International Crimes and International Criminal Court Amendment Bill

on behalf of the Minister of Foreign Affairs: I move, That the International Crimes and International Criminal Court Amendment Bill be now read a second time.

I would like to thank the Foreign Affairs, Defence and Trade Committee for its detailed consideration of this bill and the public consultation process it undertook. The committee’s recommendation is that the bill be passed without amendment. This bill seeks to update New Zealand’s legislation to incorporate the latest war crimes amendments to the Rome Statute of the International Criminal Court, enabling ratification of these important amendments.

The Rome Statute came into force in 2002 and established the International Criminal Court (ICC), the world’s first permanent International Criminal Court, with jurisdiction over crimes of genocide, war crimes, crimes against humanity, and the crime of aggression. Its adoption and entry into force was a landmark achievement in international criminal justice. New Zealand ratified the Rome Statute on 7 September 2000, being the 17th country to do so, demonstrating our commitment to the rule of law and international criminal justice. New Zealand remains a longstanding supporter of the court and its mandate to hold to account those who commit the most serious international crimes.

In New Zealand, the Rome Statute is implemented through the International Crimes and International Criminal Court Act 2000. This Act establishes New Zealand’s jurisdiction over specific offences corresponding to those offences set out in the Rome Statute and provides for cooperation with the court, for example, through assistance with investigation and prosecution. That Act currently includes those war crimes which were contained in the Rome Statute when it first entered into force. Subsequently, the Assembly of States Parties to the Rome Statute has recognised additional war crimes and incorporated them into the court’s jurisdiction.

In June 2010, the Assembly of States Parties adopted provisions to criminalise and bring within the jurisdiction of the court the use of the following in non-international armed conflicts: poisons or poisonous weapons; asphyxiating, poisonous, or other gases, and analogous liquids, materials, and devices; and expanding bullets. Later, at its 16th session, in December 2017, the assembly added further provisions to criminalise and bring within the jurisdiction of the court the use of the following in either international or non-international conflict: biological weapons, weapons or munitions employing non-detectable fragments, and blinding laser weapons. Collectively, these are known as the war crimes amendments.

New Zealand supported the inclusion of all these crimes, recognising that they represent conduct amounting to war crimes and should be recognised as such under international law. This bill incorporates these additional crimes into the primary Act and thereby ensures that New Zealand’s implementing legislation for the Rome Statute remains up to date and enables our ratification of these amendments. It does this by extending the current definition of war crimes in the Act to include those crimes reflected in the war crimes amendments. The bill also creates a carve-out as regards those provisions relating to the crime of aggression, which the Government has not yet decided to ratify and which is substantively different to the war crimes amendments.

Incorporation of the war crimes amendments will allow proceedings to be brought in New Zealand courts for these new war crimes under section 8 of the principal Act. Proceedings may be brought regardless of the nationality or citizenship of the person accused; or whether or not any act forming part of the offence occurred in New Zealand; or whether or not the person accused was in New Zealand at the time that the act constituting the offence occurred, or at the time a decision was made to charge the person with an offence. The Attorney-General’s consent is required for any prosecution under the primary Act, providing a safeguard to ensure that only appropriate cases proceed to a prosecution. Additionally, the bill corrects two technical errors in the principal Act as enacted.

As indicated, the Foreign Affairs, Defence and Trade Committee undertook public consultation on this bill and recommended that it be passed without amendment. The committee received several submissions on the bill, all of which were supportive of the bill, though some of these encourage the adoption of further crimes into the bill, such as the crime of aggression. In December 2017, the crime of aggression was added to the jurisdiction of the ICC via a series of amendments which entered into force in July 2018. However, these are of a very different nature and scope than the war crimes amendments covered by the bill. Further, the Government has not yet approved the ratification of those aggression amendments and so this bill does not seek to incorporate them.

The committee also received submissions recommending that the bill incorporate one particular amendment, the starvation amendment, which I will turn to now. Recently, in December 2019, the Assembly of States Parties amended the Rome Statute to make it a war crime to intentionally use starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies in the context of a non-international armed conflict. New Zealand supported this amendment. The intentional starvation of civilians as a method of warfare is already a war crime under the Rome Statute in international armed conflicts. The starvation amendment harmonises the law in this respect to also make this conduct a crime in non-international armed conflicts, which constitutes most modern armed conflicts. This amendment was adopted by consensus and has strong international support, including from the International Committee of the Red Cross.

Because it was adopted after this bill was introduced, it was not introduced in the original bill. However, I intend to move an amendment to the bill by a Supplementary Order Paper to incorporate this amendment so that the primary Act may be updated in an effective and efficient manner to reflect all war crimes amendments to the Rome Statute. I commend the International Crimes and International Criminal Court Amendment Bill to the House.

Thank you, Mr Speaker. It’s my pleasure to stand and take a call on the second reading of the International Crimes and International Criminal Court Amendment Bill. I don’t sit on the Foreign Affairs, Defence and Trade Committee, but can I acknowledge them for the work that they have done, and can I acknowledge the chair, Simon O’Connor. I have subbed on to that committee from time to time, and I’ve been impressed at the fairness and the efficiency with which he runs that select committee, and the important cross-party work that’s done, particularly on a bill like this.

We do support this bill to incorporate into New Zealand law a number of amendments from the Rome Statute of the International Criminal Court concerning war crimes. We recognise that domestic legislation is required to bring any international treaties into force, and as a result we support the passage of this bill today. We welcome the war crimes amendments and hope that they’ll discourage the use of inhumane weaponry.

The only closing comment that I would make is that a weapon that is very commonly used around the world in the wrong hands—i.e. with a terrorist group or an organised crime group—is the Kalashnikov 47, the AK-47. While we sit in this Parliament and we pass law recognising that something has to be done around that type of weaponry being dispersed around the globe, I think that we need to have a very close look at ourselves in terms of our country, and make sure that we haven’t got weapons like AK-47s on our streets, creating harm, and killing people back home here in New Zealand.

So, although we support this bill and the passage of this bill, I’d also caution the Government and say that a very close look has to be taken, and some vigilance and focus around the fact of whether or not the weapons that we’re condemning and that we’re trying to stop the proliferation of around the world isn’t in fact happening here right under our own noses, in our own country, New Zealand. Thank you, Mr Speaker.

Tēnā koe e Te Māngai o Te Whare, tēnā koutou katoa. As a member of the Foreign Affairs, Defence and Trade Committee, we did consider this International Crimes and International Criminal Court Amendment Bill, and, essentially, what it does is add to the current list of war crimes, which were agreed at the annual Assembly of State Parties in December 2017, and, as Minister Martin highlighted, are microbial agents, weapons that injure by fragments, and also blinding laser weapons.

I do want to highlight the issue of the starvation amendment, and it was an issue with timing, because that starvation amendment was a resolution of the December 2019 annual Assembly of State Parties; so I want to acknowledge that. But I also want to acknowledge that Labour and Green members supported the officials’ recommendation that we add the starvation amendment to this piece of legislation. The National Party took a different position but, actually, with the Minister intending to add that amendment at the committee stage, I’m hoping that the National Party will support it. The reality is that starvation means—and I quote—“A method of warfare by depriving civilians of objects indispensable to their survival.” That is, they kill people by not giving them food and water. We have to do something about that; we have an opportunity through that bill. I commend this bill to the House.

Bill read a second time.