David Norris (Independent)

I welcome this Bill and there seems to be a general welcome for it. We have been waiting for legislation of this kind since the Nuremburg trials of the 1940s to which no doubt many other speakers have referred. It is useful to remind ourselves of the expression of principle given when the Rome Statute was adopted. It reads:

The States Parties to this Statute. . .

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, . . .

Hear, hear say I. This is an attempt to introduce ethics into the conduct of international relations, including the horrible practice of warfare which has caused so much destruction and loss of life on this small planet over the centuries. It is a move in the right direction that we are to get some kind of international authority and in a direction on which a distinguished former Member of this House, Mary Robinson, has spoken on many occasions when using the phrase "ethical globalisation". I would like to think that is what we are doing here.

I have some reservations about the Bill, some of which have been mentioned. Senator Cummins referred to Amnesty International's submission. I propose to outline some of its concerns.

This court was founded in July 1998 at a United Nations diplomatic conference and the treaty that emerged became known as the Rome statute. The United States, under then President Bill Clinton, signed this but after his election in 2001, George W. Bush nullified that signature. This was a very regrettable act, although understandable in pragmatic terms because it might expose some significant figures from the recent American past to scrutiny which they probably would not welcome. This exemption of itself and taking to itself of exceptional status by the United States, has been highlighted by distinguished commentators such as Paul W. Kahn who said:

The US claim for special status undermines the very idea of the rule of law as a single, principled normative order to which we are all bound. Even worse, it may undermine the great international effort of the last century to subject the use of force to the rule of law. For the United States to take this position is particularly embarrassing, since it, more than any other modern nation state, has held itself out as committed to and constituted by the rule of law.

It is regrettable that the American Government has taken the position of trying to water down or tear up the Geneva Conventions. It had a significant input into weakening even the Rome statute. I speak not as one who is anti-American but as one who is deeply committed to the essential principles of liberty and respect for the rule of law which until recently characterised the American political attitude.

It is a pity that the Government did not take on board the practice of some other countries to have full consultation with various representative groups, women's organisations, people who represent the victims of torture who have come to this country, lawyers' organisations, professional legal bodies, academics and groups such as Amnesty International.

That is why it is important to cite some of their reservations, the questions they raise and some of their requests that this legislation, which is good, be strengthened. For example, the Minister of State and the Minister for Justice, Equality and Law Reform, Deputy McDowell, have spoken about complementarity and the definition of crimes to be covered by this Act. While one welcomes the criminalisation of crimes such as genocide, crimes against humanity, war crimes and so on, some sections of the Rome statute are inconsistent with the stronger provisions we have already enacted in Irish law. This is untidy, creates unnecessary confusion and should be cleared up.

Some of the crimes under sanctions and the definitions of some listed under Article 8 are much weaker than the prohibitions in other international protocols and treaties which we have signed. By incorporating all crimes as defined in the Rome statute in a lump, we have perhaps weakened our situation in regard to other treaties we have ratified. Amnesty International refers in particular to:

. . . the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol l) and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts, (Protocol ll), as well as national laws implementing them including the Geneva Conventions (Amendment) Act 1998.

In particular Article 57 (2) (a) (iii) of protocol l prohibits "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage". The definition of this crime in Article 8 (2) (b) (iv) of the Rome Statute is much weaker and because at the urging of the United States of America (USA) it replaces the narrow term "concrete and direct military advantage" with the expansive term "concrete and direct overall military advantage".

Amnesty International suggests the incorporation of Article 8(2)(b)(xx) into national law. It states:

[This article] includes the war crime of employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. Such weapons, projectiles and material and methods of warfare must be the subject of a comprehensive prohibition and be included in an annex to the Rome Statute by an amendment to it. There are a number of such prohibited weapons ...

Section 6 of our Bill expressly excludes this. The Government's reason for this is that we must wait a period of seven years for the final ratification and definition. However, other countries, notably Brazil, have got round this in their draft legislation. Brazil provides that war crimes cover any weapons, projectiles, material and methods of warfare that are the subject of a prohibition in any treaty ratified by Brazil. We could have done that and it would have strengthened the Bill.

There are other aspects of war crimes less serious than genocide or the other crimes listed, for example, unjustified delays in repatriating or freeing prisoners of war or interned civilians once active hostilities have ceased. This has been described internationally as a grave breach, but we have not criminalised it. One suspects this may be on account of American pressure. We merely have to look at the situation in Guantanamo Bay to realise how sensitive an instrument this might be. Americans are still interested in this kind of legislation, even though they have opted out of it.

Senator Cummins raised the matter of the prohibiting of conscripting or enlisting underage children. Amnesty International states that Articles 8(b)(xxvi) and 8(e)(vii) provide:

It is a war crime to conscript or enlist children under the age of fifteen years into armed forces or groups or to use them to participate actively in hostilities ... The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict which Ireland ratified on 18 November 2002 establishes a higher standard of protection for children.

The protocol provides for the age of 18. We signed that agreement so why do we not have the imagination and wit with this Bill to go for what we have already agreed in other elements of the law? People under 18 need this kind of protection. Amnesty International clearly states that as a result of its research, it believes that voluntary or compulsory recruitment by governments or armed groups of people or children under the age of 18 can jeopardise the mental and physical integrity of these people.

There are other crimes not contained in the Rome statute, for example, torture, extrajudicial executions, etc. As my time is short I will just list some of the other areas of concern such as the question of jurisdiction over past crimes, the notion of a statute of limitations and the question of command and responsibility.

With regard to the notion that civilians have less to fear from this Bill, I would call that the "Rumsfeld exemption" because of people like him who sit at desks away from the armed conflict and protect themselves. I am happy to hand over to my colleague, Senator Henry.