arises out of proceedings on Committee Stage. Amendments Nos. 4, 30 to 32, inclusive, and 43 are related, and these amendments will be discussed together.
I move amendment No. 2:
In page 7, to delete line 32.
Following the discussions on Committee Stage these technical amendments are to clarify references in the Bill to the European Arrest Warrant Act 2003. The definition of the 2003 Act means the European Arrest Warrant Act 2003. This has been deleted and amendments have been made throughout the Bill to amend references to the Act of 2003 and instead of that to insert the European Arrest Warrant Act 2003.
Amendment No. 3 arises out of proceedings on Committee Stage.
I move amendment No. 3:
In page 8, to delete lines 20 to 22 and substitute the following:
""prison" means a place of custody administered by or on behalf of the Minister and includes—
(a) Saint Patrick’s Institution,
(b) a place provided under section 2 of the Prisons Act 1970,
(c) a place specified under section 3 of the Prisons Act 1972, and
(d) a remand centre designated under section 88 of the Children Act 2001;”.
The amendment inserts the most up-to-date definition of prison as contained in the Prisons Bill 2005, which was published on 2 May 2005 and is awaiting Committee Stage.
My problem with this is that despite this Minister of State and others before him asserting that Saint Patrick's Institution should not be open, and others, it is still designated as a prison. We should try to ensure it ceases to be designated a prison and is closed.
I have a technical question as to why the broad definition of a prison does not simply mean a place of custody administered by or on behalf of the Minister. Was there a particular reason why some institutions were specifically mentioned, including Saint Patrick's? How would further plans to alter institutions fit with this legislation?
The Prisons Bill 2005 defines prison and prison rules. Section 10, on prison rules, amends section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997. The amendment proposes to reflect that definition. That is all.
The Minister of State has not answered the questions. He is simply saying it reflects a definition of another enactment. It seems that if one is to define prison in the context of a piece of legislation, we must ensure the International Criminal Court legislation we are enacting has no loopholes. One of the loopholes frequently used is in defining the implications of certain sections. In the definition section, if we are going to define prison, why is it necessary to mention certain institutions rather than having one meaning for prison, namely, any institution or place of custody administered by or on behalf of the Minister, since by definition those particular institutions are moveable feasts? The Minister, Deputy McDowell, has closed three prisons in his short tenure in office. He has promised to build two new prisons in the last fortnight. Originally. it was planned to build a new prison in north Dublin and more recently one in Cork. I thought a general catch-all provision would be more secure, if one will pardon the use of that phrase, rather than defining it in this manner, which I suggest might provide the potential for loopholes in legislation. However, I will be guided by the Minister of State's view on this.
Different institutions were established under different items of legislation. St. Patrick's Institution was established under specific legislation, therefore, that is the reason for the necessity for this amendment. It is a formula used under all legislation dealing with prisons.
I am no wiser. Is it the case that because it is a formula that was used previously, it must be right?
It tends to be the case that separate institutions were established under separate items of legislation. St. Patrick's Institution was established under specific legislation and that is why it must be mentioned in this situation.
I do not propose to waste time on this matter but the Minister of State might listen to the questions I pose. Deputy Ó Snodaigh made the point about St. Patrick's Institution. I am asking why we should mention any institution, rather than have a definition in the Bill that states a prison is a place of custody administered by or on behalf of the Minister, simpliciter so that it includes any such place in the future or any current institution that ceases to be such a place. It appears to be a more watertight definition than naming particular institutions because they are captured by three separate items of legislation.
It is simply to ensure the inclusion of institutions. By not mentioning other institutions one does not exclude any other institution.
It is, therefore, redundant.
No, it is not. It must be specifically mentioned because it is covered under different legislation.
Perhaps we will put the question. I remind Members we are on Report Stage.
I am going nowhere on this.
We discussed this matter on Committee Stage.
It is a new amendment.
It is a new amendment.
We did not discuss it.
It was not discussed previously.
That is the problem with ministerial amendments on this Stage.
In this case the amendment has been discussed but it is possible in such circumstances for Members to recommit amendments to Committee Stage.
Very good. I thank the Ceann Comhairle but it is not important enough to take the time.
Amendment No. 4 in the name of the Minister was discussed with amendment No. 2.
I move amendment No. 4:
In page 8, line 42, to delete "Act of 2003" and substitute "European Arrest Warrant Act 2003".
I move amendment No. 5:
In page 10, line 31, after "issue", to insert the following:
(III) implement the decision of the Court and comply with any decision by the Assembly of State Parties or the Security Council under Article 87".
The purpose of this amendment is to safeguard against any future abuse of the exercise of State security by the Government to avoid co-operation with the International Criminal Court. This safeguard is advisable, particularly given the Government's track record of abusing this type of discretionary provision. The Minister, Deputy McDowell's, leaking of false information on the journalist, Frank Connolly, is a case in point. It would be advisable to accept this amendment to implement the decision of the court and comply with any decision by the assembly of the state parties or the Security Council under Article 87 so that the Minister shall do this rather than have any discretionary power in this matter which the Minister or a future Minister could abuse.
This amendment seeks to apply the provisions of Article 87 to a situation, regardless of the fact that there may be some difficulty with disclosure of information in the particular circumstances or conditions attaching to such information. Section 4 sets out the approach to be taken for an unresolved issue and clearly provides in subsection (2 )(c)(ii)(II) for consultation in accordance with the conditions laid down in Article 72.7(a) (i).
The amendment proposed by Deputy Ó Snodaigh runs counter to that approach, as envisaged by the Rome Statute, as it gives an overriding power to the court to order disclosure. Such a power is only granted under Article 72.7 of the Rome Statute in cases where the State has not invoked the ground for refusal in Article 93.4. Section 4(2) of the Bill deals with cases where the State has invoked such a ground. Accordingly, I do not propose to accept the amendment.
I move amendment No. 6:
In page 10, after line 45, to insert the following:
"(3) No amnesty, pardon or similar measure of impunity by any state applying to an ICC offence shall be recognised by Ireland.".
We introduced this amendment on Committee Stage because we thought it was necessary to closely examine whether we should watch out for the possibility of another state getting around the law by way of an amnesty, pardon or measure of impunity. Ireland must not recognise any such amnesty, pardon or measure of impunity. On Committee Stage, the Minister accepted that the amendment had some merit and gave an undertaking to examine it and report back on it.
Article 98 of the Rome Statute provides that the ICC may not proceed with the request for surrender. The amendment seeks to forbid recognition by Ireland of any amnesty, pardon or measure of impunity in regard to offences within the remit of the International Criminal Court. Section 61 of the Bill deals with immunity and provides that, in accordance with Article 27 of the Rome Statute, any diplomatic immunity or state immunity attaching to a person by reason of a connection with a state party to the Rome Statute is not a bar to proceedings under this Act in regard to the person.
