Frank Fahey (Galway West, Fianna Fail)

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 ICC by permitting the arrest and surrender of persons requested by the ICC. The Bill also provides for freezing of assets and enforcement of ICC orders for fines or forfeiture of such assets to the ICC and other forms of practical assistance in the investigation of ICC offences. The Bill also provides for sittings of the ICC in the State and related technical matters.

Members of this House will recall that this Bill is 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 that 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 ICC necessitates a partial transfer to the ICC of the sovereign power of the State to administer criminal justice.

The International Criminal Court is a new departure in the struggle to bring to justice those who commit crimes against humanity. Unlike previous tribunals, it is the first court to be established on a permanent international basis and it will be in the first court 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 framework which paved the way for the establishment of the ICC was to create an independent international court but also a court 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 is, at the same time, dependent on assistance from state parties in bringing perpetrators of ICC crimes to justice.

The establishment of the ICC has its roots in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions of 1949. 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 of the former Yugoslavia and Rwanda have now established these crimes as self-standing to be prosecuted even in the absence of armed conflict.

These tribunals also served to revive the international momentum for establishing a permanent, international, independent criminal court. The work of the International Law Commission, which were tasked with the development of proposals for a permanent International Criminal Court, 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, by which time 60 states had ratified the statute. To date, 100 states have become party to the statute.

The court, which has its seat in the Hague, is comprised 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, was 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 ICC have been active in recruiting staff, drafting regulations and formulating policies to inform their work, in readiness for the court's first cases.

The ICC is already operational in that it has received referrals from state parties. These relate to the Ugandan Government's conflict with the Lord's Resistance Army, an alleged incident in Ituri in the Democratic Republic of Congo and an incident in the Central African Republic. These have become the court's first cases. Most recently, the UN Security Council adopted Resolution 1593 on 31 March 2005 referring the ongoing conflict in Darfur to the ICC. This case is important to the ICC because it is the Security Council's first such referral and represents a welcome affirmation of the legitimacy of the ICC. It demonstrates the court's authority and the international community's commitment to ending impunity.

Another important recent development was the arrest and transfer to the ICC of Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union des Patriotes Congolais, UPC. This arrest was on foot of a warrant issued by the pre-trial chamber dealing with this referral. The chamber found there were reasonable grounds to believe that Mr. Lubanga had committed the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities. While not wishing to pre-empt the outcome of proceedings before the court, this first arrest and transfer to the court marks a significant milestone in its development and demonstrates that the mechanisms established by the Rome statute can have real effect in practice.

The International Criminal Court brings a new sense of individual criminal responsibility to these international crimes. The ICC jurisdiction extends to offences committed by nationals of state parties, or committed on the territory of state parties and non-state parties who consented to the ICC having a role. This individual responsibility is extended to ensure that any diplomatic immunity attaching to a person because of a connection with a state party is not a bar to proceedings. As in the Darfur case, the court also has jurisdiction over crimes committed in situations anywhere in the world which are 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 that people holding state positions who orchestrate such attacks on humanity cannot hide behind their office so as to evade prosecution. Sections 13 and 61, respectively, of the Bill implement this criminal responsibility.

Apart from these specific ICC provisions, the Irish courts may apply domestic criminal law principles when considering ICC offences. Under section 3 of the Bill, 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 ICC, 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 Statute of Rome. The ICC 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. In addition, as previously noted, the ICC may consider offences wherever committed, if referred by the United Nations Security Council.

In terms of the jurisdiction to be taken by state parties, the statute requires that they 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 on 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 ICC as compared with previous tribunals. This is of critical importance in cases where democracy has broken down and where state institutions may not be available to undertake such investigations. Section 59 implements this provision in the Irish context.

While such stringent measures are necessary in the prosecution of these crimes, the statute is balanced 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.

At each stage in the arrest and surrender process established in Part 3, there is a brake on proceedings to allow for the possibility of admissibility challenges before the ICC. Thus, the Minister may postpone the certification of a request for surrender in section 19 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 25 if there are challenges to admissibility. Additionally section 27 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 31, may still postpone the actual 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. The statute places particular emphasis on guaranteeing the interests of victims of ICC crimes. This complement of rights creates obligations throughout the Bill, and rather than list these at this point, I will make appropriate references to the 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 administration of the ICC. 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 his or her appearance at trial. The pretrial chamber must also be satisfied that the arrest of the person is necessary to ensure that 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 pretrial chamber before trial and by the ICC during the trial itself.

I now turn to the specific provisions of the Bill, which 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 of the statute. This part also deals generally with requests from the ICC, 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.

On the effect on Irish criminal law, Part 2 has the greatest impact because 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 Conventions 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 the applicable sentences for these offences which correspond to the penalties in the Rome statute, that is, 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 the Article 77 of the statute. In such instances, the Criminal Justice Act 1994 is triggered to facilitate enforcement of the orders.

