International Treaty Examinations — War Crimes Amendments to the Rome Statute of the International Criminal Court—Report of the Foreign Affairs, Defence and Trade Committee

I move, That the House take note of the report of the Foreign Affairs, Defence and Trade Committee on the International Treaty Examination of The War Crimes Amendments to the Rome Statute of the International Criminal Court.

Madam Speaker, firstly, to acknowledge you—first time I’ve been able to address this House with you in the chair. Congratulations. But on to more interesting topics, shall we say. Look, this is a fairly—

💬 Hon Member: An insult.

I was trying to think—we don’t wish to insult the Speaker, but nor what’s in here; very delicate. The Foreign Affairs, Defence and Trade Committee has taken on board these, effectively, two sets of amendments to the Rome Statute of the International Criminal Court. It goes without saying that this House supports the International Criminal Court and we support the two sets of recommendations, which I’ll touch on in a moment, coming through this House. The intention of this treaty is obviously, first and foremost, for New Zealand to agree to it and then to anticipate, if you will, domestic legislation coming into this House. The committee report is light; however, that should not be mistaken as a report without substance. I hope as I go through the changes it’ll become very clear to the House—members themselves will know why, but for those in the House they’ll begin to understand why it’s a fairly simple report. First and foremost, the changes put forward at two conferences are simple. Secondly, there was unanimity on the committee, and three, we don’t see any problems of moving through the House. As I say, we anticipate domestic legislation, first and foremost—as I often repeat ad nauseam—is required of New Zealand law to bring any international treaties into force. The second is that we operate with the principle of complementarity when it comes to the International Criminal Court—that is, New Zealand should, where it can, prosecute war crimes itself.

So what does this do? Long and the short, it expands slightly those actions, or, in particular, the use of certain substances or weapons systems, that are deemed to be criminal on the international and, importantly, the non-international stage. So in 2010, in Kampala, various States and parties got together to say that the court should have expanded jurisdiction in, I would stress, non-international conflicts—so we’re probably thinking the likes of Syria, not exclusively—but that poisonous or poisonous weapons can be within the jurisdiction of the court, as can asphyxiating, poisonous, or other gases, and analogous liquids, materials, or devices, and also expanding bullets. So, relatively simple and straightforward. I want to stress that in Kampala that was to do with non-international jurisdictions.

In 2017, there was a further meeting of State parties; this will apply to international and non-international activities. That’s where there’s going to be criminality brought to the use of biological weapons or munitions that are designed to injure with fragments, particularly those that can escape the detection by X-rays—just ponder that one for a moment—and laser weapons that can be deployed to cause blindness.

So long and the short, relatively simple, relatively straightforward—that’s why the committee was very happy to bring this forward and has reported on it very, very quickly. One small interesting note—it’s somewhat timely with activities that are going on at the moment—this does not apply to Tokelau, according to the National Interest Analysis. Actually, the ratification does not actually extend to the Realm, which is confusing to me, I must admit. It doesn’t extend to Tokelau and so no formal consultation was required. So, actually, these changes as they currently stand do not apply to Tokelau. So I encourage the Prime Minister while she is over there [Interruption]—you knew what was coming. I encourage the Prime Minister to have a chat—she’s there for three days—to see what can be worked out. But I’m very happy to commend this report to the House.

Thank you, Madam Speaker. It is a pleasure to rise and contribute to the debate in the House on the International Treaty Examination of The War Crimes Amendments to the Rome Statute of the International Criminal Court—which is quite a mouthful. As the previous speaker who resumed his seat, the chair of our Foreign Affairs, Defence and Trade Committee, Simon O’Connor, mentioned, the amendments per se are actually two and they are reasonably straightforward. There wasn’t a huge amount of controversy within the select committee either. But I do want to situate them, I guess, in the context of the Rome Statute itself, because it has been brought to my attention that not a lot of people actually understand what the Rome Statute is. I, for one, at the select committee asked a few questions of officials just around what this was and what the relevance of it is to us in New Zealand.

