Tim O'Malley (Limerick East, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

The purpose of this Bill is to give effect in Irish law to the provisions of the Statute of the International Criminal Court done at Rome on 17 July 1998, otherwise known as the Rome statute. The Bill creates domestic offences and associated penalties for ICC crimes of genocide, crimes against humanity and war crimes. It enables assistance to be given to the International Criminal Court by permitting the arrest and surrender of persons requested by the court. It also provides for the freezing of assets and enforcement of ICC orders for fines or forfeiture of such assets to the court and other forms of practical assistance in the investigation of ICC offences. It also provides for sittings of the court in the State and related technical matters.

Members will recall that the Bill was preceded by a constitutional amendment which was approved by a majority of voters in a referendum held in June 2001. The amendment was enacted in 2002. It ensures the State's constitutional obligations will not conflict with the fulfilment of its obligations under the Rome statute, since submission to the jurisdiction of the International Criminal Court necessitates a partial transfer to it of the sovereign power of the State to administer criminal justice.

Before going into the detail of the Bill, it is worth recalling the savage and brutal events that led to the creation of such an international court. Conflict among nations has resulted in great loss of human life and the destruction that prevails during such conflict. In an attempt to afford justice to the victims of this devastation ad hoc tribunals have been established to ensure legal responsibility is not least where power is greatest. The trials of the last decades — Nuremberg, Tokyo, the former Yugoslavia and Rwanda — are testament to the efforts to stop these violations of international human rights and protect the most innocent and vulnerable victims of such attacks. The International Criminal Court is a new departure in this struggle. Unlike previous tribunals, it is the first court to be established on a permanent international basis and will be the first to be in existence before a conflict breaks out. This permanency should ensure a proactive rather than reactive response to such atrocities in the future.

The establishment of the recent tribunals to deal with massive human rights violations in Rwanda and the former Yugoslavia revived the international momentum for establishing a permanent, independent, international criminal court. However, the road to the conclusion of the Rome statute began many decades ago and the journey since has been long and difficult. While we are all familiar with international civil courts and international civil jurisdictions, national criminal courts have been ferociously protective of their jurisdictions. More so than any other court, the work of national criminal courts is a fundamental expression of sovereign democracy.

In a world without any history or knowledge of such international courts the task of the founding fathers challenged the very foundations of national criminal courts. The compromise framework achieved which broke this mould and paved the way for the establishment of the International Criminal Court created an international court which was independent but also dependent on the Executives of the various jurisdictions which it represents for its functioning. As a result, the court is independent in the exercise of its functions but at the same time dependent on assistance from state parties in bringing perpetrators of ICC crimes to justice.

The journey to this compromise and the establishment of the International Criminal Court commenced in 1948 at the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on foot of a request from the UN General Assembly for the establishment of an international court. At that time the International Law Commission was given the task of considering the establishment of an international criminal court. The following year the 1949 Geneva Conventions were agreed, thus establishing grave breaches as offences against international law. These conventions developed the scope of genocide as a crime against humanity and extended international responsibility into situations of international conflict. During the Nuremberg and Tokyo trials, crimes against humanity were linked to armed conflict. The recent tribunals dealing with the former Yugoslavia and Rwanda have now established these crimes as self-standing, to be prosecuted even in the absence of armed conflict.

The conventions of 1948 and 1949 were to be the last such instruments for many years as the United Nations development of international criminal law concentrated on narcotics and terrorism. The establishment of the recent tribunals showed what could be achieved but the difficulties in establishing an international court remained. These difficulties were recognised in one of the early cases to be considered by the Yugoslav tribunal — the Tadic case. That case highlighted the difficulties in creating an independent, impartial, international criminal court to be established by law rather than by the United Nations Security Council as was the case with the tribunals.

In the intervening period between the International Law Commission's original mandate in 1948 and the establishment of the tribunals several draft texts were produced by the commission. During this period, aside from the individual tribunals, there have been many instances of crimes against humanity and war crimes for which no individuals have been held accountable. Even where tribunals have been established to deal with specific crimes, the delays inherent in setting up such tribunals have several consequences in terms of crucial evidence being destroyed, perpetrators escaping or disappearing and witnesses relocating or being intimidated. Thus, there was a continuing need for an international criminal court with individual responsibility as an enforcement mechanism in the fight against such international atrocities.

The work of the International Law Commission culminated in a text finalised at a meeting of the international community in Rome in July 1998. The International Criminal Court entered into force on 1 July 2002 when 60 states had ratified the statute. To date, 94 states have become party to the statute. Its implementation is supported by the rules of procedure and evidence and elements of crime. Although subordinate to the statute, these instruments provide respectively for the procedural framework for the application of the statute and further elaborations of the definitions of the main ICC offences.

The court which has its seat in The Hague is composed of four organs: the Presidency consisting of a president and two vice-presidents who are responsible for the administration of the court; the divisions or chambers of the court comprising pre-trial, trial and appeal divisions; the independent office of the prosecutor and the registry with responsibility for non-judicial administration of the court. An Irish judge at the International War Crimes Tribunal for the Former Yugoslavia, Ms Maureen Harding Clark, has been elected as one of the 18 judges of the court. At subsequent meetings of the state parties the prosecutor, deputy prosecutor and registrar of the court were elected. Since their appointment, the various organs of the court have each been active in recruiting staff, drafting regulations and formulating policies to inform their work in readiness for the court's first cases.

The court is already operational in that it has received its first two referrals from state parties. The first relates to an incident in northern Uganda while the second is from the Democratic Republic of Congo concerning an alleged incident in Ituri. The prosecutor is considering whether to initiate formal investigations which, in turn, could lead to the court's first case.

The statute does more than establish a permanent court. It represents a tapestry of negotiation and compromise between the state parties. To undo any element is to risk unravelling many other principles. The first key difference between the International Criminal Court and the preceding tribunals is that, potentially, the jurisdiction of the court applies to all state parties. Unlike the previous tribunals which were established by the victors and directed at the losers of conflict, all state parties are potential defendants before the court.

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