Diplomatic Privileges and Immunities Amendment Bill

I move, That the Diplomatic Privileges and Immunities Amendment Bill be now read a second time. This bill implements the Agreement on the Privileges and Immunities of the International Criminal Court, which supplements the Rome Statute of the International Criminal Court. The bill will allow orders to be made for the court and personnel employed by it, under the Diplomatic Privileges and Immunities Act, similar to those that already exist for other bodies. The Foreign Affairs, Defence and Trade Committee has recommended unanimously that the bill be passed without amendment.

Before turning to the specifics of the bill, I wish to flag that I have written this week to all parties in the House to seek agreement to make a further amendment to the Diplomatic Privileges and Immunities Act by a Supplementary Order Paper to this bill. The need for this amendment has become apparent in the context of implementation of an establishment agreement with the European Community concerning the office that it is setting up here. The European Community is defined as an international organisation and not a country. For that reason, under the current Act, the normal privileges and immunities conferred on the families of diplomats do not apply to the European Union mission. The Supplementary Order Paper will simply extend to an international organisation those privileges currently enjoyed by country missions; and the indication I have received so far is that the parties that have replied are in favour of that Supplementary Order Paper.

On the bill as introduced the select committee received only one submission, and that submission supported the bill. The bill adds two new sections to the Act. New section 10D deals with three situations in which privileges and immunities are conferred. These relate closely to the functioning of the International Criminal Court.

The first situation deals with protections for the court itself. The second relates to protections for the International Criminal Court judges and staff, and the third relates to the more limited protection for others involved in International Criminal Court proceedings, such as witnesses. These protections help to ensure that the International Criminal Court and others involved in proceedings can perform their functions or role, free of interference. But the protections do not mean that the International Criminal Court and its staff can do what they like in New Zealand.

It is important, in order to avoid confusion, to say what the bill does not do. It does not affect procedures relating to surrender of persons to the court jurisdiction. The International Crimes and International Criminal Court Act sets out the procedure to be followed in New Zealand if a request for a surrender is made. It is similar to extradition, involving scrutiny both by a Minister and by a court. The grounds on which the International Criminal Court’s request can be refused, include the situation where the person is already under investigation or being prosecuted in New Zealand.

The International Criminal Court is a court of last resort. Under the principle of complementarity, States that have jurisdiction over a particular incident have the opportunity to investigate and prosecute. It is only if they are not willing or able to act that the International Criminal Court steps in.

The International Crimes and International Criminal Court Act has made all the conduct over which the International Criminal Court has jurisdiction an offence under New Zealand law. I expect that New Zealand would, of course, prosecute any New Zealanders involved in genocide, crimes against humanity, or war crimes, which are the areas of jurisdiction the court has.

The question that underpins this bill is a narrower one. How do we want International Criminal Court judges and staff to be treated when on official business? Although the court is based in The Hague the reality is that much of its work will be done elsewhere. Those doing the court’s work should have the protections they need to do their job properly, wherever they happen to be. This bill shows that New Zealand is willing to give protections to the court, its judges, and staff, if their work brings them here to New Zealand.

The second provision in the bill is new section 10E, which relates to meetings of the States that are party to the Rome Statute. It implements article 13 of the agreement, which gives representatives of States who attend these meetings certain protections. It is standard practice for representatives of States who attend international meetings in other countries to have protections similar to those given to diplomats. Generally, these protections are given to persons holding letters of credentials from Foreign Ministers or other high-level authorisation.

Existing orders under the Diplomatic Privileges and Immunities Act give such protections to those attending meetings in New Zealand organised by bodies such as the United Nations, the OECD, and the World Trade Organization. Section 11 of the Act caters for international conferences organised by bodies in respect of which there is no order. It allows a Gazette notice to be made extending protection to persons attending a specified conference. These protections are limited in nature and duration. Moreover the protections do not belong to individuals but rather to the State or body that they represent, and they can be waived. We would expect these protections for New Zealand representatives who attend meetings in other countries. We therefore need to be able to give them to others in the event that meetings are held here.