So the Rome Statute of the International Criminal Court was actually the treaty that established the International Criminal Court. It was adopted at a diplomatic conference in Rome; hence the name of the statute, but the court itself is the international tribunal that has the jurisdiction. It sits in The Hague, just to mention that as well, in the Netherlands. It has the responsibility to prosecute individuals for various international crimes, and they include things like genocides. Articles 7 and 8, for example, outline what crimes against humanity are and war crimes.

I looked into that a little bit, just to get a sense of what this court that sits in the Netherlands has jurisdiction over, and one point that I want to make that I found really interesting, actually, was the fact that in article 7, which outlines what crimes against humanity constitutes, rape is included as a crime against humanity. That includes, also, various violations of sexual and reproductive rights, for example forced pregnancy and enforced sterilisation as well. I was actually really pleased to note that it was included, because we all know that rape is used as a crime within war scenarios. I actually then read this really interesting article that talked about why that is so, but I think most of us understand that that’s because women and girls are an easy target during wars.

So going back to the Rome Statute, per se, article 7 also includes murder, enslavement, and torture. War crimes includes, amongst a whole host of things, the rights of or the treatment of prisoners of war, and certain ways in which their rights can be impinged as well. So that’s basically what the International Criminal Court (ICC) is there for.

Now, to date, the ICC has opened investigations in about 11 situations, indicted 44 people, completed proceedings against 22, and convicted six people. There are about 139 States, of which New Zealand is one, that are party to the Rome Statute, and 122 of us have incorporated this particular statute into domestic law. In New Zealand, that is done through the International Crimes and International Criminal Court Act 2000.

Now getting to the two specific war crimes amendments, which is at the heart of what was examined at the Foreign Affairs, Defence and Trade Committee, basically they were done in two tranches. One was in 2010—the 2010 amendments that came about as a result of a conference in Uganda. The Assembly of States Parties at that particular conference resolved to criminalise and bring within the jurisdiction of the ICC a few different things, specifically, that were used in a non-international context, and that is poison or poisonous weapons, various asphyxiating and poisonous gases that may be used in specific contexts, and also expanding bullets. Then in 2017 came the second tranche of amendments that were specifically added to criminalise, I guess, different war crimes in both international and non-international conflicts, so it is an expansion of article 8 of the Rome Statute, and this includes biological weapons and weapons that are also designed to injure with fragments that escape detection by X-ray. So it gets quite specific in the expansion of the types of war crimes that are now criminalised. The final one is laser weapons that are specifically designed to cause blindness.

The other thing that I found really interesting about the Rome Statute is the fact that it’s based on the principle of complementarity. What that really means is that it works alongside domestic legislation and it doesn’t supersede it, so that’s then why New Zealand chose to enact our domestic legislation in the form of the two Acts that I mentioned previously, the International Crimes and International Criminal Court Act 2000—sorry, that was one Act. Anyway, just going back to that principle of complementarity, it means that the ICC will only exercise its jurisdiction if a State party, in this case New Zealand, cannot or will not prosecute war crimes domestically. So in order to ratify the war crimes amendments, we don’t actually have to pass new domestic legislation that then includes the expanded list of war crimes; however, our position is that the ICC should actually only be a court of last resort.

What that means is that if we actually—and I probably should have looked into whether we’ve had any such prosecutions, and none spring to mind, but, you know, if there is a scenario where we can or we should prosecute war crimes domestically, then our position as a country is that we should do that first, and we only go to the ICC if it’s absolutely necessary. So to be able to do that, we then have to legislate for the expansion, as well, to include those two war crimes amendments that I’ve just outlined, and that is the legislation that the select committee chair, Mr Simon O’Connor, was referring to as well, saying that we were anticipating some legislation that might be introduced to the House specifically to incorporate the amendments to the war crimes. That would be amending that International Crimes and International Criminal Court Act, and also the Crimes Act 1961.

So this was a treaty examination that I found really interesting, actually, at select committee. We worked really collaboratively because there were some more senior members of the select committee who had a bit more knowledge of what this treaty was and why we had ratified it and actually created domestic legislation as well. But can I just thank those who submitted. We didn’t have a huge amount of submitters, but I think it was at least a couple, at least two—

💬 Jamie Strange: Yeah, four.

