International Non-Aggression and Lawful Use of Force Bill

I move, That the International Non-Aggression and Lawful Use of Force Bill be now read a first time. I intend to move at the appropriate time that the bill be referred to the Justice and Electoral Committee. The purpose of the bill, as stated in the explanatory note, is twofold. First, “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, second, “To protect New Zealand leaders”—that is to say, our Ministers of the Crown—“from external pressure to commit the New Zealand Defence Force to any illegal action overseas.” The essential content of the bill is also twofold. First, it makes it a criminal offence for any New Zealand leader who is constitutionally in a position to direct the defence forces to commit the forces to any act of aggression overseas. Secondly, it requires that before committing the defence forces to any action overseas, such leaders receive written legal advice from the Attorney-General that such action is consistent with international law, and in particular the charter of the United Nations, and that such advice be debated in Parliament.

This bill does not constrain in any way New Zealand leaders in the exercise of their constitutional obligation to defend the realm. It is directed exclusively at ensuring that the proactive use of force by New Zealand overseas is strictly consistent with the United Nations Charter. Nor does it seek to accord to Parliament any power of executive decision pertaining to the New Zealand Defence Force. That power remains with Cabinet, Parliament being accorded simply the right to comment in advance upon the legal merits of a proposed action. When the lives of New Zealanders are at stake, their representatives must be given a voice. The bill establishes a new body, the Special Prosecutor, to be responsible for any investigation and prosecution. That is because the traditional agent for such action in the New Zealand judicial system, the Attorney-General, is not in this case an appropriate mechanism. Elementary logic of the legal system and constitutional law precludes a person who, through executive action, has participated in an official decision from determining, through judicial action, the matter of its own legality.

The International Non-Aggression and Lawful Use of Force Bill aims not to divide the country or this House, but to unite them. The political rationale on which it rests is compelling. In the 21st century New Zealand is rendered safer through the rule of international law than through a 19th century reliance on unfettered military power. In times past, even in the 20th century, international law was seen as essentially prescriptive in intent, and, at best, only fitfully enforceable. It worked simply when major powers wished it to, in the pursuit of their national interests. Today there is a newfound recognition that the emerging global society can rest only on the rule of law, whether its interaction is in trade, finance, environmental protection, or the use of military force. It is thus in New Zealand’s national interest to contribute to the strengthening of that law. Indeed, international law is, in certain ways and to a certain extent, transforming into global law. That progression is in all our interests, not only for New Zealand but for the rest of humanity, provided that such law reflects a global legitimacy in terms of a balanced input from all cultures, and a fair and balanced application and enforcement. Action for strengthening international law proceeds along two avenues of endeavour. At the international level, work is under way to add aggression as a crime of the International Criminal Court. New Zealand is contributing to that work, and it is to be hoped that this will be completed within a matter of years. The International Criminal Court’s jurisdiction, however, will always be of secondary instance, with national courts retaining primary responsibility, so it is our responsibility to introduce domestic legislation to ensure that the criminalisation of aggression falls within our national jurisdiction. By doing this now New Zealand contributes to the international work in a meaningful and proactive way.

Allow me to anticipate and address some possible areas of opposition to the bill, which, I should acknowledge from the outset, I will sincerely respect. First, some may contend that New Zealand should wait until the International Criminal Court completes its negotiating process before proceeding to legislate domestically against aggression. But that constitutes an unnecessary deferral. There is nothing to prevent any country from introducing national legislation in advance, and there are good reasons for doing so. Indeed, many countries have legislated against aggression as a crime against peace. Two have specifically identified it as a leadership crime. This New Zealand bill is distinctive in directly tying the domestic crime to the obligations of the United Nations Charter, which, I submit, is the proper way to proceed.

Secondly, others may doubt that New Zealand should proceed unilaterally, when a small nation such as ours poses no threat to anyone, and always abides by the rule of law, reflecting, as it were, a peerless brand of enlightened internationalism. In fact, New Zealand does not have an unblemished record on the use of force. We stood aside in 2003 when British, Australian, and US forces used force in an action that most jurists and the UN Secretary-General regarded as illegal, but in 1956 we actively supported the United Kingdom in its aggression against Egypt, a move that was overwhelmingly condemned by the United Nations, including the United States. To those who say that such action half a century ago does not reflect the New Zealand of today, I say then let us demonstrate our national maturity by enshrining non-aggression in our criminal law, for the pressure of any major power on New Zealand to commit armed force in a coalition remains as potent today as it was then.

