Diplomatic Privileges and Immunities Amendment Bill

When I was speaking last Thursday I was expressing the Green Party’s support for this bill, which allows the International Criminal Court to function more freely through granting immunity to judges and others involved. Unfortunately, the United States is challenging the ability of the court to function by going around the world and signing agreements with countries to exempt its citizens from the jurisdiction of the court. For example, we could have a situation where United States soldiers commit crimes under the Rome Treaty, but because of these exemptions they do not fall within the jurisdiction of the court. That may already be a very practical problem, in that Amnesty International issued a report last week slamming the United States occupation forces in Iraq for torture and ill treatment of prisoners, beating prisoners with rifle butts, and killing people. It said that reported methods of torture included prolonged sleep deprivation and prolonged restraint in painful positions, sometimes combined with exposure to loud music, prolonged hooding, and exposure to bright lights. Then on the television news last week we saw the United States commander north of Baghdad explicitly threatening to punish a village and bulldoze crops, which is the sort of collective punishment deemed to be a crime against humanity under the Rome Treaty.

To give members an idea of the scale of Bush’s campaign to get Governments to sign up to such exemptions for its citizens, the 3 July edition of the New Zealand Herald reported that 44 Governments had already signed article 98 exemptions for US citizens, and seven countries had secret agreements—that is, their Governments were scared to tell their own people that they had caved in to the US administration on that matter. The Bush Government is trying to blackmail 35 other Governments into signing such agreements by announcing a cut-off of military aid to those particular countries. It is no doubt using the carrot of more aid to get other countries in line, which is perhaps why Nauru, Tonga, and Tuvalu have signed up to those exemptions. It is disappointing that our Government took no diplomatic steps whatsoever to stop that from happening, and the Minister of Foreign Affairs and Trade admitted that in his answers to written questions from me.

I think we should do more to challenge United States’ efforts to undermine the International Criminal Court in the South Pacific. Unfortunately, New Zealand’s support for the court—which is reinforced by the very good bill before us—is compromised by the nature of our commitment to Afghanistan in terms of the hundred or so troops who will be going there shortly to join Operation Enduring Freedom, which is a US-run operation. That operation does not have a Status of Forces Agreement with the interim Karzai administration in Afghanistan, specifically so as to allow US troops to do anything they like without any reference to the Karzai Government. If US troops should do anything that would be classified as a crime under the Rome Treaty, there is no possibility that they will fall under the jurisdiction of the International Criminal Court.

There is a problem here for New Zealand and our troop commitment, because if the New Zealand forces take prisoners in Afghanistan and hand them over to American jurisdiction, and if they are mistreated by the United States, then those crimes will not be under the jurisdiction of the International Criminal Court. We already know that the world community is outraged by some of the things that the United States has done, both in Afghanistan and to prisoners held at the prison camp at Guantanamo Bay. There were reports in our papers not long ago from a coroner’s report showing that the US forces in Bagram Airbase had tortured two prisoners to death. The treatment of prisoners at Guantanamo Bay also amounts to torture.

On 8 July the United Nations Commission on Human Rights issued a press statement expressing alarm over the military trial of detainees, and criticising the military trials that America tends to implement in Guantanamo Bay. Those trials will be a travesty of justice. Those accused are not allowed even the right to have their own lawyer. They will be quite the opposite of the very fair trials that will exist under the provisions of the International Criminal Court that we are supporting in this bill, which are very careful trials with proper defence and good quality international judges. We should not do anything in Afghanistan that might in some way compromise our position in that respect.

Reading further into what Amnesty International came out with last week, it is very disturbing to find the way that war crimes may be being committed by the occupation forces in Iraq. Its press statement talks about the death of one innocent person, Saadi al-Ubaydi. It says that several soldiers forced their way into a house in and beat him with their rifle butts. He ran out of the house to get away from them, but they shot him a few metres away, and he died immediately. It talks about soldiers forcing neighbours in a community to the ground, and one of the people involved being killed. That is the sort of thing that is going on in Iraq, and in other countries around the world.

I have concentrated here on the United States because its Government poses a problem of jurisdiction for the International Criminal Court, but war crimes are going on in Liberia and in other places around the world. We want a proper universal system to enhance that process of justice, and this bill will support that, but we should not do anything else that would assist the United States in encouraging other countries not to sign the Rome Treaty, or to exempt its citizens from the jurisdiction of the International Criminal Court.

