SELECT COMMITTEE ON FOREIGN AFFAIRS díospóireacht -
Wednesday, 27 Mar 2002

Vol. 5 No. 3

Ratification of the Rome Statute of the International Criminal Court.

Chairman

This meeting is to consider the ratification of the Rome Statute of the International Criminal Court. The minutes of the Select Committee's meetings of 19 and 20 March have been circulated. We will consider the minutes at the next meeting because the minutes of one of the meetings are not available and have not been circulated.

I would like to welcome the Minister of State, Deputy Eoin Ryan, who is representing the Minister for Foreign Affairs. The Minister of State is accompanied by legal advisors from the Department of Foreign Affairs. A briefing note from the Department has already been circulated. I invite the Minister of State to make an opening statement.

Minister of State at the Department of Tourism, Sport and Recreation (Mr. E. Ryan)

I apologise on behalf of the Minister for Foreign Affairs, Deputy Cowen, who is unable to attend the Select Committee. I thank the Chairman and members of the committee for meeting today at short notice to consider this important international agreement, the Rome Statute of the International Criminal Court.

I am aware the committee met twice last week and at one of these meetings considered the terms of a number of other international agreements. I assure the committee that it has not been possible to commence the ratification process of the statute, including its consideration by this committee, any earlier, as a legal challenge to the outcome of the referendum of June 2001, in which the people approved an amendment to the Constitution to allow ratification, was only dismissed by the Supreme Court on 12 March, and the President only signed the necessary constitutional amendment into law last Monday, 25 March.

As the committee will be aware, yesterday the Government granted the Minister for Foreign Affairs the authority to arrange for the ratification by Ireland of the statute. The statute imposes a charge upon public funds and, therefore, in accordance with Article 29.5.2 of the Constitution, the terms of the statute must be approved by Dáil Éireann before the State may agree to be bound by them in international law.

I would like to explain to the committee why ratification of the statute is highly desirable at this time. Yesterday, the permanent mission of Ireland to the United Nations in New York reported that at least four states are now ready to ratify the statute, thus bringing the number of ratifications up to 60, the number needed for the statute to enter into force. The mission has been informed that rather than having to determine which would be the sixtieth, it is planned for all of them to deposit their instruments of ratification at the same time and to have an event to mark the occasion. This is expected to take place on 9 April. Should the Dáil approve the terms of the statute, inquiries will be made as to whether it would be possible for Ireland to participate in this proposed ceremony.

With the entry into force of the statute due to occur in the coming months, in order to enable us to fully participate in the creation of the court, and in particular to enable us to participate in the first assembly of states parties which is due to be held in September 2002, it will be necessary for Ireland to become a party to the statute in the very near future.

An additional reason for ratifying now is the prominent role which the EU has played in supporting the court. Under the terms of a common position of June 2001, the member states committed themselves to an early entry into force of the statute and to promoting its widest possible ratification. EU troikas have made representations to various states urging them to ratify the statute. The EU hopes to play a similarly supportive role in the court's creation. Ratification by Greece is imminent, meaning that Ireland will be the only EU member state not to be a party to the statute if it does not ratify it shortly.

If Ireland does not ratify during the lifetime of the current Dáil, the next opportunity to ratify may not come for a number of months. The consequence of this would be Ireland's isolation from its EU partners and our inability to participate in the assembly of states parties.

The Rome Statute is the product of several years of careful drafting. During this time, developments in international human rights and humanitarian law, as well as the experience of the ad hoc international criminal tribunals, were all drawn upon in order to create the instrument we are considering today. The statute provides for the independent investigation of atrocities and for the alleged perpetrators of these atrocities to be tried in a fair manner. Those found guilty by the court can be punished and their victims compensated. It is hoped that the existence of the court will act as a deterrent to those who would otherwise violate human rights and humanitarian law with impunity. In cases where crimes such as genocide are nevertheless committed, for the first time an international judicial organ will exist to investigate, prosecute and punish the most serious violations of international human rights and humanitarian law.

