Dáil Éireann - Volume 534 - 11 April, 2001
Private Notice Questions. - An Bille um an Tríú Leasú is Fiche ar an mBunreacht, 2001: An Dara Céim (Atógáil). Twenty-third Amendment of the Constitution Bill, 2001: Second Stage (Resumed).
Atairgeadh an cheist: “Go léifear an Bille an Dara hUair anois.”
Question again proposed: “That the Bill be now read a Second Time.”
Mr. J. O'Keeffe Mr. J. O'Keeffe
Mr. J. O'Keeffe: Fine Gael whole-heartedly supports the ratification of the Rome Statute to establish the International Criminal Court. My initial focus was on the delay on the part of this Government in that it is almost three years since agreement was reached at a UN Conference in Rome and we are only now at the stage of debating the Bill to amend the Constitution to enable us to ratify.
My main concern is that amending the Constitution does not affect ratification. Other measures are necessary. Further legislation will be necessary as was made clear by the Taoiseach in response to questions I raised with him last year.
We need a Bill enacted similar to the War Crimes Tribunals Act, 1998. I have not seen such legislation and I want the Minister to tell me when that reply is to be circulated. I do not want to be told that this is a matter for the Minister for Justice, Equality and Law Reform. That is only passing the buck. It is for the Minister of State at the Department of the Environment and Local Government, Deputy Wallace, who is in the House dealing with this issue, to tell Members the full state of affairs. I want to know what kind of legislation there is, when we will see it and what provisions will be in it. I also want to know what kind of measures will be necessary to enable us to ratify it.
There is no evidence that anything has been done about legislation or about such administrative measures, and my main concern is that there will be further delay on the part of the Government even after the referendum process has been completed. It is normal at a time of constitutional change for a Government to circulate legislation underpinning the policy approach proposed. There is in this instance a gaping gap. Legislation has not been circulated nor have details been given. Neither do we have details of the administrative measures which the Taoiseach said last year would be completed at the earliest possible date. When the Taoiseach wants to rush things he can run as fast as anybody in Croke Park, but I want to see more interest taken in the detail of this ratification process.
As a general principle the people are entitled to the benefit of maximum information before being asked to vote on a constitutional measure. My main worry is that there will be further delays after referendum day before Ireland fulfils its international duty and ratifies the Rome Statute. I have immense enthusiasm for the International Court, so much so that I drafted a Bill to enable us to amend the Constitution. My approach involves fighting crime at home and abroad with a commitment to international law and order as well as law and order at home.
Establishing a permanent International Court will be a major contribution towards deterring crimes against humanity. At present there is no permanent international body to which the Pol Pots and Saddam Husseins of this world would be answerable. International tribunals such as  those for Rwanda and the former Yugoslavia are limited to one area in each case. It is entirely right that we should move away from an ad hoc system to permanent deterrents. As the Minister mentioned, ad hoc tribunals cannot be a substitute for a stable international judicial mechanism. This is clear also from the fact that in the half century since the Nuremberg and Tokyo trials, massive human rights and humanitarian law abuses have been committed and continue to be committed worldwide. It is time for the international community to demand official accountability for such acts. Once it is in place, the International Criminal Court will always be there to call the world's tyrants to account.
A permanent International Court is necessary for many reasons. It is time to end impunity since, despite the precedents of Nuremberg and Tokyo, it is clear that most perpetrators of gross human rights abuse and violations of humanitarian law are not punished by national or international bodies. Human rights and protections guaranteed under international humanitarian law will not be translated into practical behaviour unless potential offenders become aware that a price for violations must be paid. Impunity not only encourages the recurrence of abuses against human dignity but strips human rights and humanitarian law of their deterrent effect.
The International Criminal Court can provide a measure of relief to victims and their families and affected communities. Where populations are victims of atrocities the punishment of perpetrators is crucial to enable the process of reconciliation with other groups to begin. While, ideally, atrocities should be dealt with by the national authorities of the state in which they are committed, practice has shown that governments rarely call their own citizens to account for war crimes or similar atrocities especially when those responsible occupy positions of political or military authority. The situation in regard to President Milosevic is a case in point. There was no question of his being accountable to anyone until such time as he was ousted from office. No machinery of the state could bring him to justice and he is only now facing his just desserts, whether through domestic law or the ad hoc tribunal in the Hague. Milosevic will be better off if his case is transferred to the Hague as the death penalty does not apply there whereas it does in his home country.
The ad hoc tribunals for the former Yugoslavia and Rwanda were established precisely because domestic authorities would not or could not punish those responsible for atrocities. In any event, conflicts often lead to the disruption or even disintegration of domestic legal systems. Ad hoc tribunals cannot substitute for a permanent war crimes court. It is not possible to predict whether the UN Security Council will always have the political will or the logistical capacity to respond to massive human rights violations. As in Ireland, there is a danger that tribunal fatigue could set in in the UN.
 Under the current system, one of the main failings of international criminal law is the lack of a permanent and effective enforcement mechanism and the establishment of the International Criminal Court is, therefore, a logical step in the development of the international legal order. The court will also serve as a model of justice and act as a standard-setting institution in the area of due process and fair trial rights, while at the same time acting as a major deterrent to the perpetration of serious crimes which are an affront to mankind.
We in Ireland, with our long record of UN service by our military peace-keepers, should recognise the benefit of such deterrence as providing, if not a shield, at least a measure of legal protective support for members of the Defence Forces and the Garda serving abroad. I welcome the specific reference to the role of peace-keepers and the provision that any attack on them will result in the perpetrators being brought before the International Criminal Court. We have a domestic interest in this area as many Irish people have served and will, hopefully, continue to serve as UN peace-keepers.
The statute itself, comprising 128 articles, appears somewhat intimidating at first sight. However, it logically combines the various provisions agreed for establishing the seat of the court in The Hague with jurisdiction initially focusing on cases of genocide, crimes against humanity and war crimes. Once a definition and the conditions under which the court will exercise jurisdiction are established, the crime of aggression will also be included. I particularly welcome the special focus on crimes against women and children in the statute. The absolute prohibition of crimes such as pillage, rape, sexual slavery, enforced prostitution and crimes against children, including enlisting them as child soldiers, is specifically outlined.
Article 124 provides for an opt-out clause whereby a state may declare, on becoming a party to the statute, that it does not accept jurisdiction by the court over war crimes committed by its nationals or on its territory for a period of seven years. The Minister did not refer to the opt-out clause and I want him to give an undertaking to the House in his closing remarks that Ireland will not only refrain from exercising the opt-out clause but will raise its voice in encouraging other states to do likewise, particularly EU member states. France was primarily responsible for the inclusion of the opt-out clause and we should exert any influence we can, as EU members and colleagues of France on the Security Council, to encourage it and other countries not to invoke the clause. I am hopeful that when the court is up and running, other serious crimes such as drug trafficking and terrorism will be added to its jurisdiction arising from agreement at later review conferences. I appreciate this will take time.
Until the statute is universally ratified, it will not have universal jurisdiction. Regrettably, many  of the nations on whose territory the crimes subject to the court's jurisdiction are likely to be committed or whose nationals are likely to be responsible for such crimes will not be among the early signatories to the statute. However, I hope this will be rectified in time with changes of Government.