The Attorney General has advised that by virtue of the terms of the Rome Statute, the curtailment on diplomatic or state immunity cannot apply to the person or property of a third state which is not party to the statute unless the ICC can first obtain the co-operation of that state for the waiver of the immunity. Therefore, I do not propose to accept the amendment.
It seems a very conservative interpretation of the statute. I understood from Deputy Gerard Murphy that what is at stake here is that Ireland would not recognise an amnesty of a third country if there was an application concerning an ICC offence committed in Ireland or if the person to be apprehended was within the Irish jurisdiction. Is the Minister of State suggesting that any third state whose citizen was here could apply immunity to that citizen resident in Ireland and that would not make him or her amenable to the ICC for an offence, even though he or she was capable of being apprehended in Ireland or within an Irish jurisdiction?
Any proposal such as that proposed by the Deputy which would attempt to remove diplomatic or state immunity from persons or properties of a third state, unless the ICC has obtained a waiver, would be inconsistent with the provisions of the Rome Statute and could not be accepted.
I do not wish to go back to the previous amendment but it appears that the basic obligation under Article 86 has not been transmitted. Specifically in regard to this amendment, the whole purpose of the Rome Statute is the removal of impunity. It appears from the point of view of trying to achieve the best possible result in regard to international law that the recognition of other sources and forms of impunity which strike at the heart of the statute itself is a contradiction. If one accepts the legislation, and if it is the Government's intention to accept it in its strongest form, I cannot understand why one should leave open, as it were, what are really strategies to refuse to be bound by the statute itself or to seek to undermine it by constructing, as it were, strategies of evasion or escape.
What is interesting in the amendment is that it proposes that those who refuse to accept our system or various legal obligations and construct contractions or strategies to escape from its obligations and who invoke the concept of impunity should not be regarded in Irish law. A state is either with the destruction of such impunity as the statute sets out to address or it is in favour of those that seek to avoid it.
The Minister recognised the merit of the amendment on Committee Stage. It refers to what would happen in this jurisdiction and how it should be explained clearly that pardons granted in another jurisdiction should not be recognised by the Government when considering how to deal with the serious crimes involved. I cannot see how the inclusion of the amendment would interfere with the legislation. The onus would be on the person involved to prove the Government was superseding its power and that would strengthen the national case.
The Minister undertook to follow this issue up but the Attorney General has advised that under the Rome Statute, curtailment on diplomatic or state immunity cannot apply to the person or property of a third state that is not party to the statute unless the court can first obtain the co-operation of that state for the waiver of the immunity. We cannot override our other international obligations.
That is not true.
It may not be true but that is the Attorney General's advice.
I am getting more confused. We are not discussing diplomatic immunity, which is a concept also covered in the legislation. The amendment highlights that a state could grant a pardon or an amnesty to a non-diplomat, which would strike at the heart of the notion of an international law system and which would prevent individual states from protecting citizens who committed heinous crimes from being held to account by the world court. The notion that any republic could by decree of a maverick president undermine the rule of international law strikes at the concept the ICC is set uniquely to address, as my colleague, Deputy Michael D. Higgins, stated.
The issue is one's approach. In accepting the disciplines of the ICC, we are either moving beyond our own Constitution or we are not. We are using our constitutional capacity to accept the court while other jurisdictions do not accept it. States have been negotiating with third countries and trying to bring pressure to bear on them not to recognise the ICC. Given such a campaign and given that states may have the capacity to construct impunity, one is faced with a straight challenge. A state will either realise the lesser and contradictory project of recognising these countries' granting of impunity or it will put itself four-square behind the greater authority it has granted to the court. Those that favour strengthened international jurisprudence and the court are asking that we should accept the court's project of removing impunity from serious crimes and not lessen that commitment by recognising any contradictions or evasions of its remit. The Minister of State referred to the Attorney General's opinion which, as Deputy Howlin said, is very conservative or narrow and is much less than the legislative response required from our own commitment to the court.
This is a valuable amendment from the State's point of view. It commits Ireland to total co-operation with the court and provides that in certain circumstances, we can ignore decisions of leaders of maverick countries. It is beyond belief that the president of a maverick country could grant a citizen a pardon which would render our legal system and the court unworkable.
I move amendment No. 7:
In page 11, between lines 12 and 13, to insert the following:
"(6) There shall be a duty on a court or any agency of the State, including but not limited to, an Garda Síochána and the Defence Forces, to co-operate with the International Criminal Court.".
The amendment was tabled on Committee Stage and the Minister felt it was unnecessary. However, having considered it again, it does not diminish the Bill and it helps to clarify certain issues.
I commend and thank Deputy Gerard Murphy for tabling the amendment, which is welcome. The key words in the amendment are "duty" and "co-operate". We all have a duty to live up to international law and respect human rights throughout the world and we also have a duty to co-operate and assist in the introduction of an international rule of law, to which all countries should sign up. Respect for human rights must be a central concern of the International Criminal Court.
The amendment also presents an opportunity to challenge countries with an appalling human rights record, which have let down many people. I recently read about a number of cases. For example, the US record on human rights is not up to international standards and I visited Colombia and witnessed at first hand the assassination of human rights lawyers to which the world turned a blind eye. It is a national scandal that five Cuban citizens, known as the Miami Five, who tried to prevent terrorism in their native country, have been jailed in the US. These five decent, honourable people tried to prevent bombing campaigns in Cuba by right wing extremists based in Miami but they are serving jail sentences of between 14 and 20 years. I dedicate the amendment to the memory of the 3,478 Cubans killed and 2,099 maimed by these US-based terrorist groups since 1959.
In recent days, documents published about Northern Ireland highlight that up to 15% of members of the Ulster Defence Regiment were also members of loyalist paramilitary groups but there has not been a squeak out of any Member about this breach of international law. They were members of the North's security forces but nobody has opened his or her mouth about these issues. Members of the Defence Forces who are stationed in Ireland or abroad must be high quality and they must respect human rights and international law. They have an admirable record in their work with the UN and their treatment of foreign citizens. Representatives of a neutral country who participate in conflict resolution are respected and held in high regard by those involved in the conflict. I raise these issues because there is an element of hypocrisy in this country and elsewhere in respect of the International Criminal Court. We must all accept, obey and respect international laws and do our best for human rights.
The amendment seeks to ensure that all State agencies co-operate with the International Criminal Court. However, the legislation will place considerable duties and powers on the Minister, as set out in sections 17 and 19. Similar powers and duties are set out for the High Court in sections 19 and 22 and for the Garda and the Garda Commissioner in sections 23 and 38. On Committee Stage, the Minister stated that all these powers and responsibilities will be required to be discharged in accordance with the letter, terms and spirit of the legislation. Having considered the matter further, the Minister remains of the view that the amendment is not necessary and he does not propose to accept it.
