I thank the Senators who have contributed to the debate. The breadth of the exchanges is an indication of the potential contribution of the International Criminal Court in protecting those often without a voice from the most heinous of crimes to threaten the international community. The opening speech recalled the difficult birth of the Rome Statute and the many atrocities which occurred from 1948, when the idea of an international court was first raised, to July 2002, when the statute came into effect.
Enactment of this legislation will ensure Ireland can comply with its obligations under the Rome Statute and co-operate with the International Criminal Court in ensuring that those responsible for such atrocities can no longer escape punishment for their crimes. Unlike previous tribunals, the Rome Statute could potentially apply to any state party. While we may consider that the statute could never be applied to Ireland, its existence and our obligations to the International Criminal Court ensures that we do not become complacent in our dealings with these offences.
Senators will recall that the Bill in summary provides for new offences of war crimes and crimes against humanity and consolidates the existing offence of genocide under the Genocide Act 1973 while at the same time establishing the practical framework for providing assistance to the International Criminal Court in the investigation and prosecution of International Criminal Court offences. The types of assistance likely to be provided to the court include an accelerated mechanism for the arrest and surrender of persons wanted in connection with International Criminal Court offences, requests for freezing and confiscation of property and provision of evidence during investigations. In addition, the Bill also provides for the necessary practical arrangements should the International Criminal Court ever sit in the State.
The Bill is based on the principle of complementarity, which underpins the operation of the International Criminal Court. The effect of this principle is that the International Criminal Court is not a substitute for national criminal justice systems in that it will only take on an investigation where a state is unwilling or unable genuinely to carry out the investigation or prosecution. The Bill provides that persons before the Irish courts in connection with the domestic prosecution of an International Criminal Court offence have the same rights as are available under any criminal prosecution in the State.
The Rome Statute enshrines a similar standard of rights for any person coming before the International Criminal Court. For persons coming before the Irish courts in connection with the International Criminal Court request for surrender, the Bill also provides that the High Court has the powers of adjournment, remand and bail, including but not limited to the powers of the High Court in criminal matters. In addition, the statute places particular emphasis on guaranteeing the interests of victims of crimes before the International Criminal Court.
Senators made a number of suggestions regarding possible amendments to the Bill, some of which, while worthy of consideration in their own right, go beyond the main objective of the Bill which is the implementation of the Rome Statute. Broader provisions may be considered at other times in the context of other legislative measures. In this regard I would like to address some points raised during the course of the debate on specific provisions of the Bill and the implementation of the Rome Statute.
Senators Cummins and Henry raised the issue of the delay in publication and enactment of the Bill. Senators will recall that the Bill was preceded by a constitutional referendum in 2002. The necessary legislation implementing the referendum was not enacted until March 2002 because of a challenge to the referendum. Ireland ratified the statute on 11 April 2002 and was among the group of 60 state parties that brought it into force. Given the complexity of the statute a detailed consultation process was necessary between the Department of Justice, Equality and Law Reform and other Departments and State organisations. Following this consultation process the Bill was published in August 2003 and would have been enacted in previous parliamentary sessions had it not been for the pressure of other legislative measures. However, now that the Bill is concluding Second Stage, in the interest of the early enactment I ask all Senators for their assistance in bringing it through the House.
Senator Norris made reference to the possible extension of the definition of war crimes in the Bill and, in particular, to the inclusion of the provisions of Article 8.2(b) of the statute. Section 6 contains a number of definitions including one of war crimes which is linked directly to the relevant Article 8.2 and encompasses all of the elements that are in that Article except 8.2(b)(xx), which will have to be included by way of amendment under Articles 121 and 123. Until such an inclusion by way of amendment is undertaken by the parties to the statute it would be premature to include such a proposal and it would not accurately reflect the definition of war crimes. It was for this reason the Parliamentary Counsel crafted the current definition.
The extension of the jurisdiction of the International Criminal Court to other crimes was raised by Senators Cummins and Norris who suggested the State should consider a provision to allow for the extension of the jurisdiction of the ICC to other war crimes, for example, where the State ratifies an international instrument that provides that particular offences are contrary to international law. The Attorney General advises that such a proposal would run contrary to the Rome Statute as it would, arguably, amount to an attempt to extend the jurisdiction of the ICC beyond the range of offences which are currently covered by the statute. If the state parties to the statute wish to extend the jurisdiction of the court at a future time then the present legislation can be amended to do so. There may be further difficulty with this suggestion in that it may breach Article 15.2.1° of the Constitution by amounting to an unauthorised delegation of legislative power. As a constitutional referendum was required to ratify the statute Article 29.9, because it effected a limited transfer of sovereignty, the proposal may also represent a breach of this article as it purports to extend the jurisdiction of the ICC in a manner beyond that contemplated by the constitutional licence granted under the constitutional amendment.