I would like to comment on the Government's decision to ratify the statute prior to the enactment of implementing legislation. Ratification at this time is possible as obligations requiring legislation to implement will only arise for the State when the court becomes operational in 2003. As a comprehensive draft scheme of the implementing legislation has been produced it can reasonably be expected that this legislation will be enacted by this time. The decision of the Government to seek the approval of the Dáil of the terms of the statute at this time is based on the unique nature of the statute, including the fact that its ratification enjoys cross-party support in the Oireachtas as well as a democratic mandate as expressed by the people in the referendum. It is not, therefore, envisaged that ratification will create a precedent for derogation from the normal rule that the State may ratify international agreements only after implementing measures are in place.

As the statute is before this committee because it involves a charge upon public funds, it would be appropriate for me to comment on the monetary contributions Ireland will be obliged to make to the court in the coming years. The committee will be aware that the statute provides, in articles 115 and 116, that the expenses of the court and of the assembly of states parties will be provided by, inter alia, assessed contributions made by states parties. The estimated costs for the first year of the court are based on the report of the working group on a draft budget for the first financial year of the court, from September 2001. Contributions from states parties will be sought after the assembly of states parties adopts the budget. Ireland’s contribution can be estimated at approximately €109,915 in the event of a non-referral of a case to the court in the first year, or €210,006 in the event of a referral of a case.

For the purposes of comparison, the committee may be interested to know that our contribution for 2002 to the International Criminal Tribunals for Rwanda and the former Yugoslavia were €294,060 and €363,980 respectively. It should be noted that contributions by a state to UN organisations are sometimes difficult to estimate with accuracy. All member states contribute according to an agreed scale of assessments reflecting their percentage share of global GNP. Ireland's current assessment is 0.297% and will rise to 0.298% in 2003. The estimate of Ireland's contribution to this fund is based on this scale of assessment and on those of the 56 states which have ratified the statute to date. However, by the time contributions fall due, additional states will have ratified the statute, thereby reducing Ireland's share of the court's costs.

I would like to conclude by reiterating Ireland's long held policy on the International Criminal Court. Successive Governments have been committed to making the establishment of the court a priority of our human rights foreign policy. Ireland was an active participant in the conference at which the Rome Statute was adopted and, as a member of the "like-minded group", worked hard to ensure that the court would have the necessary powers to be effective in enforcing international human rights and humanitarian law. Ireland has the distinction of being one of the very few states to have held a popular referendum on the ICC, and, as colleagues will recall, the ratification by Ireland of the statute was approved by 64.22% of the electorate.

The creation of the Rome Statute of the International Criminal Court will represent one of the most important developments in international law since the end of the Second World War. The existence of the court will provide a mechanism whereby the most serious violations of international human rights and humanitarian law can be investigated, prosecuted and punished. Ratification of the Rome Statute by Ireland will allow us to affirm once again our support for this development. I therefore ask the committee to recommend to the Dáil that it approve the terms of the statute.

Mr. J. O’Keeffe

I wholly support the ratification of the Rome Statute to create the International Criminal Court. In fact, I have been demanding its ratification for the past three years. However, I must question the procedure being adopted by the Government in relation to this ratification, which is unique, without precedent and which raises serious questions. It is almost four years since we agreed to ratify the establishment of an International Criminal Court. Shortly after the agreement of the Rome Statute we signed the document, but this Government did not take the procedural steps necessary to enable us to ratify this agreement. In fact, the Government still has not done so. I appreciate that we had a referendum but that was in June 2001. We require a serious explanation for this delay, although I do not want to point the finger at the Minister of State, Deputy Eoin Ryan, who has not been involved in this matter. As of last Wednesday in the Dáil, which was about the 54th time that I had raised the issue by way of parliamentary question wanting to know when the Government would end the delay and enable us to complete the necessary process to allow ratification, I was told that 56 states had ratified the statute. The Minister for Foreign Affairs stated it was hoped Ireland would be in a position to ratify it later this year and that a draft scheme of the legislation had been produced by the Department of Justice, Equality and Law Reform and was being studied by his Department. I was told the previous month in response to the 53rd question I had raised on the matter that extensive legislative proposals were necessary to enable us to ratify the statute and that once the legislation was prepared and enacted the remaining ratification requirements would be a matter for the Minister for Foreign Affairs. That was the response to a question to the Minister for Justice, Equality and Law Reform on 21 February.