We will encounter some of the points raised by Deputy Finian McGrath when we deal with the concept of retrospection, which would appear to be limited in the Bill. The crime of genocide, as expressed in the 1973 Act, is provided for, but such provision is not made in respect of crimes against humanity, etc. We can debate the issues raised by the Deputy when we are discussing the appropriateness of retrospection for crimes other than the crime of genocide.
We received a document yesterday from Amnesty International. Their representatives are not happy with this concept and they stated that the Bill does not contain any provision concerning the basic obligation, contained in Article 86 of the Rome Statute, of national authorities to co-operate with the courts. Article 86 states that states shall, in accordance with the statute, co-operate fully with the court in its investigation and prosecution of crime within the jurisdiction of the court. The representatives of Amnesty International stated that the Bill does not incorporate fully Article 72 of the Rome Statute, which provides that if a state refuses to co-operate, then the ICC can make an order for disclosure or refer the matter to the assembly of states, or the Security Council in the case of Security Council referral, to decide what steps should be taken to ensure that the state fulfils its legal obligation. The request from Amnesty International is much broader than the amendment. However, the amendment goes some way towards meeting Amnesty's reservations.
The amendment adds nothing to the Bill and it is not necessary.
Amendments Nos. 8, 45 and 46 are related and may be discussed together.
I move amendment No. 8:
In page 11, between lines 12 and 13, to insert the following:
"(6) Identification and freezing of assets relating to an ICC offence shall be carried out in accordance with the provisions of the Criminal Assets Bureau Act 1996.".
On Committee Stage, even the Minister recognised that the forfeiture proposals in Ireland are far more advanced than many other European states. Re-emphasising this in the Bill will demonstrate the strength of the law for forfeiture of goods and possessions in this context. I cannot see why it should not be included. It certainly adds something to the Bill and does not diminish it.
I note that the Minister's amendment and that tabled in my name are identical. He has accepted the argument put forward by my colleague on Committee Stage and I welcome that. It seems appropriate that the forfeiture under the Proceeds of Crime Act 1996 should be included in the list.
I support amendment No. 8, which deals with the freezing of assets and the Criminal Assets Bureau. There is cross-party agreement regarding criminal assets and the proceeds of crime. People who have caused major damage to communities, especially those that are disadvantaged, can have the proceeds of their crime confiscated under this legislation. These proceeds should be pumped back into local communities from where they came in the first instance.
I commend the Criminal Assets Bureau on the excellent job it is doing. There is much support for that body, provided it is used in an independent and impartial way. It should not be politicised in any way.
Is the Deputy suggesting that it is being politicised?
I sometimes have concerns about it.
Then the Deputy should make that charge.
I am concerned about the direction sometimes taken by the Minister for Justice, Equality and Law Reform. The integrity of the CAB should be retained and many of us have supported that system for a long time, dating back to the drugs crisis in the 1980s when there was a heroin epidemic across the north inner city. There are now major problems with cocaine and young women in my constituency have been shot.
I commend people such as the late Máire Buckley, who was killed on Sunday in a tragic incident involving a bus. She was one of those teachers who worked in the inner city and was dedicated to the most disadvantaged children in the north inner city. She was also one of those people who believed that the proceeds of the CAB should be spent on early education services, children with special needs and children at risk. I express my sympathy to her family.
Deputy Howlin's proposed amendments relate to the issue that was discussed in detail on Committee Stage and which the Minister agreed to accept in principle. Given that amendment No. 45 is the same as amendment No. 8, I trust that Deputy Gerard Murphy will withdraw the amendment in his name.
Amendments Nos. 9, 11 and 17 are related and may be discussed together.
I move amendment No. 9:
In page 11, between lines 33 and 34, to insert the following:
""crime of aggression" means use of force by a State against another State contrary to the UN Charter;".
The purpose of this amendment is to provide a definition of a crime of aggression. Amendments Nos. 11 and 17 aim to extend the scope of the crimes covered by this Bill to include this crime. The scope would include the illegal invasion of Iraq. Members of the US Administration, its coalition partners and anybody who facilitated the invasion, including members of this Government, would be guilty of an ICC offence.
These amendments seek to extend the meaning of the ICC offence for the purposes of the Bill. I wish to extend it to include other crimes under international rights and humanitarian law that are outside the scope of the Rome Statute, such as crimes of aggression, extrajudicial killings and renditions. The Rome Statute was signed in 1998 and it is a pity it has taken us so long to deal with this Bill. A referendum on the International Criminal Court was passed in 2001 by a substantial majority of the Irish people, yet we have only come to deal with the Report and Final stages of the Bill in 2006.
The nature of modern warfare has greatly changed since 1998 and the principle objective of this Bill is to bring an end to impunity. The implementation process of the ICC and the Rome Statute should be seen as an opportunity to address impunity in all serious crimes to the fullest possible extent.
Extrajudicial killings and renditions, both of which are crimes under international law, are carried out with impunity. Debate on the war in Iraq and the CIA's extraordinary renditions through Shannon Airport has arisen since the signing of the Rome Statute and the Irish public's endorsement of the ICC in the 2001 constitutional referendum. My amendments would bring clarity by ensuring that these crimes are covered by the ICC. It is a pity the US will not be covered because that country has tried to avoid dealing with the ICC by entering into bilateral agreements and pressuring other states not to engage with the court.
In recent years we have seen all too frequent examples of extrajudicial killings in the occupied Palestinian territories, where Israel has used helicopter gunships to attack communities and civilians. The impunity with which the Israeli regime operates is demonstrated by the continuation of the preferential trading arrangements set out in the EU-Israel Association Agreement. It should be borne in mind that only last February, Shannon Airport was used to facilitate the sale by the US of attack helicopters to Israel. Last Friday, two Israeli Air Force Boeing 707 aircraft, one of which was an intelligence communications craft, transported members of the Israeli army through Shannon Airport. According to the information I received, the facilities of the Great Southern Hotel in Shannon were availed of in this instance. The use of Shannon Airport by states that are involved in activities such as extraordinary rendition or extrajudicial killings must be brought within the parameters of the ICC so that we can look to the court to bring those responsible to justice. Amendment No. 17 makes provision in this regard.
It is a pity the Minister did not take Amnesty International's views into account on Committee Stage. That organisation's submission on the Bill, which was circulated among members of the Select Committee on Justice, Equality, Defence and Women's Rights, stated:
Crimes under international law include not only genocide, crimes against humanity and the war crimes listed in the Statute, but also include war crimes not listed in the Statute (such as certain grave breaches and other serious violations of Protocol I and certain violations of international humanitarian law in non-international armed conflict) and torture, extrajudicial executions and enforced disappearances which are not committed on a widespread or systematic basis. To ensure that the international system of justice is fully effective, states should ensure that their legislation makes each of these crimes under international law also crimes under national law.