The vote in Rome brought together strange bedfellows with the United States and Iraq being among the seven who voted against the statute. Iraq's position is perfectly understandable; its tyrannical dictator, Saddam Hussein, being a prime candidate for attention by the court. I would not expect that country to join until the government changes. However, the US is in a different category. I am glad President Clinton signed up before he left office, but ratification under the new US Administration may prove problematic. Senator Jesse Helms, chairman of the Senate foreign relations committee, recently opposed accession to the statute, on the basis of protecting American men and women in uniforms from the jurisdiction of what he called “this kangaroo court”. It may take some time for a view to emerge in Congress which is more sensitive to international opinion. All this points to the importance of Ireland giving a lead on this issue and not dragging its feet further in the completion of the ratification process. We should become a founder member of the court in order that from that position, allied to our membership of the UN Security Council, we can encourage others to join.
The idea of an international war crimes court has been in gestation for almost a century. After World War I, the Treaty of Versailles provided for the establishment of an international tribunal to try the German Emperor but Kaiser Wilhelm never stood trial. The international tribunals set up following World War II at Nuremberg and Tokyo to try major war criminals were far more successful. The Nuremberg Charter specified crimes which are still considered the key crimes under international law of crimes against peace, war crimes and crimes against humanity. More important, those trials and judgments forever shattered the notion that state sovereignty could be used as a defence for acts considered outrages on the conscience of mankind.
Following the adoption of the genocide convention and the Geneva conventions in the late 1940s, the UN General Assembly asked the International Law Commission to examine the possibility of creating a permanent international criminal court. Unfortunately, by the time the commission produced draft statutes, further progress proved unfeasible during the political and ideological confrontations of the Cold War.
It is interesting that it was a small country which reopened the issue at the UN in 1980. Trinidad and Tobago proposed that efforts at drafting an international criminal court statute be resumed. The focus of attention at the time was drugs trafficking which, unfortunately, had to be dropped during the final complicated nego tiations on the statute but which, I hope, will at a later stage be included within the jurisdiction of the court.
While discussions continued over the years, the Security Council enhanced the prospects of establishing a permanent court when it set up the two ad hoc tribunals, thus signalling the international community commitment to supporting the principle of individual accountability for crimes under international law. Discussions culminated in their own statutes, setting out the terms of the treaty three years ago. Now we in Ireland have an opportunity to express our support for an international court to bring barbaric criminals to justice. Let us seize this opportunity with enthusiasm and ensure the constitutional legislation and referendum are both passed with huge majorities. This Government must also do its job by ensuring there will be no further delays in bringing forward the ancillary legislation and administrative measures to complete the process of ratifying the statute to create the international criminal court.
This brings me to the questions I want dealt with by the Minister of State in his reply. I wish to know the proposed date of the referendum. Subject to the foot and mouth situation, I am very happy to have an early referendum in relation to this change in the Constitution. I would also like him to deal with the possible confusion that may arise if the four referenda are taken together. I hope everyone will support this referendum and that the same will apply in the case of the death penalty. It is obvious at this stage that will not be the case in regard to the Nice Treaty where the usual suspects are gearing themselves up to promote their anti-European approach. Clearly there will be strong opposition to the treaty and, given that some of the smaller parties will get in on the act, there will be an anti-vote in this regard.
It seems clear there may be an anti-vote on the referendum on judicial conduct. I question the advisability of holding the four referenda together. I am particularly concerned that the referendum on the Nice Treaty should, first, be given an opportunity for proper discussion and, therefore, be deferred until the autumn and, second, that it should not be coupled with other referenda, thereby increasing the possible confusion that may arise or be deliberately caused in relation to the treaty.
I also want the Minister of State to deal with the date of ratification of the international criminal court. I have outlined my concerns that just passing the referendum to change the Constitution does not result in automatic ratification and that other measures must be taken. I wish to know the details of these measures and the details of the ancillary legislation, when this will be circulated and when is it proposed to have it passed through the Oireachtas. I want to know the details of the administrative measures to which the Taoiseach referred. What are they? There has been a vague reference to them but no details. The House and the people are entitled to know what exactly is involved. I want an absolute assur ance that Ireland will not declare to take the benefit of the opt-out clause 124, which a colleague described in a letter to me as the licence to kill declaration. Under no circumstances should we be involved in this. We need to be assured that we will do what we can to try to discourage others from using this clause.
I want this legislation to be adopted and the referendum to go through. I also want answers to the very legitimate questions I have raised because the House is entitled to such answers. It is a basic fundamental principle when any Bill to amend the Constitution is going before the people that every piece of information which could influence their judgment should be laid before the people and the House before asking them to vote. It is wrong to begin the process of seeking to amend the Constitution, the basic law of the State, without making all the information available. That has not been done in this case and I urge the Government to do so. Based, I hope, on a positive reaction from the Government in this regard, I will be supporting whole-heartedly an approach to have the Bill accepted by the Oireachtas and approved by the people at the earliest possible date.
Mr. M. Higgins Mr. M. Higgins
Mr. M. Higgins: I welcome the opportunity to indicate the Labour Party's position in favour of the speedy ratification of the establishment of the international court. I would like to make a few preliminary points on the significance which attaches to the court. I believe all parties are in favour of the coming into existence of a new institution of international justice dealing, first, with the possibility of steps being taken to achieve justice for all, second, ending impunity in relation to enormous crimes against humanity, third, the possibility of ending conflicts, fourth, its replacement of ad hoc tribunals by a permanent structure, fifth, to take over where national criminal justice institutions are unwilling or unable to act and, sixth, its possible deterrent effect on future war criminals.
What Deputy O'Keeffe said is interesting. The force of the new international court and the force of what it will be doing following a successful constitutional referendum, a referendum in which I would urge the public to overwhelmingly become involved and to vote in favour of, will be limited by ratification. There is a long history attached to the proposal for such a court. It goes back to Resolution 260 of 9 December 1948 when the General Assembly passed a resolution “recognising that in all periods of history, genocide has inflicted great losses on humanity and being convinced that in order to liberate mankind from such an odious scourge, international co-operation is required”. The long journey for 50 years between 1948 and 1998 tells us something about the nature of international power politics and the great difficulty issues of human concern had in surfacing in such an atmosphere.
Even today, it is very important that we bear in mind what is likely to happen in relation to the  court should the appropriate number of ratifications become available. Some 60 states are needed for ratification. In January 2001, more than 130 countries had signed up for the new instrument and more have done so since. At that time approximately 27 countries had ratified, in other words, the new instrument establishing the international court had made it half way through the ratification process.
The most significant and contentious factor has been the attitude of the United States to the court. I need to make one point perfectly clear. The international coalition in favour of the international court of justice contains many distinguished lawyers from the United States, many non-governmental organisations and many human rights organisations with which I have had some dealings in the past. They have all been urging the coming into existence of the international court. In a report in The Guardian of 11 April 2001 reference was made to a recent statement by Jesse Helms, the chair of the foreign affairs committee in the United States. He called President Clinton's action an extraordinary volte face when in the last days of his administration, December 2000, he signed the convention. Unusually, or perhaps predictably, he did not send it to the Senate for ratification. Senator Jessie Helms described it as “a blatant attempt by a lame duck President to tie the hands of his successor”. He added that he had a message for the outgoing President that this decision would not stand.