New Zealand has long supported the establishment of an International Criminal Court as a means of ending impunity for the worst crimes. The passage of this bill and early ratification of the privileges agreement will reaffirm New Zealand’s support both for the International Criminal Court itself and for the ideals that it embodies. I commend this bill to the House.

I follow on from the comments of the Minister of Foreign Affairs and Trade, and although this is slightly irregular I wonder whether I can ask across the House which member from our party the Minister wrote to regarding the Supplementary Order Paper.

💬 Hon Phil Goff: When I seek agreement for a Supplementary Order Paper I write to the leader of each of the parties. It would have gone to Don Brash.

Thank you. If the Supplementary Order Paper is as the Minister stated in his opening contribution to the debate, we will not have any difficulty in supporting it. We await its final form. I understand the reasons outlined by the Minister, and provided that those are reflected in the Supplementary Order Paper, there will be no difficulty from the Opposition on that front.

I certainly endorse what the Minister has said regarding the aim of the bill in respect of amending the Diplomatic Privileges and Immunities Act to implement the agreement on privileges and immunities of the International Criminal Court, and, of course, as the Minister has said, to give full effect to the Rome Statute of the International Criminal Court. I have to say we have no real difficulty with the issues raised in the bill as outlined by the Minister. The National Party will certainly continue to support this bill, subject to, as I say, our sighting the Supplementary Order Paper referred to by the Minister.

I have one very quick comment to make, and it is about the statement of the public policy objective. On page 4 of the explanatory note, the narrative states: “New Zealand has an interest in seeing the perpetrators of the most grave international crimes brought to justice. … The establishment of the ICC helps to make this possible,”. From memory the ratification, by way of domestic legislation, of the International Criminal Court via the Rome Statute was supported by most, if not all, parties of this House at the time it went through, some months ago. It is fair to concur with the statement in the narrative: “By becoming party to this Agreement at an early stage, New Zealand demonstrates continued commitment to the ICC …”. The National Party certainly pledges that commitment, alongside the Labour Government, on this legislation.

One does always have to be wary with legislation such as this, in the sense that I am always a little cautious about international conventions, the role of international agreements, and the impact they may have on the raw sovereignty of any particular State to conduct its affairs in the way it wishes. But I have to say that we on this side are satisfied that this bill does not impinge on that statehood—if one likes—in respect of any nation being able to carry out its day-to-day activities.

If the Supplementary Order Paper that the Minister referred does include European Union representatives, because, as the Minister rightly pointed out, the European Union is not a country and does not enjoy the same diplomatic privileges and immunities as nation States do, then that makes perfect sense, particularly given the expansion of the role of the European Union over time in terms of diplomatic postings and offices throughout the world.

I do not propose to labour this point any further. I advise the House that the National Party will be continuing to support the passage of this bill.

This bill implements the Agreement on the Privileges and Immunities of the International Criminal Court, which supplements the Rome Statute of the International Criminal Court. It is unlikely that the International Criminal Court will ever sit in New Zealand, but it is important that investigators, should they need to do so, are able to operate freely within our jurisdiction. More important, this measure underlines that New Zealand has long supported the establishment of an International Criminal Court as a means of ending impunity to the worst crimes. It continues a strong and distinctive New Zealand tradition of support for multilateral legal institutions, at a time when the international institutions are under severe pressure. We note the pressure that has been applied to the UN in the context of the current conflict in the Middle East, the pressure on the World Trade Organization in the context of the Cancun conference, and the current pressures underlying the situation of NATO. So we are proud, not only of the specific purposes of this International Criminal Court matter but also of underlining our commitment to multilateralism, which New Zealand is putting forward in this bill.