This is a very short bill, but it is also a very important one because it reaffirms this Parliament’s commitment to the International Criminal Court. The bill will allow New Zealand to ratify the Agreement on the Privileges and Immunities of the International Criminal Court, which will mean that if there is ever a time when the International Criminal Court has to sit in New Zealand we will be able to provide those protections to the judges who sit on, and the staff who service, that very important international panel. It is another example of the Government’s and Parliament’s response to international cooperation. I support the passage of this bill to the select committee.

I rise for the ACT party to oppose the passage of this bill. This bill cements in the International Criminal Court’s jurisdiction in this country by revising and expanding the range of immunities that may be enjoyed by people working for that court in New Zealand. We say Parliament should be spending time on the task that the Foreign Affairs, Defence and Trade Committee and this Parliament failed in when we passed the International Crimes and International Criminal Court Bill in 2000. We should be looking at the immunities we may need in order to protect New Zealanders from forms of justice and from offences that would be repugnant to our law—the things that were not reserved out of the reach of that court, which may well become a victors’ tribunal.

The United States has stayed out of the International Criminal Court, for the very good reason that it is dominated, and is potentially permanently dominated, by countries that may not share the values that are embedded in our traditions of law and freedom. Despite the very good intentions of those who support it and the best wishes of those who have set it up, that court could well end up becoming one of the very worst evidences of the kind of globalisation that the Greens usually oppose. Paradoxically, in this case they are keen to see globalisation extended. The Europeans who have been very keen on the court do not appreciate the sentiment in the United States, and the United States Congress, against it.

Unlike most of the European Parliaments, Congress is not a rubber stamp. The United States Congress has active constitutional concerns in its Congress. The United States is, as the Green member Mr Locke said, going around the world and making sure that at least it protects its soldiers from possible victors’ tribunal political show trials. Trials like that could be conducted at the urging of members of national legislatures—like Mr Locke—who are not interested in the topic or in the real merits of a case, but who are interested in fulminating against only what they see as the power of the United States, and against the values they so detest that the United States upholds.

We believe this bill should be a chance for Parliament to take a good look at what it has signed up to. We should recognise, for example, that our troops in the Solomon Islands could easily end up in a position where, should events turn in a nasty direction and history go against New Zealand, we could well find people coming back and accusing our people in the Solomon Islands of activity that, under the very vague statute that sets up the International Criminal Court, could be classified as war crimes.

For example, it may be, given the dire ethnic tensions in the Solomon Islands, that a form of separation is seen as the most practical way of stopping the dreadful attacks and assaults that have occurred. I hope that will not happen, and as I understand it, it is unlikely at this stage. But some kind of separation is not beyond the realms of possibility, given that it has been called for by many people in the Solomon Islands. Of course, the very root of much of the problem in the Solomon Islands started when there was a call to send the Malaitans back to Malaita.

If the New Zealand troops and police are involved in anything that ends up adopting that kind of separation, they may well fall foul of the apartheid crime under the international statute. That crime is not defined; it could mean just about anything that a tribunal wanted to make it mean. We could find, in 15 or 20 years’ time, that those New Zealanders who went there in idealism are being hauled before a court that simply wants to make a political point of attacking a relatively defenceless former ally, or ally, of the United States. Far stranger things have happened in international affairs than an attack by proxy, in order to see what the major power does in response. New Zealand has set itself up for that by naively signing up to a tribunal and a set of rules that do not define the core offences, and that should be of concern to us.

We are concerned also that the immunities that are spoken of here in this bill are immunities for people who may share none of our values. These are diplomatic immunities for people who may come in here to press a charge that would be double jeopardy, if it were made under New Zealand law. There is no right to a trial by jury. There is no certainty that the judicial philosophy of the International Criminal Court will respect our traditional liberties or protections. There is a power, for example, for evidence to be given by bodies that have no real connection with the victims: non-governmental organisations. The statute provides for non-governmental organisations to represent victims. That is just a recipe for political show trials without the accused having a chance to face the real accuser.

Those breaches of the liberties that took hundreds of years to evolve in our law could be cured if this bill, instead of meekly submitting to the wish of those who want to make New Zealand look respectable in third-way forums, had restrictions on the surrender of New Zealand citizens. For example, this bill may have been an opportunity to ensure that a New Zealand citizen could not be hauled before the International Criminal Court unless the New Zealand courts were satisfied that it was for an offence that would be an offence under New Zealand law, or under the statute as properly interpreted.