Although the Criminal Justice (United Nations Convention against Torture) Act 2000 and the Geneva Conventions (Amendment Act) 1998 appear to criminalize torture and other war crimes not listed in the Rome Statute, it does not seem that extrajudicial executions and enforced disappearances are criminalized in Irish law. Both crimes should, therefore, be incorporated into the Bill in accordance with their definitions under international law as set out in the 1989 UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions and the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance.
We should use the opportunity of the International Criminal Court Bill 2003 to give effect to the amendments I have tabled.
I support all those who seek to impose the discipline of respect for international law in all its forms on states and organisations, as well as individuals. One cannot pick and chose in respect of standards of international law, they must be applied in full. An assurance would be of some value in terms of section 6, which implements Article 8 of the Rome Statute. The language of Article 8 is, if anything, weaker than the totality of the obligations taken on by the signatories of other instruments of international law. In section 6, one should not accept less than the full commitments already pledged through other international instruments.
The intention of Deputy Ó Snodaigh's amendment is to take the UN Charter — the wider canvas — rather than Article 8. That would not be sufficient because international law provides for wider obligations than those he proposes. The question arises of whether, once the Bill is passed, we will have achieved universal jurisdiction over genocide, crimes against humanity and other crimes or if we will have limited the obligations we have previously undertaken. The International Criminal Court Bill 2003 should be used to seek to extend rather than shrink protections and should, therefore, include Article 8 commitments as well as every other commitment that has come into existence, including the UN Charter and the laws to which it gave rise. The question of whether the effect of the legislation is to be generally inclusive or limiting should be clarified by the Government.
I support amendment No. 9 because it is sensible and progressive. I welcome the definition of "crimes of aggression" as "use of force by a State against another State contrary to the UN Charter." We all should focus on this issue because of its importance to the current international political climate. More than 120,000 people have been slaughtered in the disgraceful war in Iraq and killings continue on a daily basis. Many people are annoyed and disappointed that the countries involved, the so-called coalition, have dishonoured international law and the UN Charter. However, we should continue to push on.
Dealing with crimes of aggression presents an opportunity to call for common sense from the countries involved in confronting Iran, a matter that could, it appears, result in the commencement of the third world war. I would love to see the EU being more proactive on this and Ireland, as a neutral country, standing up to those who want to start a war with Iran over the nuclear issue. While we are all concerned about nuclear weapons and power, the solution is dialogue with these countries, particularly at UN level. I am concerned by some of the language coming from the USA and Britain. I am disappointed with Mr. Blair. Stories are circulating that one of the reasons Mr. Jack Straw was ousted from his role as British Foreign Secretary was that he had a different view from Mr. Blair on this issue. When discussing the crime of aggression in amendment No. 9 it is important we remember the Dublin and Monaghan bombings. This was a crime of aggression by elements of another state that caused a horrific tragedy on the streets of Dublin and Monaghan. This should always be challenged and highlighted.
The treatment of crimes of aggression in amendment No. 9 reminded me of the assassination of the former Chilean Foreign Minister, Mr. Orlando Letelier, and the sabotage of the Cuban civilian airliner off the coast of Barbados, which cost the lives of all 73 innocents on board. Documents recently declassified by the US authorities proved not only that the two people involved, Mr. Orlando Bosch and Mr. Luis Posada Carriles, participated in these terrible acts, but that Washington has since covered up and protected these people. I call for a massive international mobilisation to condemn the fallacy of the current anti-terrorism crusade that emanates from Washington and call for an end to the impunity enjoyed by Posada Carriles, Bosch and other international criminals as well as to demand the release of the five Cuban citizens who were involved in trying to prevent these attacks on their country.
Amendment No. 9 mentions the UN Charter. It is important and I agree with Deputy Michael Higgins, one of the few Deputies who always brings the broader, international view. It is always refreshing to hear a real internationalist speak in the House. It is important we seriously examine the United Nations. We cannot allow it to be constantly undermined. While there are problems in the UN and it needs reform, it should never be undermined. I feel sad and annoyed when I see countries deliberately undermining the UN through their roles internationally and as members of the UN. While I urge people to get involved in the reform and make it proactive, more sensible and able to deal with conflict-resolution issues, it should not be dismantled. This is the only way forward. I commend Deputy Ó Snodaigh on proposing amendment No. 9 because it deals with serious issues on international law.
The Statute of the International Criminal Court deals with a specific range of offences detailed in the relevant articles of the statute. On the crime of aggression, Article 5(2) provides for the International Criminal Court to exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123. This allows flexibility to the court in the manner in which that crime will be dealt with. However, until those provisions have been adopted to deal with the crime of aggression it is not appropriate to legislate specifically for them. Accordingly I do not propose to accept the Deputy's amendment. On the points raised by Deputy Michael D. Higgins, the obligations to the genocide convention are not affected by this legislation. We will deal with those under amendment No. 12. On the extension of the Act to other offences, we will deal with this under the Labour Party amendment No. 18.
I regret the Minister said it is not appropriate to deal with this while we have the opportunity. It means we will have to return to this in the future. As we know the agreed definition of crimes of aggression and have some idea what will be signed into international law we should take this opportunity to be one of the lead countries on it. My amendment No. 10 is similar. I recommend that where we understand where international law is going we pre-empt it and address those concerns now rather than later and that we become the lead country and set the standards as much as we can. We should then try to persuade other countries to address and take on board the concerns Amnesty International and I have raised with everybody in this House who has an interest in the International Criminal Court Bill and who encouraged the Government to bring this forward as quickly as possible. We have delayed it. Had we got to grips with this issue earlier we might have the luxury of saying, as the Minister does, that it is not appropriate now, but the concept and definitions I am dealing with and am trying to incorporate into this Bill are more developed than they were when the Rome Statute was signed eight years ago. We have developed beyond that and eight years later we are still dealing with the 1998 definitions while we should be dealing with today's definitions.
The definition has not been agreed by the UN and we cannot pre-empt it.
I move amendmentNo. 10:
In page 11, lines 35 and 36, to delete "except subparagraph (b)(xx)" and substitute the following:
"including subparagraph (b)(xx) and this covers any such weapons, projectiles and materials or methods of warfare that are the subject of prohibition in a treaty ratified by the State".
