New Zealand Yearbook of International Law
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Last Updated: 7 February 2019
STAGE-FRIGHT IN “GODSOWN”: THE NEW ZEALAND PARLIAMENT AND THE INTERNATIONAL NON-AGGRESSION AND LAWFUL USE OF FORCE BILL
Kennedy
Graham[∗]
I. INTRODUCTION
In 2009, draft legislation was put forward in the New Zealand Parliament
entitled the International Non-Aggression and Lawful Use
of Force Bill 2009
(reproduced below). The draft, submitted as a Member’s Bill, was voted
down after the First Reading in
the House, and thus not referred to a Select
Committee. The vote was 64 to 58.
The purpose of the Bill, as stated in the
Explanatory Note, was to achieve two related objectives:
To that end, the Bill would have:
(a) Required that New Zealand observe its binding obligation under the UN Charter not to commit an act of aggression;
(b) Made it a criminal offence in New Zealand law for any New Zealand leader to commit an act of aggression;
(c) Required a New Zealand leader to obtain the written advice of the Attorney-General before deciding to commit the armed forces of New Zealand to action involving the use of force;
(d) Anticipated the inclusion at some future time of ‘aggression’ within the jurisdiction of the International Criminal Court (ICC) as one of the most serious crimes of concern to the international community and a punishable offence under international criminal law as envisioned in the Statute of Rome 1998 (the Rome Statute),[2] and expected this Act to be compatible with that Statute if it were amended to include aggression within the Court’s jurisdiction; and
(e) Recognised that New Zealand may engage in the use of armed force, under the UN Charter, in exercise of the inherent right of individual or collective self-defence or in any other manner properly authorised by the Security Council of the United Nations.
The Bill would not have curtailed New
Zealand’s freedom, under the UN Charter, to use armed force in
self-defence of itself
or others, or to use armed force in any other manner
consistent with the Charter – such as an enforcement action authorised
by
the Security Council.
Unlike some cases of domestic legislation, the Bill
would not have extended universal jurisdiction to New Zealand in the prosecution
of aggression. The Bill would thus have differed from the International
Crimes and International Criminal Court Act 2000 (NZ), which established
universal jurisdiction for New Zealand over genocide, war crimes and crimes
against humanity. Thus, nothing
in the Bill would have authorised New Zealand
courts to prosecute non-New Zealand leaders outside New Zealand for any act of
aggression.
The Bill would have focused solely on New Zealand leaders, for acts
committed by the New Zealand Defence Forces.
II. HISTORICAL BACKGROUND TO THE BILL
The UN Charter forbids any country to use force against the territorial
integrity or political independence of any state, or in any
other manner
inconsistent with the purposes of the Charter (Article 2(4)). It is the
responsibility of the Security Council to determine
whether an act of aggression
has been committed by a state (Article 39). If the Council determines that a
state has committed an
act of aggression, it can authorise an enforcement action
in response (Article 42). Under the Charter, however, non-aggression is
a state
responsibility only, not an individual criminal offence.
Over the past
half-century, the international community has moved purposefully to make
aggression an individual crime in international
law. The UN Charter requires
the General Assembly to make recommendations for encouraging the progressive
development of international
law (Article 13). In 1946 the Assembly affirmed as
an international crime the planning, preparation, initiation or waging of a war
of aggression (UNGA Resolution 95
(I)).[3] Since then, aggression has
been accepted by states as a crime in customary international law.
Building
upon that foundation, the international community has moved, in the post-Cold
War world, to legislate against aggression
in treaty law. The Rome Statute,
establishing the ICC, identifies aggression as one of the four ‘most
serious crimes of concern
to the international community as a whole’.
Under the Statute, ‘it is the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes’. Effective
prosecution must be ensured ‘by taking measures
at the national level and
by enhancing international
cooperation’.[4]
In the
specific case of aggression, however, this crime will not be justiciable in the
ICC until agreement is reached among states
parties on two matters: a binding
definition and the conditions under which the Court is to exercise jurisdiction.
