Thursday, 2 March 2006
Select Committee on Justice, Equality, Defence and Women's Rights DebatePage of 3
Aengus Ó Snodaigh: I give notice that I intend to table amendments to this section on Report Stage to include other serious crimes not covered by the Rome Statute, namely, crimes under international human rights law and international humanitarian law.
Subsection (1) states: “Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence.” Subsection (2) states: “Subject to subsections (3) and (4), the Genocide Act 1973 (the “1973 Act”) is repealed.” It seems strange to repeal an Act and leave sections extant, like being a little bit pregnant. Either the Act stands or it does not. If the Act is repealed, then none of its sections should survive. Even if it has been re-enacted in the Bill, it is strange to repeal an Act and leave two sections. Subsection (3) states, “The repeal effected by subsection (2) is without prejudice to the obligations of the State”.
Amendment No. 13 concerns the Schedule to the 1973 Act and deals with the same point. If the Act is repealed, then surely the Schedule should also be repealed. It seems impossible to retain a Schedule if an Act is repealed. Is amendment No. 56 mine?
Minister for Justice, Equality and Law Reform (Mr. McDowell): I understand the points the Deputy is making but I will make a number of points in reply. Under the Interpretation Act 1937, where a repeal is made and unless a contrary intention appears, there are certain consequences. In this case an unusual provision is being inserted by way of subsection (4), which states: “Notwithstanding subsection (2), proceedings under the 1973 Act may be taken after the commencement of this section for an offence under that Act committed before such commencement.” That is an unusual provision in law. Normally when something is repealed, existing proceedings are preserved. It is sometimes necessary to make it clear that the right to prosecute is not being abolished. It is not usual to make the repeal of an Act subject to another provision but certain consequences flow from the Interpretation Act 1937. This makes clear the meaning of this repeal in respect of, first, the State’s obligations as set out in subsection (3) and, second, the entitlement after the commencement of this section to prosecute an offence committed before the commencement.
Deputy Costello’s amendments effectively amount to a proposal that the Genocide Act 1973 remain on the Statute Book and the genocide convention be appended to the Bill. The decision to repeal the Genocide Act 1973 was taken because the crimes concerned are totally and comprehensively encompassed in section 7 which creates the offence of genocide, among other offences. The definition of genocide contained in Article 6 of the Rome Statute is identical to that in Article 2 of the genocide convention. It affirms that the crime is punishable not only when committed in armed conflict, but when committed in peacetime, whenever and wherever it is committed.
The Rome Statute is appended to the Bill, and so the definition of genocide, which is identical to that of the genocide convention, is already appended to the Bill. Having only one legislative provision, the ICC Bill, gives access to the ICC and Rome Statute provisions regarding legal advice for suspects, which are not referred to in the genocide convention.
To recap, section 7 creates, among others, the domestic offence of genocide. As a new offence of genocide has been created, there is no further need for the old offence contained in the 1973 Act. That provision is consequently being repealed. With regard to the convention, Ireland continues to be a signatory and is bound by the terms. The repeal of the Act does not mean we are internationally released from our obligations under the convention. It merely replaces the obligations under the convention, now contained in the Genocide Act 1973, with those set out in this Bill. We are now complying with our obligations under the convention in this Bill rather than under the Genocide Act 1973.
Section 7(3) makes it clear that the repeal of the Genocide Act 1973 is without prejudice to Ireland’s ongoing and unchanging obligations under the genocide convention. Subsection (4) makes it clear to anybody prosecuted after the proposed commencement of this Act that, notwithstanding the repeal of the 1973 Act, they still face prosecution under its terms. As the committee knows, we cannot make retrospective legislation, but we can preserve the right to prosecute under a repealed Act.
Mr. Costello: Those points cover a wide range. The manner in which this is done is extremely clumsy. The Bill states “Subject to subsections (3) and (4), the Genocide Act 1973 (the ”1973 Act“) is repealed.” Why does the Genocide Act 1973 have to be repealed?
Mr. McDowell: On Report Stage, we may take out “Subject to” and replace it with “Notwithstanding”. It is slightly unusual to have something repealed subject to a condition. I take the Deputy’s point about the term being slightly pregnant. It will either be repealed or it will not. We will make it clear. It may be more elegantly phrased if it states “Notwithstanding”.