Third, there may be those who perceive it as a gratuitous insult to render our national leaders open to criminal liability for directing our own armed forces, but that is the old way of perceiving international peace and security. In the 21st century the rule of law reaches into the hitherto sacral domain of national security, and no person, whether citizen or leader, is above the law. Indeed, the intent of the bill is not to intimidate our leaders but to protect them through the reach of domestic law. It is the same logic that extends a binding obligation under our 1987 legislation upon the Prime Minister to refuse entry of nuclear-capable warships into our national territory. In that law and in this bill “obligation” equates to protection.

Fourth, others may lament that the issue of aggression in international law is too complex, and the definition of aggression too imprecise for any meaningful domestic legislation to be justiciable. But our domestic criminal legislation is replete with complex challenges of definition, interpretation, and judgment. The definitions of murder, manslaughter, rape, and assault are just a few examples of concepts pertaining to human behaviour where Parliament legislates, lawyers argue, juries decide, and judges pronounce. In no way is the concept of aggression intrinsically different, even at the international level.

Finally, some may question the underlying philosophical premise that our nation is made safer through law and power. To them I say, with respect, that they stand on the wrong side of history. This bill derives not from idealism but from a sobered and forward-looking realism. The bill does not descend from the heavens wreathed in fine raiment; rather does it emerge from the fires of war clothed in the burnt and shredded uniforms of our fallen soldiers, they who bear silent witness to the agony of human conflict. It is in tribute to those who have departed, and with eternal hope for generations yet to come, that I commend this bill to the House, and request that it be given due consideration. Thank you.

The International Non-Aggression and Lawful Use of Force Bill demonstrates Dr Graham’s deep commitment to the progressive development of international law. Its ultimate trajectory would be to fundamentally change the contemporary international legal order. The wars of the 20th century led to a general recognition that aggressive war was a fundamental breach of the norms of international law, and that all those who committed that crime would be held to account. The Nuremburg trials were the precise incident of that principle. Individuals were held to account for their actions.

More recently the International Criminal Court has provided a general international statute to hold the perpetrators of aggressive war, genocide, and other war crimes to account. We have seen its effectiveness in the trials of the various perpetrators of war, genocide, and war crimes in the former Yugoslavia. There are also special tribunals in relation to genocides in Rwanda. Most recently, the President of Sudan has been indicted by the International Criminal Court. Dr Graham’s bill is intended to continue that process. So he will be wondering why National is opposing it, given what I have just said.

There are two fundamental reasons. The first reason is that it would effectively hand our foreign policy to the whims of a United Nations Security Council veto. This would be the case under clause 7 of the bill. I refer members to an important recent situation where this was the case. Under the proposed legislation New Zealand and other Western democracies could not have defended the people of Kosovo against genocidal aggression, because their Prime Ministers, Presidents, and, indeed, chiefs of defence forces would have been prosecuted in the courts. There would have been no authorisation for their actions by the Security Council, because Russia and China vetoed the proposed resolution. I cannot believe that Dr Graham would expect or desire that as an outcome. But, in reality, in the way the bill is written—at its very heart—that would have been the outcome. I also note that the intervention, which this whole House universally supported, did not initially have United Nations approval. That is why it was called an intervention. It was only later that it had UN authorisation. I note that it is essentially the same with most situations in the Pacific, as well. They subsequently get UN approval.

💬 Hon Chris Carter: Such as where?

Well, in the Solomon Islands. So in National’s view that is a fatal flaw of this bill.

The second point is that I believe the bill has the potential to deeply divide our nation. It is worth recalling that yesterday this House debated the deployment into Afghanistan of the New Zealand Special Air Service. Irrespective of where particular parties stood on that issue, they all stated directly, including Dr Kennedy Graham’s colleague Keith Locke, that we needed to support our servicemen and servicewomen when we place them with huge risk to their lives when they defend the interests of New Zealand.