A Special Working
Group of the Assembly of States Parties has undertaken work on
these issues. It may, however, take some time before agreement is
reached among
all 110 states parties for aggression to become justiciable within the ICC.
Considerable progress has been made with
regard to the definition of aggression,
a majority of states parties generally favouring the adoption of that provided
by the UN
General Assembly in 1974. Regarding the jurisdictional conditions, a
more difficult issue has been the relationship between the political
responsibilities of the UN Security Council for determining aggression and the
judicial responsibilities of the ICC for prosecuting
aggression as a crime.
However, the ICC is to act as a complementary court of secondary instance,
domestic courts retaining primary
responsibility.
There has never been any
international impediment to individual states proceeding on their own accord to
legislate nationally –
to make an act of aggression by one’s leaders
(and perhaps other leaders) a crime in domestic law. Nor does the international
work underway within the ICC constitute such an impediment – the only
challenge being that a state party to the Rome Statute
would need to ensure that
its legislation always remain consistent with any new obligations under the
Statute.
The crime of aggression has been implemented into domestic law in
some 25 national criminal codes, including three North Atlantic
Treaty
Organisation (NATO) countries and Russia. The method of implementation differs,
depending upon a country’s legal system.
Some have simply implemented the
crime as provided for in customary international law. Others have crafted
national legislation with
a view to protecting specific domestic legal values.
In all cases, aggression is treated as exclusively a ‘leadership
crime’;
it cannot be committed by ordinary members of a country’s
armed forces – only by its most senior political leaders.
III. PARLIAMENTARY DEBATE AND ORAL QUESTIONS
The debate in First Reading on the Bill, held in August and September,
was an opportunity for the Government and opposition to advance
views on the
question of aggression as a criminal offence in domestic
law.[5] In short, the Government was
opposed to the Bill, primarily on the grounds that it would constrain New
Zealand’s freedom of
action to employ armed force overseas under the
‘Responsibility to Protect’ doctrine.
As explained by the
Minister of Defence, New Zealand wished to ‘preserve’ the freedom to
use force even in situations
when the UN Security Council did not authorise
it.[6] The Government envisaged a
case, such as the 1999 ‘Kosovo’ kind, when the Council did not
authorise force yet NATO states
proceeded with armed force against Yugoslavia.
Some Western experts claimed, variously, that such action was legal (NATO
possesses
the legal authority to use force irrespective of UN authorisation) or,
failing that, it was ‘legitimate if illegal’ on
humanitarian
grounds. Some political credibility to that view was claimed by the failure of
Russia to have the Council condemn such
use of force by a vote of 12-3 (China
and Russia, plus Namibia). But given the importance of those two permanent
members, such an
expression of opinion fell short of a categorical global
endorsement. Nor was it clear whether the majority supported the claim
of
legality or legitimacy.[7] Lawsuits
by Serbia against participating NATO states for, inter alia, breach of the
prohibition of the use of force against another
state before the International
Court of Justice failed for want of
jurisdiction.[8]
The
‘Responsibility to Protect’ doctrine emanates from two influential
policy documents. The first, the report of the
Independent Commission on State
Sovereignty and Intervention (ICSSI), refashioned the doctrine of humanitarian
intervention as the
‘Responsibility to Protect’
doctrine.[9] In the modern world,
the doctrine asserts, it remains the primary responsibility of national
governments to protect their citizens
from gross and systematic abuses of human
rights. But if a government is unable or unwilling to ensure that protection,
the responsibility
to protect defaults to the international community including
the responsibility to intervene by force.
The Commission identified a set of
criteria by which an informed judgment could be made for determining when such
interventions were
justified. Drawing largely on traditional just war doctrine,
the Commission identified five ‘basic criteria of legitimacy’,
namely: seriousness of threat, proper purpose, last resort, proportional means,
and ‘balance of consequences’.