My colleague Jamie Strange here has a much better memory; he says that it was about four people who submitted. We definitely heard in person from one person. I want to thank them for taking the time to submit to something that’s reasonably obscure to many people. I also want to thank the officials from the Ministry of Foreign Affairs and Trade who took us through both the amendments, answered questions, and were very patient with the questions that many of us asked of them.

So this is, as the chair has already mentioned, one that is not terribly controversial. It is important in the larger scheme of things because it deals with issues that perhaps we may not have seen a huge amount of domestically in New Zealand but that are issues that plague many other States that are party to this as well, and so we do our bit here. So I’d like to commend this to the House.

Thank you, Madam Speaker. I’d like to acknowledge the Foreign Affairs, Defence and Trade Committee. The committee conducted the International Treaty Examination of the War Crimes Amendments to the Rome Statute of the International Criminal Court. I am not a member of the select committee and did not participate in the process, so pardon me if some of the issues I raise here have already been covered at the select committee.

The war crimes amendments are two separate sets of amendments to the Rome Statute. We support these amendments. For New Zealand to legislate for specific offences corresponding to those set out in the war crimes amendments, two pieces of legislation will need to be amended, namely the International Crimes and International Criminal Court Act 2000 and the Crimes Act 1961.

The Rome Statute of the International Criminal Court was the treaty that established the ICC, or the International Criminal Court. At present, 139 States are signatories to the Rome Statute and 122 States have incorporated it into their respective domestic law. New Zealand signed the Rome Statute in 1998 and incorporated it into domestic law through the International Crimes and International Criminal Court Act 2000. The Rome Statute is based on the principle of complementarity, meaning it exists alongside domestic law rather than above it.

In order to ratify the war crimes amendments, State parties do not need to pass new domestic legislation to include the expanded list of war crimes. New Zealand will need to introduce amending legislation to extend the current definition of “war crimes” in the Schedule of the International Crimes and International Criminal Court Act and the Crimes Act, which is what we are doing. I do have questions to ask, but given the nature of such calls, I’d like to ask only one, which is around the definition in the advice attached to the select committee commentary in terms of expanding bullets.

Under the amendments, the State parties resolved to criminalise and bring within the jurisdiction of the court the use of a number of weapons as well as expanding bullets. According to the additional information or advice prepared by the Ministry of Foreign Affairs and Trade, which is attached to the select committee commentary, I read out, “Expanding bullets are commonly used in law enforcement situations … This type of bullet expands or flattens on impact and therefore does not penetrate the target. For this reason”—the advice concludes that—“expanding bullets are used by police or armed forces in certain contexts to avoid incidental civilian injury or damage.” That’s on page 4 of the additional information or advice which was attached to the select committee commentary.

The statement was obviously correct, but I feel it only spelt out one aspect of the statement without explaining clearly the other half of the story. This piece of advice appears to be incomplete and definitely contrary to the impression we would otherwise have. It is particularly so after the recent terror attack in Christchurch, where the local mayor called for a ban on expanding bullets, which are designed to do great damage. Expanding bullets are designed to, well, expand and make a bigger wound channel and kill quickly. They create wounds that are almost impossible to fix. The nearly 100 victims shot in the 15 March terror attack in Christchurch were struck by a type of expanding bullet designed to do maximum damage inside a body, and that’s the reason why local mayor Lianne Dalziel called on the Government to go further with banning such expanding bullets.

Following the tone of the advice, the only way expanding bullets are used to avoid incidental civilian injury or damage is that the bullets would expand upon impact and therefore can be used to avoid over-penetration. In other words, expanding bullets are designed to not travel through the intended target. For hunters, it is a kind of a humane way for them to kill animals without causing too much pain, by killing the animals instantly and quickly.

However, without explaining that part clearly, it is difficult to understand why the amendments we are dealing with would ban such bullets along with a number of other weapons and why the committee would hope that the amendments would discourage the use of inhumane weaponry.

Thank you, Madam Chair. Well, I rise take a short call just to indicate that New Zealand First, of course, will be supporting the passage of this and supporting the report back by the Foreign Affairs, Defence and Trade Committee. I want to, firstly, congratulate the select committee, again ably led by Simon O’Connor from the National Party team, who always seems to do a sterling job in this area. I recognise the other members of the team who worked alongside him to produce the report that we have—very short, very brief, and simply recommends that the War Crimes Amendment to the Rome Statute of the International Criminal Court proceed.