On behalf of New Zealand First, I express our support, once again, for this legislation. I thank the Minister of Foreign Affairs and Trade for writing to the Rt Hon Winston Peters about the matter, and indicating the desire of the European Union, for example, to set up an office here. I understand that it has an office in Australia already, and it seems very appropriate that it have one here. Clearly, with the expansion of the European Union by an additional 10 members on 1 May 2004, our having a greater number of contacts, at all levels, with the European Union is very practical and very necessary for our future trade. In so far as the International Criminal Court aspects of this matter are concerned, it is disappointing that, as I understand it, the United States is not a party to this convention. But those of us in the remaining part of the civilised world are only too willing to be a part of it and ensure that there is a multilateral way of dealing with wrongdoers. New Zealand First supports the legislation.

I rise on behalf of the Green Party to support this bill. It is important to give proper diplomatic protection to all the judges and people involved in International Criminal Court proceedings and international conferences, as specified by the Minister, and, of course, UN conferences that may be held here, and to extend the immunity to representatives of the European Community. I think it could in certain circumstances put us in an unusual position. For instance, under clause 3, which inserts a new section 10D(2)(d) into the Diplomatic Privileges and Immunities Act, it states that we would have to give immunity to people participating in International Criminal Court hearings, such as counsel, witnesses, victims, experts, or other persons.

Let us take the case, for instance, of an International Criminal Court hearing that, as the Minister said, could be assigned to New Zealand. Hearings do not all take place in Europe, or The Hague, or wherever, but they can be assigned around the world. Say there was a hearing of the court in New Zealand on the situation in Algeria where, as Amnesty International points out, the regime is happy to boast that it has “neutralised”—to use their term—20,000 people. The estimates are that tens of thousands of people have been killed, mainly by the regime, although some have been killed by terrorist groups opposed to the regime. Clearly, in terms of the provisions of the International Criminal Court’s own statute, the Algerian regime has committed crimes against humanity. It could qualify for a special hearing, perhaps in New Zealand, on the crimes that it has committed in order to try to bring to justice those who have been part of that regime in committing those crimes, many of whom continue in power in one form or another, particularly in the military, in Algeria today.

Under this provision, one person who might be called as either a witness—he is certainly a victim of the regime—or he could be considered an expert, is a chap called Ahmed Zaoui. It would be somewhat ironical, for under this provision a person who, because of the very bad policy and procedures of this Government has been rotting in jail in New Zealand for 14 months, has to be released to appear before the International Criminal Court hearing. That is very possible under this provision.

There is under the new section 10D(2)(e), to be inserted by clause 3, the provision that representatives of States have to be given protection. Particularly in relation to the international community, the role of an organisation called the Islamic Salvation Front (FIS)—to go back to an Algerian example—could be interesting. There is a certain parallel for non-State actors to be given some form of diplomatic status. I am referring to the Palestine Liberation Organization, which is recognised by 125 States and does have a certain diplomatic status in various countries, particularly in Europe, and a certain status in relation to the UN as a non-State actor in some senses.

One could envisage in a certain international climate and the commitment of many States to democracy in Algeria, that the FIS could also be given some diplomatic status or attached to a European Union delegation coming to one of the hearings or specified conferences that is held in New Zealand under this provision. There could be the irony of an official representative of the FIS in some form coming to such a conference, either as a semi-diplomat in the sense I have outlined, or just as a participant in one of these specified conferences or perhaps a meeting of the United Nations Human Rights Committee dealing with the situation in Algeria. There could be official FIS representatives coming here, getting all this diplomatic protection, who are colleagues of Mr Zaoui, yet Mr Zaoui is still rotting in prison, even though he has similar status. Possibly, the FIS might say that it wants to attach Mr Zaoui to its delegation. Would he be let out of jail and given immunity to proceed in that way? So there are a number of scenarios that could create problems for the Government, and I am telegraphing them in the context of the Green Party’s full support for this bill.