Mr. Costello: I still have difficulties with it. I realise the Minister is indicating that a provision should be included to continue the right to prosecute, etc. However, with regard to the two subsections being held in place, would it have been possible to include the two subsections in the legislation rather than going through this unwieldy process? The Act could then be repealed in toto rather than the way proposed by the Minister. This is the principle which we spoke of previously, that legislation should be accessible to the lay person. Including this provision makes the legislation totally inaccessible. While it may be needed in this form for some legal procedure, it is so cumbersome and clumsy that it is difficult to see it being operated in any manageable fashion.
There are a number of Schedules to the Bill as it is: Schedule 1, the statute of the International Criminal Court done at Rome in 1998; Schedule 2, the agreement on the privileges and immunities of the International Criminal Court; Schedule 3, other consequential amendments. The underlying Schedule is the 1948 convention on the prevention and punishment of the crime of genocide adopted by the General Assembly of the United Nations on 9 December 1948. That is the seminal convention from which all of this legislation ultimately flows.
Unless there is something in that convention that is no longer relevant, I would think it would be pertinent to include it within the body and corpus of the Bill, in order that people could see at a glance the background and the pillar underpinning what we are dealing with. It is the same principle that clarity is a wonderful thing in legislation, and there is very little of it in evidence here. The reason we have so many people in a lucrative profession is because nobody can understand what is going on, and do not have the resources to check everything. The inclusion of this relevant Schedule would be valuable in putting together a comprehensive Bill.
Mr. McDowell: I do not believe the words “Subject to subsection (3) and (4)” are necessary in subsection (2), and the section will be fine without the addition. The reference to the text of which is set out in the Schedules of the 1973 Act prevent us from putting it in the Statute Book in two places. It will be on the Statute Book even though the Act is repealed. If anybody wishes to consult it, it is there to see as a public document and will be available to any lawyer.
Mr. McDowell: This effectively allows the Minister to extend the ambit of the Act to other offences not already covered by it. Deputy Ó Snodaigh has indicated he wishes to do something similar on Report Stage. I have some reservations — I am not 100% clear — about allowing a Minister to extend the ambit of this Act to other sections by way of delegated legislative authority. There is a question mark as to whether it was an impermissible delegation of legislative authority. Whereas there could be two schools of thought on that issue I certainly do not want this Bill referred to the Supreme Court under Article 26 of the Constitution because we have done something which it was not necessary to do. If there is some change in the ambit of the Rome Statute at some stage in the future, it is right that the Irish Legislature should go back to it and decide whether it is happy to extend the ambit of the Act, in so far as that new offence is concerned, to make whatever procedural changes it wishes.
Mr. McDowell: I will seek specific advice from the Attorney General on that point. I do not know whether it will be categorical one way or the other but I imagine the point I have raised would be seen as a substantial doubt at the very least. Perhaps I am wrong and maybe the Deputy’s view will be shared with the Attorney General.
Mr. McDowell: That may be as the Deputy sees it but I am advised that section 9(4) provides that apart from proceedings taken under the Genocide Act, proceedings may not be taken for acts constituting an ICC offence that occurred before the commencement of section 9. The amendment proposes to delete the reference to the commencement of section 9 and instead insert a reference to the commencement of section 7(1) and section 8(1) as the case may be.
By way of background, section 7(1) creates the offence of genocide, crimes against humanity and war crimes and section 8(1) creates offences ancillary to those offences. One apparent difficulty with the approach proposed by the Deputy is that it seems to leave open the possibility that section 7(1) and section 8(1) could be commenced at different times in that the amendment refers to the commencement of sections 7(1) or 8(1) as the case may be. Because sections 7(1) and 8(1) are so closely intertwined one could not envisage any circumstance where the sections would be commenced separately. In addition, the Bill as drafted, does not have any commencement clause whereby different Parts of the Bill could be brought into operation at different times. Consequently all the provisions will come into operation on the same day. In effect, therefore, the reference to the commencement of section 9, means the commencement of section 7(1) and section 8(1) because there cannot be, as the Bill is constructed, two different dates for the commencement of those sections.