I find this unseemly haste quite extraordinary since the Minister for Foreign Affairs stated the Government's position in the matter in the Dáil last Wednesday. We have been called here to an urgent session in the dying days of the Government to give assent to ratification without going through the legislative process. The Minister who is not present - I appreciate he may have other commitments - issued a press release today announcing the Government's decision to ratify the statute. It is already in the public press. This is government by public relations; government by mirrors. Where is the legislative programme I have been demanding for the last three years to enable us to properly ratify the statute? I say this as somebody who has produced a Private Members' Bill on behalf of Fine Gael to force action on the part of the Government on the issue, but I still have not been able to obtain from the Taoiseach the list of legislative proposals necessary. Each time I raised the issue, he did not know. When I asked for details from the Minister for Justice, Equality and Law Reform, he did not seem to know either, other than it was difficult.

We are proceeding with ratification without putting in place the necessary legislation to enable us to comply with our international obligations. I find this an extraordinary procedure which is typical of the slipshod attitude of the Government. It is the kind of action that led to the scandal in relation to the Bertie pool in that there was a rushed meeting and nothing was done until 19 December, even though the planning application had to be in by 20 December. What was happening during the previous year? That problem has led to the scandal. We are doing exactly the same thing in this instance. Even though the Bertie pool involved tens of millions of euro, in this instance we are talking about our international obligations.

We are taking this action now because reality has dawned. The International Criminal Court will come into existence when 60 states ratify the statute. I have been warning about this for a year and a half. Each member state of the European Union, including Ireland, undertook to complete its ratification procedures by the end of 2000. It had the gall to urge others to do likewise. We are now, in this rushed way, going through this process, which is utterly without precedent. We are going to agree to ratification without the necessary legislation, or without the necessary measures having been taken by the Government. I object to this process. A voice has to be raised in respect of this country being rushed into this situation in the dying days of the Government. It has had four years to do the necessary work, but has not done it. This procedure is an absolute disgrace. I say this as someone who has demanded ratification for the past three years.

For the Minister of State to be sent here - I emphasise it is not his Department but the Departments of Justice, Equality and Law Reform, Foreign Affairs and the Taoiseach which are involved - to say very glibly, as it were, that it is not envisaged that ratification will create a precedent for derogation from the normal rule that the State may ratify international agreements only after implementing measures are in place is not good enough. The Government stands condemned over what it has done in relation to the International Criminal Court. It is absolutely necessary in this world in which we live that the court is established to deal with the Pol Pots and Saddam Husseins of this world. That is the reason I have been pushing for its establishment.

The Government allowed itself to be lulled into a situation where it ignored the fact that the court would be established when the statute was ratified by the 60th member. That is going to happen within the next week and we would have been left out in the cold. If established, we would have had no voice in the establishment of the court and in relation to those involved in so doing. That is the outrageous situation in which the Government left us.

I want to see the statute being ratified and to see us as part of the court, but give my agreement to this process under protest at the outrageous way in which the process has been dealt with by the Government. It is entirely unacceptable. The Minister of State was sent here without even giving us an outline of the measures that need to be put in place - the implementing legislation. We still do not know what measures need to be put in place. To say to us four years after the statute was adopted in Rome that it will be all right because we will only have to honour our obligations next year is no way to do business. That should be the view of the committee. I never want to see anything like this happen again.

The procedure must involve, at the very minimum, the Government telling us what are the outstanding procedures, the legislative programme necessary and that it is leaving it to the next Government - I hope to us - to complete the ratification process properly in order that we can be a full and proper member of the court. I ask the Minister of State to give me the full list of legislation, regulations and other requirements, outline where we are in terms of producing such proposals and give some indication as to when they might be in place.

