Andrew Doyle (Wicklow, Fine Gael) | Oireachtas source

7 o’clock

I thank Deputy Wallace for bringing the Universal Jurisdiction of Human Rights Bill 2015 before the House for discussion. I am responding to him on behalf of the Tánaiste who, unfortunately, cannot be here.

As the Deputy has outlined, the purpose of the Bill we are considering is to amend the International Criminal Court Act 2006 and the Criminal Justice (United Nations Convention against Torture) Act 2000 with a view to providing universal jurisdiction in respect of a number of crimes, namely, crimes against humanity, genocide, war crimes and torture; defining the crimes specified; and providing for the penalties to be imposed on a person being found guilty of the crimes specified. It is clear that the Bill arises from the Deputy's genuine concern that international crimes of the most serious nature should not go unpunished. The House cannot doubt Deputy Wallace's sincere motivation in introducing this Bill.

The exercise of universal jurisdiction involves the prosecution by the State of a person in Ireland for a crime committed anywhere, regardless of that person's nationality. As it is an exception to the general principle of non-intervention in the internal affairs of other states, it requires the sanction of international law. Article 29.8 of the Constitution limits the exercise of extraterritorial jurisdiction to "the generally recognised principles of international law". Under Irish law, universal jurisdiction may be exercised in respect of certain war crimes and torture. War crimes constituting grave breaches of the 1949 Geneva Conventions or other specified serious violations of the laws and customs applicable in international armed conflict, as set out in Article 8.2 of the Rome Statute of the International Criminal Court, may be prosecuted under the International Criminal Court Act 2006. Torture, pursuant to the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, may be prosecuted under the Criminal Justice (United Nations Convention against Torture) Act 2000. However, there is no international agreement on crimes against humanity or genocide. The 1948 Genocide Convention does not provide for the exercise of universal jurisdiction. As such, there is no rule of customary international law that provides for the exercise of universal jurisdiction in respect of these crimes.

The International Criminal Court Act 2006 already provides the basis for the prosecution in Ireland of crimes against humanity, genocide and war crimes. It provides definitions for those crimes and sets out the applicable jurisdiction regime in respect of each of the crimes and the applicable penalties. Equally, the Criminal Justice (United Nations Convention against Torture) Act 2000 provides the basis for the prosecution in Ireland of torture. It provides a definition for "torture" and sets out the applicable jurisdiction regime and the applicable penalties. The 2006 and 2000 Acts were enacted to ensure that Ireland could comply with its obligations upon becoming a party to the Rome Statute of the International Criminal Court and the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The concerns underlying this Bill, which seeks to ensure that there should be no impunity regarding the serious crimes listed in it, are commonly shared. The international community, in adopting the Rome Statute in 1998, created the International Criminal Court to ensure that the most serious crimes of concern to the community as a whole do not go unpunished. Ireland has been a consistent and strong supporter of the International Criminal Court, recognising it as an essential means for bringing to justice those responsible for the most serious international crimes. With the exception of a referral by the UN Security Council, the jurisdiction of the International Criminal Court is limited to crimes committed by the nationals of states parties or committed on the territory of states parties. The criticisms that are made in connection with the International Criminal Court's failure to act in the case of atrocities in various parts of the world, such as Syria and Iraq, relate to the fact that the relevant states are not parties to the Rome Statute. Until adherence to the Rome Statute is universal, the jurisdiction of the court will be limited. Ireland and its EU partners are seeking to advance the universal reach of the court to this end by promoting the universal ratification of the Rome Statute.

I would like to address the main provisions of the Bill. Section 1 defines crimes against humanity, genocide and war crimes. While the definition of "crimes against humanity" in this section is almost identical to that in the Rome Statute, it removes the definition of “gender” in sub-paragraph (h) of Article 7 of the statute and removes the necessity to have a link with another act within the definition of crimes against humanity or with any other crime within the jurisdiction of the court. For that reason, this proposal requires further examination. The definition of "war crimes" in this section of the Bill is limited to grave breaches of the Geneva Conventions, rather than the broader definition provided for in Article 8 of the Rome Statute and in the International Criminal Court Act 2006. It appears that the effect of the Bill, if enacted as proposed, would be that a number of other war crimes committed during armed conflict of an international character listed in the Rome Statute would no longer be criminalised in Ireland. This would not be a desirable outcome and would not be consistent with the State’s approach in the 2006 Act, which was to create domestic crimes in respect of war crimes when committed during armed conflict of an international character.