First, I want to throw a few brickbats, not at the Government, but at the Foreign Affairs, Defence and Trade Committee. The committee has produced a report on the Diplomatic Privileges and Immunities Amendment Bill that says absolutely nothing. It does not even go as far as to accurately record the introductory words the Government said. That is a puzzle to me, because ACT is not represented on that committee.We rely on that committee to make sure that the hard-won liberties, rights, and defences of New Zealanders are not undermined by the Crown pushing through loopholes and exceptions to our domestic law, for the benefit of diplomats and others whom they hobnob with in the international organisations they want to retire to.

This committee has not even picked up the warnings of members of the major parties. For example, I looked at the Hon Lockwood Smith’s warning, when this bill had its first reading, that it worried him. He asked why the Minister talked 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.”—that is, provide immunities—“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.”

Behind those section references is a new set of immunities from New Zealand law for inter-governmental organisations, basically for persons who may well be from the kinds of non-governmental organisations that make life a misery around the world for countries that adhere to the values we hold dear. They may be representatives of States that think that the rule of law is just a joke. They may be representatives of countries that have absolutely no respect for notions like habeas corpus.

What this bill does is that when the International Criminal Court—comprising people who have no necessary belief in the notions of innocent until proven guilty, or the right to face one’s accusers—says, “Jump”, this bill says to New Zealanders, “Jump, and allow these people into this country immune from our law.” The select committee appears to have made no examination of even the concerns of its own members—or if it did, that is not reflected in its report.

ACT will not vote for this bill. We acknowledge that it will pass, and if it passes, it might as well add in the people from the European Union, but none of the concerns that we expressed in the speech on the first reading have been addressed, as far as we can tell, either by the Minister’s speech or by the woeful, pitiful, three-paragraph report of the Foreign Affairs, Defence and Trade Committee.

This bill was a chance to re-examine the naive and over-hasty signing up by this country to the International Criminal Court. The United States, for very good reason, has stayed away. It breaches so many of the values in the law that we hold dear. It is a court that can define offences as it goes along. It can prosecute something called “apartheid”, when no one knows what “apartheid” will mean. It can pursue crimes of aggression, when no one knows what a “crime of aggression” will mean. It could, if it all goes to custard, be a victors’ tribunal of the worst kind. It could validate the overturning of the values of the Enlightenment—the respect for legal process that has taken so many centuries to evolve.

The United States has secured the agreement of something like 60 countries for exemptions. It is a court that threatens the country that is, realistically, our major ally, and whose consent was essential to make it practical. If the select committee and the Government had been doing their jobs, they would have been saying that they are being asked to give a free pass—a “get out of jail free” card—in advance to people of whom they know nothing. As the Green member, Keith Locke, has already said, members of that international body may represent regimes that are absolutely abhorrent to New Zealanders but that may have membership of that body because it is too gutless to apply its own rules—as, for example, the United Nations was in relation to Iraq.

Representatives would be able to come to this country and wander about, flaunting their immunity and living high on the hog, while New Zealanders would be able to do nothing about offences that they might commit here. This legislation should have had a good, solid, sceptical look given to it, because the Act that it amends, by which New Zealand signed up to the International Criminal Court, was done in a rush of good feeling. The National Party has new-found realism about the way in which treaties—including good and honourable treaties like the Treaty of Waitangi—can be misused by those who want to use them for political purposes some time in the future.

I would have hoped that the National Party, on coming to its senses about the gross misuse of the Treaty of Waitangi, might have been slightly more realistic and sceptical about a bill like this that is supplementary to an equally well-intentioned and nobly begun, but equally potentially dangerous, treaty such as the Rome Statute of the International Criminal Court, which New Zealand has signed up to and which we have now implemented in our domestic law.

