Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank all members of the committee for their contributions. I share their revulsion at the indiscriminate violence ongoing in Gaza, perpetrated by the Israel Defense Forces. Many of us in this room believe those acts of violence constitute crimes against humanity, genocide and war crimes. It is important to point out that if they are crimes against humanity, genocide and war crimes, as all of us to believe them to be, they are criminal acts in domestic Irish law at present. They have been criminalised since the enactment of the International Criminal Court Act 2006, which had the effect of transposing into Irish law the Rome Statute of the International Criminal Court. All those actions that revolt us, which are ongoing in Gaza at present, are criminal acts in Ireland. We have criminalised them if they meet the standard of crimes against humanity, genocide or war crime. Obviously that is a matter to be determined by the court.

The purpose of this Bill, which is going through Committee Stage today, is to transpose into Irish law the EU directive from 2017. I am conscious of the fact that when you look at that directive, particularly the definition of terrorist group contained in Article 2, it is a very broad definition. It states:

'terrorist group' means a structured group of more than two persons, established for a period of time and acting in concert to commit terrorist offences; 'structured group' means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure."

That is a very broad definition within the directive. I think it is broad enough to cover groups that we were discussing earlier.

Members will be aware that the directive expressly excluded from the directive and the ambit of the terrorist offences legislation our state forces or police forces but only where they are carrying out lawful activity. Any police force or military force aligned or representing a state that is involved in criminal activity or activity which we have criminalised in this country, such as through crimes against humanity, genocide or war crimes, does not get the protection of the exemption provided for in the directive.

I thank Deputy Carthy for his proposed amendment. I note that amendments Nos. 1 to 7, inclusive, relate to new terms to be included as part of the definition of terrorist-linked activity in section 2. These new terms are further defined in proposed amendments Nos 10 to 13, inclusive to section 5. Combined, they create new offences in the terrorist-linked activity category. The effect is to criminalise travel, organising travel, receiving training and recruitment for the purposes of serving in the armed forces of a state engaged in war crimes, crimes against humanity or genocide. I understand the intention behind these proposed amendments is to ensure that those who partake in or facilitate acts that contribute to the commission of breaches of international law, including war crimes, crimes against humanity and acts of genocide at the behest of a state via its armed forces can be convicted of terrorist offences.

The principal Act excludes the activities of armed forces during an armed conflict in the exercise of their official duties from being categorised as terrorist offences insofar as those activities are governed by humanitarian or other rules of international law. This was a requirement of the original underlying EU measure underpinning this legislation, the 2002 EU Council framework decision on combating terrorism. That same requirement remains in the 2017 directive that will now underpin the primary Act on foot of the Bill. The aim of the Bill is to give full effect to the 2017 EU directive on combating terrorism and therefore these proposed offences will fall outside the scope of the Bill.

On that, I wish to emphasise that a commitment to the rule of international law is enshrined in the Irish Constitution. This is one of the core principles of Irish foreign policy and includes both customary international law and international agreements that Ireland is party to. These include the Genocide Convention and the Geneva Conventions, which established international legal standards for humanitarian treatment in war. In relation to international criminal law, most significantly, Ireland gave effect to the Rome Statute of the International Criminal Court via, as I said, the International Criminal Court Act 2006. This enables punishment by the Irish courts for breaches of international law that fall within the jurisdiction of the ICC, namely, genocide, crimes against humanity and war crimes. It also makes it an offence to facilitate the commission of these offences, including aiding, abetting or otherwise assisting in their commission. It allows for the prosecution of such offences in Ireland while also empowering Irish authorities to assist the International Criminal Court in the investigation or prosecution of such offences.

The 2006 Act also provides for universal jurisdiction over war crimes constituting grave breaches of the Geneva Conventions, such that an individual accused of such crimes can be prosecuted in Ireland regardless of his or her nationality or where the offence occurred. A similar form of universal jurisdiction is provided for in respect of certain offences under the Geneva Conventions Act 1962, as amended by the Geneva Conventions (Amendment) Act 1998. I regret to say that for those reasons, I cannot support the amendments put forward by Deputy Carthy.