The Commission, however, made it
explicitly clear that the ‘Responsibility to Protect’ doctrine was
applicable only in
the event that it had prior authorisation from the Security
Council. And the doctrine, it was equally clear, did not attract immediate
and
overwhelming support from non-Western states, not least China and Russia which
saw the doctrine as a potential vehicle for Western
interventionism.
The
ICSSI report was published immediately before 9/11. What was thus emerging as a
marriage between enforcement of peremptory norms
and domestic jurisdiction
became compounded by the volatile debate over how to handle terrorism, the
invasion of Afghanistan and
then of Iraq.
The strain of the Iraq crisis
occasioned by competing doctrinal preferences within the international community
led the Secretary-General
to convene the High-Level Panel on Threats, Challenges
and Change. The Panel’s report also dwelt at length on the
‘Responsibility
to Protect’. It, too, made it clear that the
doctrine was valid only with Security Council authorisation:
We endorse the emerging norm that there is a collective international
responsibility to protect, exercisable by the Security Council
authorizing
military intervention as a last resort, in the event of genocide and other
large-scale killing, ethnic cleansing, or
serious violations of international
humanitarian law which sovereign Governments have proved powerless or unwilling
to prevent.[10]
Upon
receiving the Panel’s report, the Secretary-General submitted his own
report to the 2005 UN General Assembly. He made
his support for
‘Responsibility to Protect’ clear:
I believe that we must embrace the responsibility to protect, and, when
necessary, we must act on it. This responsibility lies, first
and foremost, with
each individual State, whose primary raison d’être and duty is to
protect its population. But if national
authorities are unable or unwilling to
protect their citizens, then the responsibility shifts to the international
community to use
diplomatic, humanitarian and other methods to help protect the
human rights and well-being of civilian populations. When such methods
appear
insufficient, the Security Council may out of necessity decide to take action
under the Charter of the United Nations, including
enforcement action, if so
required.[11]
Yet the
Secretary-General made it categorically clear that the Responsibility to Protect
doctrine was valid only with a UN Security
Council authorisation:
[12]
The task is not to find alternatives to the Security Council as a source of
authority but to make it work better. When considering
whether to authorize or
endorse the use of military force, the Council should come to a common view on
how to weigh the seriousness
of the threat; the proper purpose of the proposed
military action; whether means short of the use of force might plausibly succeed
in stopping the threat; whether the military option is proportional to the
threat at hand; and whether there is a reasonable chance
of success. By
undertaking to make the case for military action in this way, the Council would
add transparency to its deliberations
and make its decisions more likely to be
respected, by both Governments and world public opinion. I therefore recommend
that the
Security Council adopt a resolution setting out these principles and
expressing its intention to be guided by them when deciding
whether to authorize
or mandate the use of force.
Upon receiving the Secretary-General’s
report, the General Assembly debated the issue at length, before deciding upon a
cautious
approach:
Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against
humanity. This
responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary
means. We accept that
responsibility and will act in accordance with it. The international community
should, as appropriate, encourage
and help States to exercise this
responsibility and support the United Nations in establishing an early warning
capability. ....
The international community, through the United Nations, also
has the responsibility to use appropriate diplomatic, humanitarian
and other
peaceful means, in accordance with Chapters VI and VIII of the Charter, to help
protect populations from genocide, war
crimes, ethnic cleansing and crimes
against humanity. In this context, we are prepared to take collective action, in
a timely and
decisive manner, through the Security Council, in accordance with
the Charter, including Chapter VII, on a case-by-case basis and
in cooperation
with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities
manifestly fail to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against humanity. We
stress the
need for the General Assembly to continue consideration of the
responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity and its implications, bearing in mind the
principles of the Charter and international law.
We also intend to commit
ourselves, as necessary and appropriate, to helping States build capacity to
protect their populations from
genocide, war crimes, ethnic cleansing and crimes
against humanity and to assisting those which are under stress before crises and
conflicts break out.[13]
It
is thus abundantly clear that the doctrine of ‘Responsibility to
Protect’, as it is set out in the principal UN documentation,
remains
compatible with the principle of non-aggression as it is set out in the UN
Charter and the recommendations of the ICC’s
special working group on the
crime of aggression. It cannot therefore be credibly claimed that the
criminalisation of aggression
in the domestic law of New Zealand would be
incompatible with the doctrine of ‘Responsibility to
Protect’.