I will remind members, when we get to the Committee stage of this bill, that it could well be used in the future against—for example—our people who have been in the Solomon Islands, because what is being done there to try to remedy some of the strife actually creates separation zones. It acknowledges the de facto separation of peoples in order to try to achieve civil peace. If Mr Mapp happens to go and look at the definition of the International Criminal Court’s offences, he may well find that that is the crime of apartheid. It may well be that if someone wants to attack New Zealanders and embarrass us in 15 or 20 years’ time, New Zealanders who went there in all idealism could be hauled before a court that is simply the willing or unwilling agent of those who wish to attack the United States or its allies.

Those who wish to attack a major power not infrequently attack one of its allies to see what the reaction will be. It is possibly a 10 or 15 percent chance only, but it is something that this House should have taken into account when it passed the legislation ratifying, in effect, the Rome treaty, and it is something that the Foreign Affairs, Defence and Trade Committee should have taken into account when looking at this bill, even if our Minister did not. The Minister of Foreign Affairs and Trade, Mr Goff, may be far more interested in glad-handing Mr Arafat in Palestine, and may want to be able to run around and say that we are in the club, we will do whatever the international community says, and we will jump when pushed, irrespective of the legitimate concerns of the United States. If he wants whatever the United Nations equivalent is of knighthood, maybe he will get it, at New Zealand’s expense, but the select committee might have been a little more sceptical. It might have taken notice of at least one or two of the members—Keith Locke may come from the wrong direction completely, but at least he is raising the right issue. This is law for New Zealanders that we are creating loopholes in. It is New Zealanders who should be retaining sovereignty, and, at the very least, the committee members should have been making sure that the immunity was narrowly confined to those essential to the operation of the court, not handed out to any hangers-on whom they might wish to bring. This legislation could be used purely to embarrass New Zealand.

I say to the member who has just resumed his seat that that speech was characterised more by its irrelevance than its contribution to the debate. This bill does not set up the International Criminal Court. That was the subject of previous legislation. This bill, simply and narrowly, confers certain diplomatic privileges—which we confer on all diplomats who come to this country—on officers and officials of that court, should they ever come to sit in New Zealand. It is not an issue of the wisdom or otherwise of establishing the International Criminal Court. To try to use this bill to relitigate those broader issues is, in the most charitable view, mischievous, and, at its worst, ill-informed and out of place.

The member criticised the Foreign Affairs, Defence and Trade Committee for the brevity of its report. I chair that committee, and its report was so brief because the number of issues, the level of public submissions, and the level of concern from the members of that committee—representing all parties bar his own—were not significant. This is straightforward legislation. We are not in the business of trying to manufacture scandal or controversy where none exists. I am a great believer in brevity where appropriate—if there is nothing to say, do not spend a long time saying it. The member seems to have preferred us to be somewhat more voluminous in our response than we needed to be.

The only issue I want to raise in conjunction with this bill—which is given added flavour by the Supplementary Order Paper—is that we have a companion piece of legislation called the Consular Privileges and Immunities Act. It is, word for word, the same as the Diplomatic Privileges and Immunities Act, except that it relates to the consular activities of diplomatic representatives in New Zealand, rather than the diplomatic ones. It seems to me that it is probably time to look at overhauling both Acts, and to streamline them into one.

I wonder, with regard to the provisions in the Supplementary Order Paper relating to the European Union, whether we will face the possibility, in future, of a European Union office having, in effect, a consular branch in another city of this country. As the law stands at the moment, consular privileges would not be extended to those diplomats unless they were extended by a specific piece of legislation. It seems to me that the only really substantive issue we ought to be looking at is whether the time has come to combine the consideration of diplomatic privileges and immunities with the consideration of consular privileges and immunities—because they are so similar—and put them in one place rather than continue to have them in two. This bill is, as I said, a straightforward technical piece of legislation, given the legislation that preceded it. I intend to delay the House no longer. United Future supports this bill and the Supplementary Order Paper, and I think that these matters should proceed.

I am pleased to rise in support of the Diplomatic Privileges and Immunities Amendment Bill. As the previous speaker said, it is largely a technical bill to put in place provisions that New Zealand needs in order to support its place in the international community.

