Tuesday, 18 May 2004
International Criminal Court Bill 2003: Second Stage.
I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to give effect in Irish law to the provisions of the Statute of the International Criminal Court done at Rome on 17 July 1998, otherwise known as the Rome statute. The Bill creates domestic offences and associated penalties for ICC crimes of genocide, crimes against humanity and war crimes. It enables assistance to be given to the International Criminal Court by permitting the arrest and surrender of persons requested by the court. It also provides for the freezing of assets and enforcement of ICC orders for fines or forfeiture of such assets to the court and other forms of practical assistance in the investigation of ICC offences. It also provides for sittings of the court in the State and related technical matters.
Members will recall that the Bill was preceded by a constitutional amendment which was approved by a majority of voters in a referendum held in June 2001. The amendment was enacted in 2002. It ensures the State's constitutional obligations will not conflict with the fulfilment of its obligations under the Rome statute, since submission to the jurisdiction of the International Criminal Court necessitates a partial transfer to it of the sovereign power of the State to administer criminal justice.
Before going into the detail of the Bill, it is worth recalling the savage and brutal events that led to the creation of such an international court. Conflict among nations has resulted in great loss of human life and the destruction that prevails during such conflict. In an attempt to afford justice to the victims of this devastation ad hoc tribunals have been established to ensure legal responsibility is not least where power is greatest. The trials of the last decades — Nuremberg, Tokyo, the former Yugoslavia and Rwanda — are testament to the efforts to stop these violations of international human rights and protect the most innocent and vulnerable victims of such attacks. The International Criminal Court is a new departure in this struggle. Unlike previous tribunals, it is the first court to be established on a permanent international basis and will be the first to be in existence before a conflict breaks out. This permanency should ensure a proactive rather than reactive response to such atrocities in the future.
The establishment of the recent tribunals to deal with massive human rights violations in Rwanda and the former Yugoslavia revived the international momentum for establishing a permanent, independent, international criminal court. However, the road to the conclusion of the Rome statute began many decades ago and the journey since has been long and difficult. While we are all familiar with international civil courts and international civil jurisdictions, national criminal courts have been ferociously protective of their jurisdictions. More so than any other court, the work of national criminal courts is a fundamental expression of sovereign democracy.
In a world without any history or knowledge of such international courts the task of the founding fathers challenged the very foundations of national criminal courts. The compromise framework achieved which broke this mould and paved the way for the establishment of the International Criminal Court created an international court which was independent but also dependent on the Executives of the various jurisdictions which it represents for its functioning. As a result, the court is independent in the exercise of its functions but at the same time dependent on assistance from state parties in bringing perpetrators of ICC crimes to justice.
The journey to this compromise and the establishment of the International Criminal Court commenced in 1948 at the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on foot of a request from the UN General Assembly for the establishment of an international court. At that time the International Law Commission was given the task of considering the establishment of an international criminal court. The following year the 1949 Geneva Conventions were agreed, thus establishing grave breaches as offences against international law. These conventions developed the scope of genocide as a crime against humanity and extended international responsibility into situations of international conflict. During the Nuremberg and Tokyo trials, crimes against humanity were linked to armed conflict. The recent tribunals dealing with the former Yugoslavia and Rwanda have now established these crimes as self-standing, to be prosecuted even in the absence of armed conflict.
The conventions of 1948 and 1949 were to be the last such instruments for many years as the United Nations development of international criminal law concentrated on narcotics and terrorism. The establishment of the recent tribunals showed what could be achieved but the difficulties in establishing an international court remained. These difficulties were recognised in one of the early cases to be considered by the Yugoslav tribunal — the Tadic case. That case highlighted the difficulties in creating an independent, impartial, international criminal court to be established by law rather than by the United Nations Security Council as was the case with the tribunals.
In the intervening period between the International Law Commission's original mandate in 1948 and the establishment of the tribunals several draft texts were produced by the commission. During this period, aside from the individual tribunals, there have been many instances of crimes against humanity and war crimes for which no individuals have been held accountable. Even where tribunals have been established to deal with specific crimes, the delays inherent in setting up such tribunals have several consequences in terms of crucial evidence being destroyed, perpetrators escaping or disappearing and witnesses relocating or being intimidated. Thus, there was a continuing need for an international criminal court with individual responsibility as an enforcement mechanism in the fight against such international atrocities.
The work of the International Law Commission culminated in a text finalised at a meeting of the international community in Rome in July 1998. The International Criminal Court entered into force on 1 July 2002 when 60 states had ratified the statute. To date, 94 states have become party to the statute. Its implementation is supported by the rules of procedure and evidence and elements of crime. Although subordinate to the statute, these instruments provide respectively for the procedural framework for the application of the statute and further elaborations of the definitions of the main ICC offences.
The court which has its seat in The Hague is composed of four organs: the Presidency consisting of a president and two vice-presidents who are responsible for the administration of the court; the divisions or chambers of the court comprising pre-trial, trial and appeal divisions; the independent office of the prosecutor and the registry with responsibility for non-judicial administration of the court. An Irish judge at the International War Crimes Tribunal for the Former Yugoslavia, Ms Maureen Harding Clark, has been elected as one of the 18 judges of the court. At subsequent meetings of the state parties the prosecutor, deputy prosecutor and registrar of the court were elected. Since their appointment, the various organs of the court have each been active in recruiting staff, drafting regulations and formulating policies to inform their work in readiness for the court's first cases.
The court is already operational in that it has received its first two referrals from state parties. The first relates to an incident in northern Uganda while the second is from the Democratic Republic of Congo concerning an alleged incident in Ituri. The prosecutor is considering whether to initiate formal investigations which, in turn, could lead to the court's first case.
The statute does more than establish a permanent court. It represents a tapestry of negotiation and compromise between the state parties. To undo any element is to risk unravelling many other principles. The first key difference between the International Criminal Court and the preceding tribunals is that, potentially, the jurisdiction of the court applies to all state parties. Unlike the previous tribunals which were established by the victors and directed at the losers of conflict, all state parties are potential defendants before the court.
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.