Mr. McDowell: In fact one could say that in line 24 the last word could be “Act” just as much as “section”. We might look at that. In line 24, I suggest the deletion of the word “section” and the substitution of the word “Act”. Otherwise people looking at it will wonder if there was a separate statutory instrument whereas if they see it referred to as “Act”, they will know that whatever appears on the front of the Bill is the date on which it came into operation.
Aengus Ó Snodaigh: I wish to raise a similar point in regard to the commencement of the Bill. Would it be possible for the commencement to occur before the signing of the Rome Statute because that is what the State indicated was our intention? The Minister said the law cannot be retrospective but the intention was clear that the full International Criminal Court was being signed up to and all its effects.
Mr. McDowell: Curiously, this is one of the cases where we have already signed the statute and have ratified it. Normally Ireland gets to ratification after it provides the statutory basis. Technically speaking, one could argue this is a very unusual case, that we are catching up with our obligations under the Rome Statute.
Mr. McDowell: In regard to the Bill there is nothing to be done in Rome. There are no further signatures to be added by Ireland to get the whole thing going, either by way of signature or ratification. The international law aspect is complete. It is domestic law only from now on. It is an unusual one from that point of view.
Mr. McDowell: It is to allow somebody to be charged and arrested which would come prior in time to a decision to remand in custody or on bail. In other words, if a Garda sees a well-known genocidal suspect walking down the street he can arrest him, bring him to Pearse Street Garda station and before the District Court and apply for his remand in custody or on bail as the case may be. At that stage the Director of Public Prosecutions has to intervene before anything else can happen.
Mr. McDowell: It depends on how one defines “criminal proceedings” but if one includes in it the getting of the person into custody and before the court, that takes place prior in time to any decision to remand in custody. It is a precedent that has been used in other cases.
Mr. Costello: Remand in custody or on bail does not have to be spelled out. Remand can be either. There are two processes — one is arresting a person and charging the person. The charge may result in a remand in custody.
Mr. McDowell: It also allows the court to decide that it will deal with the bail application without the DPP coming to a considered view as to whether the matter should proceed further. It is in the case of the person arrested, it is not——
Mr. Costello: There is the procedure of arrest, the procedure of presenting the person to the court and the procedure of remanding that person and one jumps almost straight into the courts. It does not seem right in this section to concentrate solely on the remand side whereas the steps involved are arrest, charge and then remand. There is not a formula, as such, for this. Does this occur anywhere else?
Mr. McDowell: There is a precedent for it elsewhere. I will come back to the Deputy on that. I will also come back to him on whether it is open to a common informer to commence a prosecution under this legislation, and it may well be if the right to commence proceedings is open to everyone. In other words, it may be open to the Deputy to go to the District Court to take out a summons claiming that I am a person to whom the legislation applies. It is not always a question of a garda being involved. One can take out a summons.
This is a procedural, drafting amendment. The section, as it is composed, provides that a person convicted of an International Criminal Court offence is liable to imprisonment for life if the offence involves murder, or a term of life imprisonment. There is a third provision included of a period of imprisonment not exceeding 30 years. My point is that the penalty is either life imprisonment or it is not. The third provision is in the wrong place. One cannot have a term of imprisonment not exceeding 30 years under a heading of life imprisonment or at least it should not be included.
Mr. Costello: This is nit-picking but the section provides that a person convicted of an ICC offence is liable to imprisonment or a fine. The word “to” is omitted at the start but appears in the middle of paragraph (c). The paragraph reads, “if the person has obtained property as a result of or in connection with the offence, to having a confiscation order made in respect of him or her”. I would have thought that this paragraph would commence, as in the case of the two previous paragraphs, with the word “to”.
Mr. Costello: I said I was nit-picking but we as might as well ensure there is coherence in the wording of the paragraphs rather than they being phrased in convoluted English. The presentation of the third paragraph appears a little sloppy. The Minister might consider it with a view to rephrasing the paragraph and commencing with the preposition “to” instead of the adverb “if”.
Mr. McDowell: I defend the draftsman’s position. I do not want to dump on my draftsman. I think the paragraph is fine. The draftsman has provided that if the person has obtained property as a result of what is stated, a person is liable to having it confiscated. It is six of one and half a dozen of the other. I must stand by the draftsman somewhere in this process or I will never get anything drafted again.