Mr. M. Higgins

I issued a statement last week criticising the Government for not having ratified the Rome Statute of the International Criminal Court. In this respect, I welcome the fact it is being ratified by Ireland. Some 56 countries have done so. Another has voted in its parliament to ratify and the matter only needs to be referred to the constitutional court. I understand - I have a slightly different approach to Deputy O'Keeffe - that if ratification is not implemented by 1 April, there will be an automatic delay of three months because if we miss this date, we will face a wait of three months. In view of this, I do not understand the significance of the date of 9 April. However, the arrangement for the four countries to hold a signing ceremony on that date will have the effect of delaying Irish involvement in the procedures for several months.

I do not completely subscribe to the view that there must always be enabling legislation for every international instrument. This arises in the case of the large number of countries which have signed and ratified international instruments and done so in bad faith. This means it is an indication of a country's good faith if it has the implementing legislation in place before final ratification. In this case, with 64% of the people having voted in favour, there is such strong support for the concept of the court that there was no doubt that its terms would be implemented. On this aspect, I differ from the Minister because I am not worried about it creating a precedent. There could be circumstances in the future where there could be consultation with the public which would give its assent in a constitutional referendum for an international instrument. In such circumstances the ratifying legislation would be prepared as quickly as possible. In this case the preparation of the legislation is dilatory and we are not saved by the suggestion that the process of preparation begins after the decision of the Supreme Court. I do not accept the argument that one can be saved from precedent. It is a conservative view.

I agree with Deputy O'Keeffe that one would like perpetrators and advocates of genocide to be dealt with in this way. People like Saddam Hussein have been guilty of genocide against their people. There are also western examples. Some of the statements by Donald Rumsfeld have stopped only very short of being an invitation to an abuse of international criminal statutes, including the Geneva conventions. This is a cause of worry to international lawyers everywhere because there are aspects of his statements which are flagrant in their violation of international law.

I welcome the court. My understanding is that it will now have to be recommended by the committee. I support the recommendation that the ratification should take place by the Dáil and, if a proposal is necessary, I will make it. However, I understand this will have to be done immediately. It will certainly have to be done tomorrow. This creates a problem. Only two members of the committee are present. The public has given its assent to this matter and the Dáil should have an opportunity to make a contribution in support of something that 64% of the public clearly wants.

I understand regarding the arrangements that have been made for the beginning of the work and the proceedings, there is a cut-off point of 1 April and that the next date for participation for those ratifying afterwards is three months afterwards. That advice has been given to me by those who advise me on human rights issues.

Mr. O’Kennedy

The Minister of State referred to the Rome Statute and said it was the product of several years of careful drafting. He went on to say that during this time developments in international and human rights and humanitarian law, as well as the experience of the ad hoc international criminal tribunals, were all drawn upon in order to create the instrument under consideration today. He went on to say further that for the purposes of comparison, the committee may be interested to note that the contribution for 2002 to the international criminal tribunals for Rwanda and the former Yugoslavia were €294,000 and €363,000 respectively. On the one hand, we are considering international ad hoc tribunals while, on the other, we are asked to consider ratifying the instruments for a permanent international criminal court, something to which I have no objection. Has the Government nominated a member to the international criminal tribunal, or court, as the case may be, in The Hague? I understand we have done so, but I may be wrong. What is the procedure whereby we nominate persons to courts before we ratify the instruments?

Mr. M. Higgins

My reference to the delay regarding 1 April is Article 126.

Chairman

I appreciate that. What DeputyHiggins said would only apply if we were not among the original 60 countries because a new set of rules will come into effect after the statute has entered into force. However, if we are among the original 60 countries, that would not apply.

Mr. M. Higgins

That is correct, but the 60 countries could form before 9 April.

Chairman

That is the case, but I understand the informal agreement in New York is that if anyone is ready now, they will have to wait until Ireland and the other laggards are also ready, at which point they will all deposit their ratification instruments on the same day. They will, therefore, form part of subsection (1) of Article 126 and section 2 will not apply to them. The 60th day after 1 April would be 1 June and the first day of the month after the 60th day would be 1 July. Therefore, the statute would come into effect on 1 July.