This is the amendment to which I referred earlier. Again it is a recommendation by Amnesty International. Given the Minister's response to my previous amendment I can predict his response. The Bill excludes the Rome Statute crime of employing weapons, projectiles, material and methods of warfare which are of a nature to cause superfluous injury and which are inherently indiscriminate because the detail has yet to be annexed to the Rome Statute. My approach to this is to include the crime and follows a similar lead given by the Brazilian authorities. This crime would include the use of white phosphorous by the United States as an incendiary weapon knowingly against civilians in Fallujah last year. Initially the US said it was used to light the night sky but the horrific injuries to civilians proved beyond doubt that it was an indiscriminate weapon and it should come under the terms of this Bill. Even if it did we would not be able to hold the US to account for this because it opposes the International Criminal Court and has done its best to ensure it does not move beyond its current impotence. In its submission Amnesty International asks that instead of excluding the crime at this stage, which may demand further amendment to the Bill, Ireland adopt the approach taken by Brazil in its draft legislation and provide that this war crime covers any such weapons, projectiles, material or methods of war that are subject to a prohibition in a treaty ratified by Ireland.
These weapons are subject to other legislative provisions ratified by Ireland and they should be clearly stated in this instance.
Other weapons employed in modern warfare should be subject to the legislation. In this regard, I do not refer solely to white phosphorus. Uranium-tipped shells comprise a similar weapon. They might discriminate when first employed but are indiscriminate in their effects thereafter and in the injuries they inflict on civilians, who are not the initial target. There was no reason for the use of white phosphorus in Fallujah other than to cause havoc and injury to civilians.
I hope the Minister will take on board my amendment.
Section 6 contains a number of definitions, one of which relates to "war crimes". That definition is linked directly to the relevant article of the Rome Statute, that is, Article 8(2), and encompasses all the elements therein, except subparagraph (b)(xx), which have to be included by way of amendment under Articles 121 and 123. Unless and until such an inclusion by way of amendment is made by the parties to the statute, it would be premature to include the proposal suggested by the Deputy. It would not reflect accurately the definition of “war crimes”. It is for this reason the draftsman has crafted the existing definition and accordingly I regret I cannot accept the Deputy’s amendment.
It seems there is a very compelling case to include the definition. The notion that we might be a little bit ahead of the posse or more progressive or advanced — God forbid — is a very lame excuse for not doing something the international community is on the way to doing, that is, amending international treaties by consensus. If other countries, such as Brazil, can adopt the measure in their transpositional legislation, there is no reason we cannot do so and certainly no international prohibition on our being similarly progressive. Deputy Ó Snodaigh makes a very good case regarding the type of prohibited weaponry which, if used, would result in a crime against humanity according to most normal people's definition. The effects of the use of such weaponry are indiscriminate and long-lasting.
I do not understand why Ireland, when it signs international treaties prohibiting the weapons in question, is not progressive enough to state their use constitutes a crime and that those who use them should be held accountable before the International Criminal Court.
It is a pity a minimalist approach is being taken to this Bill, namely, doing the least required under the statute. We must obviously respect the statute — I am not saying we should not do what is specified therein — but we should do more when the opportunity presents itself. In this case, we have an opportunity to set a standard and demonstrate to other countries our progressive approach. Not only would we be able to say we signed up to the international treaties prohibiting the use of the weapons in question but we could also state our belief that those who use such weapons or projectiles, which cause superfluous and inherently indiscriminate injury, during a war or other circumstances that fall under the remit of the International Criminal Court, have a case to answer and should be brought before the court to account for their crimes.
It is strange that we ban the use of the weapons in question while not regarding those who use them as breaking the law. They may only be breaking the law if they use them in Ireland. Maybe the logic is tied to the attitude that we should not be critical of the use of such weapons in conflicts by the United States or some of its puppets, such as Israel. We should not shy away from being critical of the United States when necessary. There was widespread criticism of the United States for deploying such weapons in Fallujah, for instance. The same was the case when it used uranium-tipped tank rounds in the conflict in Serbia. Even US soldiers suffered the consequences of the use of these indiscriminative weapons. Ex-servicemen in the United States demand that they be banned. However, they will not be covered under the remit of the International Criminal Court because we are taking a minimalist approach and not setting the agenda in the international arena. We are saying we must wait until the state parties review the statute when it comes into effect and that we hope they will take on board what we are saying. We should be encouraging the review and entering it with a much stronger strategy based on our being able to say we have made the use of such weapons a crime covered by the International Criminal Court in our legislation. We should encourage others to follow our lead and that of Brazil. I am only aware of Brazil having signed up so far but other countries may have done so.
It is not a question of attitude, being progressive or otherwise, as Deputy Ó Snodaigh is implying. His proposal is simply not allowed under the statute.
That is not true.
As I said in respect of amendment No. 9, given the definition is not agreed at the UN, we cannot simply pre-empt it.
Of course we can.
The definition might not be agreed at the UN but that does not prevent us, as a nation, from agreeing it ourselves and setting the agenda for the rest of the world.
I move amendmentNo. 11:
In page 11, line 41, after "humanity" to insert ", a crime of aggression".
Amendment No. 13 is an alternative to amendment No. 12. Amendments Nos. 14, 69, 70 and 72 to 76, inclusive, are related and may be discussed together.
I move amendment No. 12:
In page 12, line 1, to delete "Subject tosubsections (3) and (4), the” and substitute “The”.
Amendment No. 12 deletes "Subject tosubsections (3) and (4), the” in respect of the repeal of the Genocide Act 1973. In response to Deputies’ queries during the debate on Committee Stage, the Minister agreed it is unusual to have something repealed subject to a condition. He pointed out he would consider replacing “Subject to” with “Notwithstanding”. Following consultation with the Office of the Chief Parliamentary Counsel, the Minister has been advised it is appropriate to omit the “Subject” clause altogether. The amendment reflects this advice.
Amendments Nos. 72 to 76, inclusive, delete references to section 2 of the Genocide Act 1973. That Act is repealed under section 7(2) of the Bill, with a new offence of genocide created by section 7(1). There is no need for these references to be retained. The definition of genocide contained in Article 6 of the Rome Statute — it is, therefore, the definition used in the Bill — is identical to that of Article 2 of the genocide convention. It affirms that a crime is punishable not only when committed in armed conflict but also whenever or wherever committed in peace time. The difference between the 1973 Act and the Bill is that the penalty available in respect of genocide has increased from 14 to 30 years, as provided for in the Rome Statute.
The inclusion of the offence of genocide in the Bill means that provisions regarding legal advice for suspects are applicable. These are not referred to in the genocide convention. However, Ireland continues to be a signatory to that convention and is still bound by its terms. It is merely replacing its obligations under the convention, which were contained in the Genocide Act 1973 up to now, with those in the International Criminal Court Bill.
Section 7(3) of the Bill makes it clear that the repeal of the Genocide Act is without prejudice to Ireland's obligations under the genocide convention. It also sets out where the text of the genocide convention can be found, namely, in the Schedule to the Genocide Act. The Chief Parliamentary Counsel has advised that this reference to the genocide convention is sufficient and, therefore, the inclusion of the text of the convention in this Act, which Deputy Howlin's amendment seeks to do, is unnecessary. I do not propose to accept amendments Nos. 13 and 14.