We have to be realistic and morally courageous and we also have to exercise our friendship in a moral way. Our influence through our membership of the Security Council and with the United States with whom we have friendly relations should be such as to urge the United States to ratify the treaty. The prospects will be very bleak and the arguments being made by those in the United States, such as Senator Jessie Helms, against signing the new convention, ratifying it and bringing it into existence are singularly immoral and offensive. The attitude of Jessie Helms has been that the United States will not give jurisdiction away to try what it sees as some of its own people acting in uniform. One of the most moving posters I have ever seen during my long interest in international relations was of the My Lai massacre. Senator Helms would defend the perpetrators of that massacre by excluding such people from anything that the international court might decide. This is an unacceptable attitude. It also turns to ashes statements that are being made regarding those dictators we can identify in countries that are not in the club of geopolitical powers. There is now what someone has referred to as a “major hyper power”. If the international court is to be in the instrument of jurisprudence we want it to be and if it is to be the mechanism and institution of defence of children and civilians and of all groups in the family of nations, it should apply equally to all. It seems  to be an indefensibly arrogant position to suggest that it can apply to everyone on the planet, except to Americans. That is the present position of the United States, which is an unforgivable one.
It is very interesting to note that the draft treaty was significantly watered down at the conference in Rome in 1988. A number of amendments suggested by the United Nations High Commissioner for Refugees did not find their way into the final text. A number of conditions were included which considerably reduced the impact of the treaty. There were other mechanisms about which there could be some questions – the mechanisms of referral and discussions on what would be appropriate sanctions. Despite all this and with US involvement and influence on watering down the draft of the terms of the new international court, it was still left to the last dying hours of the Clinton administration for it to be signed in almost the full knowledge that was as far as it would get. This is very depressing.
The enthusiasm for the international court is indicated by the fact that in the first six months after the original Rome conference, 73 world leaders signed up. What is even more encouraging is that 27 countries have moved to ratification. I agree with Deputy O'Keeffe that the test for us is to move quickly to ratification and to put such legislation in place to enable us to do so speedily.
There are other questions that arise as well. I already mentioned that one of the advantages of the court is that it brings a new institution into existence. The International Court of Justice in the Hague really deals with states rather than individuals. This new institution will be able to deal with individuals. That fills a glaring lacuna, if you like, in responsibility. Should it come to be that the court is up and running, it will deal with the issue of impunity in a much wider sense. I find it very difficult to accept that while a country has delayed its signature and is likely not to ratify, it still seems willing to identify those who might appropriately come before the court and who might be subject to its sanctions.
I will concentrate on the positive achievement it is, that the court may now come into existence. The ad hoc tribunals in former Yugoslavia and Rwanda were not sufficient and a permanent court is a major advance on that. It is, however, instructive to reflect on the establishment of even these ad hoc tribunals. In relation to former Yugoslavia and Rwanda, involvement came very late and Britain and the United States stood in the way of the tribunals coming into existence for a long time, which was a great pity.
This raises the question of universality which is a very important test of such institutions. The institution acquires its credibility, force and greatest moral strength and strength of deterrents from it being perceived as applying to anybody who participated in any of the crimes listed. In that sense, what one can seek so clearly is that something aimed at the universal vindication of the rights of the person, is something that takes precedent over other interests, including econ omic and military interests and the interests of particular countries within the geopolitical framework. It either does, or it does not. Those who respond to me on this matter argue that normative theories that suggest the universality of application in such a way are now no longer possible and, therefore, it is something practical and acceptable to be operating, as it were, pragmatically, that is, that some countries, some of the most powerful, will go along with the court with serious conditions pushed out in front of them or they will accept its remit when it has been seriously qualified. What that is saying is that interests are prevailing over norms and the norms of which we speak are ones of international law and international jurisprudence.
It is important to try to understand why these reservations are being put in place. As I understand, the biggest worry the United States had was about the prosecution of its soldiers. For the international court to work, the support of these bigger countries is vital. The case of the Yugoslav tribunal I mentioned is also instructive. It only became effective from 1995 when the United States and the Allies got engaged on the ground in Bosnia. It is possible that the United States may yet find a way to collaborate with the international court. In practice, the US has often done this – observing provisions of treaties, including ones on the conduct of war, which is has not ratified. Even within the United States forces, there is evidence that they take the laws of war seriously and they are slightly more advanced in the preparation of manuals and so forth. What is also unfortunately true is that with the development of surrogate wars, that is, where a major country provides the armaments to lesser groups, the remit of the court would be limited. It is also tragically true that with the evolution of what has been described as high technology warfare, where, for example, one can bomb from the safety of 15,000 feet with alleged smart weapon targets that are reputedly ones participating in the war effort but which turn out to be civilians, means there is a net interest among some countries that are in possession of high technology warfare instruments to avoid the remit of the treaty altogether.
For that reason, therefore, when one cuts away the rhetoric, is the new international court of justice to be aimed at those to whom it can be aimed with safety, usually developing countries and countries of the south? Will it leave completely untouched those who wage war with the greatest abuse of intelligence, science and technology that is available on the planet? It is the test of a democratic country to submit itself to the remit of the court. That is, sadly, what is at stake in the refusal of the US to ratify the court.
Many of those who are anxious to adopt an international code of law and anxious about the morality of international relations are the most distinguished scholars and activists in jurisprudence in law in the US but they are not represented in the warmongering rhetoric of Jesse  Helms. The Minister must reply to questions from Deputy O'Keeffe. I would like to elaborate further on the relationship of the international court with the UN system and how matters are to be referred under the remit of the court, whether it is in terms of a decision of the Security Council, nation state or individuals. These matters are not clear. If it required, for example, a referral by the Security Council of the US, then issues of law would not prevail but rather issues of permanence on the council.
It is important to realise how people can get past the imbalances that exist in regard to national jurisdictions and legal systems and processes. It is of the utmost importance that the founding principles of the court are addressed from the outset. The court must be universal in its thrust and acceptance and it must be seen as an important buttress to the international institutional framework of which the UN is the best example, even if it needs to be reformed. That is an area upon which the Government I hope will be active.
It is important that the suggestion that somebody is acting, following a declaration of war or the identification of a conflict, in the name of one's country should not confer immunity. Many of us, for example, have wondered how an international legal system could be constructed given that the four major conventions of the Geneva Convention were broken in the 1940s. Are they to be exempt? Many of us witnessed the sinking of The Belgrano and the celebration of an act of international terrorism on the front pages of the British tabloids. If one is to say certain issues will not be before the court and the largest country will not send a diplomat to it because it does not believe in it, a framework must be constructed in the hope that such countries in time will accept the same civilised disciplines that they ask to be observed by the international community.
It is my hope in regard to foreign policy and international affairs that all parties in the House will have the courage to speak about these moral concerns. Recently I witnessed an unedifying spectacle where people qualified their remarks on the rights the Aboriginal people on the basis that we should be careful about this matter because the county involved was contributing to the International Fund for Ireland.
The international court of justice is aimed at the legacy of Dachau and the concentration camps. The suggestion was that human rights had fallen to a low point which shocked people. It gave a great impetus to the original human rights movement. Such a court cannot be constructed to sit as an international institution that has the respect of lawyers and citizens in any part of the world and, at the same time, allowing significant exceptions to it.
I have almost set a problem for the new court by saying its relationship with the UN should have been specified. There are many ways of killing matters at the UN and former President Robinson drew attention to one recently. One does  not block a matter formally but starves it to death. There is the issue of the funding of the court. I do not recollect the Minister making any reference to the mechanisms for funding it and to assurances of autonomy and its ability to work speedily, yet these are important matters.
I would like to know more about the autonomy, independence and adequate funding for the prosecutor attached to the court. It would be useful if the Minister, in his reply, referred to those elements in the draft legislation that were changed before we received the final text, which will transfer jurisdiction from Ireland to the new court and on which the people in turn will be asked to vote. There are major unresolved issues, some of which had to be left aside to produce a final text. However, they are still important and should be articulated.