Other sections in this part deal with items such as universal jurisdiction, in section 12, the applicable law in determining whether a person has committed an offence under the Act, in section 13, and provisions for the protection of victims and witnesses, in section 14.

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 regarding the arrest have been respected. Any matters concerning whether the warrant of arrest has been 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 22 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 Tribunal 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. It is appropriate that these requests are considered by a superior court because of the serious nature of the crimes within the remit of the ICC and because the ICC may be requesting the surrender of a person who has not yet been charged, 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 18 provides for situations where there is an extradition request competing with the ICC request. If the competing request is received from another state party 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.

Once arrested, sections 23 to 29 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 requires that the person be brought immediately before the High Court. The High 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. In accordance with the rights articles of the statute, the person must also be provided with a competent interpreter and legal aid where necessary.

The Bill also provides that the High Court has the powers of adjournment, remand and bail including, but not limited to, the powers of the High Court in criminal matters. Included in these powers is provision for an appeal on a point of law to the Supreme Court against an order to grant or refuse surrender. The habeas corpus procedure under Article 40.4.2 of the Constitution will also be available.

Once a surrender order has been made by the High Court, it is a matter for the Minister to arrange for the surrender of that person and sections 29 to 33 provide accordingly. The person concerned may consent to surrender in which case the previously mentioned time limits do not apply. Provision is also made for the Minister, in consultation with the ICC, to postpone the making of a surrender order pending the finalisation by the court of any admissibility or jurisdictional challenges or pending the conclusion of domestic investigations or proceedings, excluding extradition proceedings. Where it is necessary in the interests of the person's health, provision is made for alternate custody in a hospital pending surrender. Where it appears to the Minister on the basis of information received that the request for surrender is not being proceeded with, provision is made for the person to be released. In any event, once all appeal proceedings have been concluded and where there are no postponements in place or health considerations preventing surrender, the High Court may order the release of the person from custody if the person is not surrendered within one month of the surrender order being made.

The final provisions of this part, sections 34 to 36, provide for the possibility of subsequent arrest or surrender following release under this part and also provide for sentence calculation for persons already in detention for other offences at the time of the arrest and surrender. The Minister may also waive the rule of speciality and consent to a person being proceeded against for any conduct committed prior to surrender other than the conduct for which he or she has been surrendered. This waiver may be subject to the receipt of any information or assurances as may be necessary from the ICC.

Part 4 establishes the co-operative framework to enable compliance with ICC requests to freeze and subsequently confiscate assets of the accused. Article 77 of the statute provides that fine and forfeiture orders may be imposed in addition to prison sentences. The imposition of fines is governed by the rules of procedure and evidence of the court while proceeds, property and assets derived directly or indirectly from ICC crime may be forfeited without prejudice to the interests of bona fide third parties. The statute also envisages the establishment of a trust fund for the benefit of victims of ICC crimes and for the families of such victims. Using this fund, the ICC may order money and other property collected through fines or forfeiture to be paid over to the fund.

The procedures established in this part follow the precedents established in the Criminal Justice Act 1994 with some minor amendments because the ICC rather than individual states is making the request for freezing or confiscation of assets. There are also some changes in the notification arrangements to reflect working arrangements of the various other organisations involved in the enforcement of these orders.

Part 5 makes provision for other forms of assistance to the ICC in the investigation or prosecution of ICC offences. With the exception of section 56, which relates to transit of surrendered persons through the State as provided for in Article 89(3) of the statute, the authority for the requests in this part is derived from Article 93. The provisions in this part are again to a large extent modelled on the provisions of the Criminal Justice Act 1994 but are repeated as the requests are originating from the International Criminal Court rather than an individual state as under the 1994 Act. Also, as the requests are from the ICC, procedures are simplified where possible while at the same time affording the individual the same rights as in a criminal investigation in the State.

The assistance provided in this part ranges from the provision of identification evidence in section 50 to location of persons, examination of sites, including the exhumation and examination of grave sites and provision of documents in section 51. This part also provides further practical investigative assistance in the service of ICC documents, including a summons by the gardaí in section 54. Additional information may be sought by either taking evidence before a District Court judge under section 52 or, under section 53, questioning of a person by the gardaí on behalf of the ICC. Section 55 also provides for the transfer of a prisoner to the ICC for the purposes of providing information.

The general framework for requests under this part is that the Minister on receipt of a request and having considered the request will forward it to the Garda Síochána for attention. The Bill provides for the involvement of the District Court in the authorisation of warrants and orders to proceed in cases of refusal to comply with requests for identification evidence or obstructing the locating of persons or property.

This framework seeks to establish a balance between, on the one hand, assisting the ICC in the investigation of these most heinous forms of crime and, on the other, safeguarding the rights of those subject to ICC requests. This balance is struck both by reference to the statute provisions and also by way of specific safeguards in the Bill.