We could have this law ensure that we have the lawful authority to make sure that United States troops are not at risk of an opportunist seizure, while in New Zealand. The countries that Mr Locke referred to, which are signing agreements with the United States not to hand over United States citizens to the International Criminal Court, will be places where United States forces can go when invited, without having to worry about an opportunist act by that court or its agents to seize people whom they could not otherwise seize. In fact, the immunities that are being provided for in this bill may one day be an opportunity for the enemies of New Zealand to embarrass New Zealand, by endeavouring to seize and hand over people whom the International Criminal Court is prosecuting, when the New Zealand ally—the United States or another country that comes to similar arrangements—is not considered by us to have been in breach of international law, at all.

When this bill goes to the select committee, if it follows the pattern of the previous legislation it will come back with an utterly anodyne report that does not address the real issue. When the International Crimes and International Criminal Court Bill came back to this Parliament from the Foreign Affairs, Defence and Trade Committee the report did not even mention the vital fact that neither Australia, at that time, nor the United States proposed to sign up, and that as they were our two most closely allied countries the bill would, therefore, be a problem in our relationship with them. The committee failed even to note for the information of this Parliament that the bill would be a major problem in the relationship with our then two closest allies.

Since then, of course, the Prime Minister of Australia has been rolled by his Foreign Minister, and Australia has signed up to the Rome Statute. But it has also made it very plain to the United States that Australia is sympathetic to the concerns of the United States. I would not be surprised if Australia, in the new spirit of realism it has exhibited in its foreign affairs, at some stage considers repudiating the treaty, in the same way as the Bush Government has. Until the offences under the Rome Statute are properly defined we are living under a statute that, if it had been in force at the time, could have seen, for example, our service people in Malaysia prosecuted as war criminals for the successful suppression of the terrorist rebellion in Malaysia and the kampong policy. It could also have seen, for example, our officers at Monte Cassino prosecuted as war criminals for the mistake they made in relation to the abbey at Monte Cassino, and it could in future see our people who participate in good faith in humanitarian efforts involved in actions that the International Criminal Court may decide, for political reasons, are war crimes.

This bill should not proceed until Parliament looks at the International Crimes and International Criminal Court Act properly.

Unlike the comments made by the previous speaker, I say the privileges and immunities that are provided for in this bill will be in the best interests of the International Criminal Court. They are not for the personal benefit of the individuals concerned, and that is the point to make. As we all know, the International Criminal Court is the world’s first criminal court that is capable of trying those individuals who are accused of the most serious violations of international humanitarian law—namely, genocide, war crimes, and crimes against humanity. This bill sets out the privileges and immunities that the judges and staff of the International Criminal Court will have while working in New Zealand. While it is unlikely that the court will ever sit in New Zealand, it is possible that investigators may wish to question witnesses here about events that have occurred elsewhere around the world. I commend this bill to the House.

Members of the public who are listening to this debate could be forgiven for being totally confused as to what on earth this Parliament is debating this afternoon. Having listened to the Green member Keith Locke’s rantings, they could be fully excused for not having a clue what we are talking about. This bill amends the Diplomatic Privileges and Immunities Act, which is the Act that provides for diplomats in this country to enjoy very important privileges and immunities that other citizens of New Zealand, or other visitors to New Zealand, do not enjoy. Diplomatic privileges are very, very important privileges. We all need to be conscious of that.

Back in the year 2000 New Zealand passed another piece of legislation that implemented a very similar law to this—the International Crimes and International Criminal Court Act. Back in 2000 that legislation implemented the necessary law changes in New Zealand following the establishment of the Rome Statute for the International Criminal Court. So we have already put provisions in our law once before, in the year 2000, to provide for the Rome Statute, which established the International Criminal Court that some members have spoken about. Subsequently, following the establishment of the International Criminal Court and following the Rome Statute, the parties involved agreed on a set of privileges and immunities of the International Criminal Court. After the Rome Statute established the court, a quite recent agreement was reached to establish the privileges and immunities of that court. The legislation that we passed in this Parliament back in 2000—the International Crimes and International Criminal Court Act—did not meet all the requirements of that recent Agreement on the Privileges and Immunities of the International Criminal Court. That is why this amendment legislation is back in this Parliament right now.

I was saddened when I listened to one or two of the contributions this afternoon, and especially to that of the Green member Keith Locke. We did not hear any debate over the detail of this bill or about the wisdom of the privileges and immunities that this country is about to provide for people involved with the International Criminal Court. We heard Keith Locke rant against the United States of America. All I can say is that that saddens me hugely. There is a risk that people who listened to him might think that that is the view of all New Zealanders. When a member of this Parliament makes those kinds of statements against the United States of America, it concerns me that people who listen to them from overseas, or even good New Zealanders, may think that that is what we parliamentarians think. I want to make it very clear that I and the National Party dissociate ourselves totally from what Keith Lock had to say this afternoon.

