Clare Daly (Dublin Fingal, Independent) | Oireachtas source

It is the end of a heavy week and we are here later than usual on a Thursday evening before the recess. That said, in many ways we are the lucky ones to have the luxury and ability to stand here and discuss critically important global issues of accountability and justice. While I can relate to Deputy Jim O’Callaghan's closing remarks about our problems here at home, defending international human rights is never a luxury and if there is anything we can do to elevate our position in playing our part on the world stage, we should strive to do it. This is what Deputy Mick Wallace is attempting to do. Having the power to do something and exercising the power are often two completely different things. By debating the Bill, we are elevating the necessity of legislation that we have to be exercised in order to deliver justice.

In 2001, a case was lodged in a Belgian court charging former Israeli defence minister and Prime Minister, Ariel Sharon, and former Israel Defense Force, IDF, general Amos Yaron, as well as other Israelis and Lebanese with war crimes, crimes against humanity and genocide relating to the massacres committed between 16 and 18 September 1982 in the Sabra and Shatila refugee camps in Beirut. According to an Israeli commission of inquiry, Ariel Sharon bore personal responsibility for the massacre. It was he who decided the Phalangist militia should be sent into the camps, despite the risk that there would be a massacre of the civilian population. Official figures are that 700 to 800 people died, while many people say the figures were as high as 3,500 including children, pregnant women and elderly people. Bodies were mutilated and evidence has been shown to support it.

In February 1983, the Kahan commission, Israel's official commission of inquiry investigating the events, found that Ariel Sharon's disregard of the danger of a massacre was impossible to justify and recommended his dismissal as defence minister. Not only was he not dismissed, he went on to become Prime Minister and remained in power for many years. The Israeli authorities never conducted a criminal investigation to determine whether he, or other Israeli military officials, bore criminal responsibility. The word for that is "impunity", and that is what the Bill is striving to deal with.

In 2001, the survivors of the massacres brought a case in Belgium requesting that Ariel Sharon be prosecuted under Belgium's universal jurisdiction law. Political pressure from Israel and others led to the Belgian Parliament amending its law in April 2003 and repealing it altogether in August and to the highest court in Belgium dropping the case against him that September. Nonetheless, the fact that survivors of the massacre could try to hold to account somebody responsible after the home state had failed to do it - not just failed but rewarded the person - was incredibly important.

Universal jurisdiction was codified in an international treaty for the first time more than half a century ago. The 1949 Geneva Convention on the laws of war provided that state parties must prosecute or extradite those suspected of war crimes. It was universal jurisdiction that enabled the state of Israel, in 1961, to prosecute the senior Nazi official Adolf Eichmann for his role in the Holocaust during the Second World War. During the past 15 years, a number of states including Australia, Austria, Belgium, Canada, Denmark, France, Finland, Germany, Norway, the Netherlands, Spain and the UK have started to apply universal jurisdiction legislation regarding war crimes, crimes against humanity, torture and genocide.

If there is a weakness in the universal jurisdiction legislation, it is that political considerations can, and often do, override the universal and fundamental principles and the aims it attempts to uphold. That is why the Bill is being moved. This is precisely the arena in which Ireland, which punches well above its weight and has a high international standing and, at least on paper, our proclaimed neutrality, could play a role. Political considerations scuppered the efforts of the survivors of the Sabra and Shatila massacre to bring those responsible to trial for their crimes in Belgium. After a British court issued an arrest warrant under the universal jurisdiction for Israel's former foreign minister, Tzipi Livni, over war crimes allegedly committed in Gaza in 2009, the law was changed in Britain to prevent the embarrassment - that was the word used - of someone from a friendly state, in this case Israel, being called to account for suspected war crimes. It is embarrassing that people would use the word embarrassment in that scenario. It is perfectly justifiable that it would be attempted.

It is a weakness of universal jurisdiction law that western states often do not want to bring their friends into the net. This does not mean it is not important or that we should not discuss it here. It is important as a deterrent, a symbol and a tool. We should use it. As Deputy Wallace said, the most famous use of universal jurisdiction was the attempt by the Spanish courts to prosecute Augusto Pinochet and extradite him from the UK to Spain for that purpose. It ultimately failed, not least thanks to the intervention of the then Home Secretary, an Iraq warmonger, Jack Straw, and despite the fact the House of Lords had ruled that Pinochet should face trial in Spain. The effort by the Spanish had significant ramifications. As a result of the precedent set, other leaders who have committed well documented crimes have been pursued, including former US Secretary of State, Henry Kissinger, who has had to cut his international travel diary, given that he is wanted in so many jurisdictions for trial or as a prosecution witness.

We know that cases have been initiated in Belgium, Germany, Switzerland, France and Spain against George Bush Senior and George Bush Junior for war crimes in Iraq, and against Donald Rumsfeld for war crimes and torture.

Regardless of how those cases will actually end up, being empowered to take the cases is hugely important for the victims and it is a powerful tool. We should be looking at it a lot more. If one considers Israel as a case study, the impunity with which the Israeli authorities are operating and violating international law encourages those authorities to keep doing it. There have been three wars in Gaza since 2008. In the recent Operation Protective Edge, Israeli actions formed what has been called an undeniable pattern that suggested the crimes that had been committed by its forces in Gaza during the assault were actually the product of stated military policies or rules of engagement that enabled massacres, summary executions, wholesale residential destruction, the use of civilians as human shields and abductions. There was also apparent use of experimental weapons with deliberate targeting of medical facilities, journalists and so on. Thousands of people died in that assault, 3 million bullets were fired, which is two bullets for every person in Gaza. In a large part, during the wars in Gaza and the ongoing occupation of Palestine the Israeli weapons industry has trebled its profits. I do not have the time to deal with it here but there is the matter of a person having the benefit when going from a political life into a lobbying life for an arms industry. In taking on a lobbying role it is a benefit when one has the ability to say that the weapons he or she is selling have actually been field tested. It increases their marketability and the companies' share prices. We should be putting ourselves on the world stage to put a stop to this type of behaviour.

The Minister of State has said that we can already do many of the provisions Deputy Wallace seeks to bring in with this Bill. We, however, never do them. Why not? Passing this Bill would elevate the idea that Ireland might consider itself as an independent nation State with a bit of backbone that makes decisions for itself, and makes the decisions for international humankind. The weakness in the legislation - and in all legislation - is the political will to actually deliver upon it. The Minister of State has said that we all agree these things are horrible, and they are horrible, but we are not the people who are experiencing them now. We can, however, be the people who seek to try some of these matters on the international stage. We all agree the Bill needs a bit of work. Deputy Wallace would probably even agree to withdraw the Bill if the House agrees to exercise some of the legislation already in place and to initiate a few trials for a few of the war criminals. Presenting this Bill to the House is important for the debate and in elevating these issues. I believe we can work to improve the Bill if it is passed on Second Stage.

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