Some interesting comments have been made. Notwithstanding what Deputy O'Keeffe said about the delay, this is probably the speediest international treaty that Ireland has ever ratified. It was not even signed four years ago. I understand it was signed three years and ten months ago. By normal diplomatic standards, it is breathtaking in its speed. The committee may recall that when we met last week to consider five international agreements, one was dated 1907 andwe were just in time to ratify it, on its 95thbirthday.

Mr. O’Kennedy

Before your time.

Chairman

Yes. The others varied between ten and 30 years in age. This is extraordinarily quick, it is not even four years since we signed it.

Mr. J. O’Keeffe

But we have never ratified before without previously putting in place the necessary legislative underpinning.

Chairman

That is a point to which I am going to come. As I said to the Deputy already, some of the points that have been made are interesting. It is a pity the Minister is not here to deal with them. It is a bit unfair to tell somebody from another Department to deal with it.

Mr. J. O’Keeffe

The Taoiseach told me in October 2000 that the work would be done at the earliest possible date.

Chairman

One important issue for which we must get a proper explanation is the extraordinary disparity between what the Minister for Foreign Affairs said in the Dáil last week and what was said here today. He said in the Dáil last week that the legislative provisions would have to be drafted and enacted. While it is not stated specifically in the speech, in page two of the briefing note we got, under the heading "Ratification of the Statute by Ireland", it states that it has been decided "exceptionally" to proceed with Ireland's ratification process prior to the enactment of the legislation. I complained many times during the lifetime of this committee about the delay in ratifying various agreements and conventions, particularly in the human rights and in the anti-terrorism areas, and I was told that the reason for the delay was one had to enact legislation here before ratification. That is what the Minister told the Dáil last Wednesday and now the committee has been told that "exceptionally" it can be done without legislation. If this is correct, what Deputy O'Keeffe was told last Wednesday and what I and others have been told for several years is incorrect. That is not satisfactory, particularly in the context of the Whip's notes, which I have here in addition to my other briefing notes.

The Whip's office was told by the Department of Foreign Affairs that they would not have any time for a debate on this, that it was not necessary to refer it to a committee and they wanted it passed through the Dáil without debate. That is not good enough.

Mr. M. Higgins

There must be debate in the Dáil.

Chairman

Yes. It is regrettable that this kind of approach is taken and that there is one statement made one week and a different one the following week.

Another matter to which I want to advert, because it is of some fundamental significance here more so than this particular statute, is the part played by the courts in this. As far as I am aware, among the 60 states which are about to ratify this, Ireland was unique in that it had a popular referendum. It is possible that some other state did but I am not aware of it. Therefore, the support of the Irish people for this puts it in a stronger position in this country than in other countries which have ratified it through their parliaments. It has a popular mandate here of a kind which it does not have in other countries. Given that popular mandate, expressed by a two to one majority last June, is it proper or democratic that the courts can hold up its implementation for nine months? I accept that a citizen has a right to challenge it, but he or she and the people have the right to a decision within a reasonable time. In my opinion, nine months is not a reasonable time. What are we supposed to do if some citizen in May or June decides they do not like the result of the general election, challenges it and the court takes nine months to offer a final decision? It is not right that a referendum result should take nine months to be resolved legally.

Mr. M. Higgins

One point where you are right is that there is of course provision as well for withdrawal of one's ratification. Therefore, technically even if we were wrong to prepare the legislation with the court case ongoing, in the unlikely event of the decision in the court case going the other way it could have been withdrawn. Therefore, Chairman, I support what you are saying.

Mr. J. O’Keeffe

It was not that the court held it up but that the Government did not produce the legislative programme to underpin ratification and still has not done so.

Chairman

No, that is not the point I am making. What Deputy O'Keeffe is saying is true - they did not do the legislative work.

Mr. J. O’Keeffe

They still have not done it.

Chairman

They did not do it but even if they had, if what we are told by the Department is correct, they could not have gone ahead with the ratification process anyway until the court had decided the matter finally. If that is correct, it is absurd and an improper interference in the political and democratic process.

