Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

The purpose of my amendment No. 21 is to insert the following in line 29, after "section":

", or where the ICC offence conducted is covered by the Rome Statute before the signing of the Rome Statute by the State".

The object is to ensure that those who are guilty of committing an ICC offence or whom it wishes to charge with offences committed since 1998, when the Rome Statute was signed, but before the commencement of the Act, do not go unpunished because of delay by the Legislature in particular in giving effect to what was envisaged in the Rome Statute and in 2001, when the Irish people passed a referendum to insert the ICC concept into the Constitution.

I recognise it is unconstitutional to enact legislation creating retrospective offences. However, the offences mentioned are not new, since they have been crimes under international human rights and humanitarian law for some time. It is not as if we were passing new laws making them offences retrospectively. We are giving additional effect to existing laws and treaties, international laws to which we have signed up as a State.

The document to which I earlier referred several times was given to committee members by the Irish section of Amnesty International when we discussed this on Committee Stage. Its representatives pointed out that crimes against humanity and war crimes were considered crimes under international law under the general principles of law recognised by the international community before the adoption of the Rome Statute and that it would not violate the principle of nullum crimen sine lege to permit respective national criminal legislation with respect to crimes under international law. It goes on to explain that further, pointing out that what was intended is fully consistent with that principle and that the provision states that nothing in the article prohibiting retroactive punishments shall prejudice the trial or punishment of any person for any act or omission that, at the time it was committed, was criminal according to the general principles of law recognised by the community of nations.

Therefore, in their eyes, the Bill should ensure Irish courts have extraterritorial criminal jurisdiction over such crimes, no matter when they were committed. I do not go as far as that. I am going as far as the Rome Statute of 1998, using that as the yardstick. That is when this State declared its support for the concept. It is in this context that we should consider retrospection so that, when it is enacted, the legislation will cover the eight years from 1998 to 2006.. I say this in the hope that the Government will enact it in a speedy fashion following its passage through the Houses.

I hope the Minister of State will take my suggestion on board. It is possible and it is not contrary to the rule of thumb that we cannot implement legislation with retrospective effect. We have included retrospective provisions in other legislation passed by the House. The usual rule of thumb is that laws passed here do not have retrospective effect. In this instance, however, it can have such an effect because the crimes covered by the Bill were already crimes under our laws and under international law. The amendment can, therefore, be accepted.

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