Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Ba mhaith liom buíochas a ghabháil leis an Teachta Wallace as ucht an Bhille suimiúil seo, a bhaineann leis an dlí idirnáisiúnta agus coireanna in aghaidh na daonnachta, a chur chun cinn. Aontaím le cuid den Bhille, ach ní aontáim le gnéithe éagsúla eile de. Tá sé de cheart againn an ábhar tábhachtach seo a phlé sa Dáil.

I thank Deputy Wallace for introducing this Bill to the House and he has put before the House a very interesting topic. I am very happy to speak on it. For the purpose of preparing for this debate, I researched the issues in respect of international and domestic law with regard to armed conflicts. It is important to recognise at the outset that international justice is a relatively new phenomenon. There were examples in the aftermath and during First World War of trying to outlaw certain types of weaponry but it was not until the Second World War and particularly its aftermath that we had a strong development in international law, especially in respect of the protection of human rights. Two people deserve particular recognition and attention in respect of this. In the middle 1940s, an individual named Hersch Lauterpacht formulated the idea of crimes against humanity and they were prosecuted in the Nuremberg trials. Another individual, Mr. Raphael Lemkin, formulated the idea of a crime of genocide. It was a very controversial crime at the time as it was seen as identifying and picking out particular groups of individuals. It was also prosecuted at Nuremberg. It is not surprising that crimes against humanity and genocide became such a recognised issue in the aftermath of the Second World War, particularly in light of the heinous deeds done to the Jewish population of Europe by the Third Reich during that war.

I am pleased to say that much of the detail contained in Deputy Wallace's Bill is already part of our domestic and international law. With the permission of the Ceann Comhairle, I will examine the basis of the new provisions that Deputy Wallace seeks to introduce. I see from the head note of the Bill that one of the objectives is to ensure people can be charged and convicted for breaches of international human rights laws in cases of genocide, war crimes, torture and crimes against humanity, whether these breaches have occurred inside or outside the State. It is important at the outset to note there is jurisdiction in this country to prosecute individuals who have committed crimes against humanity, genocide or war crimes, even if those crimes are committed outside this jurisdiction. That is provided for in the 2006 Act referred to by the Minister of State, and there is also legislation from 2000 dealing with torture. I will speak to that presently.

In section 1, Deputy Wallace's Bill sets out interpretations and it is important to note his interpretations are consistent with the law as it exists in this country and internationally. In section 1 he provides a definition for crimes against humanity that is identical to the definition contained in Article 7 of the Rome Statute establishing the International Criminal Court, which was signed on 17 July 1998. I note the Minister of State indicated there may be some slight divergence from that but my assessment is that it is generally identical to that definition. That definition of crimes against humanity was incorporated into our domestic law by section 6 of the International Criminal Court Act 2006. The next part of the section is Deputy Wallace's definition of genocide, which he refers to as being an act coming within the genocide convention. His definition replicates exactly the definition of genocide contained in the genocide convention and which is restated in Article 6 of the Rome Statute. It has already been incorporated into our domestic law by section 6 of the 2006 Act.

The next part of the Bill is a definition of torture. The Minister of State has said there may be some divergence but it is virtually identical to the definition of torture we have in the 2000 criminal justice torture Act. That definition of torture is also incorporated into our domestic law by that Act. There is also a definition of war crimes, which is generally based on Article 8 of the Rome Statute, which has been incorporated into our domestic law by section 6 of the 2006 Act. There is therefore nothing objectionable in section 1 of Deputy Wallace's Bill as it merely reasserts the domestic and international law in respect of definitions of crimes against humanity, war crimes, torture and genocide as they currently exist in Irish and international law.

Section 2 of the Bill is slightly problematic. It is important to examine the proposed changes. Section 2 proposes to amend section 7 of the 2006 Act by substituting a new subsection (1). There are only parts of subsection (1) that see additions. As it exists, the Act reads that any person who commits a crime against humanity, a war crime or a genocide is guilty of an offence. Later subsections identify the penalties, with life imprisonment being the maximum that can be imposed. Deputy Wallace wishes to include in the definition that any person, regardless of nationality or place in the world, can be held liable for these offences. We need to consider this in closer detail. In the legislation as it exists in the 2006 Act, Part 2 deals with what is referred to as the "domestic jurisdiction" in International Criminal Court offences.

This means Ireland has domestic jurisdiction in respect of certain offence as they exist at present. Under this jurisdiction, we have an entitlement to prosecute people in Ireland for genocide, crimes against humanity and war crimes which were committed elsewhere and overseas.

Section 8 of the existing Bill talks about ancillary crimes. Section 9 recognises that it is the function of the DPP to decide whether there should be a prosecution. What we cannot have in this, or any other, country is politicians or other individuals deciding who to prosecute based on their own political allegiances or prejudices. Most importantly, section 12 recognises the extraterritorial jurisdiction of the Irish courts. While I may be wrong with this, my fear is that the use of the words "wherever in the world" in Deputy Wallace's amendment would have the effect that people could be prosecuted in absentia. In some countries, it is permitted for individuals who are not before the courts to be prosecuted based on evidence against them. Any law that is introduced must be introduced on an objective basis. The principle of prosecuting a person in absentiais alien to the Irish criminal system and probably conflicts with the Constitution.

People who are exposed to the prospect of life imprisonment should be entitled to ensure they get a fair trial. Trials of people in absentiaare not fair trials unless there is an overriding explanation as to why they are taking place. The International Covenant on Civil and Political Rights contains a long list of procedural guarantees, one of which is that an accused shall be entitled to be tried in his or her presence. There have been examples in the past in which people have been prosecuted for offences in absentia. I would be concerned about introducing it into Irish law. Although that may not be Deputy Wallace's intention, I am concerned that, as it is drafted, it could have this effect. It would be very unfair, given that we have provisions in our European Arrest Warrant Act 2003 that set out safeguards for people who are extradited to countries having been convicted in absentia. It would be very unfair if one could be convicted in absentiain this country while no guidelines were set out for one's protection.

I am slightly concerned that by having a system whereby we prosecute people for offences committed abroad when they are not here we may be taking on too much. We have many issues in Ireland that require to be investigated and that require the scrutiny of our statutory authorities. We can just about keep on top of the issues in our own country by way of inquiries without seeking to extend our tentacles abroad. We are not such a moral oasis that we will be able to deal with every problem the world is faced with.

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