Mr. O’Kennedy

I agree with you entirely, Chairman. The Constitution states clearly that all power derives under God from the people. The people are the ultimate power. As you said clearly, Chairman, they gave their sanction and if an individual citizen can bring a case to court against the implementation of the people's decision, then I agree that another element in the Constitution, the courts, should ensure they deal with the matter expeditiously so as not to have the decision of the ultimate power of the people frustrated for so long.

Mr. J. O’Keeffe

In defence of the courts, any time I have seen where the courts have been asked in the national interest to expedite their consideration in a matter they have done so. There was no request, I am quite satisfied, from this Government. The Government itself was holding up ratification and in that situation I am sure what happened was that the court let it go through the normal process. In the end, as I understand it, the person who was prosecuting an appeal did not turn up for the appeal and the case fell. Let us be quite clear, the courts did not hold up ratification and if they had been asked, no doubt they would have given an early hearing.

Chairman

I am making a statement here and I would like to be able to finish it before being told I am wrong. The fact is that it took nine months for a decision to be given and we are told by the Department of Foreign Affairs that until that decision was given, there was nothing they could do. I would like to check whether that is right or not because other things we have been told were not right. It is of broader importance than just the details of the Rome Statute alone, even though that is important and the court proposed to be set up is important.

I was not aware until recently that there was such a court case. There was no press coverage of it. I never saw any such coverage and I am informed that the press did not report the result of the case or anything about it.

Mr. J. O’Keeffe

The prisoner did not turn up.

Chairman

Yes.

Mr. J. O’Keeffe

He did not turn up for the appeal.

Mr. M. Higgins

It did not feature in the parliamentary replies, to the best of my knowledge.

Chairman

Yes. It is curious we were not told about it before in reply to all these various questions. However, that is the current position. This International Criminal Court is worthy of support, worthy of ratification and worthy, therefore, of implementation. It is a pity the handling of it in this country has been so hamfisted. I particularly deplore the fact that a request was made to have no debate whatever and specifically not to refer it to this committee. I have experienced this before because I happen to be in the fortunate position of being Chair of this committee and a Whip, so I attend the Whips' meetings and read the correspondence. I am resentful of the fact that this request was made, not alone that the Dáil would not discuss it but that this committee would not discuss it either but would pass it automatically without discussion.

Mr. J. O’Keeffe

The Minister issued a press release announcing ratification, assuming this would be rubber stamped. I got a reply to a parliamentary question on 31 January from the Minister for Justice, Equality and Law Reform saying the Bill enacting the legislative change "had not been signed by the President and could not be until a referendum petition concerning prisoners' voting rights under appeal to the Supreme Court was decided. I understand the appeal is to be heard next month." That answer was by way of telling us substantial progress had been made and he hoped to be in a position to bring legislative proposals to the Government relatively soon.

Chairman

Are the legislative proposals available now? The difficulty is that the Department of Foreign Affairs is dealing with this but the Minister of State at the Department of Tourism, Sport and Recreation has been sent to talk to us about a matter being prepared in the Department of Justice, Equality and Law Reform.

Mr. O’Keeffe

This is a joke and I do not direct that against the Minister of State, who has just been sent into the firing line.

Chairman

The committee is entitled to know what the position is regarding the proposed legislation. We are entitled to see a draft of it or whatever state it is in now.

Mr. O’Kennedy

That is obviously the substantive point the Chair and members must consider. I also seek clarification. Perhaps my interpretation is misleading but if the Government has nominated someone to an ad hoc tribunal dealing with international criminal trials, does that mean that when this is now established under the statute we are being asked to ratify that we would have to formally nominate some other person or the same person to the new court as established? I presume it does, because it was an ad hoc tribunal up to this, though I may be wrong.

Mr. E. Ryan

One of the key concerns is that when the State becomes party to an international agreement, the Government must be confident that the State will be able to fulfil any obligation it assumes as a party to the agreement. The fulfilment of the State's obligations under the international agreement does not always require the enactment of legislation. However, where it does the necessary legislation is usually passed prior to the State becoming a party to the agreement but not always. The State has on occasion ratified international agreements in advance of the enactment of relevant legislation. An example of this is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and-or their Destruction, 1993, which was ratified on 26 June 1996. Its implementing legislation was enacted in 1997, the Chemical Weapons Act, 1997.