Where co-operation involves the direct participation of the individual, as in the case of fingerprinting, questioning, taking of evidence, transfer of a prisoner to the ICC and, as far as possible, in connection with searches of property, the consent of the person involved must be sought. In addition to consent, a person being questioned in connection with an ICC offence must be informed of his or her rights under Article 55 of the statute and must be provided with a competent interpreter and legal assistance where necessary. These safeguards also apply to any person giving evidence where it appears that there are grounds for suspecting that the individual has committed an ICC offence.

Where a person is being questioned by the Garda, section 53 provides a further safeguard in fulfilment of an ICC obligation, that the questioning be video recorded and the recording forwarded to the ICC. In the case of the person giving evidence before the District Court under section 52, the person will not be compelled to give any evidence to the District Court that he or she would not be compelled to give in criminal proceedings in the State. Where necessary the judge may also direct that proceedings be held in private so as to ensure the attendance and protection of witnesses, and to protect victims, or indeed, persons alleged to have committed an ICC offence. This part also provides for the service of documents. If the document is a summons requiring attendance before the ICC as a witness, section 54 requires that it be accompanied by a notice highlighting that different procedures may apply in the ICC compared with criminal proceedings in the State. The notice must indicate that the ICC has provided, or has the authority under Article 93(2) to provide, an assurance that the person will not be prosecuted, detained or subjected to any restriction of personal freedom by the ICC in respect of any act that preceded his or her departure from the State.

There are three summary offences created in this part. Section 51 provides for two offences in respect of obstructing a member of the Garda Síochána in carrying out a search or failing to provide such information as is requested by the Garda Commissioner in carrying out the request. Section 52 creates an offence where a person who is giving evidence to the District Court on an ICC offence, without reasonable excuse fails or refuses to comply with a requirement to produce a document or other item to the court. Although the District Court may order the arrest of a person, who refuses to attend a Garda station to provide identification evidence as requested by the ICC, section 49 does not create an offence if that person refuses to give the identification evidence sought. This is in recognition of the person's right to silence under Article 55 of the statute. However, the fact that the person did not consent, will be recorded in the Garda report forwarded to the Minister for transmission to the International Criminal Court.

Section 57 — the final section of this part — provides that the enumerated assistance does not preclude giving any other lawful assistance to the ICC.

The final part of the Bill, Part 6, deals with miscellaneous matters arising in connection with the ICC sitting in the State to hear cases, immunities and privileges relating to the ICC and technical matters associated with the operation of the Bill. Section 58 takes account of statute provisions whereby the ICC may sit outside the seat of the court in The Hague by providing that the ICC may, while sitting in the State, perform its functions under the statute and has the effect of applying the statute as though the ICC was sitting in The Hague. For this reason, orders made by the ICC during a trial in the State are not reviewable by the Irish courts. This part also provides for investigations in the State by the ICC prosecutor.

Sections 60 and 61 are concerned with immunity under the statute. First, there is immunity for all the judges, the prosecutor and all other staff and persons as required by the statute and further detailed in the Agreement on Privileges and Immunities signed by Ireland on 9 September 2003. Section 60 limits the application of such privileges by applying them only in so far as is applicable under the agreement and recognises that these immunities may be waived as provided for under the agreement. Diplomatic or state immunity is not a bar to proceedings under the Act. For information, the text of the agreement is included in Schedule 2 to the Bill.

Section 62 provides that Ireland may ask the ICC for assistance in the investigation and prosecution of an ICC offence for which there is a minimum sentence of five years. Finally, sections 63 to 65 provide for technical matters associated with the operation of the Bill. Section 63 sets out the evidentiary standards of ICC documents coming before the domestic courts. Section 64 provides for regulations in connection with the implementation of the statute to be laid before each House of the Oireachtas. The final section of the Bill provides for consequential amendments to other legislation. These are detailed in Schedule 3. The Defence Act 1954 and the Geneva Conventions Act 1962 are amended so as to align penalties available for ICC offences with comparable offences in these Acts. The Extradition Act is amended so as to apply extradition to ICC offences and to exclude such offences from classification as "political offences". The Diplomatic Relations and Immunities Act 1967 is amended to make diplomatic immunity under that Act subject to obligations under the Rome statute. Finally, the Bail Act 1997 is amended so as to include ICC offences — as serious offences for which bail might be refused under that Act.

This Bill sends a clear message to the perpetrators of these international crimes that Ireland will not shirk our international obligations in safeguarding international peace from atrocities inflicted on innocent persons in war-torn jurisdictions. It adds another voice to that of the international community in seeking to bring the perpetrators of these crimes to justice. It is a statement of our support for the International Criminal Court, and of our commitment to ensuring that it receives the assistance necessary to meet the challenges of the Rome statute in investigating and prosecuting these crimes.

I commend the Bill to the House and look forward to Members' contributions.