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Greetings and acknowledgements.

The ending of impunity for those who commit serious international crimes has long been an aim of New Zealand and it sees a permanent international criminal court playing a central role in this. The New Zealand Government gave priority to early ratification of the Rome Statute and implemented its Rome Statute obligations through legislative, but not constitutional, changes.

In developing legislation to implement the Rome Statute, New Zealand was concerned to ensure that any legislative reforms recognised the principle of ‘complementarity’ and allowed New Zealand to prosecute Rome Statute crimes if that proved necessary. The New Zealand International Crimes and International Court Act 2000 (ICC Act) is comprehensive and pragmatic. It establishes the crimes of genocide, crimes against humanity and war crimes, in New Zealand. It also provides comprehensive provisions allowing New Zealand to cooperate fully with the ICC.

Firstly, I would give you an outline of the processes that implementation and ratification of international treaties go through in New Zealand. While the power to become party to treaties lies in the Executive, the House of Representative’s Standing Orders require most treaties be tabled in the Parliament and be scrutinised by a Select Committee.

This ‘treaty examination process’ is assisted by a national interest analysis report which must address the reasons why New Zealand should become a party, the advantages and disadvantages, obligations imposed, economic, social, cultural and environmental effects, costs of compliance, subsequent protocols and measures required to implement, consultations undertaken or proposed with interested parties and whether withdrawal provisions are provided. The select committee to which a treaty is referred can decide whether it calls for submissions from interested parties, or is briefed by the relevant ministry, usually that for foreign affairs. The committee must report to the House on any treaty referred, bringing any matters it considers necessary to the attention of the House. The national interest analysis is attached to the select committee’s final report.

The treaty text and national interest analysis of the Rome Statute of the International Criminal Court were presented to New Zealand’s House of Representatives on 16 March 2000 and referred to the Foreign Affairs, Defence and Trade Committee for examination and report back to the House. The lengthy national interest analysis covered the main issues involved in making New Zealand law consistent with the Rome Statute. It identified the following features as being of importance to New Zealand:

• A jurisdiction regime free of any state consent requirement
• Independence from the Security Council
• An independent prosecutor
• Qualified deference to states’ claims of jurisdiction (‘complementarity’)
• Jurisdiction over war crimes whether committed in international or non-international conflicts, with express recognition of gender violence
• A clear obligation for states parties to comply with requests for assistance from the International Criminal Court
• High standards of justice that respect both the rights of the accused and those of the victims.

In New Zealand, if changes to existing law are needed to implement treaty obligations, implementing legislation must be enacted before New Zealand becomes a party. Although some of the provisions of the Rome Statute could be implemented by amending existing New Zealand legislation, it was ultimately decided that a new stand-alone statute was required. This had the advantage of being able to provide criminal offence provisions for Rome Statute crimes, and , significantly, to provide a raft of provisions allowing New Zealand to fully cooperate with the Court when asked.

New Zealand took a pragmatic approach in the development of its legislation. Rather than adapting the core Rome Statute crimes to reflect the usual New Zealand legislative style, the ICC language was adopted directly. . There is certainty, therefore, that New Zealand could prosecute all of the crimes covered by the Rome Statute. By taking this simpler legislative approach, the Bill was passed in shorter time allowing New Zealand to be one of the first countries to ratify the Rome Statute.

While the criminal offence provisions are important, the majority of New Zealand’s ICC Act actually relates to the implementation of Parts 9 and 10 of the ICC Statute governing international cooperation, judicial assistance and enforcement. Once again these provisions provide direct cross-references to provisions in the Rome Statute, avoiding the need to paraphrase articles, which could lead to ambiguities. The New Zealand Act also establishes a discrete statutory regime for extradition and mutual assistance on criminal matters relating to the Rome Statute, rather than relying on New Zealand’s existing extradition and mutual legal assistance regimes.

New Zealand’s approach to criminal law is detailed and the comprehensiveness of the ICC Act reflects that. It is an approach that other countries may not require, but it does provide a high level of certainty By creating offences in the same terms as the Rome Statute and making certain articles of the Statute part of the ‘applicable’ law in a New Zealand prosecution, the risk of divergence between the Statute and New Zealand law has been minimised.

Rather than give a detailed description of some of the issues relating to compatibility with existing New Zealand law, that had to be considered when drafting our ICC Act, I would refer you to an excellent paper on New Zealand’s implementation process written by Juliet Hay, an International Criminal Law Adviser with our Ministry of Foreign Affairs and Trade who played a key role in the drafting of the ICC Act. A copy of this article, which was published earlier this year in the Journal of International Criminal Justice, was provided to all attendees in your New Zealand folders.

The ICC Bill, was referred to the Foreign Affairs, Defence and Trade Select Committee following its first reading in the House. That Committee advertised for submissions from the public and interested parties. Seven submissions were received, all supporting the key principles of the Bill. Two submissions were heard orally. The Select Committee did not make any substantive amendments to the Bill although some changes of a technical nature were made and one or two aimed at greater clarification. The Bill was reported to the House on 8th August 2000 and went through its remaining stages during the next four weeks.

The Select Committee Report to the House echoed international concern about the number of occasions on which serious international crimes were committed with impunity and supported the desire to see individuals who commit these atrocities brought to justice. The committee believed that the establishment of a permanent International Criminal Court as provided in the Rome Statute was the best way to achieve this and that such a Court represented an historic advancement for the protection of human rights and as an instrument of international justice. The House agreed with these views and the Bill passed into law in September of 2000.

References:

Report of the Foreign Affairs, Defence and Trade Committee on International Treaty Examination of the Rome Statute of the International Criminal Court - 4 May 2000

Report of the Foreign Affairs, Defence and Trade Committee on the International Crimes and International Criminal Court Bill - 8 August 2000

Hay, Juliet Implementing the ICC Statute in New Zealand JICJ 2 (2004) pps 191 – 210

Standing Orders of the House of Representatives 8 September 1999

 

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