Another unclear issue in the early draft related to the structure of penalties. I am not sure whether that draft included the death penalty. I presume that is addressed in the other constitutional amendment. Jose Ayala Lasso, the former UN High Commissioner for Human Rights, once said that a person stands a better chance of being tried and judged for killing one human being than for killing 100,000. When we reflect on that, it is time to end the impunity of people who are involved in the crimes listed such as genocide. I welcome the listing of crimes which include, for example, sexual slavery. Slavery itself must be addressed given that 27 million people live in slavery, 20 million of whom are in bonded labour.
However, there are consequences to excluding some of the major powers. In 1999 the total amount of the world's resources spent on the production of armaments was £886 billion and the total value of the drug industry was £400 billion while the budget for that which the World Heath Organisation had responsibility was £65 billion and £15 billion was spent on four preventable diseases, such as malaria, measles and TB. That gives an account of the kind of world in which we live. I will put a question which should be put in every parliament: how logical is it to leave those who produce armaments and are in charge of such a vast proportion of the world's resources which is spent on war and death outside the remit of the court?
It will take a great diplomatic initiative to convince those who are reluctant to participate. As someone who is not a lawyer but is interested in the sociology of law, if one says one is ending impunity against listed crimes, then one should lift the impunity from everybody who is a possible perpetrator. If one says one will qualify it, then one must have a strong system that is an alternative which must show, for example, the execution of people with the mental age of 12 in the case of the countries which have been the slowest to sign up to the court and the most unlikely to ratify the court.
If it is to help end conflicts, the new permanent institution must be put on a more open and trans parent basis than the two ad hoc tribunals I mentioned. If the new court is to take over where national criminal justice institutions are unwilling or unable to act, it must be borne in mind that the 31 current conflicts on the continent of Africa are not inter-state conflicts. They are internal conflicts between ethnic and tribal groups and the mechanism of referral and access to the new court will be most important.
One of the areas from which the new court could draw some strength would be to eventually bring the production of arms under some control. As I said, £886 billion was spent worldwide on arms in 1999, which is approximately 65 times more than the amount spent on preventable diseases. However, all the illegal arms used in different conflicts, including the ones I mentioned in Africa, began somewhere as legal arms. They were produced by somebody. If one takes it that it is an infringement of somebody's rights to be able to trace a gun, a rocket or some means of chemical warfare, one is conferring an impunity on arms that is now being removed from individuals. In terms of the court, we should move speedily towards being able to participate. I want to be fair to the Irish diplomatic service which worked on this matter. Officials were members of the preparatory commission and they did good work in the preparation of the draft and handling the many representations that were made.
In terms of the preparation for this amendment to the Constitution, several other countries signed quickly. As I said, approximately 70 signed within six months and the Canadian Government has a website that promotes the establishment of the international court. I do not want to be accused again of being anti-American or having a knee jerk reaction so I wish to point out that among those funding the coalition for an international criminal court were the Ford Foundation, the McCarter Foundation and the Open Society Institute as well as a number of governments.
For all these reasons, we should welcome the fact that we have an opportunity to speak out in favour of the international criminal court. We should also reflect on what it means when the largest power in the world – the hyper power – can have somebody like Jesse Helms speak for it, refer to the court as a kangaroo court and decide to take it and its people out of its remit. It challenges us because if it succeeds in this, it should not succeed in anything else that it will try at the Security Council. If we believe in the international rule of law and, most importantly, as Kofi Annan said, the right of every citizen of the world to live under the blanket of rights, we should pursue whatever diplomatic efforts can be made to ensure that the maximum international shame falls on those with the greatest resources in terms of military might but the lowest commitment to international moral decisions.
Mr. B. Lenihan Mr. B. Lenihan
Mr. B. Lenihan: I welcome the introduction of the Bill. As the Minister pointed out, it is required because the traditional power under the  Constitution is reserved to the courts established under it. When Ireland was admitted to membership of the European Community in 1973, one of the reasons a constitutional amendment was required was to enable the European Court of Justice in Luxembourg to exercise jurisdiction in matters before it concerning disputes in Ireland. The tribunal established under the Rome statute will be covered by an expressed constitutional provision, which will enable the State to ratify the Rome statute in relation to these international crimes.
When the Constitution was enacted in 1937 the idea of an international crime had not been developed in any great detail in international legal jurisprudence. At the time Ireland operated as a member of the League of Nations. The Minister referred to the ideals of the League of Nations which are enshrined in Article 29 of the Constitution. It was only at the conclusion of the last world war that a decision was taken to instigate proceedings against those who were alleged to have waged aggressive war on humanity. This happened at the Nuremberg trials and because this jurisdiction was not a party to that dispute, there probably has been more criticism of them in Ireland than in most European countries.
There was a serious doubt from a legal and judicial point of view about what happened at the Nuremberg tribunal because it was not clear that the offences with which various culprits were charged were defined at the time of their commission. No procedure was in place and there was no advance warning. The horror of humanity at the unspeakable atrocities and outrages committed in that most bestial of wars meant there was an understandable hue and cry for vengeance at its conclusion. However, there was always a grave doubt about the legal and judicial propriety of what happened on that occasion.
Under the United Nations system, an attempt has been made since the last world war to codify principles in relation to international crimes and how these crimes can be prosecuted. One of the central defects of international law is the lack of any enforcement or ability to bring them beyond the level of diplomatic or mutual understandings and treaties between states that can be so easily dishonoured. In the period since 1945, there have been tremendous developments in the recognition of international human rights, such as the establishment of the whole system around the European convention on fundamental rights and freedoms in Europe. This has been most important in establishing a beacon and a template for the extension of civil, political and human freedoms throughout the continent of Europe. The United Nations also built on the universal declaration after the war in the covenants on civil, political, social, economic and cultural rights. All these international instruments have attempted to set a standard.
At times, one can be frustrated when committees established to police and enforce these covenants make adverse comments about this  State. Ireland has an exemplary record by international standards in the field of human rights. It was one of the first states on the continent of Europe to accept the right of individual petition to the commission in Strasbourg under the Council of Europe system. Ireland was also one of the first states in Europe to accept the compulsory jurisdiction of the court in matters pertaining to its citizens. Ireland has been to the forefront in this area. At times, one can be impatient with some of the criticism that is levelled because one's catalogue of human rights must be coloured by national cultural conditions to some extent.
We are dealing with something of a different nature in this Bill, namely, the issue of international crimes and the establishment of effective enforcement machinery to ensure those who perpetrate such crimes are punished. The statute which has been submitted to us and, effectively, to the people through the medium of the referendum seeks to do that. It is a worthy proposal and it is appropriate it should be put to the people along with the Nice Treaty. One of the criticisms made of the treaty during the debate on it was that the United Nations system should be developed further. The bulk of criticism of the Nice Treaty has been that there are dangers in moving towards a regional security arrangement involving our European partners without paying attention to the problem of world government and the importance of strengthening the United Nations. This arrangement is under the aegis of the United Nations.
In a sense, in this referendum we are taking a real and practical step, arguably the most practical which can be taken, to strengthen the United Nations system. The step we have decided to take is to establish an international criminal code. We know laws require execution and enforcement. It is a truism of the law student that international law has always lacked an effective system of enforcement which has characterised domestic law. It is not to devalue its character as law that I say it has not had the same sanction or clarity in the minds of the population the provisions of domestic law have had where the policeman, judge, bailiff and jailer exist to ensure compliance.