It is the view of Dr Kennedy Graham that the actions in Afghanistan do not meet the test of the United Nations. I say to him that he is wrong on that point. The United Nations Security Council resolutions, both in 2001 and 2003, and the annual resolutions provide full authorisation of the NATO International Security Assistance Force mission. But the other key part of Mr Graham’s bill is the establishment of the office of a Special Prosecutor and the ability—this is the key point—of anyone to make a complaint to the prosecutor with the intent that Prime Ministers, Ministers of Foreign Affairs, Ministers of Defence, and chiefs of the defence forces would then be prosecuted. That is the objective.

It is certain that if this bill were passed, members of the Green Party would seek to do precisely that in that particular case. Imagine, I ask Dr Graham, how deeply divisive that would be to our country, and how it would deepen the risk between our peoples in situations that I understand are challenging. I think that passing this legislation is simply the wrong way to deal with this issue. I recognise that it is motivated by the best of intentions; I suggest to Dr Graham that there is a better way to deal with his concerns. He did, in part, recognise a pathway towards that.

New Zealand is committed to the universality of the International Criminal Court. At present it does not have that status, and a number of nations are not signatories to the court. It has been an objective of the Parliamentarians for Global Action, of which I have been a member, to get as wide a sign up as possible to that particular convention; it is the principal objective of the Parliamentarians for Global Action. I know that Dr Kennedy Graham has been directly involved in that process. It is a national goal for New Zealand that we should have universality of the International Criminal Court. I suggest that in deepening the global commitment to providing a more consistent basis to hold to account those responsible for the conduct of war crimes and aggressive war, then it should be the case that the International Criminal Court becomes the principal and primary place for people to be held to account.

National understands the underlying motivations behind this bill, but fundamental parts of the bill are deeply flawed. There is another way to develop this process, and I suggest to the House and to Dr Graham that those parts can be pursued, and that there are mechanisms in select committees to advance that case. Thank you, Mr Assistant Speaker.

I rise on behalf of the Labour Party as its spokesperson on foreign affairs to speak in support of Dr Kennedy Graham’s International Non-Aggression and Lawful Use of Force Bill.

We have just heard from Dr Wayne Mapp from the National Party that the Government will not be supporting this bill. He concluded his 10-minute presentation by saying there is another way to deal with the bill. Of course there is, and that is to send it to a select committee. There are ways to improve this bill, and we have to reconcile this legislation with domestic legislation. We have to see that it fits in comfortably with the International Criminal Court. Aspects of the bill could be improved, and I am sure Dr Kennedy Graham would be the first to concede that. We have a process here at Parliament to improve a bill, and that is to send the bill to a select committee. It seems that Dr Mapp is not prepared to follow his own advice, and that the Government will not support this bill being sent to a select committee.

Dr Mapp made a couple of points in his rather confused presentation—his presentation of denial—that I feel I have to take umbrage with. Firstly, he said this bill empowers our foreign policy to be handed over to the United Nations. Well, frankly, I would be very happy for our foreign policy to be in sync with the policies of the United Nations. Dr Mapp was quite prepared, when National was in Opposition, to hand over our foreign policy to the United States. When Labour was in Government, supported by the Green Party, we said no to the deployment of our troops to Iraq. We said no to that. Members may recall that Mr John Key, the current Prime Minister of our country, said in the Rodney Times that the National Party would send troops to Iraq. Of course, he later recanted on that position; he is well known for such flip-flops. But the reality is that National would have caved in to the Americans; we did not do so.

Secondly, yes, the previous Labour Government did send our SAS troops to Afghanistan. Mr Goff and other speakers explained yesterday in the debate that when those troops were sent there, they were sent to find al-Qaeda. It was a mission supported by the United Nations and many countries in the world. Now, of course, they will be sent to fight the Taliban, which is quite a different scenario altogether. This Government will also have our provincial reconstruction team plucked out of the excellent job it is doing in Bamian.

I say “Good on you!” to Dr Kennedy Graham. His bill attempts to build on the principled foreign policy that our country has enjoyed for a very long time. It builds on things like our nuclear-free policy. It builds on the excellent work that this country has done—a small country, but one with a powerful voice in the world—on the banning of cluster munitions, on the attempts to ban the use of landmines, and on the pursuit of peace and the very active role that our country has played in that area. Indeed, we play a very active role in peacekeeping missions, such as the Regional Assistance Mission to the Solomon Islands, and the work we did in Bougainville in brokering the peace agreement there. These are all things that have given this small country of a little over 4 million people an enormous reputation in the world.