One of the fascinating things with regard to the Green political party here in New Zealand is that what unites it is not a care about conservation—not at all. What unites Green members is their distaste of most of the values of the United States of America, and more important than that, their intense hatred of some of the values that emanate from that country. For example, those members hate with a passion the multinational corporations, which I guess tend to emanate more from the United States of America than from elsewhere, as it has the biggest economy in the world. It is sad to hear that expressed in the Parliament of New Zealand, when the United States of America is one of our best friends and one of the countries that is most important in terms of New Zealand’s future. I simply say to Keith Locke that he does New Zealand a great disservice when in this Parliament he simply emits a litany of condemnation against the United States of America, which holds values that are very dear to us. Its values are very similar to ours. It has defended New Zealand in the past, and is vitally important in terms of our future.

Let me come to the detail of this particular bill. The real substance can be found in clause 3. This is a very short bill, which has only 4 clauses. Clause 3 replaces section 10D of the principal Act and adds a new section 10E. Section 10D was inserted in the year 2000, when we first had a go at providing for the Rome Statute and the International Criminal Court. I do not see any particular problem with that. It makes sense that the International Criminal Court is able to operate, should it ever need to, in New Zealand. Certainly, it may at times have to interview people in New Zealand, so it makes sense to provide proper diplomatic privileges and immunity for people involved in that court. I do not see any great question around new section 10D in clause 3.

To me, the more interesting part of this bill—the bit that I would like the select committee to examine in somewhat greater detail—is the part that the Minister of Foreign Affairs and Trade omitted to mention in the publicity statement he issued quite recently. In that statement he said the bill protects the International Criminal Court’s staff. However, he omitted to include in his comments about what the bill does those matters that are covered in new section 10E. He talked about the matters in new section 10D, which cover the officers and staff associated with the International Criminal Court, but he did not mention the matters covered in new section 10E, “Privileges and immunities of representatives at Assembly of States Parties or its subsidiary organs”. I am sure that not many people would understand what on earth that is all about. I do not claim to understand exactly what new section 10E does.

But it worries me that the diplomatic privileges and immunities that this legislation will provide for certain people in our country are very, very important and valuable privileges and immunities. They are not to be dished out lightly. They are dished out to international diplomats who have to function in New Zealand; it is an international custom that such diplomats are provided with certain immunities and privileges. Our diplomats receive those privileges and immunities in the countries they work in around the world. However, what worries me about new section 10E is that it appears to me to provide for all sorts of hangers-on of the UN to be granted the same vitally important privileges and immunities in this country. Section 10E(1) states: “(1) The Governor-General may, by Order in Council, confer such privileges and immunities as may be required by article 13 of the Agreement on the following persons:... (c) representatives of States or intergovernmental organisations invited to meetings of the Assembly of States Parties or any of its subsidiary organs.” We are proposing a hugely wide provision, and the Minister did not talk about that in his press statement. In this legislation we are proposing to provide the hugely important privilege of diplomatic immunity for a whole range of people who do not require that for the functioning of the International Criminal Court, at all.

That worries me. Why did the Minister not mention that in his press release about the bill? Why did he talk about new section 10D and not about new section 10E? Sure, there can be no question that article 13 of the recent agreement requires us to do something in this area. But when the select committee examines the bill, I want it to have a good look at what new section 10E provides, because it confers very important immunities and privileges on a whole range of people who are not remotely involved in the functioning of the International Criminal Court and who may not require those immunities and privileges, at all. I think we should think very carefully about how we implement article 13 of the agreement in new section 10E.

We support this legislation in principle, of course, but I want to make sure we have a very good look at that provision in new section 10E, because I think it needs further scrutiny.

I support this bill.

The previous speaker was good enough to say, without reason—perhaps because he had no reason to offer—that he supported this bill. It is great to come to a position with no reason for coming to that position. On behalf of National, I would like to start by congratulating the new member who has joined Parliament today and express the hope that when she gives her maiden speech that this bill, the Diplomatic Privileges and Immunities Amendment Bill, might be one of the issues she takes up and talks about. The bill is probably the very first of the bills she will hear debated in the course of what I do not doubt will be a long and distinguished parliamentary career.