I have been following this debate with a great deal of interest. The reason is that I gave a strong speech back in 2000 supporting the original bill that established New Zealand’s ratification of international crimes and the International Criminal Court. I believe that it was the right thing for New Zealand to do. It is worth remembering that Australia, Britain, Canada, and virtually all the nations of the world have signed up to the statute establishing the International Criminal Court. I am aware that the United States has not, and that it has particular concerns, but I believe that, in time, the United States will accede to the statute.

The statute was established because of the practice of establishing ad hoc tribunals for the gravest of war crimes—those that arose out of the tragedy in the Balkans, in Rwanda, and in places of that nature. It is those kinds of crimes that the International Criminal Court is charged with dealing with. Article 8 refers to grave breaches of the Geneva Convention, and to other serious violations of the laws of armed conflict. It is not intended to be aimed at the minor and the, frankly, unimportant. There is a high threshold to be observed before the court is seized with jurisdiction. I believe that the precedents set by all the other ad hoc tribunals will play a part, and have flavoured the creation of this tribunal. It is noteworthy that two of the major combatants in the Iraq war acceded to the jurisdiction of the International Criminal Court—namely, Britain and Australia.

It would be extraordinary, I believe, for a small country like New Zealand, which has put a great deal of faith in international institutions, and a great deal of faith in international law, not to be party to the convention. I listened carefully to the speech made by Mr Franks—a speech not dissimilar to the one he gave some 3 years ago—and I state now, as I stated then, that his fears are misplaced. It is the right thing for New Zealand to be party to the convention that establishes the court. Today’s legislation is essentially mechanical—to enable the court to undertake its work.

When the issues around new section 10E are raised, as they have been, it is worth reflecting on who would get immunity: representatives of States parties, representatives of States attending meetings, or representatives of inter-governmental organisations. Those people are not from non-governmental organisations; they are from internationally recognised institutions. In reality, the people who represent nations at such meetings are invariably diplomats. Diplomats invariably have the benefit of the convention. But, of course, the agreement is necessary in any event, because one would clearly expect judges of the International Criminal Court also to have the privileges and immunities that diplomats have—and that is intended in this case.

I, frankly, have to say to the House and to the listeners to this House that the concerns raised by both the ACT party and, indeed, the extreme Green Party are misplaced. New Zealand has not embarked on some sort of reckless course that surrenders all our sovereignty and places our people at unreasonable risk. We have made a stand, saying the worst breaches of humanitarian law ought to be tried and ought not to go unpunished, and saying we will play our part in that. I believe that is a very laudable thing.

One of the things I must also reflect on in passing is the situation of Mr Zaoui. There is a proper process, established by the National Government in 1999, for a situation like that to be reviewed, and that is through the independent office of the Inspector-General of Intelligence and Security, the Hon Mr Greig. That is the protection for whether the certificate is validly issued. New Zealand sits within the tradition established in countries like Britain, Canada, and Australia, in allowing proper and fair consideration. For Mr Locke and, indeed, Mr Robson somehow to pretend that there has not been due process is simply false. The mere fact, dare I say it, that we have had such extensive litigation indicates of itself that due process is being observed.

But I have to say one particular thing: Mr Zaoui could get on a plane tomorrow—he is not incarcerated against his will. He has a choice and every opportunity to leave this country. He chooses to stay in order to take advantage—at huge expense to the taxpayer—of the legal recourses available to him. And he is exercising them. That will cost the New Zealand taxpayer hundreds of thousands of dollars in legal aid, plus all the associated costs of running the High Court. It is simply fatuous for the Green Party to claim that Mr Zaoui has not had the benefit of full legal consideration and the most exhaustive analysis possible.