Mr. Costello: Subsection (3) is an interesting one. It states: “Sums recovered under a confiscation order made in relation to an ICC offence shall, if the court so directs, be applied wholly or partly in reparation to victims of the conduct constituting the offence.” I agree entirely with this provision. It is a desirable aspiration or even more than that given that it is included in legislation. In the context of the sums mentioned, presumably that refers to sums held domestically on which we can lay our hands. Does it also refer to sums abroad which the Criminal Assets Bureau or some other mechanism can be used to secure? In this context, presumably we are talking about people who are victims within our jurisdiction or victims who are living within this jurisdiction and persons who might be arrested and charged.
Mr. McDowell: I do not believe it is envisaged that the Irish State would start confiscation proceedings on foot of an Irish conviction in other courts or proceedings designed to recover property in other countries. It is a territorial notion that the assets in question would be subject to the jurisdiction of the Irish courts. I do not believe we are assuming international jurisdiction over the proceeds of genocide because that could give rise to all sorts of problems.
I will give Deputy an example of that. In the case of works of arts stolen from people who were sent to the gas chambers during the Holocaust, are we going to place an obligation on the Irish courts, simply because they convict a person of genocide, to begin investigating where the proceeds of the crime went internationally? That is not a realistic exercise for the Irish State to undertake.
Mr. Costello: That is an interesting concept. If a person, having fled from another jurisdiction, is charged of crimes against humanity in this jurisdiction and he or she has wealth or assets lodged in some bank or institution here, would that be the type of situation where the Minister would envisage such funds being seized and the victims concerned being given reparation?
Mr. McDowell: I can envisage that situation, but it would be for the international law relating to co-operation and assistance to deal with a situation such as that. I do not want to give the Irish courts or the criminal court here a function of further following up on civil assets and arguing about whether a work of art which is now hanging somewhere was or was not taken from a victim of genocide.
Mr. McDowell: The Deputy accused me earlier of making work for lawyers but that would be something else. Who would do this work? Would it be the Director of Public Prosecutions and, if so, is that office to be reconfigured to chase up assets that are not in Ireland?
Mr. McDowell: If somebody came to Ireland fleeing another country, as in the example the Deputy gave, had the proceeds of genocide in his or her possession and a confiscation order was made on those assets, what I would have in mind is that the court would have general jurisdiction to direct that the assets would be confiscated and that instead of simply being forfeited to the Irish State, they would be used in some way. For instance, in the case of an atrocity such as the massacre at Srebrenica and if we are talking about an atrocity involving 5,000 people, I do not believe that the court could simply hand out the assets in some small form but it could be applied wholly or partly in reparation to victims of the conduct constituting the offence. It could go to relatives or to something in reparation for the offence. I do not believe it is possible to set out a scheme of application of the assets in more detail than that set out in subsection (3).
Mr. Costello: It is an interesting concept in the context of other legislation we are discussing where people are victims of criminality, drug related crime and so on that such proceeds of crime would not go to the Exchequer but would be used——
Mr. McDowell: As the Deputy is aware, the Department of Finance has a strong policy against hypothecation of fines for particular purposes and matters such as that, but in this case since we are assuming international jurisdiction, it would be strange if the Irish Exchequer benefited from crimes which might not even have been committed in Ireland. I can see the reason for an exception.
Mr. Costello: I move amendment No. 17:
This is to cover the unlikely event that there would be crimes against humanity perpetrated not just on Irish territory but in a transit vehicle such as an Irish ship or aircraft. The legislation appears to be silent on the matter so it would be useful to have a specific reference to cover that possible eventuality.
Mr. McDowell: The principle behind the amendment is correct. I propose to table a Government amendment to give effect to this amendment on Report Stage. I want an opportunity to include a definition of an Irish ship and an Irish aircraft. Since we are nit-picking, the Parliamentary Counsel advises that the phrase “wherever situate” because of the absence of commas could apply only to aircraft and it should be clear that it applies to ships as well.
Mr. Costello: That is not correct. My comma is in the right place.
Mr. McDowell: We will address the issue between now and Report Stage.
Amendment, by leave, withdrawn.