Independent of the doctrinal niceties of the
‘Responsibility to Protect’ doctrine, the fact remains that the
crime of
aggression is scheduled to be considered at the Review Conference of
the Assembly of States Parties in Kampala in mid-2010. Whatever
the final
decisions taken there, the NZ Government will be obliged to adopt a clear
position on incorporating aggression as a justiciable
crime in international law
and, through implementation, in domestic law.
The Government appears
reluctant to adopt a policy of categorical support for the criminalisation of
aggression, as an exchange on
the subject in the House during Question Time in
November shows.[14] This sits oddly
with its readiness, six decades ago, to send a judge to the Tokyo International
Military Tribunal, which decided
upon the guilt Japanese leaders for aggression
and pronounced their execution. And it sits equally oddly with the statement of
the
Prime Minister, in September 2009, that:
It is a fundamental tenet of our domestic legal systems that wrong doers must
be brought to justice. The ICC is the mechanism for
applying that same principle
to persons accused of the most serious international
crimes.[15]
If and when,
however, the 110 states parties agree to make aggression a justiciable crime, it
is almost inevitable that New Zealand
will act accordingly.
INTERNATIONAL NON-AGGRESSION AND THE LAWFUL USE OF FORCE
BILL
Member’s
Bill
Contents
__________________________
The
Parliament of New Zealand enacts as follows:
1 Title
This
Act is the International Non-Aggression and the Lawful Use of Force Act
2009.
2 Commencement
This Act comes into force on the day
after the date on which it receives the Royal
assent.
3 Interpretation
In this Act, unless the context
otherwise requires,
act of aggression has the meaning given to it
by section 6
manifest violation of the Charter of the United
Nations means any action which, prima facie, contravenes the
provisions of the Charter of the United Nations in a significant
manner
New Zealand leader means a New Zealand citizen or a
permanent resident of New Zealand, who is in a position in New Zealand or
elsewhere, effectively
to exercise control over, or to direct, political or
military action by the State of New Zealand
political independence
means the sovereign equality of any state
purposes of the United
Nations means the purposes of the United Nations Organization as specified
in Article 1 of the Charter of the United Nations
sovereignty
means the legitimate and exclusive jurisdiction exercised by a government of a
state on behalf of the citizens of that state
territorial
integrity means the inviolability of a state’s existing territorial
boundaries.
4 Purpose
The purpose of this Act is to
implement New Zealand’s obligation under the Charter of the United Nations
to refrain from the
use of armed force in any manner inconsistent with the
purposes of the United Nations, by making an act of aggression a crime in
New
Zealand law.
5 Aggression by any New Zealand leader a criminal
offence
(1) It is unlawful for a New Zealand leader to plan, prepare,
initiate or execute an act of aggression which by its character, gravity
and
scale, constitutes a manifest violation of the Charter of the United Nations, in
the event that such an act of aggression is
committed.
(2) Every person who
breaches subsection (1) commits the crime of aggression, and is liable on
conviction on indictment to a maximum sentence of ten years
imprisonment.
6 Definition of act of aggression
(1) An act of
aggression means the use of armed force by the State of New Zealand against the
sovereignty, territorial integrity or
political independence of another State,
or in any other manner inconsistent with the purposes of the Charter of the
United Nations.