This is a very peculiar way of creating legislation. I was not party to the discussions on Committee Stage but I welcome the fact that the Minister of State has reflected on the Bill since then. There is no difficulty with the repeal of the Genocide Act and its reinstatement in its entirety in a different legislative form if that was intended. It is very unusual that the Minister of State sought to repeal an Act subject to qualifications. One cannot do so. The Minister of State is seeking to repeal the Act but states that the repeal effected by section 7(2) is without prejudice to the obligations of the State under the Act. Are we repealing an Act but retaining our obligations thereunder? The text that sets out these obligations is included in the repealed Act. That is an odd way to make law.
We should repeal the Act, restate it in the form the Minister has captured in the Bill and also restate the Schedule text therein. Where will the text of the Genocide Act be found once it is repealed? The text will be repealed and will no longer have legal validity. The Minister of State must tease this out to my satisfaction. Section 7(2) will now read, subject to the amendment of the Minister of State, that the Genocide Act is repealed. In section 7(3) it is stated that the repealing is without prejudice to the obligations under this repealed Act and that the text is set out in the Act that has been repealed.
Why will the Minister of State not accept the text proposed by my colleague on Committee Stage, which I strongly endorse? The Genocide Act should be repealed in its totality and reinstated in this legislation, with the text reinstated in the Schedule. Anti-genocide legislation would then be encompassed within this provision and readable within a single Bill. This would eliminate the bizarre situation where one is referred for the text to an enactment we are repealing.
Is the Genocide Act and all its provisions reinstated in the Bill? Are any sections not restated in this legislation? If nothing is left out, section 7(3) is puzzling. Amendment No. 14 seeks to set out the Schedule of the Genocide Act in this legislation and amendment No. 69 includes the entire Schedule. This way of doing business is peculiar and has been acknowledged as an odd legislative statement. The Minister of State's amendment seeks to delete the phrase "Subject tosubsections (3) and (4), the” but the conditions are maintained. Although the phrase “Subject to subsections (3) and (4)” will be deleted, I presume subsections 3 and 4 will be retained. The Bill is without prejudice to the obligations of the State to an enactment that is repealed, the text of which is no longer valid because it is repealed without being restated. Furthermore, section 7(4) states that notwithstanding section 7(2), proceedings under the 1973 Act may be taken after the commencement of this section, even though the 1973 Act is being repealed. Can the Minister of State explain the thought process that led to this formulation?
If anyone commits an offence under the Genocide Act, it will be provided for under the Bill. One of the difficulties, and a reason for this peculiar situation, is that we must avoid the two items of legislation being identical. That could lead to confusion.
Can the Minister of State explain that further?
The two Acts would contain the same provisions and this is not possible.
That happens all the time with consolidation legislation.
In that instance, one Act is being consolidated by another. In this instance, however, each would be separate. The peculiar nature of this is based on the advice of the Chief Parliamentary Counsel, the technical expert whose advice I must follow.
I am no wiser after that explanation.
It is not intended that Deputy Howlin be wiser after it.
I think it is not intended. The substance of the response by the Minister of State is that he is doing so because he was advised to do so. It is a clumsy way of doing this and one which makes matters difficult for people to comprehend. There is an obligation on us to make legislation, particularly that which deals with our international obligations and a statute to which we are party internationally, as clear as possible. We should be able to defend our transposition of it and render it readable. I understand the intention and do not criticise the Minister of State for seeking continuity between the Genocide Act and the broader scope of the Bill. The Minister of State indicated that the Genocide Act is encompassed in its entirety in the Bill but he also stated that, for some reason, it is not possible to have identical legislation. If the earlier Act is being repealed, it could be captured in its entirety as an adjunct to the Bill. My amendment makes the legislation easier to read and is less clumsy than the mechanism suggested by the Minister of State.
If the Genocide Act is repealed, as section 7(2) states, the Schedule to that Act will also be repealed. Is that not a simple fact? Subsection (2) states the Genocide Act 1973 is repealed, including its Schedule. Subsection (3) states the text of the Schedule is still binding on the State. That seems an odd legislative formulation, which I do not feel is good from the perspectives of either plain English or legislation. The formulation I offer is much more robust, sound and simple.
To recap, section 7 Bill creates,inter alia, the domestic offence of genocide. Since the new offence of genocide is being created, there is no need for the old offence of genocide contained in the Genocide Act 1973, and consequently that provision is being repealed.
No problem. Please bear with me.
The Deputy's reading is incorrect. The convention is not given force of law by the 1973 Act. It is purely for reference purposes.
I have no difficulty with the convention. This House created the crime of genocide in 1973. The Minister of State wishes to maintain that obligation on us in subsection 7(3). He says subsection (2), which repeals the Genocide Act 1973, is without prejudice to the State's obligations under the 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 text of which is set out in the Schedule to the 1973 Act.
I remind the House we are on Report Stage rather than Committee Stage.
The Ceann Comhairle allowed a little latitude to deal with such matters.
I too have allowed some latitude, but I cannot give too much.
Perhaps the Leas-Cheann Comhairle might allow me to finish this point, which is important. We are dealing with a dozen important amendments.
The repeal of the 1973 Act does not affect the standing of the Schedule. That is where the Deputy has misunderstood matters.
In plain English, is the Minister of State saying that repeal of the 1973 Act does not mean repeal of the Schedule thereto? That is simply wrong. If one repeals the Act, the Schedule falls with it.
The Schedule to the Act is for reference purposes. It gives no force of law to the convention.
This is my final contribution on this matter. It is for simple reading in the Schedule. The repeal of the 1973 Act effected by subsection (2) is without prejudice to the State's obligations adopted by the convention, the text of which is set out in the 1973 Act.Simpliciter, where will one find the text once the 1973 Act has been repealed? That is the simple issue. I am not talking about force of law. The law is being reinstated in this Act, but for ease of reading, I suggest the Schedule to the 1973 Act, which we are repealing and which will no longer be law, should be restated for simple reading so the State’s obligations are self-evident. I have made my case as well as possible.
Amendment No. 15 arises from committee proceedings. Amendments Nos. 16, 19, 20, 21, 29 and 54 are related and may be taken together, by agreement. Amendments Nos. 20 and 21 are alternatives to amendment No. 19.
I move amendment No. 15:
In page 12, line 9, to delete "commencement of this section" and substitute "passing of this Act".
I am wary of agreeing to these new groupings after the difficulty of trying to take a broad range of matters together. However, this matter is fairly simple. The Minister made the point on Committee Stage that there is no commencement order in this Bill, since it commences on its passing. I suggest the Bill's wording should reflect that and that we should delete "commencement of this section", since there is no commencement order, and that we instead insert "passing of this Act". I understood that it was to be addressed by the Minister and that he had accepted that point on Committee Stage. It is addressed in amendments Nos. 15 and 16.