Member states will be allowed police these offences but I note the court will be in a position to investigate an offence. This is an important provision and Deputy Michael D. Higgins touched on it previously. Many of the disputes which have arisen in former colonies throughout the world have been tribal in origin but have also involved the abuse of state power by certain tribal groupings, factions or brigands who have managed to place the apparatus of Government under their direction. It is all to the good that this new court will be in a position to investigate these matters directly and assemble proof with a view to a prosecution. It means the necessary investigative phase cannot be frustrated at the level of an individual state in the world community. I welcome this measure in so far as it provides for that.
 As regards the court, it will have to operate on the basis of the international rule of law. It is a milestone in the establishment of the international rule of law. The Minister and other speakers outlined the history of this matter and traced the genesis of the provisions. The simple question to be put to the people in the referendum is whether the State should ratify the statute. If so, it means that, if a perpetrator of crimes under the statute were resident in Ireland, we would be obliged to send him or her to this international tribunal for trial. It is important this country is not a haven for such persons. It is a prospect faced by many small European states with a long history of non-involvement in military quarrels that they may be a favoured haven for such parties. To that extent, ratification of this statute will send a signal to the world that Ireland will not be a welcoming place for people with that type of record.
Regarding consultation of the people, this is a Bill to amend the Constitution and is one of four to be submitted to the people. There is argument about the merits of such a procedure. It is a good idea a number of questions are to be put to the people. They are sufficiently intelligent to give an answer on all of them. The All-Party Committee on the Constitution discovered, among other things, that a number of amendments to the Constitution similar to this are desirable and to which there could not be any great objection but which, for want of time for a referendum, cannot be dealt with. Ministers often have the experience of being told there is no parliamentary time for a Bill. Likewise with the Constitution, the argument has been made that there is no referendum time for an amendment to it. In effect, we have with these four amendments the provision of referendum time. I spoke on the Nice Treaty last week and it struck me that the proposal is not as contentious or controversial as has been represented and that the other three referenda do not have any great controversy attached to them, although I appreciate the Opposition has various points to make on the details of the amendment relating to the Judiciary. This constitutional amendment certainly does not occasion any controversy.
I am anxious about the turnout at referenda. Deputy Owen was the sponsor of a constitutional amendment some years ago which elicited a very low turnout. It was a necessary amendment dealing with bail and giving the Houses the power to regulate that. I appeal to the Minister to consider the option of a weekend poll for these referenda. We have gone along with the practice of having a poll generally on a Thursday and occasionally on a Friday in recent years. To hold a poll on such a day is a throwback to an agricultural society which existed in Ireland 40 years ago or so and in more ancient times but which no longer exists. The movement of people throughout Dublin city and the different parts of Ireland during weekdays makes it obvious that a weekday poll is  completely unsuitable for citizens in the circumstances in which they live.
This is not just a plea from a suburban Dublin Deputy, although, for the majority of voters in my constituency, the available time to cast their ballot is limited to three or four hours in the day. That is the practicality of when they can vote in any one day. Given the traffic congestion in Dublin, the difficulties of transportation, the more flexible working times which now exist and the more responsible attitudes to parenting which are encouraged across the gender boundaries, it can be seen clearly that it is very difficult for people to vote in a suburban area on a weekday. They have more time at their disposal on Saturday or Sunday.
I appreciate under the relevant legislation the Minister is free to select any day, although I also appreciate the principal Churches have objected to the holding of a poll on Sunday. That is a pity. There is nothing wrong with voting. It is not a mortal sin, whatever about shopping or drinking in a pub. I had always understood voting belonged to the province of theological virtue and that the creature participated to some extent in the eternal law by casting his vote. Apparently, however, it is not right to vote on a Sunday for whatever reason. There might be some merit in that argument if we still had canvassing at polling stations, but we do not. However, I appreciate why the Government would not wish to set itself against the conscientious wishes of individuals where a referendum or election is concerned. That said, I appeal to the Church authorities to review their position on this issue.
It is important for everyone that a proper sense of social obligation is developed where voting is concerned. The Government would take a step forward in that regard were it to try the experiment of a weekend poll on this occasion and I strongly urge it to do that. If Saturday were the chosen day, the polls would have to be left open until 10 p.m.
Mrs. Owen Mrs. Owen
Mrs. Owen: Jews would not vote on a Saturday.
Mr. B. Lenihan Mr. B. Lenihan
Mr. B. Lenihan: They may have difficulties on a Saturday, but the Government can consult on that to see what arrangements can be made in that regard. It is an issue we will have to address because the turnout is declining and the problem is not confined to suburban areas in Dublin. It now exists in every constituency in Ireland and when I visit provincial towns I am amazed by the number of people who commute to work over a very long distance. There is now a very large group of such voters and holding a poll on a weekday has no reality for them. It is therefore a little unfair to blame the voters for not voting when we do not facilitate the exercise, by them, of their franchise. I urge the Minister, in consultation with the Minister for the Environment and Local Government, Deputy Dempsey, to examine the question of whether this poll can be conducted on a weekend.
Mrs. Owen Mrs. Owen
 Mrs. Owen: As our spokesperson, Deputy Jim O'Keeffe, has said, Fine Gael supports this legislation. However, it is a pity that it took the publication of a Bill by Fine Gael to stimulate the Minister to produce legislation and, when one considers that the idea of an International Criminal Court was first mooted a half a century ago, it is an indictment of all political parties that it has taken until now to fulfil a commitment given in 1948 with the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. It is interesting that it was Trinidad and Tobago that stimulated the debate. My history is not good enough to know why that was – were the people in those areas perhaps subjected to slaughter and genocide? However, it is an indictment of Europeans who knew the horrors of war and of the Nazi regime atrocities against the Jews, Travellers, Poles and Hungarians, that we could not have been to the forefront in ensuring that an international criminal court was established within 50 years of the adoption of article 6 of the relevant convention. One could say “better late than never”, but I am disappointed that since 1998, when the Statute of Rome was agreed, goodness knows what has been happening. With no disrespect to the excellent officials in the Department of Foreign Affairs, it is not a Department on which there is a big call to produce legislation and, at the very least, this Bill to have a referendum should have been introduced much more speedily. If it had been, the Department of Justice, Equality and Law Reform might also have got its act together and brought in the Bill to allow us to ratify this Statute. I am disappointed we do not, with this Bill, have the legislation from the Department of Justice Equality and Law Reform to allow us not only to put a referendum to the people, which I assume they will vote for, but to proceed post-haste to implement the legislation. We might have another six months to wait for the legislation to come from the Department of Justice, Equality and Law Reform and it might even be another year, so we should not clap ourselves on the back about having got this far.
There are 60 countries which have ratified this convention and 29 that have brought in national legislation. Ireland still has a long way to go to ensure that we are the 30th country to ratify. I give credit where it is due and there has been an increase in the speed with which we take up our responsibility to ratify and make law a number of the conventions of the UN that have been hanging around for many years. I am glad that, in my time as Minister, I legislated for a number of those conventions and it pleases me that my successor is doing the same. However, we should not praise ourselves too highly for having this legislation before us because it is well overdue and, when one considers that since July 1998 there have been opportunities for this Government to introduce this legislation, it is not a great source of joy that it is being done so late. We have to remind ourselves of what this court will do and  of the kinds of things with which it will have to deal.