Question proposed: “That section 12 stand part of the Bill.”
Aengus Ó Snodaigh: I wish to give notice of my intention, as I did with section 6, to table an amendment on Report Stage to extend the section’s scope to cover crimes under international law which might not have been covered by the Rome Statute.
Question put and agreed to.
Question proposed: “That section 13 stand part of the Bill.”
Aengus Ó Snodaigh: I wish to indicate my intention to table an amendment on Report Stage to give effect to a recommendation by Amnesty International that the standards of superior responsibility should be the same for civilian superiors as for military commanders, as is the case under customary international law.
Question put and agreed to.
Chairman: Amendment No. 51 is related to amendment No. 18. Amendments Nos. 18 and 51 may be discussed together.
Mr. Costello: I move amendment No. 18:
This section relates to the protection of victims and witnesses. Section 14(1)(b) refers to: “the enactments or any rule of law relating to the protection of witnesses against intimidation”. This appears to be a narrow interpretation of protection. Intimidation is not the only thing against which witnesses might require protection. They might, for example, require the protection of anonymity. Lives could be at risk in matters of this nature so it would be better to broaden the scope of the protection. The amendment seeks to prevent publication of information tending to identify any injured party. That should be of assistance in providing the anonymity that might be necessary in matters of this nature.
Mr. McDowell: Section 14 creates an obligation to have regard to Article 68 which involves paragraph 2 in camera hearings where necessary. That is significant. The Deputy’s proposal is to prevent publication of information that might identify an injured party but that is too narrow even to accomplish his purpose. A witness might not be injured but might have seen terrible things happen and might require protection. I will re-examine this to see if Article 68 is brought into effect sufficiently by section 14. Witnesses and injured parties are not the same in every circumstance.
Mr. Costello: That is correct. The focus of the amendment was to cover the victim because the victim is not mentioned in subsection (1)(b) while the witness is. The witness is being protected against intimidation.
Mr. McDowell: Victims are mentioned in Article 68, paragraph 2.
Mr. Costello: They are but not specifically in this subsection or any rule of law related to the protection of witnesses against intimidation. Protection of witnesses and victims would give a fuller protection.
Mr. McDowell: I will re-examine it and consider if section 14 can and should be changed or made clearer or strengthened.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Chairman: Amendments Nos. 19 and 20 are related and may be discussed together.
Mr. Costello: I move amendment No. 19:
This is a little more nit-picking. This section deals with the interpretation of appeals proceeding, provisional arrest warrant and state of enforcement. Then there is another subsection which is not an interpretation but which has been grafted on. My intention is to separate subsection (1) from subsection (2) because the latter is not an interpretation subsection. The first amendment seeks to delete that subsection and amendment No. 20 inserts that subsection as a section, as distinct from an interpretation.
Mr. McDowell: The Deputy’s point appears to be correct. I will accept the amendment today subject to changing it on Report Stage if there is a problem.
Amendment agreed to.
Section 15, as amended, agreed to.
Chairman: Amendment No. 20 has already been discussed with amendment No. 19.
Mr. Costello: I move amendment No. 20:
Amendment agreed to.
Section 16 agreed to.
Chairman: Amendments Nos. 21 and 22 are related and may be discussed together.
Mr. McDowell: I move amendment No. 21:
This amendment involves the substitution of section 17 of the Bill which deals with conflicting requests. The need to revise this section arises from the enactment of the European Arrest Warrant Act 2003 after the publication of the ICC Bill. The amendment takes account of the fact that a person’s surrender may be requested under three distinctive legislative provisions. For example, a person wanted by the ICC may also be subject to a competing request for extradition pursuant to the Extradition Acts, or a European arrest warrant may have been issued in respect of that person. Accordingly, the revised section 17 of the Bill addresses the situation where two or more surrender requests are received concurrently for the same person, such as a request from the ICC and a European arrest warrant request.
Mr. Costello: That seems reasonable enough. As we need to insert a provision to determine the conflicting situations, I agree to the amendment.
Chairman: What about amendment No. 22?
Mr. McDowell: The proposals cover the same territory.
Mr. Costello: Yes, it effectively deals with my amendment.
Amendment agreed to.
Amendment No. 22 not moved.