A number of Senators raised the issue of a prohibition on conscription to armed forces. They urged that measures be taken to increase the age of prohibition on conscription to under 18 years of age rather than 15. The definition of war crimes in section 6 of the Bill, which includes the conscription of children, references Article 8 of the Rome Statute, therefore the threshold of 15 years of age is that agreed following negotiation of the statute. It is not open to us to renegotiate the terms of the statute at this stage and it would serve no purpose for Ireland to define the war crime of conscription of children in a way different to the statute. I should stress, however, in terms of general recruitment to the Defence Forces, there is a framework of safeguards in place to ensure that the recruitment of personnel under the age of 18 is not forced or coerced. These safeguards include, inter alia, voluntary recruitment, selection on suitability, a requirement of proof of age, parental consent for applicants under 18 years of age and all recruitment campaigns being informational in nature. As a further safeguard, members of the Defence Forces under 18 years of age are involved only in training and cannot be sent on active duty overseas.
Senator Norris mentioned the wider community was not consulted prior to the publication of the Bill and referred, in particular, to the Human Rights Commission. Senators will recall the provisions of the Rome Statute were approved by constitutional referendum in 2001 following a lengthy debate. The Bill facilitates the practical implementation of the statute and goes no further than providing the minimum necessary to fulfil our international obligations and for this reason the Human Rights Commission did not receive a copy of the Bill. Under the provisions of the Human Rights Commission Act 2000, the commission may submit views on the Bill at any time for consideration.
The Bill is broad and wide-ranging and has already taken into account the published views of international organisations in supplying the implementation of the International Criminal Court. It also benefited from legislative precedents enacted in other jurisdictions. In addition, Ireland's endorsement of the International Criminal Court has also been informed by discussions at the time of the referendum. The Bill attempts to bring these various concerns together in implementing the requirements of the Rome Statute, however I will consider any amendments to it in light of the requirements of these requirements.
Senator Henry raised the issue of the proposals in the Criminal Justice Bill 2004, relating to forensic samples and she had concerns on the taking of such samples. The Criminal Justice (Forensic Evidence) Act 1990 provides for the taking of certain bodily samples. Samples such as blood are taken with written consent and these are referred to as intimate samples. Other samples may be taken without consent, such as hair other than pubic hair, and these are referred to as non-intimate samples. The Criminal Justice Bill 2004 makes a number of amendments to the Criminal Justice (Forensic Evidence) Act 1990. It proposes to reclassify saliva from an intimate to a non-intimate sample which, in effect, means the consent of the detained person would no longer be required to take the sample of saliva. As saliva is most usefully taken by way of mouth swabs, it is also proposed to classify a mouth swab as a non-intimate sample.
The Bill will clarify that hair samples other than pubic hair can include root hairs but will add safeguards, such as that hair samples must be cut or plucked individually. It also provides that the period for which samples may be retained before being destroyed is to be increased from six months to 12. The Bill will provide for an increase in the penalty applicable to a person obstructing a garda in attempting to obtain a sample. It is proposed to provide clarification that reasonable force may be used in taking fingerprints, palm prints and bodily samples where consent is not required.
All senators raised the issue of the position of the United States on the International Criminal Court. Of the signatories to the statute that have not ratified it, only two countries, the United States and Israel, have purported to unsign the statute, each stating that it did not intend to become party to it and accordingly no legal obligations arose from their signatures. US objections to the ICC are based on the view that the independence of the ICC prosecutor could lead to politically motivated prosecutions of US citizens and, in particular, military personnel. Ireland, its EU partners and other states believe that the concerns of the United States are unfounded. With regard to the carefully drafted provisions of the Rome Statute, the Government has previously expressed the hope that all states will support the court and assist it in its work. The Council of the European Union has expressed the hope that a broader dialogue could be developed with the United States on matters relating to the ICC, including the US re-engaging in the ICC process.
The recent referral by the UN Security Council of the situation in Darfur to the ICC could be seen as making a significant shift in the US Administration's approach to the ICC as it moves the Administration from a position of active opposition to the very existence of the court to a position of acquiescence in its existence. While not voting in support of the referral the US abstained and did not veto the resolution at the Security Council. I consider that this Bill sends a clear message to the perpetrators of these international crimes that Ireland will not shirk our international obligations in safeguarding international peace from atrocities inflicted on countless innocent persons in war-torn jurisdictions.
This Bill adds another voice to that of the international community in seeking to bring the perpetrators of these crimes to justice. It is also a statement of our support for the International Criminal Court and of our commitment to ensuring it receives the assistance necessary to meet the challenges of the Rome Statute in investigating and prosecuting these crimes.
I commend the Bill to the House and thank Members for their contributions.