We just heard the National Government say no to this bill. It was a sort of dumbing down of our foreign policy. We have seen much of that in this House since the election. Whether we go from things like conservation to the provision of social services, such as education, we find there has been a general dumbing down. I remember saying on Radio New Zealand National on election night last year that John Key would become the George Bush of New Zealand. He is a man whom history will record as having dumbed down a country, a man who has seen the grinding down of our reputation. The failure to support this bill’s referral to a select committee is just about that: it is about dumbing down New Zealand’s foreign policy. It is about slavishly following some other countries, rather than about being a good citizen in the world. I say “Well done!” to Dr Kennedy Graham. He is building on the reputation that our country deserves to have, because of its strong support for peace in the world. I say to him that the Labour Party supports his bill.

Thank you for the opportunity to speak on this member’s bill, the International Non-Aggression and Lawful Use of Force Bill, in the name of Dr Kennedy Graham.

I have no doubt that the sentiment behind this bill is extremely worthy, but, like my colleague Dr Wayne Mapp—who I believe gave a most well-informed and thoughtful contribution to this debate—I say that National will be opposing this bill.

The bill’s purpose is highly worthy. I think Dr Graham mentioned to me earlier this afternoon that quite a number of countries around the world are starting to look at legislation like this. Perhaps it is something that New Zealand must seriously consider in the future, but there are some outstanding concerns about this bill. The purpose is consistent with the worthiness that Dr Graham espouses—that is, to ensure that the use of armed forces by New Zealand is always in conformity with international law, and to protect New Zealand leaders from external pressure to commit the New Zealand Defence Force to any illegal action overseas.

I see that one of the key points of this bill will introduce into criminal law a new crime, the crime of aggression, which might be committed by a New Zealand leader and which would be justiciable in the New Zealand courts. For me, a non-lawyer, this is a word that I was not aware of. It simply means subject to a trial in a court of law. That in itself makes one a little worried to think that New Zealand leaders, who often act in good faith in response to a sudden emergency that has occurred somewhere in the South Pacific, may find themselves suddenly in a court of law, perhaps inappropriately.

I think back 9 years to when the previous Labour Prime Minister, Helen Clark, said that we were living in a benign political environment in the South Pacific. How wrong she was. One has only to think of Bougainville, East Timor, Tonga, and, more recently—well, several times over—Fiji. These are the realities of the South Pacific and the realities of the need to have a law in New Zealand that is practical and flexible, in order to respond to an emergency.

The bill provides that any prosecution will be brought by a special prosecutor, who will be appointed by the Governor-General, and I note that in some of the notes Dr Graham suggested this could be a retired judge. Well, shivers run down my spine from time to time when I think of those gentlemen, and just how capable they may be of taking on this very, very important responsibility. The bill provides that it is unlawful for a New Zealand leader to plan, prepare, initiate, or execute an act of aggression that, if it is committed, by its character, gravity, and scale constitutes a manifest violation of the Charter of the United Nations.

National will oppose this bill on two grounds: firstly, the provisions within this bill could result in severe and blatant misuse; and, secondly, the bill would mean the use of force is permissible only if it has been approved by the United Nations Security Council. This would have been unacceptable on many past occasions. Thank you, Mr Assistant Speaker Barker.

I am delighted to rise to speak on behalf of the Labour Party in favour of the International Non-Aggression and Lawful Use of Force Bill, which is in the name of Dr Kennedy Graham. I congratulate Dr Graham on bringing this legislation to the House. I will briefly talk about it, and then talk about what we have just heard from National in response to it.

For decades New Zealand has had a very strong tradition of moral foreign policy. We sent Fraser Colman on a frigate to Mururoa to observe and find out about the nuclear tests being conducted there. Our Dame Silvia Cartwright, who is a retired judge, is now working as a trial judge on the Cambodian War Crimes Tribunal. It is our Sir Kenneth Keith who has been taking the lead at the International Court of Justice in The Hague. We have never been afraid as a country to put up people of enormous competence to lead moral arguments on international law and issues of international justice.

