Universal Jurisdiction of Human Rights Bill 2015: Second Stage [Private Members] (Continued)

Thursday, 9 March 2017

Dáil Éireann Debate
Vol. 942 No. 2

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(Speaker Continuing)

[Deputy Andrew Doyle: Information on Andrew Doyle Zoom on Andrew Doyle]  In that regard, it is capable of extra-territorial prosecution under the International Criminal Court Act 2006 in so far is it relates to international armed conflict. Certain elements of the act of torture can also be prosecuted under domestic criminal justice provisions.

The express extra-territorial jurisdiction in section 2 of the 2000 Act has been removed in the Bill. Section 2(3), as proposed by the Bill, may be attempting to exert extra-territorial jurisdiction for the offences in subsections (1) and (2) but does not achieve this. As the offences would no longer be linked to acts of, or sponsored by, public officials, the application of extra-territoriality cannot be said to derive from the convention and would not therefore be part of our international law obligations in that regard. As such, by reference to the United Nations Convention Against Torture, the Attorney General believes the offences provided for by way of the amendments in section 2 of the Bill are constitutionally unsafe, as they could amount to interference with the sovereignty of another state, which is not sanctioned by international law.

The Department of Foreign Affairs and Trade is also of the view that it would be problematic to take universal jurisdiction in this way as it would not be consistent with the approach generally taken by other states and that it raises questions of international law. Without prejudice to the observations on constitutionality set out above, the Attorney General has advised that the Bill would require a considerable number of amendments to elevate it to a level that is legally safe and capable of withstanding challenge, and that it would also require amendments to ensure that it is consistent with the form of legislation on the Irish Statute Book. For the reasons set out, the Government is not in a position to support this Private Members' Bill.

The Tánaiste and Minister for Justice and Equality has asked me to inform Deputies that the first review of conference on the Rome Statute of the International Criminal Court took place in Kampala, Uganda, in June 2010. The conference adopted amendments to the statute on the crime of aggression and war crimes, referred to as the Kampala amendments. With regard to the war crimes amendment, the Office of the Attorney General has advised that there are constitutional difficulties but no such difficulties have been identified with the Kampala amendment on the crime of aggression. The Department of Foreign Affairs and Trade is in discussion with the Department of Justice and Equality with a view to progressing ratification. I thank the Deputy and hope he will appreciate, as I have outlined, why the Government is not in a position to support this Bill.

Deputy Jim O'Callaghan: Information on Jim O'Callaghan Zoom on Jim O'Callaghan Ba mhaith liom buíochas a ghabháil leis an Teachta Wallace as ucht an Bhille suimiúil seo, a bhaineann leis an dlí idirnáisiúnta agus coireanna in aghaidh na daonnachta, a chur chun cinn. Aontaím le cuid den Bhille, ach ní aontáim le gnéithe éagsúla eile de. Tá sé de cheart againn an ábhar tábhachtach seo a phlé sa Dáil.

I thank Deputy Wallace for introducing this Bill to the House and he has put before the House a very interesting topic. I am very happy to speak on it. For the purpose of preparing for this debate, I researched the issues in respect of international and domestic law with regard to armed conflicts. It is important to recognise at the outset that international justice is a relatively new phenomenon. There were examples in the aftermath and during First World War of trying to outlaw certain types of weaponry but it was not until the Second World War and particularly its aftermath that we had a strong development in international law, especially in respect of the protection of human rights. Two people deserve particular recognition and attention in respect of this. In the middle 1940s, an individual named Hersch Lauterpacht formulated the idea of crimes against humanity and they were prosecuted in the Nuremberg trials. Another individual, Mr. Raphael Lemkin, formulated the idea of a crime of genocide. It was a very controversial crime at the time as it was seen as identifying and picking out particular groups of individuals. It was also prosecuted at Nuremberg. It is not surprising that crimes against humanity and genocide became such a recognised issue in the aftermath of the Second World War, particularly in light of the heinous deeds done to the Jewish population of Europe by the Third Reich during that war.

I am pleased to say that much of the detail contained in Deputy Wallace's Bill is already part of our domestic and international law. With the permission of the Ceann Comhairle, I will examine the basis of the new provisions that Deputy Wallace seeks to introduce. I see from the head note of the Bill that one of the objectives is to ensure people can be charged and convicted for breaches of international human rights laws in cases of genocide, war crimes, torture and crimes against humanity, whether these breaches have occurred inside or outside the State. It is important at the outset to note there is jurisdiction in this country to prosecute individuals who have committed crimes against humanity, genocide or war crimes, even if those crimes are committed outside this jurisdiction. That is provided for in the 2006 Act referred to by the Minister of State, and there is also legislation from 2000 dealing with torture. I will speak to that presently.

In section 1, Deputy Wallace's Bill sets out interpretations and it is important to note his interpretations are consistent with the law as it exists in this country and internationally. In section 1 he provides a definition for crimes against humanity that is identical to the definition contained in Article 7 of the Rome Statute establishing the International Criminal Court, which was signed on 17 July 1998. I note the Minister of State indicated there may be some slight divergence from that but my assessment is that it is generally identical to that definition. That definition of crimes against humanity was incorporated into our domestic law by section 6 of the International Criminal Court Act 2006. The next part of the section is Deputy Wallace's definition of genocide, which he refers to as being an act coming within the genocide convention. His definition replicates exactly the definition of genocide contained in the genocide convention and which is restated in Article 6 of the Rome Statute. It has already been incorporated into our domestic law by section 6 of the 2006 Act.

The next part of the Bill is a definition of torture. The Minister of State has said there may be some divergence but it is virtually identical to the definition of torture we have in the 2000 criminal justice torture Act. That definition of torture is also incorporated into our domestic law by that Act. There is also a definition of war crimes, which is generally based on Article 8 of the Rome Statute, which has been incorporated into our domestic law by section 6 of the 2006 Act. There is therefore nothing objectionable in section 1 of Deputy Wallace's Bill as it merely reasserts the domestic and international law in respect of definitions of crimes against humanity, war crimes, torture and genocide as they currently exist in Irish and international law.

Section 2 of the Bill is slightly problematic. It is important to examine the proposed changes. Section 2 proposes to amend section 7 of the 2006 Act by substituting a new subsection (1). There are only parts of subsection (1) that see additions. As it exists, the Act reads that any person who commits a crime against humanity, a war crime or a genocide is guilty of an offence. Later subsections identify the penalties, with life imprisonment being the maximum that can be imposed. Deputy Wallace wishes to include in the definition that any person, regardless of nationality or place in the world, can be held liable for these offences. We need to consider this in closer detail. In the legislation as it exists in the 2006 Act, Part 2 deals with what is referred to as the "domestic jurisdiction" in International Criminal Court offences.

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