Section 17 deleted.
Mr. Costello: I move amendment No. 23:
Mr. McDowell: This amendment seeks to give the court a role on the re-entry of a case after it has been withdrawn in the circumstances outlined in section 18(4). Section 18 provides for a certification of requests from the ICC by the Minister. Where the person wanted by the ICC is also being investigated or proceeded against in the State concerning an offence that is not an ICC offence and the Minister decides to proceed with the ICC request, the other domestic proceedings must, on the application of the Director of Public Prosecutions, be withdrawn with liberty to re-enter. The proposed amendment would make a specific reference to the domestic court refusing to allow proceedings to be re-entered if it saw sufficient reasons to the contrary.
It must be remembered that the DPP must make the ultimate decision as to whether prosecution is appropriate in a particular case. We have an adversarial system, not one in which the court decides whether it will start or stop. It decides whether to hear applications made to it on whether proceedings are constitutional and fair. It is for the DPP to apply his or her mind as to whether it is appropriate to bring a prosecution and, by extension, whether to re-enter a case. The DPP is in a special position. It is generally thought undesirable for interested parties to participate in the DPP’s decision or for the court to exercise a broad supervisory function over decisions of the DPP. The court has an inherent power to strike out or stay any proceedings where it considers that such proceedings amount to an abuse of process or are constitutionally prohibitive. Therefore, I do not accept the proposition.
I do not want to give the court this explicit role of vetting it. It has a residual power to prevent its own process being abused. However, I want to maintain the primarily adversarial role where the DPP brings his re-entered matter before the court. If at that stage the defendant wants to argue that it should not be heard or allowed to proceed further, the defendant should be allowed to make that argument. I do not want to give the court some sort of inquisitorial role on re-entry matters.
Mr. Costello: Does the Minister not envisage any constitutional problems in that respect in that the court has no choice in the matter?
Mr. McDowell: No. The court always has a choice to prevent anything from happening that is unjust in constitutional terms or abusive in terms of procedure. It can always stay or refuse to do something in an adversarial process where it would result in an injustice.
Mr. Costello: Does the Minister think the section allows that?
Mr. McDowell: I think so, yes
Mr. Costello: It would seem to compel a court to act in a certain way.
Mr. McDowell: No. It creates the right for the DPP to re-enter the matter but it does not say that the court must then proceed with it, even though it would be unjust to do so.
Mr. Costello: It does not, however, give the court any role in the matter.
Mr. McDowell: We say the court has an inherent right to refuse to be party to any injustice or breach of constitutional rights.
Mr. Costello: Inherent and constitutional?
Mr. McDowell: Yes.
Mr. Costello: I will withdraw the amendment.
Aengus Ó Snodaigh: As regards section 18(2)(b), can the Minister explain where he would envisage that primacy would not be given to the ICC offence? It states “may” rather than “will” postpone such an action. This is where the case of somebody appearing before the Irish courts on an ICC offence is being proceeded with. I presume, although I may be wrong, that the ICC offence would take primacy in all cases.
Mr. McDowell: “May” is used there because there could be some circumstances in which the court would realise that it would be pointless to start postponing one thing for another. There could be circumstances in which it would become a pointless activity.
Aengus Ó Snodaigh: In that case, would the court or the DPP decide the matter?
Mr. McDowell: I do not like directing the court that it must always do something. All we are doing here is giving it the jurisdiction to postpone.
Aengus Ó Snodaigh: No. In fact, the provision is that the Minister may postpone an action.
Mr. McDowell: Yes, it is the Minister. I am sorry.
Aengus Ó Snodaigh: Normally it would be the DPP or a court. I will come back to this matter on Report Stage.
Amendment, by leave, withdrawn.
Mr. McDowell: I move amendment No. 24:
Amendment agreed to.
Section 18, as amended, agreed to.
Chairman: Given that we are now at the end of a section, we will adjourn the meeting until 2.30 p.m. next Tuesday for further consideration of the Bill. Is that agreed? Agreed. I thank the Minister and his officials for attending the committee and I look forward to seeing them all again next week.
Progress reported, committee to sit again.
The select committee adjourned at 10.30 a.m. until 2.30 p.m. on Tuesday, 7 March 2006.
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