I know that in the speeches that are going to be heard this evening on this very short report back there is going to be a little bit of repetition. I think it’s probably with that in mind, acknowledging that the detail of the bill has already been well explored and it’s going to be rotary-hoed even further, I ask us to just remind ourselves where this has come from.

I think we often hear of cases of atrocities that are being committed in different parts of the world in conflicts and we sometimes forget where treaties such as this had their genesis. I think it’s worth mentioning that the establishment of an international tribunal to judge political leaders accused of international crimes was first actually proposed at the Paris Peace Conference in 1919, following the First World War. It’s interesting that this matter was addressed further by the League of Nations, the forerunner to the United Nations, in 1937.

There were long periods of discussion and debate around the need for the establishment of a permanent international court to try acts of international terrorism and what we call today crimes against humanity, and that went on for quite some time. It’s interesting that there was, actually, at that time a convention signed by 13 States—only 13—but none ratified it and the convention never entered into force. Into the Second World War and then post the Second World War, it was the Allied powers who established two different, ad hoc tribunals, and one was to prosecute the Nazis for war crimes—what we, again, would call crimes against humanity. Then I think there was the International Military Tribunal, which sat at Nuremberg. Then there was the International Military Tribunal for the Far East, which sat in Tokyo and prosecuted Japanese leaders for war crimes committed in the Pacific.

In 1948, the United Nations General Assembly finally recognised the need for a permanent international court to deal with atrocities of this nature. I think at the request to the General Assembly, we had the International Law Commission draft two statutes by the early 1950s, and these were shelved during the Cold War for obvious reasons when the world could not get agreement on much at that time. The international environment for such a treaty or such a decision was just simply politically unrealistic and unable to find agreement. There was still clearly a lot more debate after that and there were a couple of proponents who continued to fight the fight for a feasible International Criminal Court, and that finally went through in 1970.

I think in 1971 we saw the foundation for the establishment of an International Criminal Court—and that led us to 1989. Again—interesting—it was promoted by the Prime Minister of Trinidad and Tobago on the back of what they were struggling to deal with through the illegal drug trade. The rest of it’s pretty much history, and if you go forward from there to almost our most recent past, we can see the International Criminal Tribunal for the former Yugoslavia, which was created in 1993 in response to those just—well, those large-scale atrocities that were committed in the Yugoslav wars. Then, of course, we had the crimes that were committed in Rwanda as well, in 1994, in what was described as the Rwandan genocide.

The need for the Rome Statute and the need for New Zealand to ratify the international treaty examination on war crimes is pretty clear. We’ve talked about some of the matters that it’s going to specifically deal with—use of poison or poisonous weapons. Sadly, we continue to see in conflicts, in places such as Syria, the continued use of these weapons. It deals specifically with asphyxiating, poisonous, or other gases. Again, we are seeing the use of these horrific weapons against humanity, and very often we see, unfortunately, that the innocent—women and children—are very often those who fall victim to these atrocities.

The conversation around expanding bullets is quite interesting, because anyone who knows anything about firearms knows that whilst the military is prohibited from using expanding bullets, the police are not. Expanding bullets, for those who don’t know them—they’re often referred to as dumdums—they’re used to cause the maximum harm possible. So a limb wound—which might, using a copper-coated, steel-jacketed round, cause a penetration and a large exit wound—with a dumdum produces quite horrific wounds and can, through the shock in a limb, actually cause death. These were considered inhumane and contravene the Geneva Convention in so far as our military is concerned, but there are technical reasons as to why police forces all over the world, including our own, are not prohibited from using them.

It’s interesting—there’s a lot of conversation right now about military-style semi-automatics and a lot of conversation about who should have them and use them. I do sometimes ponder the Bushmaster 556, which the police use. It doesn’t use a hollow point; it doesn’t use an expanding-headed bullet round; it doesn’t use a dumdum. But the fact that it can punch through a person and through the next wall and through the next wall after that and potentially hit, kill, maim, or injure someone else is something that military people are very aware of, cognisant of, and we often hold our breath when we see these weapons being used in urban areas by police forces.

