Diplomatic Privileges and Immunities Amendment Bill

I move, That the Diplomatic Privileges and Immunities Amendment Bill be now read a first time. I propose that this bill be referred to the Foreign Affairs, Defence and Trade Committee. This bill implements the agreement on the privileges and immunities of the International Criminal Court. It will allow orders to be made under the Diplomatic Privileges and Immunities Act similar to those that already exist for other bodies such as the International Court of Justice.

The International Criminal Court was recently established as a permanent court in The Hague under the 1998 Rome Statute. The International Criminal Court has jurisdiction over individuals who commit genocide, crimes against humanity, and war crimes. New Zealand has long supported the creation of an International Criminal Court. Over the last century there have been, regrettably, plenty of examples of perpetrators of these grave international crimes who have escaped responsibility. The ultimate aim, of course, is to prevent these crimes from being committed in the first place, but, in the event that they do occur, an advantage of a permanent court is that it will have the expertise, the personnel, and the resources to respond quickly. Time will often be of the essence in collecting and preserving evidence. That is important if there is to be justice for the victims.

Just over a year ago the Rome Statute came into force following ratification by the minimum 60 countries, including New Zealand. Now there are 90 parties, and others are advancing their ratification processes. In the last few months the International Criminal Court’s key office holders have been elected—the 18 judges, the prosecutor, who is also responsible for investigations, and the registrar. Following the recruitment of specialist staff, the court should soon be fully operational.

Setting up a new international court is a lengthy and complex process. After the adoption of the Rome Statute in 1998, a preparatory commission was established to work on the various issues that needed to be settled before the International Criminal Court could begin operation. One of the documents negotiated in the preparatory commission process was the agreement on privileges and immunities. It was contemplated by article 42 of the statute, but the issues were too technical to resolve at Rome. Although the International Criminal Court is based in The Hague, its staff will be involved in investigations elsewhere. The court itself is also able to sit away from The Hague as is necessary. The agreement therefore sets out in detail the various protections that the International Criminal Court, its judges, staff, and others involved in investigations or court proceedings, enjoy while in the territory of a State party on official business. It also deals with the situation where the assembly of State parties meets outside the host country. The agreement was adopted by the assembly of State parties last year. New Zealand has since signed the agreement, and will be able to ratify it once this bill is passed.

The International Crimes and International Criminal Court Act 2000, which implemented the Rome Statute, also amended the Diplomatic Privileges and Immunities Act 1968. However, to give full effect to this agreement, which was negotiated after the International Crimes and International Criminal Court Act was passed, a further amendment is needed. This bill therefore adds two new sections to the 1968 Act to enable Orders in Council to be made in four situations. First, an order may confer certain privileges and immunities on the International Criminal Court itself should it sit in New Zealand at some point in the future. These include protecting the premises where the court sits. Second, an order may confer certain protections, similar to those given to foreign diplomats, on International Criminal Court judges and staff who are in New Zealand on official business. Third, an order may confer a more limited range of protections on others involved in International Criminal Court proceedings—for example, witnesses. Finally, an order can confer certain protections on persons attending any meetings of the assembly of States parties, or its subsidiary organs, in New Zealand. Like the agreement itself, the orders will make it clear that these protections are given in the interests of ensuring the effective functioning of the International Criminal Court or assembly. They will not be for the personal benefit of the individuals concerned, and can be waived.

The bill also amends section 11 of the Immigration Act. That section currently exempts persons to whom orders under the 1968 Act relate from holding permits. The agreement itself does not require a complete exemption; rather, it envisages that, although exempt from the ordinary immigration restrictions, certain groups, like witnesses, might still require some sort of permit. The obligation is then to issue them speedily and without charge. The proposed amendment makes the existing provision subject to this qualification.

The situation in which the protections in the bill are most likely to be invoked is where International Criminal Court staff come to New Zealand to interview potential witnesses. Now that the International Criminal Court is poised to begin its operations, it is important that State parties like New Zealand play their part in ensuring that the court, its judges, and staff have the protections they need to do their job effectively and independently. As this bill signals, New Zealand will continue to support the International Criminal Court in its formative years, in the hope and the expectation that it will fulfil its potential as one of the pre-eminent institutions of international justice. I commend this bill to the House.