Amendment No. 19 is also to delete "commencement of this section" and substitute "passing of this Act". It is a technical amendment to simplify the reference, since there will be no commencement order.
Those are the only amendments that concern me, since the others are the Minister's.
The purpose of my amendment No. 21 is to insert the following in line 29, after "section":
", or where the ICC offence conducted is covered by the Rome Statute before the signing of the Rome Statute by the State".
The object is to ensure that those who are guilty of committing an ICC offence or whom it wishes to charge with offences committed since 1998, when the Rome Statute was signed, but before the commencement of the Act, do not go unpunished because of delay by the Legislature in particular in giving effect to what was envisaged in the Rome Statute and in 2001, when the Irish people passed a referendum to insert the ICC concept into the Constitution.
I recognise it is unconstitutional to enact legislation creating retrospective offences. However, the offences mentioned are not new, since they have been crimes under international human rights and humanitarian law for some time. It is not as if we were passing new laws making them offences retrospectively. We are giving additional effect to existing laws and treaties, international laws to which we have signed up as a State.
The document to which I earlier referred several times was given to committee members by the Irish section of Amnesty International when we discussed this on Committee Stage. Its representatives pointed out that crimes against humanity and war crimes were considered crimes under international law under the general principles of law recognised by the international community before the adoption of the Rome Statute and that it would not violate the principle ofnullum crimen sine lege to permit respective national criminal legislation with respect to crimes under international law. It goes on to explain that further, pointing out that what was intended is fully consistent with that principle and that the provision states that nothing in the article prohibiting retroactive punishments shall prejudice the trial or punishment of any person for any act or omission that, at the time it was committed, was criminal according to the general principles of law recognised by the community of nations.
Therefore, in their eyes, the Bill should ensure Irish courts have extraterritorial criminal jurisdiction over such crimes, no matter when they were committed. I do not go as far as that. I am going as far as the Rome Statute of 1998, using that as the yardstick. That is when this State declared its support for the concept. It is in this context that we should consider retrospection so that, when it is enacted, the legislation will cover the eight years from 1998 to 2006.. I say this in the hope that the Government will enact it in a speedy fashion following its passage through the Houses.
I hope the Minister of State will take my suggestion on board. It is possible and it is not contrary to the rule of thumb that we cannot implement legislation with retrospective effect. We have included retrospective provisions in other legislation passed by the House. The usual rule of thumb is that laws passed here do not have retrospective effect. In this instance, however, it can have such an effect because the crimes covered by the Bill were already crimes under our laws and under international law. The amendment can, therefore, be accepted.
On Committee Stage, Deputy Costello sought removal of the reference to the section in the last line section 9(4) and its replacement with reference to section 7(1) or section 8(1) as the case may be. It became clear from the discussion on this point that, as the Bill does not have a commencement date and all the provisions come into effect on the same day, it is more accurate to replace the word "section" with the word "Act". The Minister gave an undertaking to do this and amendment No. 20 reflects this commitment. On further examination, however, it became clear that the reasoning behind amendment No. 20 had wider application throughout the Bill and also that references to "the passing of the Act" would be more appropriate than "the commencement of the Act", given that there is no commencement date provision. I, therefore, propose to accept amendment Nos. 15, 16, 19, 29 and 54 rather than amendment No. 20.
On amendment No. 21, the Minister is satisfied that the reference in section 9(4) and section 7(4), which allows for proceedings under the 1973 Act to be taken after the passing of the Bill in respect of an offence committed before such passing, covers the intention behind the proposed amendment. For that reason, I do not propose to accept the amendment.
I am grateful to the Minister of State for accepting the case made by my colleague on Committee Stage and by me now.
I move amendment No. 16:
In page 12, line 10, to delete "commencement" and substitute "passing".
I move amendmentNo. 17:
In page 12, line 18, after "humanity" to insert the following:
", a crime of aggression, extrajudicial killings and renditions".
I move amendment No. 18:
In page 12, between lines 18 and 19, to insert the following:
"(2) Where the State has ratified an international instrument providing that a specified offence shall be contrary to international law, the Minister may by order apply this Act, with such modifications as are appropriate, to such offence as if it were an ICC offence.".
While the Minister of State referred to this matter, the amendment is important. It was suggested to us by Amnesty International and debated on Committee Stage. The amendment would broaden the power of the Minister and was referred to by Deputy Michael D. Higgins in a previous debate. I hope the Minister of State could see his way to accepting it. While I do not normally like to confer powers on a Minister to make law by way of secondary legislation, it is an important issue that where, in the future, specified offences shall become contrary to international law as international jurisprudence develops and becomes more encompassing, we should be able to capture it within the confines of the ICC legislation. While I do not know whether the Minister had an opportunity to consider the matter, I hope the Minister of State will accept the amendment.
The amendment would add a subsection which states:
Where the State has ratified an international instrument providing that a specified offence shall be contrary to international law, the Minister may by order apply this Act, with such modifications as are appropriate, to such offence as if it were an ICC offence.
The Attorney General has advised that the amendment would run contrary to the Rome Statute because it would arguably amount to an attempt to extend the jurisdiction of the ICC beyond the range of offences currently covered by the statute. If the states parties to the statute wish to extend the jurisdiction of the court at some future date, then the legislation can be amended to do so. However, the proposed amendment may also breach Article 15.2.1° of the Constitution as amounting to an unauthorised delegation of legislative power.
It is a new for the Civil Service to argue that one.
As a constitutional referendum affecting Article 29.9 was required to ratify the statute, as it effected a limited transfer of sovereignty, the proposed amendment may also constitute a breach of said article because it purports to extend the jurisdiction of the ICC in a manner beyond that contemplated by the constitutional licence granted by the constitutional amendment. I am reminded of a statement by the Deputy's party leader that it could rock the foundations of the State.
It is wonderful that the arguments can be marshalled to suit the case in need. In virtually every Bill of late, the Civil Service has inserted a catch-all phrase as a norm. I dealt with one last week, ironically from the Department of Justice, Equality and Law Reform, where such a catch-all phrase was used whereby, notwithstanding any other provision, the Minister may basically do anything else he sees fit under the section. When sitting on the Government side of the House, it is a useful little clause that would run foul of the pronouncement the Minister of State made regarding the constitutional separation of powers and the right of the Oireachtas to legislate. Would that this were true. More law is made by order of the Minister through statutory instrument every day of the week than is made here. We have dealt with some Bills where the regulations are many times more complicated, longer and more voluminous than the prime statute. I recognise the argument for the important legislative role that the Constitution gives the Oireachtas. I wish this was the normal view given by the Department of Justice, Equality and Law Reform and its Ministers.