I would like to close on this point. This is important legislation—rather, the framework of the International Criminal Court is important. This particular legislation is subsidiary legislation that simply affirms that the representatives of the court, and representatives of States parties—who would normally be diplomats—will have the usual provisions of the Vienna Convention on Diplomatic Relations. That is hardly extraordinary; that is hardly novel. It is what representatives of such entities invariably have. This legislation being short, and the report of the committee being short, reflects that ordinary practice.

I am pleased to be able to support the second reading of this bill. The report of the Foreign Affairs, Defence and Trade Committee quite simply explains that the passing of the bill will enable New Zealand to ratify the Agreement on the Privileges and Immunities of the International Criminal Court. As Dr Wayne Mapp has just indicated, that offers protection to diplomats and representatives of our Government who participate in those activities. The bill, I believe, needs to be supported by this House.

National supports the Diplomatic Privileges and Immunities Amendment Bill. It is a statement of the obvious to say that it forms part of wider legislation, and that wider legislation is the Diplomatic Privileges and Immunities Act. The bill makes certain amendments to that Act that are needed to implement the Agreement on the Privileges and Immunities of the International Criminal Court. New Zealand signed a specific agreement in October 2002, and the passing of this bill means that New Zealand will be able to ratify the agreement.

I have listened with interest to the arguments of the previous speaker from the ACT party, but, as others have observed, the time to raise those arguments has passed. The time to raise those arguments in the New Zealand context passed when we endorsed the plans to set up the International Criminal Court.

New Zealand is a party to the Rome Statute of the International Criminal Court, and under the Rome Statute a permanent court has been established in The Hague, with jurisdiction in a number of areas: jurisdiction over genocide, jurisdiction over crimes against humanity, and jurisdiction in respect of war crimes. It is appropriate to recall the comments of Kofi Annan, the current United Nations Secretary-General. In a speech he gave as to the reasons why we should have an International Criminal Court, he said: “For nearly half a century—almost as long as the United Nations has been in existence—the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought … that the horrors of the Second World War—the camps, the cruelty, the exterminations, the Holocaust—could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time—this decade even—has shown us that man’s capacity for evil knows no limits. Genocide … is now a word of our time, too, a heinous reality that calls for a historic response.”

It has been said by others that the International Criminal Court is really the missing link in the international legal system. Without an International Criminal Court as an enforcement mechanism for dealing with individual responsibility, acts of genocide and egregious violations of human rights often go unpunished. In the last 50 years there has been a number of instances of crimes against humanity and war crimes for which no individuals have been held responsible. In Cambodia in the 1970s, an estimated 2 million people were killed by the Khmer Rouge. In armed conflicts in Mozambique, Liberia, El Salvador, and other countries, there has been tremendous loss of civilian life, including horrifying numbers of unarmed women and children. Massacres of civilians continue, of course, in Algeria and the Great Lakes region of Africa.

It is relevant to reflect for a moment on what, exactly, diplomatic immunity is. Diplomatic immunity dates from antiquity when the Greek Government extended special status to foreign envoys. The point of diplomatic immunity is expediency, not privilege. The underlying concept is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country.

Others have spoken about the technical aspects of the bill, and I do not intend to do that. I would note, however, that in respect of the grant of immunity the primary treaty instrument—which is the Vienna Convention on Diplomatic Relations—allows for diplomatic immunity to be waived. So diplomatic immunity does not have an absolute character. In the relevant article in the primary treaty, the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity may be waived by the sending State.

💬 Stephen Franks: Yes, but Nigeria wouldn’t waive it.

In this case, presumably, the waiver would be made by the International Criminal Court, which is not the illustration that the member of ACT has interjected to offer.

Finally, it seems somewhat strange that whereas the principal Act has a very straightforward statement in respect of privileges and immunities under the International Court of Justice, we have somehow seen it necessary to have the number of clauses that are in this bill. The issue was very simply put in section 10 of the Diplomatic Privileges and Immunities Act in respect of the International Court of Justice. I raise the question why it cannot be similarly dealt with in the case of the International Criminal Court. That said, National will support the further passage of this bill.