The explanations given by the Minister of Foreign Affairs and Trade were full, and they gave us a good understanding of what the bill is about. It is rather a pity that, just a few minutes ago, he did not take the opportunity to give much the same kind of explanation about the merger of the Department for Courts with the Ministry of Justice. Such an explanation is not an unreasonable request, it would seem, but did he take that opportunity? After all, we do presume he knows something about the matter. However, we were denied the opportunity of that explanation.

I appreciate, Mr Speaker, that you are probably of the view that I should focus on the bill before us rather than on the one that preceded it. National supported the establishment of the International Criminal Court, and we did so for very good reasons. I know there are parties in this House that did not give such support—notably, New Zealand First and ACT. They explained that they feared that such a court would go beyond a reasonable level of jurisdiction. It did not seem that they were necessarily opposed to it in principle, but, rather, that they felt the jurisdiction was wider than was necessary to cover crimes of genocide and matters of that nature.

I would ask them to reconsider their point of view in relation to this bill. The reason is that if we look back over a century or more of international lawmaking, we see that ad hoc tribunals have been established to deal with particular issues—they could be limitation issues, or various claims or tribunals, or disputes between particular States. That process has gone on for centuries. Its limitations were appreciated a century ago, and that led to the establishment of a general court of competence, the International Court of Justice, to deal with disputes between States. No country in the world today would say that was not a good thing. The merits of international law and the peaceful resolution of disputes through courts were advanced by that process.

In many ways, the International Criminal Court is an advance on that, because not only does it provide jurisdiction between States but also it brings individuals who are guilty of the very worst crimes—and maybe there is a point to be made about the precise drafting—before a recognised international court. That is a far more effective and reliable system than having ad hoc tribunals, such as those established following events in Kosovo and Bosnia, and, most notably, the Nuremburg Tribunal. What this court does is gather up the ideas that motivated those various ad hoc tribunals, and that established some fundamental principles of human rights law, to provide a court that will punish and bring to justice those people guilty of the very worst crimes imaginable—those that are a fundamental affront to human rights and dignity.

I would ask all the parties in this Parliament today to reconsider their vote, effectively, through the agency of this bill. There are two reasons for that. The first is that general principle. The second is the fact that the court now exists. It is established. It does have its 18 judges and it does have a secretariat. It will commence its business. Surely we as a country cannot be in a position whereby, based on a vote of a year or so ago, we would now deny the rights and privileges of diplomatic immunity to the court’s judges, staff, and so forth. Whatever argument existed a year ago, I believe that time has moved on, and I would like to think that, at the very minimum, all parties in this Parliament would vote unanimously to send this bill to a select committee.

One might think I am overstressing that point, but there is a reason for it. I believe that the establishment of the International Criminal Court was one of the great cardinal points in the development of international law. New Zealand—the nation—is now a party to that court. It behoves the entire Parliament to recognise those obligations. Even if people state their particular concerns, the obligation is now incumbent on the New Zealand Government and, in fact, the people of New Zealand to enable that court to be effective and to implement justice in the worst cases of human abuse. The Minister is right; most often because of the mobility of people, because of the way that these criminals try to escape justice in the place where the crime occurred, there will be witnesses—there could even be defendants—in this country whom the officials, the prosecutors, will wish to visit. Surely we would not want to say: “No, you can’t have the appropriate immunities.”

This is one of those rare issues, but they do come up from time to time, where I believe our Parliament would be sending a strong message about our fundamental beliefs around human rights, and around the protection of the rights of people to live their lives in liberty, in today supporting this bill at least going to a select committee.

I commend the member who has just resumed his seat for a very cogent argument in favour of both this bill and also the International Criminal Court. I simply observe, in addition to what Dr Mapp has said, that at this time when there is, for instance, a minor dispute between the United States and the United Kingdom over the trial of people detained in the aftermath of the war on terrorism, that the role of the International Criminal Court probably assumes a greater significance. The rather bizarre procedure whereby American citizens or American detainees who are tried by the military courts that the United States is proposing to establish may well render themselves liable for the death penalty—and there has been some agreement that British citizens will not be liable—demonstrates the need for an impartial international court to deal with these types of instances. I think the examples the member drew attention to, going right back to Nuremburg, underline the point that unless there is a properly established and constituted international court of justice in place, with very clear boundaries to its work, there is a very grave risk that justice is in effect being meted out by the victors, and sometimes within that there is the implication that justice is more about vengeance than about true justice.