Ratification of the Rome Statute of the International Criminal Court is a special case and a constitutional amendment was also required for ratification. This was approved by the people in a referendum last year. The amending legislation was signed into law by the President two days ago. The other required legislation is now at an advanced stage of drafting and is expected to be considered by the Dáil and Seanad later this year. It should be passed in ample time for the State to comply with any obligations arising from the Rome Statute since the International Criminal Court will only become operational at the very earliest some time next year.

I emphasise that this is a special case and does not create a precedent. Also it was only two days ago that the President signed the constitutional amendment into law, thereby opening the way for ratification. Also, I understand the President would not sign until the court had dealt with the matter.

Mr. J. O’Keeffe

She could not sign. It is not that she refused.

Mr. E. Ryan

Yes. The legal challenge was based on the plaintiff's claim that as he was denied a vote because he was in prison at the time of the referendum, the result was invalid. The plaintiff's claim was dismissed by the High Court in October but he appealed to the Supreme Court. Regarding blaming the courts, I am not in a position to blame the courts for how they dealt with this but I agree with the Chairman. It seems extraordinary that the people vote for something yet someone can take the issue to court and it can take that length of time for a decision.

Previous statements by the Minister make it quite clear that ratification depends on Dáil approval of the terms of the statute. As far as the legislation is concerned, it is here for those who want to read it.

Mr. J. O’Keeffe

What is that?

Mr. E. Ryan

It is the legislation but it is not public yet.

Mr. J. O’Keeffe

Is it the heads of the Bill?

Mr. E. Ryan

Yes.

Mr. M. Higgins

Is it heads or text?

Mr. J. O’Keeffe

We have been known to read Bills before.

Mr. E. Ryan

It is a comprehensive draft scheme of legislation.

Chairman

Is it drafted or the heads?

Mr. E. Ryan

The heads.

Mr. M. Higgins

Heads are followed by text and it has not been to the Attorney General's office yet.

Mr. E. Ryan

No.

Mr. M. Higgins

It is an aide-memoire in preparation for the approval of heads by Government.

Mr. E. Ryan

I gather the Attorney General's office is still considering it.

Mr. O’Kennedy

What about the role of the parliamentary draftsman? They consider the principles and purposes of the Bill and whether they accord with our national and international obligations. After that the text of the legislation is drafted. Perhaps that explains the Minister of State's comment that we may have to wait some time for it. I do not know when that legislation will come before the Oireachtas.

Mr. J. O’Keeffe

Why was I told in the Dáil last Wednesday that we would be in a position to ratify the statute later this year on the basis that a draft scheme of legislation was being studied? Surely the facts currently confronting the Government would have been known to it last Wednesday, when the Minister for Foreign Affairs gave me that response.

Mr. E. Ryan

I gather he had to get Government approval before he could say it and he did get Government approval to proceed with it. That happened after the Deputy asked his question in the Dáil.

Mr. M. Higgins

Another interesting point is that this court figures in the Court and Court Officers Bill which was discussed yesterday. Those who will serve on the International Criminal Court became, with the passage of the Court and Court Officers Bill, eligible for appointment to the High Court, even though the court itself has not been ratified by cementing legislation.

Mr. O’Kennedy

That is the point. I do not want to come back like Cato asking the same question and if I cannot get a reply today I would appreciate if I could get confirmation that that means that when the International Criminal Court, as stated, is effectively operational next year the Government will again have to nominate someone to that court. It may not be the same person who has been nominated to an ad hoc tribunal. I seek clarification on that.

Mr. E. Ryan

The ad hoc criminal tribunal for Yugoslavia is a totally separate body from the International Criminal Court. Nominations to the position of judge in the International Criminal Court will only be made after the Rome Statute enters into force. I gather that if we are part of that then we can nominate someone.

Mr. O’Kennedy

That is clear.