It was not until the war in Bosnia Herzegovina and the other areas in the former Yugoslavia that we of this generation began to realise that human nature had not changed. We now look with absolute horror at what happened during World War 2, what happened in Germany and what happened in other parts of the world and say, “that was then, it could not possibly happen now with the international availability of information”, but we in this House have lived through the events of 1993, 1994 and 1995 in places like Srebrenica and Rwanda, where I saw the effect of genocide. The bodies were still on the roads where they had fallen having been slashed down with machetes by people killing their next door neighbours in their own streets. Young children were exhorted to kill their neighbours, to kill children and to kill their teachers and their doctors. It is with horror that we must realise, in 50 or 100 years people will read about what happened in these places they will say, “imagine, the EU was healthy and vibrant yet this was happening on its borders”. It really is frightening and I am ashamed to say that we will have to take the blame for letting this happen on our watch.
I decided to remind myself about it because I remember being appalled at the time Kofi Annan published his report on Srebrenica. I admired his ability to put such graphic material into the report and to accept the blame for the failure of the UN, and other international bodies, that were supposedly helping in places like Srebrenica. I decided to reread some parts of the report and in it, Kofi Annan reminds us, on 16 November 1995 the International Tribunal for the Former Yugoslavia, which was established in 1993 when people began to realise what awful things were happening there, indicted Radovan Karadzic and Ratko Mladic, who were both convicted for their responsibility for atrocities committed in July 1995. After a review of the evidence submitted by the prosecutor, Judge Riad stated:
After Srebrenica fell to besieging Serbian forces in July 1995, a truly terrible massacre of the Muslim population appears to have taken place. The evidence tendered by the Prosecutor describes scenes of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men and women mutilated and slaughtered, children killed before their mothers' eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history.
That is terrifying to read. It is even difficult to read in a debate like this, but that is what happened in July 1995. Think about that. In July of 1995 most of us were in this House, apart from a few elected in 1997, which is only five short years ago, and that is the description of what went on in Srebrencia with UN forces visible and trying to protect the safe areas. This report describes how  the Dutch battalion watched people being put into trucks they were not able to follow, how they heard gun shots and then found the bodies. That was on our watch, under our UN mandates and under UN Security Resolutions. It is really frightening. These are the kind of crimes over which this international court will have jurisdiction. When it is established, I hope it will act as a force for good in countries whose leaders perpetrate such crimes against their own people.
Along with some colleagues, I have just returned from a meeting of the Interparliamentary Union. One of the issues discussed at the special meeting of women parliamentarians there was the protection of women and children in times of conflict, and the growth in the use of rape and sexual assault as an act of war. The descriptions of people who have witnessed such acts were shocking. The bodies of young girls have been ravaged by the act of rape. Their little bodies have been destroyed forever and they will never have the opportunity of bearing children of their own. Young women have been raped and left with babies born from such violent acts. We heard about the difficulties they encountered – loving their baby yet knowing it had been conceived in this kind of violence. Mothers watched their daughters being raped, and young girls watched their mothers being raped. We must describe what has been done by soldiers perpetrating these crimes in various countries. I am glad the analysis of war crimes now includes descriptions of sexual assault, rape, pillage, sexual slavery, enforced prostitution and the use of child soldiers. All of this forms part of the kind of crimes with which I hope the new international court will be able to deal.
We have ad hoc tribunals in the Hague dealing with war crimes in the former Yugoslavia, and at Arusha in Tanzania dealing with war crimes in Rwanda. After a slow start they are doing good work and people are being prosecuted. I hope we will see Milosevic being brought before the tribunal in The Hague. In the absence of a permanent international court, and with tribunals being established on an ad hoc basis, there is always a danger that the murderous evil people who perpetrate such crimes may not be called to justice. That is why I am glad that, even though it is somewhat late, we are putting in place this referendum legislation so that we can put this issue to the people. As Deputy Lenihan said, I hope people will turn out to show their disgust at what has been happening in the world in their time.
It is also important to recognise that there are other crimes, including sanctions, which may not necessarily be war crimes. We have to guard against such crimes so that they do not become instruments for punishment causing damage to populations. The use of sanctions is a relatively new concept and up to recently had been used in South Africa. Now, however, sanctions are operating in about ten international jurisdictions but there is no UN system to constantly monitor  their effects. Such a system could ensure that what was established in good faith as an instrument to attack a tyrant like Saddam Hussein, could not be used to punish a country's population. In future, a case may be made to an international court that such sanctions constitute a force for evil rather than good. It was for that reason that during the debate on the UN sanctions in Iraq, I called on the Minister for Foreign Affairs to take a lead in the Security Council by calling for an end to those sanctions. We must find some other way to attack Saddam Hussein and let him know that we do not support what he is doing. We know the UN sanctions in Iraq have led to the deaths of 500,000 children. Those sanctions cannot be a force for good. They are ceasing to be a punishment against Saddam Hussein, which is what they were originally designed to be, so it is time we lifted them.
In Zimbabwe, we see President Mugabe using his power to negate human and civil rights, and do down his country's courts of justice. There is not a war going on in Zimbabwe but I hope the international criminal court can investigate what is happening there. Built into the Statute of Rome is a provision whereby every seven years there will be a full review of how the court is operating. We may have to tell leaders of such countries that while there may not be a conflict going on, their acts in Government are leading to a gross violation of people's human and civil rights. We will have to examine a method whereby the international community can demonstrate its disgust for that kind of action. It is not enough for countries to say they are democratic and to participate in democratic fora.
Many of the countries represented at the recent IPU conference which I attended, were voting for motions but I would be ashamed if I were from such countries which pretend to be democratic. I heard delegates from Iran and Algeria saying how wonderful things are in their countries but some Members of this House know, from personal experience, about the lack of human rights in some of those countries. There is a lack of rights for women in Iran and Iraq, for instance, yet these countries can participate with impunity in international fora without receiving any sanction for continuing to violate human rights.
We heard about slavery at the IPU meeting and have heard the same here from Trócaire which ran its Lenten campaign against slavery. Slavery is a crime that can be tried under the new international court. In fairness to the countries where slavery is most rife, it is not being caused by Governments. However, lack of action and acquiescence by some Governments allows slavery to continue in their jurisdictions. When the new international court is established they may have to re-examine what action they are taking to prevent millions of people having to live their lives as slaves for generations. Slavery is a crime against humanity.
I am glad this referendum is to be held and I appeal to the public to vote for it. I am also glad  that the legislation sponsored by Fine Gael stimulated the Minister into taking some action. I call on the Minister of State, Deputy Hanafin, to urge her colleague, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, to introduce the necessary legislation when this referendum has been passed. If the Minister was on this side of the House he would be ranting and raving about the delay involved and, God knows, I suffered enough from that. Will the Minister tell us exactly when it is hoped to hold the referendum?
I do not agree with Deputy Lenihan. The referendum on the Treaty of Nice should be on a separate day. I am nervous about some of the other referenda being held on the same day as that for the Treaty of Nice. The treaty contains many issues about which people require a full explanation and they will need to concentrate on those issues alone. This referendum, however, can be held with the other two but it should be handled in such a way that people will understand what they are doing. They should overwhelmingly give their support to it. I fear that if all the referenda are taken together there might be a low turnout. In addition, a low “yes” vote on one referendum may carry over into another referendum. This referendum should be overwhelmingly supported in order to get the international criminal court up and running. In that way, this generation will not be indicted by future generations for having failed to act.