The advantage of an expanding round is that it will punch and stop. It does not have the ability, because of what happens to the head of the round, to continue and to penetrate walls beyond. There are a specific type of expanding round that counter-terrorist units and air marshals will use in aircraft, in the hope that it doesn’t penetrate the fuselage. So there are reasons why police forces around the world continue to use these rounds and why it’s accepted that they won’t be covered by this, but it does beg the question: if it’s inhumane for the military to use, why are the police using them? There are technical reasons as to why they shouldn’t, but that doesn’t detract from the fact that these rounds produce horrific wounds, and people should know that. Thank you.

Thank you for the opportunity to take a call. I’d like to begin where the honourable member left off, giving us a very interesting history around the International Criminal Court. I was surprised by the Hon Ron Mark’s comments that it wasn’t until the 1970s that movements were made to begin to set up an international court. It shows that the world is becoming more connected. We’ve had thousands of years of human civilisation. For basically all that time, humans have tried to kill each other off. It’s something that we don’t generally see in the animal world, where one species will try and kill itself, but, unfortunately, humans, for whatever reason, do try to kill other humans, and it’s continuing.

We, obviously, strive for peace across the globe, and we continue to strive for that. The reality is wars continue to take place, and this treaty is acknowledging that while those wars take place, there must be an aspect of humanity, as much as possible, within those conflicts. This treaty, obviously, as we’ve heard tonight, seeks to outlaw inhumane practices.

As a former member of the Foreign Affairs, Defence and Trade Committee—I was a member while this treaty passed through the committee—I would like to acknowledge Simon O’Connor for his excellent work as chair—

💬 Hon Member: Really?

Nah, he is. He’s a very fair chair. He does a very good job.

💬 Priyanca Radhakrishnan: Fair chair.

Fair chair—yeah. The submitters—I believe there were four submitters. There was only a small number of submitters, but we’d like to thank those submitters.

Look, this work, as we’ve heard from Priyanca Radhakrishnan—the Rome Statute, International Criminal Court—New Zealand signed off in 1998. So it does go back quite a way. The international court is a relatively new phenomenon in terms of the history of mankind, but it’s absolutely important that we do have it. I’m hopeful that the continued work that the court does means that we do have a reduction in crime, that we don’t have another world war like we had earlier last century.

Many of us have family members who have served in those conflicts. I have, myself. If you look around the room here, we’ve got those battles before us. We’ve got the Somme, Gallipoli, Passchendaele—First World War. We’ve got Second World War: North Africa; we’ve got Malaya, which is where my father-in-law fought—Malaya—and Borneo. He also fought in the Vietnam War as well. So the reality is, as I’ve said, wars continue to take place, unfortunately.

I’d like to pick up on another point that we have heard from a speaker, and that’s the fact that the International Criminal Court has opened investigations in 11 situations, publicly indicted 44 people, and convicted six. Arrest warrants are issued for 36 individuals and summonses to eight others. There are 22 completed proceedings and 22 are ongoing. There are still 15 defendants at large. So there are still 15 people who have been accused of war crimes who are being searched for.

The unfortunate thing, and something that really saddens me, is that most of these cases relate to crimes committed in the African continent, particularly Sudan, Kenya, Uganda, and the Congo. As someone who travelled through the absolutely beautiful, wonderful continent of Africa—would’ve been about 15 years ago now, but I travelled from Kenya right down to South Africa—it certainly saddens me that that continent with such beautiful, wonderful people has unfortunately been the victim of war crimes, of people who generally rise to power, take on absolute power, and then commit the most unspeakable atrocities, and that’s why we have this international court.

Now, the bill specifically relates to some amendments that have come before us, amendments in 2010 and then further amendments in 2017. Those amendments have been spoken about tonight. I’m pleased that we have agreement right across the House around supporting these amendments.

We have heard about the expanding bullets. The reason that has been raised by two speakers is because it’s something that we do need to discuss, because our police do use expanding bullets and that’s something that will be worked through over the coming months around that. The aspect of expanding bullets that hasn’t been touched on is that if in a police situation you’re faced with a criminal and there are innocent bystanders around, an expanding bullet will lodge within the criminal and won’t go through and potentially affect innocent bystanders. So that’s another point. So there are clear reasons why expanding bullets are used, but discussions will obviously take place around that because expanding bullets are outlawed in this amendment.

