Tim O'Malley (Limerick East, Progressive Democrats)

The International Criminal Court brings a new sense of individual criminal responsibility to international crimes. Its jurisdiction extends to offences committed by nationals of state parties, or committed on the territory of state parties and non-state parties which have consented to the court having a role. This individual responsibility is extended to ensure any diplomatic immunity attaching to a person because of a connection with a state party is not a bar to proceedings. The court will also have jurisdiction over crimes committed in situations anywhere in the world referred to it by the United Nations Security Council.

In addition to prosecuting the perpetrators of crimes, the court may also prosecute those in authority who order crimes to be committed, including Heads of State and government officials. This formulation should ensure those holding state positions who orchestrate such attacks on humanity cannot hide behind their office so as to evade prosecution.

Sections 13 and 60, respectively, implement this criminal responsibility. Apart from these specific International Criminal Court provisions, the Irish courts may apply domestic criminal law principles when considering ICC offences. Under section 3, the courts may also take into account the rules of procedure and evidence, the elements of crime and any relevant judgment or decision of the International Criminal Court, together with the preparatory background work in drafting the statute and the published views of commentators on the operation of the statute.

Individual criminal responsibility is grounded on the principle of complementarity of the Rome statute. The International Criminal Court is not a substitute for national criminal justice systems in that it will only take on an investigation where a state is unwilling or unable genuinely to carry out the investigation or prosecution. As such, it is an institution to encourage states to prosecute such international crimes rather than seek to diminish states' domestic judicial authority.

Under Article 14 of the statute, any state party can refer a crime to the prosecutor and no state party has a veto over prosecution. However, it is more than just a court for the virtuous, since as previously noted, the International Criminal Court may consider offences wherever committed, if referred by the United Nations Security Council.

A specific domestic legislative provision is not required to give effect to this principle of complementarity. It is, however, enshrined in the preamble to the statute which also recognises that it is the duty of every state to exercise its criminal jurisdiction over those responsible for these grave crimes which threaten the peace, security and well-being of the international community. The principle of complementarity is reinforced in Article 17 which declares that a case being investigated or prosecuted by a state shall not be considered by the court unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.

In terms of the jurisdiction to be taken by state parties, the statute requires that state parties provide jurisdiction for crimes committed on the territory of the state, or by a national of the state outside the state. A further category of jurisdiction — universal jurisdiction — whereby jurisdiction is adopted over any offence committed in any state by a person of any nationality, was previously adopted in the Geneva Conventions Acts 1962 and 1998 in respect of grave breaches under the Geneva Conventions of 1949 and Additional Protocol 1 to the Geneva Conventions of 1977. As many of these grave breaches are comparable with ICC offences, universal jurisdiction is also adopted in section 12 for those ICC offences which are also grave breaches. It is a matter for Irish courts to decide, depending on the facts of the particular case, whether the ICC offence is comparable with a grave breach for the purposes of exercising such universal jurisdiction.

The creation of a permanent independent prosecutor who can investigate and prosecute ICC offences is yet another strength of the International Criminal Court as compared with previous tribunals. This is of critical importance in cases where democracy has broken down and state institutions may not be available to undertake such investigations. In such instances the prosecutor may, with the permission of the state, personally conduct investigations in the state in accordance with Part 9 of the statute. If the authority of the state is not forthcoming, the prosecutor may still conduct an investigation. In this case the statute requires the authorisation of the pre-trial chamber of the International Criminal Court that the state is clearly unable to execute a request for co-operation due to the unavailability of any authority or any component of its judicial system competent to execute the request for co-operation. Section 58 of the Bill implements this provision in an Irish context.

While such stringent measures are necessary in the prosecution of these crimes, the tapestry of the statute is interlaced with equally demanding safeguards to protect the rights of the accused and also to reflect state parties' genuine concerns for their sovereignty. This is reflected in the Bill in that, although the Irish High Court, in considering a request for surrender, may not review the grounds supporting the request as authorised by the pre-trial chamber, there is the possibility of admissibility and jurisdictional challenges, and these are interwoven into the Bill.

At each stage in the arrest and surrender process established in Part 3 of the Bill, there is a brake on proceedings to allow for the possibility of admissibility challenges before the International Criminal Court. Thus the Minister may postpone the certification of a request for surrender in section 18 until any challenge to the admissibility of the case or to the ICC's jurisdiction is determined. Similarly, the High Court will not make a surrender order under section 24 if there are challenges to admissibility. Additionally, section 26 ensures that a person who has been committed under a surrender order may not be surrendered until 15 days after the order has been made or alternatively until all appeal proceedings have been determined. Even after the High Court has made the surrender order, the Minister under section 30 may still postpone the surrender pending the conclusion of any admissibility challenges.

The statute also recognises the rights of the individual by specifying a schedule of entitlements in Article 55, typical of the standards expected in an Irish criminal prosecution. These rights include, inter alia, the right not to confess guilt, the right not to incriminate oneself, the right to an interpreter, and the right not to be subject to arbitrary arrest. In addition, where there are grounds to believe that a person has committed a crime within the jurisdiction of the International Criminal Court and the person is about to be questioned by either the prosecutor, the Irish courts or the Garda, the person is entitled to be informed that there are grounds to believe that he or she has committed a crime within the jurisdiction of the ICC. The person also has the right to remain silent, the right to have legal assistance and the right to be questioned in the presence of counsel unless the person has voluntarily waived this right.