Having said that, there is some merit in the argument put forward by the Minister of State. It is not the case regarding the secondary legislation provision. However, there is something to be said for the argument that it might capture offences outside the scope of the ICC. If the Rome Statute were to be amended, it would be more appropriate to amend this legislation in due course. However, this was a convenient suggestion to bring new international jurisprudence developments into effect here in a speedy manner, without being obliged to wait for new primary legislation to be dealt with by the Houses. That said, I will not win the argument. There are too many constitutional barriers conjured up by the Minister of State to my proposal and I will withdraw the amendment.
I move amendment No. 19:
In page 12, line 29, to delete "commencement of this section" and substitute "passing of this Act".
Amendments Nos. 22 to 24, inclusive, are related and will be taken together by agreement.
I move amendment No. 22:
In page 13, between lines 33 and 34, to insert the following:
"(2) An act done on an Irish ship or an Irish aircraft, wherever situate, shall be deemed to have been done in the State.".
I understand that the comma was a point of contention with the Minister on Committee Stage so I have restated the amendment, comma included, to overcome his difficulty.
The amendment reflects the principle of Article 12.2(a) of the Rome Statute, set out in the Schedule, which provides for jurisdiction over nationals or persons on board a ship or aircraft registered to a particular country. This is an appropriate amendment to include. Now that the amendment has been grammatically perfected, I hope the Minister of State will accept the principle.
Amendments Nos. 23 and 24 reflect the concern expressed on Committee Stage by the Labour Party amendment to cover a situation in which, however unlikely, crimes against humanity might be perpetrated not just on Irish soil but in a transit vehicle such as an Irish ship or aircraft. The Minister accepted the principle behind the amendment but sought an opportunity to clarify the wording with the Parliamentary Counsel. Amendment No. 23 reflects that clarification.
Amendment No. 24 defines "Irish controlled aircraft" and "Irish ship" for the purposes of the preceding amendment. Given that amendments Nos. 23 and 24 cover the purpose underlying amendment No. 22, I do not propose to accept amendment No. 22.
As the principle of my amendment has been accepted and a new grammatical solution, commas included, drawn up, I will accept the Minister's amendment and withdraw that in my name.
I move amendment No. 23:
In page 13, between lines 43 and 44, to insert the following:
"(3) An act which—
(a) is done outside the State on board an Irish ship or Irish controlled aircraft, and
(b) if done within it, would constitute an ICC offence, is deemed for the purposes of this Act to have been done within the State.”.
I move amendment No. 24:
In page 14, between lines 2 and 3, to insert the following:
"(4) In this section—
"Irish controlled aircraft" has the meaning given to it by section 1(1) of the Air Navigation and Transport Act 1973;
"Irish ship" has the meaning given to it by section 9 of the Mercantile Marine Act 1955.".
Amendments Nos. 25 and 26 are related and will be taken together by agreement.
I move amendmentNo. 25:
In page 14, lines 7 to 9, to delete all words from and including "and" in line 7 down to and including "Court)" in line 9.
Aríst, tá baint aige seo le haighneacht a fuair muid ó Amnesty International mar gheall ar an Bhille seo.
Section 13 deals with the responsibility of civilian superiors. In its submission, Amnesty International argued that Article 28 of the Rome Statute provides for a much weaker standard of responsibility for civilian superiors than the relatively strict responsibility for military commanders. This is due to the political compromise arrived at in the drafting conference as a result of pressure from the United States of America and several other countries. It watered down a previously existing international standard. Article 28 of the statute does not accord with customary international law which holds that civilian superiors adhere to the same strict standards of responsibility for their actions as do military commanders.
Amnesty International believes, and I support it, that the Bill should be amended to be consistent with international law by including the same standards for civilian superiors as those covering military commanders. Nothing in the Rome Statute or international law prevents a state from adopting stricter standards of command or superior responsibility than the statute provides. It was strange that this responsibility was watered down at drafting stage, given that the existing international standard imposed equal accountability on civilian and military superiors. This is in part a legacy of the Second World War, in which military commanders and civilian superiors were responsible for genocide and other war crimes.
Once again, we have an opportunity to set the standard and encourage other countries, which have not given effect to the Rome Statute or the International Criminal Court, to consider providing for the higher level of responsibility. Amendments Nos. 25 and 26 have the same intention. They simply state that whether one is in a military or civilian vehicle if one is responsible for an offence covered by the International Criminal Court the court will view both situations equally.
These amendments seek to apply the same responsibility for acts committed to everyone, regardless of their status as civilians or non-civilians. Article 28, however, sets out additional responsibilities of military commanders and other superiors, and imposes added responsibility on such people. To accept the Deputy's amendments would not accurately reflect the provision of the Rome Statute. Accordingly, I regret that I cannot accept amendment No. 25.
This amendment may not reflect the Rome Statute but it does not dilute the statute. It is a step forward from that and complies with international standards on this matter. It is a pity that we cannot adopt these standards and be to the fore in ensuring that other countries consider these provisions when they adopt the jurisdiction of the International Criminal Court in their legislation. My amendment strengthens the responsibility for such actions and the jurisdiction of that court in particular.
I move amendmentNo. 26:
In page 14, line 11, after "determination" to insert the following:
"and the standard of superior responsibility shall be the same for civilian superiors as for military commanders".
Amendment No. 28 is an alternative to amendment No. 27 and amendment No. 58 is related. Amendments Nos. 27, 28 and 58 will be taken together by agreement.
I move amendmentNo. 27:
In page 14, to delete lines 13 to 26 and substitute the following:
"14.—(1) In proceedings for an offence under this Part—
(a) the measures specified in paragraphs 1 and 5 of Article 68 (protection of victims and witnesses and their participation in proceedings) shall, where appropriate, be taken during the investigation and prosecution of the offence, and
(b) the court concerned shall, where appropriate, take the measures specified in paragraphs 1 to 3 and 5 of that Article.
(2) Any such measures or the manner in which they are taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
(3) An application may be made in any such proceedings by or on behalf of the Director of Public Prosecutions for necessary measures to be taken for the protection of any servants or agents of the State involved in the proceedings and for the protection of confidential or sensitive information; and the court may grant the application if satisfied that it is in the interests of justice to do so.".
Section 14 of the Bill creates an obligation to have regard to Article 68 of the Rome Statute, paragraph 2 of which coversin camera hearings. Deputy Costello proposed an amendment seeking to overcome concerns about the narrow interpretation of protection in the Bill, which covered only intimidation. It was suggested that other forms of protection such as anonymity might be required.
The Minister undertook to examine the section to ensure that Article 68 of the Rome Statute was sufficiently effected by this section of the Bill. Following further consultation with the Office of the Attorney General and the Parliamentary Counsel a revised section 14 is now proposed which takes account of the concerns raised. I hope that the Minister's amendment is acceptable to Deputy Howlin and allays the concerns expressed on Committee Stage, and will encourage the Deputy to withdraw his amendment.