Michael McDowell (Dublin South East, Progressive Democrats)

The proposed amendments would extend the jurisdiction of the State with respect to International Criminal Court offences to any ICC offence committed by a non-Irish national outside the State. This would mean, in effect, that the Irish court would have just as much jurisdiction as the International Criminal Court itself in dealing with International Criminal Court cases.

Section 12, which Senator Cummins proposes to delete, concerns the jurisdiction of the State in respect of ICC offences committed outside the State. Section 12(1) relates to taking jurisdiction for ICC offences committed by an Irish national outside the State. Subsection (2) provides this State with jurisdiction with regard to a person of any other nationality who commits an act outside the State that, if done within it, would be an offence both under section 3 of the Geneva Conventions Act 1962, as amended, and as a war crime under Article 8.2 of the Rome Statute.

The question of the jurisdiction to be adopted by the Bill was subject to legal advice from the Attorney General. The advice given to the Department concluded that Ireland could only exercise universal jurisdiction for crimes already attracting universal jurisdiction under the generally recognised principles of international law. This is a constitutional argument.

Universal jurisdiction, extending jurisdiction to any offence committed in any state by a person of any nationality, was previously adopted in respect of grave breaches in international armed conflict of the Geneva Convention of 1949 and the first additional protocol of 1977, as implemented by the Geneva Conventions Acts of 1962 and 1998. As many of the grave breaches under the Geneva Conventions are comparable with ICC offences, universal jurisdiction is, in effect, also adopted in the Bill for those ICC offences that are also offences under the Geneva Conventions Acts of 1962 and 1998.

Ultimately it will be a matter for the Irish courts to decide, depending on the facts of a particular case, on whether an ICC offence is comparable with a grave breach for the purposes of exercising universal jurisdiction. As the proposed amendments would extend the jurisdiction of the State with respect to ICC offences beyond the universal jurisdiction adopted in the Bill for those ICC offences which are also offences under the Geneva Conventions legislation, on the basis of legal advice from the Attorney General I cannot accept the amendments.