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New Zealand will lodge an Instrument of Ratification with the depositary of the Rome Statute of the International Criminal Court (‘the Rome Statute’) after consideration of the Statute by Parliament in accordance with Standing Orders, and the passage of the necessary implementing legislation. The Rome Statute itself will not enter into force until it has been ratified by 60 states (article 126).
2. The Rome Statute will establish an independent permanent International Criminal Court that will have jurisdiction over individuals who commit the most serious crimes of concern to the international community as a whole, namely:
(a) Genocide (article 6)
The definition of genocide is that used in the Genocide Convention 1948 which New Zealand has ratified. It covers not only killing but also other methods of destroying a group, such as the forcible transfer of children to another group.
(b) Crimes against humanity (article 7)
Crimes against humanity comprise 11 different acts (including murder or torture) that are committed as part of a widespread or systematic attack directed against any civilian population. Some of the acts listed in article 7 which have been proscribed under various treaties are now expressed, for the first time, as crimes against humanity for which individuals may face liability. These include apartheid and enforced prostitution.
(c) War crimes (article 8)
The Rome Statute gives the International Criminal Court jurisdiction over 34 different war crimes that occur in international conflicts and 16 war crimes that occur in non-international conflicts. Most of the crimes are taken directly or clearly derive from established international law. However, the formulation of several crimes differs from (and is more restrictive than) the established definitions.
(d) Aggression
The crime of aggression is also within the jurisdiction of the International Criminal Court. However, it is first necessary to agree on a definition and the conditions under which the International Criminal Court may exercise jurisdiction. This had proved too difficult an issue to resolve at Rome but is on the agenda of the Preparatory Commission that was established following the Rome Conference.
3. The concept of a permanent international criminal court is not new. In the aftermath of the Second World War many believed that the sorts of atrocities that characterised that war could never happen again. Shortly after the United Nations was founded, the newly formed International Law Commission was mandated to codify the Nuremberg principles and prepare a draft statute to create an International Criminal Court. However little progress was made in the ensuing decades. In meantime, serious violations of international law continued to occur, for example, in Cambodia. For the most part those perpetrators were never brought to justice.
4. Events in the early 1990s gave new impetus to the proposal for an international court. The atrocities in the Former Yugoslavia and in Rwanda were on such a scale that the United Nations Security Council used its powers under Chapter VII of the UN Charter to create two ad hoc international criminal tribunals to investigate and try those responsible. However, those tribunals deal only with events in two geographical areas, and, in the case of Rwanda, within a short time frame. There is criticism that others who commit atrocities elsewhere are not similarly being called to account for their actions. A key benefit of an permanent international court with a broad reach would be to overcome this sort of criticism and, as a result, to enhance the perception of international justice as fair and evenhanded.
5. Most countries consider that the maintenance of international peace and security would benefit by the creation of an International Criminal Court. Currently, the main recourse when atrocities occur is to impose sanctions, embargoes, or, very rarely, to take collective military force. These can harm innocent civilians more than the individuals responsible for the crimes. While it is possible to continue to set up criminal tribunals on an ad hoc basis after a particular event, this is not a straightforward option as it requires a decision of the Security Council and may be affected by political considerations.
6. The absence of an International Criminal Court tends to reinforce a culture of impunity, and thereby to encourage (or at least not discourage) repetition of the same sort of offences. The establishment of a international court as a permanent body would help to ensure that individuals responsible for the most serious violations of international law are brought to justice without delay. This will, in turn, both aid the victims of the particular crimes, and send a signal that there will no longer be impunity for these crimes.
7. When negotiations began in 1995 on the form of a statute to establish an International Criminal Court, New Zealand’s general objective was to ensure the establishment of a court that would be independent, fair and effective. The following features were regarded as important:
8. Some compromises in the final text were inevitable. One such compromise relates to the jurisdictional regime which requires that, in the absence of a Security Council referral, either the state where the offence occurs or the state of nationality of the accused person must be a party to the Statute, or consent. The potential impact of this provision can, however, be minimised if there is widespread ratification.
9. At the end of the diplomatic conference in Rome in July 1998 the majority of the international community of states agreed to adopt the Statute, (120 in favour, with 21 abstentions and 7 against). Ninety-five countries have since signed the Rome Statute, including New Zealand. As at 9 March 2000 seven countries have ratified the Statute: Senegal, San Marino, Trinidad & Tobago, Italy, Fiji, Ghana and Norway. A number of other countries are well advanced in their ratification processes. When the Statute receives 60 ratifications it will enter into force and the International Criminal Court will be established.
10. The Statute represents a historic step forward for the protection of human rights and enforcement of international law and has enormous potential as an instrument of international justice. As a small country, dependent on the rule of law, New Zealand’s interests lie in supporting the establishment of a permanent International Criminal Court to sit alongside the International Court of Justice. Despite some shortcomings, the Rome Statute provides a workable starting point for a Court that could make a real and lasting difference.
Advantages
11. The prosecution of accused persons, whether that occurs at the national or international level, will help to put an end to impunity for international crimes. The prevention of such crimes is in the interests of international peace and security, which benefits all states. A significant benefit of having a permanent court is that it will have the personnel and resources to respond quickly in the event that alleged crimes are reported. Time is often of the essence both in collecting and preserving evidence, and preventing the commission of further offences.
12. By ratifying the Statute at an early stage New Zealand would signal its support not only for the International Criminal Court itself but also for principles of international justice generally. Ratification would be a reaffirmation of the commitment to existing obligations, such as those under the United Nations Charter itself, the Genocide Convention 1948, and the four Geneva Conventions and their Protocols.