Section 2 proposes to amend section 7(1) of the International Criminal Court Act 2006 by substituting a new subsection providing for offences of "a crime against humanity, a war crime or genocide" committed by "any person, whatever their nationality and wherever in the world" the offence is committed. The section also proposes that a person committed of such an offence will be "liable upon conviction to imprisonment for life".

Section 3 amends section 2 of the Criminal Justice (United Nations Convention Against Torture) Act 2000 by removing its express extraterritorial jurisdiction and expanding the offence of torture by removing the link between people other than public officials and public officials or people acting in an official capacity.

Having considered the Bill, the Attorney General has advised that it appears to be unconstitutional for a number of reasons. In the context of section 2, Ireland currently provides for the offences of genocide, crimes against humanity and war crimes under section 7 of the International Criminal Court Act 2006. Under section 12 of that Act, we provide for extraterritorial jurisdiction for Irish nationals regarding offences on board Irish ships or aircraft, and in respect of war crimes constituting "grave breaches" of the 1949 Geneva Conventions and the relevant additional protocol of 1977, and in accordance with Article 8.2 of the Rome Statute of the International Criminal Court. In the context of the 2006 Act, the Office of the Attorney General advised that there was a lack of sufficient evidence in generally-recognised principles of international law to support the application of universal jurisdiction to crimes of genocide, crimes against humanity and war crimes in general. The Attorney General's view is that would be constitutionally unsafe to advise whether principles of international law have evolved to recognise universal jurisdiction to prosecute these crimes without performing a widespread and thorough review of international law to establish whether there is evidence of the application of universal jurisdiction to prosecute in international customary law. On a more general note, the amendment to section 7 of the Act of 2006 provided for in section 2 of this Bill fails to take account of a potential overlap or conflict with subsections 10 and 12 of the 2006 Act.

With regard to section 3 of the Bill, Ireland currently provides for the offence of torture under section 2 of the Criminal Justice (United Nations Convention Against Torture) Act 2000. The act of torture under this section must be committed by a public official, or at the instigation of or with the consent or acquiescence of a public official. Ireland exercises extraterritorial jurisdiction for the offence of torture by expressly providing that the offence applies whether the act is committed within or outside the State. In addition, torture is included as a war crime in the context of grave breaches of the Geneva Conventions.

In that regard, it is capable of extra-territorial prosecution under the International Criminal Court Act 2006 in so far is it relates to international armed conflict. Certain elements of the act of torture can also be prosecuted under domestic criminal justice provisions.

The express extra-territorial jurisdiction in section 2 of the 2000 Act has been removed in the Bill. Section 2(3), as proposed by the Bill, may be attempting to exert extra-territorial jurisdiction for the offences in subsections (1) and (2) but does not achieve this. As the offences would no longer be linked to acts of, or sponsored by, public officials, the application of extra-territoriality cannot be said to derive from the convention and would not therefore be part of our international law obligations in that regard. As such, by reference to the United Nations Convention Against Torture, the Attorney General believes the offences provided for by way of the amendments in section 2 of the Bill are constitutionally unsafe, as they could amount to interference with the sovereignty of another state, which is not sanctioned by international law.

The Department of Foreign Affairs and Trade is also of the view that it would be problematic to take universal jurisdiction in this way as it would not be consistent with the approach generally taken by other states and that it raises questions of international law. Without prejudice to the observations on constitutionality set out above, the Attorney General has advised that the Bill would require a considerable number of amendments to elevate it to a level that is legally safe and capable of withstanding challenge, and that it would also require amendments to ensure that it is consistent with the form of legislation on the Irish Statute Book. For the reasons set out, the Government is not in a position to support this Private Members' Bill.

The Tánaiste and Minister for Justice and Equality has asked me to inform Deputies that the first review of conference on the Rome Statute of the International Criminal Court took place in Kampala, Uganda, in June 2010. The conference adopted amendments to the statute on the crime of aggression and war crimes, referred to as the Kampala amendments. With regard to the war crimes amendment, the Office of the Attorney General has advised that there are constitutional difficulties but no such difficulties have been identified with the Kampala amendment on the crime of aggression. The Department of Foreign Affairs and Trade is in discussion with the Department of Justice and Equality with a view to progressing ratification. I thank the Deputy and hope he will appreciate, as I have outlined, why the Government is not in a position to support this Bill.

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