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 Jim O'Callaghan: Information on Jim O'Callaghan Zoom on Jim O'Callaghan] This means Ireland has domestic jurisdiction in respect of certain offence as they exist at present. Under this jurisdiction, we have an entitlement to prosecute people in Ireland for genocide, crimes against humanity and war crimes which were committed elsewhere and overseas.

  Section 8 of the existing Bill talks about ancillary crimes. Section 9 recognises that it is the function of the DPP to decide whether there should be a prosecution. What we cannot have in this, or any other, country is politicians or other individuals deciding who to prosecute based on their own political allegiances or prejudices. Most importantly, section 12 recognises the extraterritorial jurisdiction of the Irish courts. While I may be wrong with this, my fear is that the use of the words "wherever in the world" in Deputy Wallace's amendment would have the effect that people could be prosecuted in absentia. In some countries, it is permitted for individuals who are not before the courts to be prosecuted based on evidence against them. Any law that is introduced must be introduced on an objective basis. The principle of prosecuting a person in absentia is alien to the Irish criminal system and probably conflicts with the Constitution.

  People who are exposed to the prospect of life imprisonment should be entitled to ensure they get a fair trial. Trials of people in absentia are not fair trials unless there is an overriding explanation as to why they are taking place. The International Covenant on Civil and Political Rights contains a long list of procedural guarantees, one of which is that an accused shall be entitled to be tried in his or her presence. There have been examples in the past in which people have been prosecuted for offences in absentia. I would be concerned about introducing it into Irish law. Although that may not be Deputy Wallace's intention, I am concerned that, as it is drafted, it could have this effect. It would be very unfair, given that we have provisions in our European Arrest Warrant Act 2003 that set out safeguards for people who are extradited to countries having been convicted in absentia. It would be very unfair if one could be convicted in absentia in this country while no guidelines were set out for one's protection.

  I am slightly concerned that by having a system whereby we prosecute people for offences committed abroad when they are not here we may be taking on too much. We have many issues in Ireland that require to be investigated and that require the scrutiny of our statutory authorities. We can just about keep on top of the issues in our own country by way of inquiries without seeking to extend our tentacles abroad. We are not such a moral oasis that we will be able to deal with every problem the world is faced with.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly It is the end of a heavy week and we are here later than usual on a Thursday evening before the recess. That said, in many ways we are the lucky ones to have the luxury and ability to stand here and discuss critically important global issues of accountability and justice. While I can relate to Deputy Jim O’Callaghan's closing remarks about our problems here at home, defending international human rights is never a luxury and if there is anything we can do to elevate our position in playing our part on the world stage, we should strive to do it. This is what Deputy Mick Wallace is attempting to do. Having the power to do something and exercising the power are often two completely different things. By debating the Bill, we are elevating the necessity of legislation that we have to be exercised in order to deliver justice.

In 2001, a case was lodged in a Belgian court charging former Israeli defence minister and Prime Minister, Ariel Sharon, and former Israel Defense Force, IDF, general Amos Yaron, as well as other Israelis and Lebanese with war crimes, crimes against humanity and genocide relating to the massacres committed between 16 and 18 September 1982 in the Sabra and Shatila refugee camps in Beirut. According to an Israeli commission of inquiry, Ariel Sharon bore personal responsibility for the massacre. It was he who decided the Phalangist militia should be sent into the camps, despite the risk that there would be a massacre of the civilian population. Official figures are that 700 to 800 people died, while many people say the figures were as high as 3,500 including children, pregnant women and elderly people. Bodies were mutilated and evidence has been shown to support it.

In February 1983, the Kahan commission, Israel's official commission of inquiry investigating the events, found that Ariel Sharon's disregard of the danger of a massacre was impossible to justify and recommended his dismissal as defence minister. Not only was he not dismissed, he went on to become Prime Minister and remained in power for many years. The Israeli authorities never conducted a criminal investigation to determine whether he, or other Israeli military officials, bore criminal responsibility. The word for that is "impunity", and that is what the Bill is striving to deal with.

In 2001, the survivors of the massacres brought a case in Belgium requesting that Ariel Sharon be prosecuted under Belgium's universal jurisdiction law. Political pressure from Israel and others led to the Belgian Parliament amending its law in April 2003 and repealing it altogether in August and to the highest court in Belgium dropping the case against him that September. Nonetheless, the fact that survivors of the massacre could try to hold to account somebody responsible after the home state had failed to do it - not just failed but rewarded the person - was incredibly important.

Universal jurisdiction was codified in an international treaty for the first time more than half a century ago. The 1949 Geneva Convention on the laws of war provided that state parties must prosecute or extradite those suspected of war crimes. It was universal jurisdiction that enabled the state of Israel, in 1961, to prosecute the senior Nazi official Adolf Eichmann for his role in the Holocaust during the Second World War. During the past 15 years, a number of states including Australia, Austria, Belgium, Canada, Denmark, France, Finland, Germany, Norway, the Netherlands, Spain and the UK have started to apply universal jurisdiction legislation regarding war crimes, crimes against humanity, torture and genocide.

If there is a weakness in the universal jurisdiction legislation, it is that political considerations can, and often do, override the universal and fundamental principles and the aims it attempts to uphold. That is why the Bill is being moved. This is precisely the arena in which Ireland, which punches well above its weight and has a high international standing and, at least on paper, our proclaimed neutrality, could play a role. Political considerations scuppered the efforts of the survivors of the Sabra and Shatila massacre to bring those responsible to trial for their crimes in Belgium. After a British court issued an arrest warrant under the universal jurisdiction for Israel's former foreign minister, Tzipi Livni, over war crimes allegedly committed in Gaza in 2009, the law was changed in Britain to prevent the embarrassment - that was the word used - of someone from a friendly state, in this case Israel, being called to account for suspected war crimes. It is embarrassing that people would use the word embarrassment in that scenario. It is perfectly justifiable that it would be attempted.

It is a weakness of universal jurisdiction law that western states often do not want to bring their friends into the net. This does not mean it is not important or that we should not discuss it here. It is important as a deterrent, a symbol and a tool. We should use it. As Deputy Wallace said, the most famous use of universal jurisdiction was the attempt by the Spanish courts to prosecute Augusto Pinochet and extradite him from the UK to Spain for that purpose. It ultimately failed, not least thanks to the intervention of the then Home Secretary, an Iraq warmonger, Jack Straw, and despite the fact the House of Lords had ruled that Pinochet should face trial in Spain. The effort by the Spanish had significant ramifications. As a result of the precedent set, other leaders who have committed well documented crimes have been pursued, including former US Secretary of State, Henry Kissinger, who has had to cut his international travel diary, given that he is wanted in so many jurisdictions for trial or as a prosecution witness.

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