(2) For the purpose of subsection (1), any of the
following acts, regardless of any declaration of war, shall, in accordance with
General Assembly Resolution 3314 (XXIX)
of 14 December 1974, qualify as an act
of aggression:
(a) the invasion or attack by the armed forces of New Zealand
on the territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any annexation by the use
of force of the territory of another State or part
thereof:
(b) bombardment
by the armed forces of New Zealand against the territory of another State or the
use of any weapons by New Zealand
against the territory of another
State:
(c) the blockade of the ports or coasts of a State by the armed forces
of New Zealand:
(d) an attack by the armed forces of New Zealand on the land,
sea or air forces, or marine and air fleets of another State:
(e) the use of
armed forces of New Zealand which are within the territory of another State
with the agreement of the receiving State,
in contravention of the conditions
provided for in the agreement or any extension of their presence in such
territory beyond the
termination of the agreement:
(f) the action of New
Zealand in allowing its territory, which it has placed at the disposal of
another State, to be used by that
other State for perpetrating an act of
aggression against a third State:
(g) the sending by, or on behalf of, New
Zealand of armed bands, groups, irregulars or mercenaries, which carry out acts
of armed
force against another State of such gravity as to amount to the acts
listed above, or its substantial involvement therein.
7 Lawful use of
armed force
(1) Nothing in this Act shall prevent the lawful use of armed
force by the State of New Zealand under Chapter VII of the Charter of
the United
Nations, namely the exercise of the inherent right of individual or collective
self-defence of any Member of the United
Nations or the use of armed force
authorised by the United Nations Security Council.
(2) No person who
directs political or military action by New Zealand in accordance with Chapter
VII of the Charter of the United
Nations is liable for the crime of
aggression.
8 Implementation in New Zealand of non-aggression
obligation
(1) Proceedings for an offence against section 5 may be
brought if the act constituting the offence charged is alleged to have occurred
on or after the commencement of this section,
regardless of:
(a) whether or
not any act forming part of the offence occurred in New Zealand;
or
(b) whether or not the person accused was in New Zealand at the time that
the act constituting the offence occurred or at the time
the decision was made
to charge the person with an offence.
(2) Proceedings for an offence against
section 5 may only be brought in a New Zealand court by the Special
Prosecutor appointed under section 10.
9 Legal advice to New
Zealand leader
(1) A New Zealand leader must, before deciding to commit
the armed forces of New Zealand to action involving the use of force, obtain
written advice from the Attorney-General to determine whether such action is
consistent with the obligations of New Zealand under
the Charter of the United
Nations.
(2) The written advice obtained under subsection (1) must,
except in exceptional circumstances involving the immediate use of armed force
in the exercise of the inherent right of individual
or collective self-defence
under the Charter of the United Nations, be laid before the House of
Representatives for its consideration
at least seven days before any decision
referred to in subsection (1) is made.
10 Special
Prosecutor
(1) There shall be a Special Prosecutor appointed by the
Governor-General on the advice of the Attorney-General.
(2) The Special
Prosecutor holds office for five years from the date of appointment at the
pleasure of the Governor-General and shall
not be re-appointed.
(3) Any
person who is a New Zealand citizen or who is a resident of New Zealand may
bring to the attention of the Special Prosecutor
any information regarding an
alleged crime of aggression or any other action regarding the possible
contravention of this Act by
a New Zealand leader.
(4) The Special Prosecutor
may commence an investigation, on the basis of information received, or on his
or her initiative, to assess
evidence of an act of aggression by a New Zealand
leader, and to consider whether to proceed with any trial pursuant to that
evidence.
(5) The Special Prosecutor shall have the powers and duties of a
prosecutor under Part 5 of the Rome Statute of the International
Criminal Court
(as incorporated in the Schedule to the International Crimes and International
Criminal Court Act 2000) that are necessary
for the purposes of subsection
(4).
(6) In the event that the Rome Statute of the International Criminal
Court, through amendment or additional protocol, includes aggression
as a
justiciable offence under the jurisdiction of the International Criminal Court,
the Special Prosecutor will first consider undertaking
prosecution of any person
under this section before deciding whether to refer the situation to the
International Criminal Court,
pursuant to the relevant provisions of the
International Crimes and International Criminal Court Act 2000.