Mr. J. O’Keeffe

Having made a strong protest about the absolutely incompetent and slovenly manner in which this issue has been handled by the Government, I am prepared to agree to the approval, mainly on the basis of having spent four years trying to see it ratified. It would hardly be appropriate because of the lack of proper process by the Government for me to change my stance in any way.

Chairman

Now that we have established in the course of this rather truncated debate that it is possible to ratify an international convention without the underlying domestic legislation being in place, could I ask the Minister for Foreign Affairs, through his representative, if he will bring forward proposals for the ratification of a number of the anti-terrorism conventions which we undertook to ratify and to bring into force without delay post 11 September? I am referring in particular to the convention for the suppression of the financing of terrorism which Ireland, I think uniquely in Europe, has not ratified. Now that we know it is not necessary or at least essential can this legislation be introduced in the autumn?

Mr. E. Ryan

We can sign the conventions, but they would not be put in place as there is no legislation.

Chairman

We signed them years ago. We are talking about ratification which is different to signing.

Mr. E. Ryan

The obligations will come into effect on ratification.

Chairman

I am asking that this convention be ratified now and that the legislation be brought in later. That is what other countries do.

Mr. J. O’Keeffe

The difference is that in the case of the International Criminal Court, the Minister of State is suggesting that we have a little time regarding our obligations because it will not become operational for a while. However, if we ratify the financial convention we would have to operate it immediately, but we do not have the underpinning legislation in place.

Mr. M. Higgins

Chairman, you have touched on a point to which there is no easy answer. I agree with your point regarding the suggestion that one always has to wait for legislation. The exceptions are there. The chemical weapons convention is joined by the Rome court so they will stand as exceptions. However, I cannot see how the ratification of the convention on the financing of terrorism would act as a spur to Government to move quickly regarding the legislation. I spent much time at one stage examining this issue and the argument about having the legislative paraphernalia in place is addressed to those who ratify in bad faith. Some of those who ratified conventions have been in breach of several international instruments. I could think of several such countries who ratified instruments in the area of human rights. If there was on overwhelming cross-party consensus in the Dáil and the Seanad in favour of ratifying something, surely that would be sufficient in another category of cases different from those we are discussing this afternoon. We should examine this issue in the future.

Mr. O’Kennedy

Chairman, you have expressed the frustration of the committee. I suggest that we write to the Minister for Foreign Affairs seeking a clear statement of the position of this and every Government in terms of the ratification procedures, the role and the desirable procedures which should be followed in the Oireachtas and the role of committees such as this so there would be a clear standard by which we could fulfil each function.

Chairman

I made the point regarding non-ratification before, and the excuse we were always given for the non-ratification by Ireland of conventions which are obviously desirable was that we had to have domestic legislation. However, we now have a case in which we are ratifying without domestic legislation. I raised this issue at the Committee on Dáil Reform of which I have been a member for the past three or four years and which has more or less brought its work to a conclusion. The point was referred to the Attorney General for advice on its legalities, but we heard nothing back. However, other members of the committee agreed that it is undesirable that Ireland should be the only country which appears to have to wait for domestic legislation. Some countries ratify these conventions within a matter of days of signing them by way of a motion passed by parliament. The convention is then regarded as ratified in international terms. One can then deposit one's instrument at the UN in New York. The UN does not ask whether domestic legislation has been passed. Serious thought should be given to this issue. It would be foolish if we are to be put through this rigmarole again. There are dozens of conventions which Ireland has signed over the years and which it has a political and moral obligation to ratify. We have failed to ratify these conventions on the partially spurious ground of the absence of legislation. That gives this country a bad image abroad in that we are unique in Western Europe in not ratifying a range of obviously desirable conventions. Notwithstanding our reservations about the manner in which this issue has been handled, it is desirable that the International Criminal Court should come into operation as quickly as possible.

Mr. O’Kennedy

I agree on the basis that we do not wish to be involved in delaying the proceedings.

Mr. J. O’Keeffe

I agree without prejudice, under protest and with expressions of the greatest parliamentary outrage imaginable.