Mr. Collins Mr. Collins
Mr. Collins: I wish to share time with Deputy Daly. I compliment Deputy Owen on the love-hate relationship that still exists between herself and the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue. I can see from the smile on her face that she did not mean some of what she said, but I commend her for an excellent contribution.
Mr. Daly Mr. Daly
Mr. Daly: She still loves John.
Mr. Collins Mr. Collins
Mr. Collins: The variety of amendments to our Constitution, which are set to be put to the people in future referenda, are important. We have to hold a referendum to enact the provisions of the Nice Treaty. That is in line with past referendums to implement the provisions of the Amsterdam Treaty, the Maastricht Treaty, the Single European Act and the original accession treaty for Ireland to join the European Union.
The Twenty-first Amendment of the Constitution Bill will remove from our Constitution all references to the death penalty. I fully support that provision because it is important that we take a strong stand on the issue of the death penalty. Recent statistics published by the United Nations demonstrated that the number of cases in which the death penalty has been invoked across the world is on the increase.
The Twenty-second Amendment of the Constitution Bill entails putting in place procedures to guarantee that the conduct of the Judiciary in this  State will be of the highest standard. That is extremely important and it is equally important that the division lines between the way the Executive, the Judiciary and the Legislature operate are clearly drawn. It is on the issue of the Twenty-third Amendment of the Constitution Bill, 2001, to which I will now turn.
This amendment is proposed to enable the State to ratify what is known as the Rome Statute of the International Criminal Court, which was brought into effect on 17 July 1998. The statute was signed by the vast number of members of the United Nations when they met in Rome in July 1998. The statute provides for the establishment of a permanent International Criminal Court under the auspices of the United Nations.
This International Criminal Court will have the specific jurisdiction to try persons charged with the most serious crimes, namely, genocide, crimes against humanity, war crimes and the crime of aggression. The court, when it is established, will be complementary to all national criminal jurisdictions. The statute of the court is an international agreement which will come into force approximately two months after 60 states have become party to it.
The statute may be ratified by Ireland only when all measures necessary to enable the State to meet key legal obligations have been completed. The Attorney General has advised the Government that an amendment to the Constitution is required to enable Ireland to ratify this statute. That is mainly because the submission to the jurisdiction of the International Criminal Court would entail a partial transfer to this court of the sovereign power of the State to administer criminal justice.
Our Constitution lays down specific rules with regard to the administration of justice. We know the role the Director of Public Prosecutions plays in this regard and the role the Attorney General plays in prosecuting specific criminal matters. The setting up of the International Criminal Court is one of the most significant developments of international law since the Second World War. Once it is established, it will obviate the need for the creation of ad hoc international criminal tribunals such as those which were established in the 1990s in respect of the atrocities perpetrated in the former Republic of Yugoslavia and in Rwanda.
The establishment of a permanent International Criminal Court has been supported by Ireland and its partners in the European Union for many years. The EU has undertaken to assist countries associated with it to ratify the Rome Statute in order to facilitate the early establishment of this court. Ireland's support for the International Criminal Court fits in fully with the principles of our foreign policy. We have been an active participant within the United Nations ever since we became a full member of the UN in 1955. We have supported UN peacekeeping operations throughout the world over the past 45 years and we continue to do so. We know the great service our troops have given in Lebanon,  Cyprus and in the former state of Yugoslavia. With more regional conflicts opening up around the world, it is important that mechanisms under the auspices of the United Nations are put in place so that the necessary peacekeeping operations can be established.
Ireland supports peacekeeping operations once they are carried out under the auspices of the United Nations, and we will continue to do so. Irish troops have served in countries where persons who have committed war crimes are now being tried by courts set up by the United Nations. I do not support the setting up of ad hoc international criminal tribunals alone when an opportunity can be availed of to set up a permanent international structure.
It is without doubt that the setting up of the International Criminal Court will command widespread public support. We have seen too many cases where persons who committed serious war crimes have walked away with impunity. That situation cannot and must not continue for ever. If the United Nations as an international body is to command the full support of our people, it is imperative that it supports the setting up of international structures which command widespread public support. It is certainly the case that key UN bodies such as the United Nations High Commission for Refugees, the International Labour Organisation and the General Agreement on Tariffs and Trades are examples of international bodies under the auspices of the UN which carry out effective, international duties.
It is an accepted fact that the United Nations and the international community have failed to prosecute war criminals in the 1990s. We all saw the butchery, savagery and slaughter which took place in Rwanda in 1994. The United Nations set up an ad hoc international tribunal but only a handful of people have been successfully prosecuted. We should recall that within a 100 day period 800,000 people were killed in Rwanda. The western world ignored warnings from top political personnel in Africa about the upcoming butchery that would take place in Rwanda. The western world and the United Nations Security Council turned their backs on the victims which allowed the Tutsi population in Rwanda to be brutalised and exterminated en masse.
The killing of 800,000 people is certainly a triumph for evil. What is nearly equally as evil is that there has been such a grotesque lack of criminal prosecutions for this mass slaughter. The ad hoc international criminal tribunal in Rwanda is ineffective. That is also the reason we should support setting up an International Criminal Court because a more experienced and permanent international criminal court would effectively prosecute more criminals such as those who committed the acts of atrocity in Rwanda.
It remains disturbingly easy for people to do nothing, even when faced with evidence of the kind of pure, unambiguous genocide that occurred in Rwanda. That is why I support the  efforts of the European Union and other key member states to set up this International Criminal Court. Such a court will send strong messages to prospective war criminals that the United Nations will prosecute them for criminal acts.
Equally, an International Criminal Court would be the forum in which to try war criminals who have committed war crimes in the former Republic of Yugoslavia. For the first time since World War II we witnessed a war on the borders of the European Union. The European Union did not succeed in stopping the fighting and the events that took place in the former Republic of Yugoslavia highlighted the failure of world diplomacy. Criminals who should have faced prosecution have walked away with impunity. I hope that the Hague tribunal, which is now trying war criminals, will succeed in bringing a number of them to justice.
Mr. Daly Mr. Daly
Mr. Daly: I thank Deputy Collins for giving me the opportunity to contribute to this debate. I compliment the Minister for Foreign Affairs in bringing forward this amendment to the Constitution which will, in effect, ratify the Rome Statute and establish a new international institution. Such an institution has been anticipated for some time. It has been promised for the past 50 years and has been in preparation for the past three or four years. I am glad that 139 states have now signed the statute and 29 have ratified it so we can expect to see this institution established in a very short time. I am glad that there are 13 parts and 128 articles in the Rome Statute which cover all the areas in need of attention.
While the statute was a long time in preparation, action has, nevertheless, been taken in respect of some of the international problems to which other Members referred such as the events that took place in Rwanda and Yugoslavia. Even though there has been a lack of progress in establishing the international criminal court, a number of issues of extreme importance have not been neglected. The Minister outlined in great detail the various developments that have taken place in the area of international law. These developments have been extremely important in terms of helping to establish the rule of law internationally and to deal with the effects of many of the humanitarian disasters that have occurred throughout the world in recent years.
The international criminal court, which will deal with crimes of genocide, crimes against humanity and war crimes, is long overdue. I am satisfied the initiatives that have been taken will ensure that it will be established in a short period. However, there are a number of matters which require clarification and I hope the Minister will comment on them when he replies to the debate.