(7) If a
Special Prosecutor commences an investigation under subsection (4), the
Special Prosecutor shall be paid, without further appropriation than this
section, –
(a) remuneration at a rate and of a kind determined by the
Remuneration Authority in accordance with the Remuneration Authority Act
1977;
and
(b) the costs of that investigation.
(8) The Special Prosecutor may
be removed or suspended from office by the Governor-General, upon an address by
the House of Representatives,
for disability affecting performance, or for
misconduct.
11 Immunities
Nothing in this Act shall be
interpreted as limiting in any way the existing immunities enjoyed by any member
of the New Zealand Defence
Force regarding the execution of their military
duties.
12 Consequential amendment to Remuneration Act
1977
Schedule 4 of the Remuneration Act 1977 is amended by inserting in
the appropriate alphabetical order:
“Special Prosecutor for the Crime
of Aggression”
[∗] Senior Adjunct Fellow,
University of Canterbury, Member of Parliament, New Zealand (Green Party). Parts
of this paper have been published
in ‘Crimes of Aggression: A Question of
National Integrity’ (2009) 34(6) New Zealand International Review
18.
[1] Charter of the United
Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force
24 October 1945).
[2] Rome
Statute of the International Criminal Court, opened for signature on 17 July
1998, 2187 UNTS 3 (entered into force 1 July
2002).
[3] Affirmation of the
Principles of International Law Recognized by the Charter of the Nurnberg
Tribunal, GA Res 95(1), 1st Sess, 55th plen meeting,
(1946).
[4] Rome Statute of the
International Criminal Court, above n 2, Preamble [4] and [6].
[5] New Zealand, Parliamentary
Debates (Hansard), 19 August 2009, 656, 5740
<http://www.
parliament.nz/en-NZ/PB/Debates/Debates/6/b/b/49HansD_20090819_00001543-International-Non-Aggression-and-Lawful.htm>
at 16 November
2009; New Zealand, Parliamentary Debates (Hansard), 23
September 2009, 657, 6818
<http://www.parliament.nz/en-NZ/PB/Debates/Debates/2/1/b/49HansD_20090923_00001127-International-Non-Aggression-and-Lawful.htm>
at 16 November 2009.
[6]
Ibid.
[7] For a short introductory
discussion, see Jorri Duursma, ‘Editorial: Justifying NATO’s Use of
Force in Kosovo?’
(1999) 12 Leiden Journal of International Law
287-295.
[8] See, for example,
Case Concerning Legality of Use of Force (Yugoslavia v The United States of
America) 2 June 1999, ICJ, General List no.114, at International Court of
Justice,
<http://www.icj-cij.org/docket/files/114/8036.pdf>
at 16
November 2009.
[9] International
Commission on Intervention and State Sovereignty, The Responsibility to
Protect: Report of the Independent Commission on Intervention and State
Sovereignty (2001)
<http://www.iciss.ca/report2-en.asp>
at 15 November
2009.
[10] A More Secure
World: Our Shared Responsibility: Report of the Report of the
Secretary-General’s High-Level Panel on Threats,
Challenges and
Change, UN Doc A/59/565 (2004), [203], and recommendations 55-57.
[11] In Larger Freedom:
Towards Development, Security and Human Rights for All: Report of the
Secretary-General of the United Nations for decision by Heads of State and
Government in September 2005, UN Doc A/59/205 (2005),
[135].
[12] Ibid [126].
[13] 2005 World Summit
Outcome Document, 15 September 2005, UN Doc A/60/L.1, [138],
[139].
[14] New Zealand,
Parliamentary Debates (Hansard), 17 November 2009, Questions for Oral
Answer 12
<http://www.parliament.nz/en-NZ/PB/Business/QOA/d/8/c/49HansQ_20091117_
00000012-12-International-Non-aggression-Measures.htm
> at 12 November 2009.
[15]
Hon. John Key, ‘Statement to the Opening of the 64th General
Assembly’, (Speech delivered at the UN General Assembly, New York, 26
September 2009)
<http:www.beehive.govt.nz/
speech/statement+opening+64th+general+assembly>
at 15 November 2009.
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