The need for this legislation arises as a result of the enactment 3 years ago of the International Crimes and International Criminal Court Act. But for that Act we would not be hearing these comments today. The purpose of that legislation was to do two things: first, to make provision in New Zealand for the punishment of a number of international crimes that either were not in their own right crimes or were not well spelt out in that way, and they touched on issues of genocide, crimes against humanity, and war crimes; and, second, to enable New Zealand to cooperate with the International Criminal Court, which was established by the Rome Statute.

So it was that the International Crimes and International Criminal Courts Act was passed in the year 2000. The statute itself deals with international crimes and offences against administration of justice. It deals with arrest and surrender of persons to the International Criminal Court, with domestic procedures or other types of cooperation, and with enforcement of penalties, including, interestingly, in a restorative justice context, orders relating to victim reparation. So we see in that legislation something I learnt only 12 hours ago in Korea, where people in the streets were wearing T-shirts that had written on them: “Freedom is not free”, and that is assuredly so.

Of relevance in the context of the Diplomatic Privileges and Immunities Amendment Bill that we are now debating are those parts of the year 2000 statute that have a clear New Zealand involvement. The two principal parts of that Act that deal with this issue are Part 7, which is all about serving sentences imposed by the International Criminal Court, in particular the enforcement of sentences in New Zealand, and Part 9, which deals with the investigations or sittings of the International Criminal Court in New Zealand. That is likely to be a rare event, but it will certainly be possible.

I have greater faith than the ACT party speaker who made critical comments about this legislation and expressed the hope that it would not pass, because, unlike him, I do have a high degree of confidence in the institution and organs of the United Nations and similar international bodies. It seems to me to be drawing a very long bow to say that soldiers deployed in the last week to the Solomon Islands to deal with issues of law and order and to seek to make the peace might face criminal prosecutions in respect of war crimes. After all, the personnel who are there were invited at the behest of the Solomon Islands Government, and they are there with the committed support of the surrounding States in the South-west Pacific.

The bill itself amends the Diplomatic Privileges and Immunities Act—an Act that is, certainly in the context of this Parliament, quite old legislation that has not been much amended. Annexed to that statute are the schedule provisions that pick up the relevant conventions, including the Vienna Convention on Diplomatic Relations and Optional Protocols Done at Vienna. There to be found are privileges, such as those that exist in respect of criminal prosecution, and they put on a diplomat who crosses the line the clear choice of facing criminal prosecution or else maintaining diplomatic immunity, with the consequence of recall to the sending State.

We are looking at changes to the principal Act that revolve around section 10. Clause 3 repeals section 10D and substitutes new sections 10D and 10E. Section 10 has, of course, been earlier amended; we would not be talking about numbers like 10D and 10E were that not so. It was section 10A that provided facilitation of international inspectors under disarmament treaties, section 10B that provided privileges and immunities of judges, prosecutors, and staff of the International War Crimes Tribunal, and section 10C that provided privileges and immunities of members of the International Tribunal for the Law of the Sea. This is the second crack at getting privileges and immunities of judges, prosecutors, and staff of the International Criminal Court right. Section 10D, as it was passed, was clearly unsatisfactory, so we face a new section 10D of remarkably greater scope.

Dr the Hon Lockwood Smith has probably made a very fair point in his criticisms, not of new section 10D but of new section 10E, which is extraordinarily widely worded. I express the hope that it may very well be that the Foreign Affairs, Defence and Trade Committee will look in a hard-nosed way at that particular provision to see whether its width is really justified.

The final issue I wish to speak about and note is that whilst Australia has—apparently with some reluctance—been prepared to sign up to the International Criminal Court, the United States has held out. It holds out, I suggest, for reasons that, in the context of the world community, are not wholly satisfactory. I hope that the select committee has a very hard look at the reasons that compelled the United States Government to that course. That course may be understandable in the United States context, but it equally may not be. I say “may not be”, because New Zealand is one of those countries that have peacekeepers in many, many nations—in more nations than the United States currently has. Our recent activities in the last 10 years have seen international peacekeepers posted to some of the toughest and harshest areas of the world. Angola is a very simple illustration of that. The sorts of pressures that our peacekeepers came under in Angola were certainly comparable with the very worst circumstances that existed in the Vietnam War, for example, for some of our personnel deployed in that station. So I express the hope that the Foreign Affairs, Defence and Trade Committee will, when it considers the Diplomatic Privileges and Immunities Amendment Bill, look hard at those reasons that have impelled the United States’ action, and be thoroughly satisfied that this provision is an appropriate change to be made to our longstanding statute on diplomatic privilege and immunity.

Bill read a first time, and referred to the Foreign Affairs, Defence and Trade Committee.