I commend Dr Graham for bringing this matter to the House’s attention. Parliament could do nothing more serious than to commit our citizens to wars or acts of aggression. It is positive that this legislation could give us grounds to determine whether it is legal, whether it is in accordance with United Nations conventions, and whether it is in accordance with some kind of moral principle underlying foreign policy. This kind of legislation could lead to that.

I will never know whether this bill could be improved, because National will vote against it. Dr Mapp said that this bill could be improved and that there are ways in which it could be amended. He tried to strike a position of defence of National’s view by saying that the bill is technically inadequate in some respects. But that is why we would send the bill to a select committee. The kind of leadership and approach that a New Zealand Parliament ought to be taking on principled grounds is being stymied by this National Government. This bill will not be given the chance for improvement or refinement, whatever that might be. I am not in a position to know how it might be improved; I am not an international lawyer. But, as a responsible member of this House, I would like the chance to determine whether this legislation contributes to a principled position for New Zealand in the international community.

I recall having my own bill about ethical trade rejected by this Government 2 weeks ago. Does this Government not realise that progress is made like this, with bills like this? Progress is made little by little, step by step, treaty by treaty, and clause by clause—that is how progress is achieved both domestically and internationally. This Government repeatedly refuses to allow us as a Parliament to investigate and interrogate legislation in order to see whether we, together as a Parliament, can advance New Zealand’s interests and the world’s interests as well.

It seems to me that this legislation could do that. This legislation could provide some leadership to countries apart from our own that do not have a principled or legal position by which they might determine whether to commit their citizens to acts of aggression. It is a shame that this National Government, on no principled ground that I could discern from either of the previous National speakers, will prevent this legislation from being interrogated and developed further by sending it to a select committee. That is a shame.

Kia ora tātou katoa e te Whare. The Māori Party supports the International Non-Aggression and Lawful Use of Force Bill in line with the history, the experience, and the example that Aotearoa offers the world in terms of the philosophy of peaceful resistance and leadership. We know only too well the history of the people of Taranaki, who in 1881 refused to fight at Parihaka, instead drawing on their traditions of passive resistance. We all know the international reputation we gained when former Prime Minister David Lange told the world that nuclear weapons were morally indefensible, and declared Aotearoa to be nuclear-free. We recall the protest against nuclear testing in Mururoa in 1985, and the 1996 case that went before the World Court at The Hague.

We know that our history tells us that unless the peoples of the land are involved in determining their solutions to conflict, peace will always be fragile and temporary. We know that the international world must stand strong in condemning any abuse of human rights and democratic freedoms. And we know, too, that the stage has been well and truly prepared for this bill to be heard. And so we commend Mr Graham for putting forward a bill that will restore the opportunity for New Zealand to be a world leader, to get out there and say that we will not violate the United Nations Charter, and that we will not plan, prepare, initiate, or execute an act of aggression that violates that charter.

In many ways, this bill mirrors Māori Party policy, for we have often advocated for nations to decrease their military expenditure. We seek to maintain a nuclear-free Aotearoa, and we support a peacekeeping role for New Zealand defence personnel in the world.

This bill also makes an honourable attempt to hold our leaders to account in the future by determining that our continued involvement in acts like the United States - led coalition’s war of terror, now labelled a fraudulent war by most nations outside of the coalition, might constitute an act of aggression, illegal in New Zealand law.

The events of 9/11 were tragic and disturbing, and led to many changes in the way Governments reorganised their defence capabilities, but also to the way in which they treated their own citizens. The world watched as the war of terror swept through Afghanistan and Iraq, showcasing the military power of America and the disembowelling of national sovereignty. New Zealanders watched as that international chain reaction of military enterprise led to our Government executing military actions throughout many communities here in Aotearoa, in the local version of the American war of terror. So there is a lot at stake when we consider the possibility of international non-aggression.

We support the notion that this bill would make it mandatory for any New Zealand leader, when deciding whether to deploy our armed forces to a conflict situation, to seek and obtain written advice from the Attorney-General to determine whether the deployment was consistent with New Zealand’s obligations under the United Nations Charter—simple.

As I said in the House yesterday, the Māori Party supports Aotearoa committing to activities like peacemaking in Timor-Leste and provincial reconstruction in Afghanistan, rather than unjustifiable military endeavour. And we welcome the introduction of a new crime into law, a crime of aggression. It is defined as “the use of armed force by the State of New Zealand against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the purposes of the Charter of the United Nations.” and—I use this word again—justiciable, in New Zealand courts.

