General policy statement

The purpose of this bill is to achieve two related objectives:

• 1.To ensure that the use of armed force by New Zealand is always in conformity with international law and in particular the UN Charter; and

• 2.To protect New Zealand leaders from external pressure to commit the New Zealand Defence Force to any illegal action overseas.

To that end, this bill:

• (a) requires that New Zealand observe its binding obligation under the UN Charter not to commit an act of aggression:

• (b) makes it a criminal offence in New Zealand law for any New Zealand leader to commit an act of aggression:

• (c) requires 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) anticipates the inclusion at some future time of “aggression” within the jurisdiction of the International Criminal Court 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, and expects this Act to be compatible with that Statute if it is amended to include aggression within the Court’s jurisdiction:

• (e) recognises 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.

Legal considerations

(a) Non-aggression as a State responsibility

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 (Art. 2.4). It is the responsibility of the Security Council to determine whether an act of aggression has been committed by a State (Art. 39). If the Council determines that a State has committed an act of aggression, it can authorise an enforcement action in response (Art. 42). Under the Charter, however, non-aggression is a State responsibility only, not an individual criminal offence.

(b) Aggression as a 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 (Art. 13). In 1946 the Assembly affirmed as an international crime the planning, preparation, initiation or waging of a war of aggression (UNGA res. 95 (I)). 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 1998, establishing the International Criminal Court (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”.

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 is working on these issues. It may, however, take some time before agreement is reached among all 108 States Parties for aggression to become justiciable within the ICC.

Concerning the definition, considerable progress has been made— a majority of States Parties generally favouring the adoption of that provided by the UN General Assembly in 1974.

Regarding the jurisdictional conditions, the question concerns 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. In the case of domestic legislation, however, national courts are free to proceed on the basis of their own jurisprudential tenets, unencumbered by the Security Council.

In any event, the ICC is to act as a complementary court of secondary instance, domestic courts retaining primary responsibility.

There has never been any 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 1998 would need to ensure that its legislation always remains 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 NATO countries and Russia. The method of implementation differs, depending upon a country’s juridical 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.

This bill is submitted on the premise that the reasons for New Zealand following suit are strong, and sufficient (see section below: Political considerations).

Actions not circumscribed by the bill

The bill does not curtail 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.

Jurisdictional limits of the bill

Unlike some cases of domestic legislation, the bill does not extend universal jurisdiction to New Zealand in the prosecution of aggression. The bill thus differs from the International Crimes and ICC Act 2000, which establishes universal jurisdiction for New Zealand over genocide, war crimes and crimes against humanity. Thus, nothing in the bill authorises New Zealand courts to prosecute non-New Zealand leaders outside New Zealand for any act of aggression. The bill focuses solely on New Zealand leaders, for acts committed by the New Zealand Defence Forces.

Political considerations

The political reasons for making aggression a crime in New Zealand domestic law are compelling. It is in the interest of every State to strengthen the fabric of international law. An effective law-based system of international peace and security is a more enduring guarantor of national security than reliance on a balance of power through military strength. In the words of Justice Robert Jackson, representing the United States at Nuremburg:

That observation applies equally to New Zealand, which provided a judge to adjudicate at the Tokyo war crimes trials.

A sovereign State can legislate only for itself, not for others. Through binding ourselves to the standards of non-aggression which we, as part of the international community, set over half a century ago we signal our resolve in this respect. And in so doing, we earn global credentials for legitimate criticism of any aggression committed by others.

Most importantly, this bill extends protection to New Zealand leaders by requiring them to observe a duty of non-aggression in domestic law. Small States often use armed force as part of a larger coalition; in such situations their freedom to make independent, objective judgment on the legality of a proposed action is constrained. This Act will relieve our leaders of much of that burden. The people of New Zealand and their leaders deserve the protection of law in those circumstances.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause and provides that the bill comes into force on the day after the date on which it receives the Royal assent.

Clause 3 is the interpretation clause.

Clause 4 sets out the purpose of the bill.

Clause 5 makes it unlawful (ie, a crime in domestic law) for any New Zealand leader to plan, prepare, initiate or execute an act of aggression and provides for a penalty for committing a crime of aggression.

Clause 6 defines an act of aggression.

Clause 7 sets out when armed force is lawful.

Clause 8 provides that allegations of a crime of aggression may be brought in a New Zealand court whether the act of aggression is alleged to have occurred in New Zealand or elsewhere, and whether the accused person was within New Zealand territory or elsewhere at the time of the alleged act.

Clause 9 provides that any New Zealand leader, when considering deploying New Zealand armed forces, must obtain written advice from the Attorney-General on whether such action is consistent with New Zealand’s obligations under the Charter of the United Nations, and that this advice must be presented to the House of Representatives for consideration.

Clause 10 establishes the position of a Special Prosecutor to investigate allegations of crimes of aggression.

Clause 11 provides for immunity to any member of the New Zealand Defence Force in the exercise of their military duties, thereby making the crime of aggression a leadership crime.

Clause 12 makes a consequential amendment to the Remuneration Act 1977.