I think the International Criminal Court is a way of getting us beyond that sense of feeling. But for the court to work effectively it needs to have the sanction of the nations that support it and the ability of those nations to enable it to carry out its operations in an unfettered way. That is where this bill becomes relevant. It is a relatively small piece of legislation. In fact, I am disappointed that there was not the agreement that would have seen this passed last year, by way of a Statutes Amendment Bill. I think it could have been dealt with much more neatly and tidily in that environment, rather than now being in the situation where it will be treated in the normal way as a full bill by this House, sent to a select committee, submissions invited upon it—they will be few and far between, and extremely arcane—and then we will report it back to the House in due course and send it on its way. It seems to me that that is maybe one way of serving the needs of democracy but is utterly pointless otherwise, given what this bill seeks to do.

New Zealand, as has been pointed out by the support of both the major parties and most parties in this House, has supported the establishment of the International Criminal Court, and has pledged its support for the work that court could do. Therefore it is only logical that these technical amendments, to extend certain diplomatic privileges and immunities to the officers of the court in the event that they should ever be in New Zealand on court business, are entirely and utterly appropriate.

I do not want to say any more than that, other than to wish this bill good luck as it begins its journey and hope it is not too long before we are back here passing the bill through its final stages and getting it into law, so that New Zealand’s contribution to the work of the court, once it is up and running, can be shown to have some demonstrable worth.

I take into account the speeches that have already been made today. I note the comments made by Dr Mapp about New Zealand First’s approach to the earlier bill, which I believe is now the International Crimes and International Criminal Court Act, and New Zealand First’s attitude to that. This bill is really just minor legislation, which could almost have made its way through the Statues Amendment Bill, if it had not been for opposition by some party. It is a nuts and bolts matter, and at this stage New Zealand First will give cautious support to the bill going to the select committee, and we will take the matter from there.

Mention has been made of the Nuremburg tribunal, and, as a lawyer, I happened to notice in the last week or so the obituary of Sir Hartley Shawcross. Perhaps in the context of this bill one could keep that historical point in mind. But from that early beginning we are moving on to further things. New Zealand First will look at this matter closely in the select committee and speak to it again in the second reading.

The Green Party will be supporting this bill. It is important that the International Criminal Court—a very important international institution that other speakers have mentioned—is able to function freely, without any restraints on the judges, witnesses, and others who are granted immunity under the provisions of this bill. It is important that the international community and New Zealand does advocate that there are no restraints whatsoever on the functioning of the International Criminal Court. Unfortunately, one nation—the most powerful in the world—is restraining the functioning of this International Criminal Court very substantially. Of course that country is the United States.

Peter Dunne referred to the problems with the application of justice by the United States, and, unfortunately, it is not putting itself under the jurisdiction of the International Criminal Court. It has not signed or ratified the Rome treaty, but even worse it is going around the world trying to force other Governments to sign up to agreements with the United States so that United States citizens, members of the United States armed forces, are not under the jurisdiction of the court, and that those countries agree not to cooperate fully with the International Criminal Court in terms of the prosecution of such United States citizens, even when they are deemed to have offended the provisions of the court in relation to such things as crimes against humanity or war crimes. They will not be brought to justice.

It is unfortunate that under the provisions of this bill we will see judges coming in to try cases, and having the immunity to try those cases free of interference. There will be the witnesses, and all those other people who are given immunity under this bill. But in several countries, not New Zealand, the defendant—if he or she is a United States citizen—may not show up because of the article 98 agreements that the United States Government is signing with these particular countries.

It may be said: “Oh, well, we don’t really need to worry about the United States; it is just asserting its sovereignty, and any offenders against human rights, crimes against humanity, war crimes, etc. will be taken back to the United States and tried effectively under the jurisdiction of the United States.” But, unfortunately, this will not necessarily be the case. Even today, Amnesty International has put out something.

Debate interrupted.

The House adjourned at 6 p.m.