The first of these is that there will be 18 judges working at the international criminal court and that this may inhibit its work. I am sure there must be provision to increase the number of judges. I raise this point because the European Court of Human Rights – a long-established  institution based at Strasbourg – as a result of the enlargement of the Council of Europe, which now has between 41 and 43 members following the collapse of the former Soviet Union and the emergence of new democracies in central and eastern Europe, has an enormous backlog of cases with which it has not dealt. There are insufficient numbers of advocates and judges to deal with these cases and the courts are stumbling from crisis to crisis. If remedial action is not taken, there will be major delays and a major backlog of cases.
Originally there were 11 members of the Council of Europe but there are now 42 or 43. As a result, the European Court of Human Rights will be obliged to deal with an increasing number of matters. The court is experiencing these difficulties because of the inadequacy of budgets and the absence of personnel to deal with cases. I highlight this matter because I believe the international criminal court may face problems similar to those being encountered by the European Court of Human Rights. Is the Minister satisfied that the budget allocated to the international criminal court will be adequate to allow it to deal with the matters that will come before it? Will 18 judges be sufficient to deal with the number of cases that will come before the court when it is established on a permanent basis?
As already stated, a number of ad hoc committees were set up to deal with situations which arose, for example, in Yugoslavia. Will the Minister indicate whether the international court has sufficient powers to allow it to bring war criminals before it? As Members are aware, Slobodan Milosevic, who committed such horrific crimes, has still not been brought before the courts in The Hague. He has been brought before the courts in Yugoslavia to face criminal charges but he has managed to evade the main charges of war crimes and crimes of genocide levelled against him by the courts in The Hague. In establishing an international institution to deal with matters such as those to which I refer, we must ensure it has the power to deal with an individual such as Slobodan Milosevic – I am not singling him out because there are many others like him – even if the state in whose jurisdiction he resides is not prepared to bring him before it.
Will the international criminal court be empowered to hear the cases of people who are detained in their home countries and can these individuals be brought before it to have their cases dealt with? If it will have such powers, what will be the position in relation to the enforcement of judgments? I am not certain that the court will have adequate powers to enforce any judgment at which it might arrive. It is long past time that we should establish this international institution based on the Rome statute. How will the court operate in practice if the powers of the statute in respect of the enforcement of judgments are not adequate and if it is not possible to ensure that those guilty of terrible crimes against humanity cannot be brought before the court or tried in  areas outside the court's jurisdiction? Perhaps the Minister will clarify the position in that regard.
The difficulty I find with statutes such as that under discussion is that there is always a need to compromise and this whittles away the real power of institutions. We are often left with institutions which do not have the necessary enforcement powers and which experience long delays in making people appear before them. In certain cases, such institutions find it impossible to make witnesses and accused persons appear.
I am concerned about the European Court of Human Rights at Strasbourg. I appreciate the work being done by Justin Harmon, Ireland's Ambassador in Strasbourg, who has been chairing a sub-committee which is endeavouring to deal with the lack of finance and personnel that has caused the backlog of cases waiting to come before the court. If we establish an international criminal court and do not put in place the adequate human and financial resources, our efforts will be wasted. However, I am sure that will not be the case. I compliment the Minister on expediting this legislation and I hope it will be passed by the Houses as quickly as possible.
Mr. Currie Mr. Currie
Mr. Currie: I support this Bill which will enable us to ratify the Rome Statute of the International Criminal Court and which requires an amendment to the Constitution. I hope the enactment of the legislation will lead to endorsement by the people in the referendum and that, soon after, Ireland's name shall be added to those of the 29 states that have ratified or acceded to the statute. This will bring nearer the day when the necessary 60 states will bring a permanent international court into existence.
The new international criminal court will be securely anchored to the United Nations and owes its birth to the United Nations Diplomatic Conference of Plenipotentiaries, at which the statute was adopted. This country has advocated the establishment of such a court for many years but, unfortunately, it has taken 50 years to reach the stage at which we now find ourselves. The link to the United Nations is of fundamental importance, particularly for small countries such as ours. The UN, with all its imperfections, is still the best guarantee of protection, fairness in world affairs and protection of the weak against the strong. It is more important than Europe in that context and I am a confirmed European and European federalist. I support the protection of our European institutions and I want Europe to play as important a role as possible in the world. However, on this issue the United Nations is paramount.
Although we are a small country with no military muscle, we exercise an influence in the world through our membership of the UN and the EU. That influence was greatly increased recently by our membership of the UN Security Council. Let us be realistic and clear about our position. In international affairs, adherence to the UN and its resolutions must remain the base and benchmark  of our activities. This must be understood, particularly by countries such as the United States who, on most occasions, we support almost automatically, but who, unfortunately, are often tempted to adopt a cavalier attitude to UN resolutions. It is important we know exactly where we stand in relation to the United Nations and its resolutions.
I welcome and support this Bill and the proposal to set up an international criminal court. However, my enthusiasm does not blind me to the fact that the proposed court has its weaknesses. Unfortunately, as always, only the losers will be amenable. Winners invariably write history and while they remain winners, they escape the punishment for their crimes. That is unfortunately one of the lessons of history.
The Germans and the Japanese suffered for the atrocities committed by them in the Second World War. Their political and military leaders deserved to suffer for their atrocities, particularly the Germans for the liquidation of almost six million Jews. However, the winners were also responsible for dreadful atrocities which would have justified their appearance before this type of international court if it had been in existence then. Were the atomic bombs dropped on Hiroshima and Nagasaki justified? They were not justified in any circumstances but not in circumstances where the defeat of Japan was already inevitable. If this court had been in existence then and if there had been fairness in charging those responsible for war crimes, would those responsible for the mass bombing of the German civilian population in cities without any military significance, such as Dresden, been charged as war criminals?
I remember getting a moving account of what it was like in Dresden during the bombing from my uncle who was born in Glasgow and was drafted, against his will, into the army during the war. He was captured and became a prisoner of war in Dresden. He was one of the prisoners of war who was sent out during the bombing to rescue the civilian population. That dreadful time and atrocity lived in his memory. Were those responsible for that atrocity not war criminals? Should the Bomber Harris not have shared the same fate as the Germans or Japanese who were responsible for similar crimes? If the Bomber Harris was arraigned, what about the political leaders under whose direction he operated? In what category would that have put Churchill and Truman who took the decision on the atomic bombs? However, Churchill, the Bomber Harris and Truman were winners and they made the rules.
Will the ratification of the International Criminal Court make a difference if, unfortunately, something similar happens in the future? I hope so but it will require great changes in the attitude of humanity. One hopes the existence of this court will be a deterrent and that politicians and generals who contemplate these crimes will be afraid that if they lose they will be held respon sible and will suffer the consequences. However, in a hypothetical future, will such people ensure they do not lose and that they eradicate the enemy root and branch by using whatever methods are necessary to achieve that? In those circumstances, an arraignment before an international court will not become a deterrent to such activity but an incentive to do it properly.
There is the problem that if they do not win but are not totally defeated, it may be difficult to make them amenable to justice. There was a reference to Slobodan Milosevic and the problems involved in making him amenable in circumstances where one would have thought it would have been reasonably easy to do so. What about the Saddam Husseins of the future? Will they continue to evade justice? Unfortunately, the lessons of history, of the real world and of realpolitik must intrude on our vision in this respect. What does one do when there is not a total defeat? What can be done about people who have not won, but it is not transparent they have lost, and how can they be made amenable to this court in the future?
Dáil Éireann 534 Private Notice Questions. An Bille um an Tríú Leasú is Fiche ar an mBunreacht, 2001: An Dara Céim (Atógáil). Twenty-third Amendment of the Constitution Bill, 2001: Second Stage (Resumed).