The International Criminal Court should be a court of last resort. So as we’ve heard, it works alongside domestic law. Ideally, domestic law will deal with people who are committing atrocities, but when domestic law doesn’t address that, then the International Criminal Court then has that mandate to come into action around that.

There’s another point that I haven’t heard raised tonight and I’d just like to raise it briefly, which is that some countries that New Zealand forces, the armed forces, train and operate with on joint deployments have not yet ratified the amendment—for example, the United States are likely not to ratify this amendment at all. So it does create a little bit of a challenge, potentially, as our forces work alongside others who haven’t ratified this amendment. As a sovereign country we make our decision; other sovereign countries make their decisions. But certainly we do find agreement with other countries on the general belief around stopping, around limiting, atrocities and around caring for people. So we might not agree on all of the amendments but we certainly continue to work together on that.

Look, this is about technology. As technology grows, and it will continue to grow within humankind, we will see more weapons emerge, more advanced weapons, weapons that at this point in time, in 2019, we couldn’t even dream of or imagine. More weapons will continue to be thrust upon us, so it’s important that we continue to have these amendments come through as these weapons come forth.

I was recently in the United Kingdom and I visited the Science Museum in London. It was interesting to see what one of the V2 rockets, which was used in World War II, as many people know, towards the end of World War II. The technology from the V2 rockets was incredibly advanced at that time, for the mid-1940s, and that technology on the V2 rockets, which were used by Adolf Hitler to terrorise people in the UK, was then used for good, to catapult people into space and on to the moon in the NASA program.

So that’s my final point, that technology can be used for good, can be used for bad. It’s important that we have jurisdictions like the international court to monitor the aspect of weaponry as it develops. So thank you for the opportunity to share tonight.

Madam Assistant Speaker, it’s a real pleasure, I must say. It’s the first time I’ve stood up since your appointment. I think one member said “Elevation to the bench.”, which I’m not quite sure is proper usage, but it’s great to be under your beneficent gaze for this short speech on this important piece of legislation.

This is important, though. To move away from that levity, it is an important piece of legislation which touches on—I mean, war crimes are a very serious matter. Firstly, as Mr Strange said, it’s bizarre to understand that people enter into conflicts of such horror, and yet on the other side of the ledger, it is also strange to think that we place rules around how nation States are permitted to exert violence against each other. But, nevertheless, we know from the horrors of the First World War and later that there has been an increasing move to understand what is a legitimate and appropriate use of force and what, in some strange way, is a permitted use of force, including force which, of course, causes death and very serious and horrific injury.

I guess the important thing here is the real importance of multilateralism—that we absolutely need an international framework where parties agree what’s permitted and what isn’t. This is certainly an international treaty and series of treaties which does have, in a large part, that. It’s disappointing to see that there are a number of outlier States that haven’t voted in favour of it. Indeed, outliers at the moment include China, Iraq, Israel, Libya, Qatar, USA, and Yemen. They voted against it in 1998, and I must say, when you see those nations put together, they’re certainly strange bedfellows. If you dig a little bit deeper, you’ll see the various reasons why. For example, one of the reasons it was voted against was the provision that says it’s a war crime to move people into occupied territories, and that wasn’t acceptable to some of those parties.

But the other interesting thing here is that, increasingly, conflicts cannot be categorised in terms of wars between States. One of the things that these amendments from Kampala and from the UN in New York set out is the rules applicable to non-international conflicts, and we see this in many, many places around the world—Syria is one tragic example of that. We know that inappropriate means are used in conflicts like that, perhaps more often than those between nation States, where there is a much longer term and much better ability to negotiate the terms of war. So it’s really good to see that there’s protection of people where their status as combatants or their status as citizens of one State or another is unclear or contested—that any people can be protected, regardless of the kind of legal niceties around international humanitarian law and the law of war.

I don’t want to dwell on it any more, other than to say that I’m proud of us being part of a multilateral grouping which recognises the humanitarian side of conflict and is abiding by it. Thank you.

Motion agreed to.