The Māori Party takes seriously the obligations our nation has on the global stage. We take seriously the obligation to refrain from the use of armed force inconsistent with the purposes of the United Nations Charter and we will support this bill being referred to a select committee. Tēnā tātou katoa.

It is disappointing that National is not supporting my colleague Kennedy Graham’s International Non-Aggression and Lawful Use of Force Bill being referred to a select committee. The very questions and criticisms raised by the Minister of Defence, Wayne Mapp, in respect of the bill are the very issues that should be tested at a select committee.

He said, for example, that this bill would have prevented New Zealand troops from being involved in the International Force for East Timor operation in 1999 and in the Solomon Islands. If members look at, for example, the International Force for East Timor operation, they will see that it went in only after an agreement with the Indonesian Government; it did not take on the Indonesian Government militarily. That can hardly be considered aggression, and this bill would determine it not to be aggression. If that operation had been tested legally, then the sovereignty of the people of East Timor would have been factored in. Their sovereignty has now been reinstated and was never cancelled by the Indonesian occupation from 1975 to 1999.

The fundamental importance of this bill—it is laid out quite clearly in the explanatory note—relates to the sovereignty, territorial integrity, and political independence of nations, which have been frustrated many times by the aggressive actions of, usually, bigger powers. Wayne Mapp referred to Nuremburg, where those who had committed the grave crimes of aggression and genocide—Nazi Germany under Hitler—were brought to book for those crimes. The member accepts that. It was a war in which New Zealand troops died fighting aggression and defending people from aggression.

Mr Mapp is worried about the question of Afghanistan. I ask him what is wrong with testing the decision of the Government to send the SAS to Afghanistan. I ask him what is wrong with testing that decision legally against standards of aggression, and against standards that have been previously applied in the example he gave, because there are genuine standards.

Mr Mapp said that leaders of our Government do things in good faith and that they should not then be subject to the law. That does not apply in any other area of our Parliament. Sure, people do good things in good faith, and nobody denies that, but we must obey the law when we act. This bill would benefit from being tested at the select committee. There is recognition from Wayne Mapp that the world is moving towards universal codification of aggression under the Statute of Rome, under the processes of the International Criminal Court. Why should we not test where we are going on that and what it would mean for our domestic legal process? As Kennedy Graham said, there is nothing wrong with being a little bit ahead in terms of an application of international laws into our domestic jurisdiction. It can help that process. It can inform the process of the world putting aggression more clearly under the Statute of Rome.

The other point that I think is very important is that as a small nation we are often under pressure from bigger countries. Historically we were under pressure from the United States to commit troops to the Viet Nam War. About 40 New Zealand troops died in that war, and many have been scarred by that war. That was partly because of pressure. Is it not good to have a law that protects and helps? Keith Holyoake, the Prime Minister at the time, was not keen on going into Viet Nam. He did it in a minimal way, and historians have proved that. It would have been good if he had a law at that stage stating that troops could not be sent unless conditions were met. Those conditions would not have been met, and, therefore, New Zealand troops would not have died in that way. As Kennedy Graham said, the antinuclear law—written down in law—protects our Government.

It gives me great pleasure to rise this evening to briefly speak on the International Non-Aggression and Lawful Use of Force Bill. I particularly want to talk about the great success that Green Party members seem to have in getting their bills out of the members’ bills ballot. We have had two of their bills tonight, and if I cast my mind back to 2 weeks’ ago I think there were two then, as well. I say to Dr Kennedy Graham, who has brought this bill to this House in good faith and has put a lot of meaning into it, that I would like to know how the Greens do it. They need to share a bit of the love around. You see, I have my own bill in the ballot, so perhaps tomorrow just before 12 p.m. I will cross the House and join the Greens for 5 minutes only, to see whether I can get my bill out of the ballot. Indeed, I will not be able to do that, because if I did I am not sure I would sleep well tomorrow night.

I commend Dr Graham for the work he has put into this bill. Having said that, I say I will not be supporting the bill, and I want to run through a few of the reasons for that.

Debate interrupted.

The House adjourned at 10 p.m.