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Green MP: NZ leaders could face criminal liability

NZ leaders could face criminal liability under new Bill

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Green MPs Metiria Turei and Kennedy Graham at the press conference today

(Audio of the press conference and a link to the bill below)

Green Party MP Dr Kennedy Graham today released his private member’s bill ‘International Non-Aggression and the Lawful Use of Force’.

The bill has been placed in the members’ ballot box but will have to be drawn before it can be considered by Parliament.

This will be the third time the bill has been placed in the ballot.

If passed, the bill would make it a criminal offence for New Zealand leaders “to plan, prepare, initiate or execute an act of aggression…”

This would mean that New Zealand leaders (eg the Prime Minister) could be held criminally liable for international “acts of aggression” committed whilst in office.

The offence would only apply if the actions of that leader “constituted a manifest violation of the Charter of the United Nations.”

Currently, the UN Charter permits the use of force in only two situations. (i) where the UN Security Council determines that there has been a threat to “global peace and security” (Art. 39 – read with 42); and (ii) in self defence (Art. 51).

Dr Graham noted that acts of aggression are already considered violations of international law. He stated that if passed, the bill would bring domestic law into line with international law.

New Zealand operates a ‘dualist’ structure with regard to international law, whereby international law is not enforceable by the Courts where it conflicts with Acts of the New Zealand Parliament.

State violations of international law (eg acts of aggression) can be sanctioned by the United Nations and the International Court of Justice (in circumstances), but these forums cannot prosecute persons.

Graham’s bill relates to the prosecution of New Zealand leaders. Currently, the International Criminal Court (operating under the Rome Statute, which New Zealand is a signatory to) can prosecute state leaders, but only for violations of peremptory norms.

Peremptory norms are laws that are considered by the international community to be of overriding importance (such as genocide, piracy and wars of aggression.)

Dr Graham noted that the Rome Statute refers to the crime of aggression as one of the “most serious crimes of concern to the international community”.

However, the ICC has also stated that it will not exercise its jurisdiction over the crime of aggression until the limits of the crime can be defined by states accepting its jurisdiction.

A lecturer in international law at the University of Canterbury, Graham suggested that such a decision could “take anything from two to twenty years”.

He also argued that the bill serves a political function for New Zealand leaders. It protects them “from external pressure to commit New Zealand troops overseas in situations that might be deemed to be illegal.”

This “is not an attempt to make life difficult for New Zealand leaders” he said.

When asked whether the bill would stop any intervention in Fiji by New Zealand forces, Graham responded by saying that to comply with the bill, New Zealand would have to do so under a UN mandate.

The maximum penalty for such an offence would be ten years imprisonment.

According to Graham, some twenty five other countries, including Germany have legislated the crime of aggression into their domestic law.

View the ‘International Non-Aggression and the Lawful Use of Force Bill’ on Scoop with explanatory note here.

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