The statute also places particular emphasis on guaranteeing the interests of victims of crimes which are the subject of ICC proceedings. This complement of rights creates obligations throughout the Bill and, rather than list these at this point, I will make appropriate references to these rights as I elaborate on individual provisions in the Bill. The rights of persons coming before the Irish courts in connection with a domestic prosecution of an International Criminal Court offence are similar to domestic rights during any criminal prosecution.

The rights of individuals appearing before the ICC are further protected by the court's administration. Before the prosecutor proceeds with an investigation, the pre-trial chamber of the court must be satisfied that the person has committed a crime within the jurisdiction of the ICC and that the arrest of the person is necessary to ensure the person's appearance at trial. The pre-trial chamber must also be satisfied that the arrest of the person is necessary to ensure he or she does not obstruct or endanger the investigation or court proceedings, and to prevent the person from continuing with the commission of that crime which is within the jurisdiction of the court. Thus the individual's rights are protected by the pre-trial chamber before trial and by the International Criminal Court during trial.

The Bill is in six Parts and has three Schedules. Part 1 lays down preliminary matters for co-operation with the ICC and for the hearing of ICC offences by Irish courts. It defines key terms and makes general provisions regarding interpretation by Irish courts of the Act and the statute. This Part also deals generally with requests from the International Criminal Court, including the procedures to be followed where the disclosure of information might be prejudicial to the security interests of the State. Expenses incurred in the administration of the Act are also provided for in this Part.

In terms of effect on Irish criminal law, Part 2 has the greatest impact as it establishes domestic jurisdiction for ICC offences. The existing offence of genocide is consolidated in section 7, while in section 6, existing definitions of war crimes under the Geneva Convention are expanded and a new offence of crimes against humanity is created. Ancillary offences are created in section 8 while new offences against the administration of justice either before the ICC or before an Irish court considering an ICC offence are created in section 11. Sections 9 and 10 require the consent of the Director of Public Prosecutions before initiating these proceedings, while the gravity of these crimes is reflected in their applicable sentences which correspond to the penalties in the Rome Statute, that is to say, life for murder or where the seriousness of the offence justifies same and, in all other circumstances, imprisonment for up to 30 years depending on the nature of the offence. The courts may also order a fine or forfeiture in accordance with Article 77 of the statute. In such instances, the Criminal Justice Act 1994 is triggered to facilitate enforcement of the orders.

Part 3 deals with requests for arrest and surrender of persons to the ICC in connection with the investigation, prosecution of an ICC offence or, alternatively, surrender to a state of enforcement for the enforcement of an ICC sentence. This Part implements the requirement in Article 91(2)(c) of the statute that the requirements are not more burdensome than those applicable to extradition requests in treaties to which the State is a party. This Part is informed on the basis that it is a matter for the ICC and not either the Minister or the High Court to question the validity or authorisation of a warrant. The Minister may seek further information in support of a request and the High Court may consider the execution of the warrant of arrest and whether the rights of the individual have been respected during the arrest. Any matters concerning whether the warrant of arrest was properly issued are to be considered by the ICC, and Article 59 of the statute provides accordingly. If the request conflicts in any way with the State's obligations under diplomatic immunity, it is presumed that it is a matter for the ICC to resolve these issues under Article 98 of the statute in advance of making the request.

Sections 16 to 19 establish the basis for receipt of an ICC request for the arrest and surrender of the requested person. The arrangements are similar to those under the International War Crimes Tribunals Act 1998 in that once a request is received and certified by the Minister to be in order, a warrant of arrest is issued by the High Court. That court is the relevant one in so far as this Part is concerned because of the serious nature of the crimes within the remit of the ICC. This should not result in any significant increase in the work of the High Court as it is not expected that there will be a large volume of cases under this legislation. It is also appropriate that these requests are considered by a superior court because the ICC may request the surrender of a person who has not yet been charged with, much less prosecuted or convicted of, a crime. There are also safeguards from an ICC perspective in that the prosecutor must satisfy the pre-trial chamber of the ICC that there are "reasonable grounds to believe that the person has committed a crime within the jurisdiction of the ICC".

The other significant difference from domestic criminal investigation and prosecution is that, in urgent cases, a person may be detained on a provisional arrest warrant issued by the High Court for up to 60 days, as required by the statute, pending the receipt of a formal request from the ICC. While provisional arrest warrants are not unusual in extradition proceedings, this detention period is in contrast to a maximum detention of 18 days in extradition cases. Section 17 provides for a situation where there is an extradition request competing with the ICC request. If the competing request is received from another state or from a third state where no international obligation exists to comply with the request, the Bill gives priority to the ICC request. Where there is an international obligation to consider, the Bill lists the factors to be taken into account before any decision is reached. These factors include the dates the respective requests were received, the nationality of the requested persons, the territory of the offence and the possibility of subsequent surrender between the ICC and the requesting state. In terms of extradition within the EU, section 30(3) of the European Arrest Warrant Act 2003 provides for priority to be given to the ICC requests over EU requests.

Once arrested, sections 20 to 26 require that a person be shown a copy of a warrant of arrest either at the time of arrest or within 24 hours of arrest and also require that the person be brought immediately before the High Court. The court, on being satisfied that there are no outstanding issues of admissibility, may make an order for surrender to take place not earlier than 15 days after the making of the order.

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