13. The jurisdiction of the International Criminal Court will be complementary to national criminal jurisdictions. It does not therefore prevent New Zealand courts from exercising jurisdiction over international crimes. The ratification of the Statute provides an opportunity to modernise domestic criminal law to allow prosecutions for international crimes to take place in New Zealand courts, if that is appropriate. In some circumstances the International Criminal Court (or the courts of another country) may be the more appropriate venue with New Zealand providing assistance, if requested.
14. As noted 95 countries have already signed the Rome Statute. By ratifying the Statute New Zealand would therefore be part of the large group of nations that support the creation of the International Criminal Court.
Disadvantages
15. Some aspects of the Rome Statute were the product of compromises that ideally would not have been required. In particular, the preconditions for the exercise of jurisdiction noted in paragraph 8 may be an impediment to the Court’s ability to make a difference in the short term, although this will largely be overcome once a significant number of states ratify the Statute.
16. The war crimes provision is not as comprehensive as had been hoped. In particular, New Zealand had pressed for a reference to the use of nuclear weapons. However, during the negotiations it became apparent that a specific reference would not gain sufficient support. Instead, a generic approach to weapons of mass destruction was adopted with the text prohibiting the use of weapons that are of a nature to cause superfluous injury or unnecessary suffering, or that are inherently indiscriminate, if they are specifically included in an Annex to the Statute. This leaves open the possibility of an amendment to the Statute to include weapons of mass destruction at a later date.
17. There will be financial costs for New Zealand associated with the establishment and operation of the International Criminal Court. These are discussed further below.
Obligations that would be imposed on New Zealand by the Rome Statute and the position in respect of reservations to the Rome Statute
18. The Statute contains 13 parts and 128 clauses. The main obligations placed on States Parties are as follows:
19. As a party to the Statute New Zealand would accept the jurisdiction of the International Criminal Court in respect of crimes specified in article 5, namely genocide, crimes against humanity and war crimes and (at later date) aggression. As a result, the Court will be able to exercise its jurisdiction if any of the offences occur in New Zealand or on board a vessel or aircraft registered in New Zealand; or if the person accused is a New Zealand national (article 12). In order for New Zealand to have the option of instituting a prosecution in a New Zealand court it will be necessary to make changes to domestic criminal law to ensure that all the conduct mentioned is also punishable under New Zealand law.
20. New Zealand would be under an obligation to cooperate with the International Criminal Court in its investigations and proceedings. Part 9 of the Statute allows the Court to make requests for the various types of assistance, which fall into two broad categories:
(a) Surrender of accused or convicted persons
These provisions deal with the form and content of requests for surrender, the action that must be taken in response, the nature of the court proceedings held in the requested state and the ability of the person sought to challenge surrender. Under the Rome Statute, a State Party can refuse surrender only in a very limited range of circumstances, for example, where it is intending to prosecute the person sought.
(b) Other forms of cooperation
The International Criminal Court may request a wide range of other forms of assistance, most of which are commonly found in mutual assistance legislation or treaties. These include questioning suspects, taking evidence, and freezing assets. Each State Party is obliged to ensure its domestic law contains the necessary procedures so that it can provide assistance, if requested. In this context also the circumstances in which assistance can be refused are quite limited.
21. On ratification New Zealand would agree to follow the procedure contained in article 72 of the Rome Statute in situations where it considers that New Zealand’s security interests may be prejudiced by the disclosure of information or the giving of evidence. The use of this provision will most commonly arise in the context of requests under Part 9 but is not limited to that situation. Article 72 requires a State Party that considers its security interests may be prejudiced first to attempt to resolve the matter by cooperative means. If it still considers that disclosure would prejudice its national security interests it must advise the Court, with reasons, unless the giving of reasons would itself be prejudicial. The International Criminal Court cannot force the state to comply with a request for cooperation but may conclude that the state is in breach of its obligation to cooperate in good faith. In that case the matter may be referred to the Assembly of States Parties or to the Security Council.
22. Article 73 contains a procedure which New Zealand would be obliged to follow when dealing with a request that involves information provided to New Zealand by a third party.
23. New Zealand would agree to allow the International Criminal Court to sit in New Zealand. The Rome Statute provides that the seat of the International Criminal Court will be The Hague. However, it can sit elsewhere and may hold sittings in the territory of States Parties if it wishes to do so. In addition the Prosecutor is entitled to carry out investigations in the territory of States Parties in certain, relatively limited, circumstances.
24. New Zealand would be obliged, under article 70, to create new domestic offences relating to the administration of justice to apply to offending that occurs in the course of the proceedings of the International Criminal Court. These would include offences of perjury and obstructing justice. New Zealand courts would have jurisdiction over any such offending that occurs while the Court is sitting in New Zealand and also over offending elsewhere by New Zealand nationals. In addition, New Zealand must be able to provide assistance of the kinds specified in Part 9 if article 70 prosecutions are instituted in the International Criminal Court itself.
25. New Zealand would be obliged under article 109 to enforce fines, and orders for reparation or forfeiture that the International Criminal Court makes against a convicted person.
26. Article 103 provides that States Parties may indicate their willingness to hold prisoners who are serving sentences imposed by the International Criminal Court. As set out in paragraph 38 it is proposed that the implementing legislation would contain the necessary provisions to enable ICC prisoners to be detained in New Zealand prisons. The Statute provides that states that volunteer to hold prisoners may place general conditions on their consent and are able to refuse to accept particular prisoners.
27. Part 11 of the Statute establishes an Assembly of States Parties, formed by one representative of each State Party. The Assembly oversees the various organs of the Court, its budget, and reports and activities of the Bureau of the Assembly. Representatives would have one vote and decisions would be reached either by consensus or some form of a majority vote. As a State Party New Zealand would make an ongoing commitment to participation in the Assembly.
28. Part 12 contains the framework for contributions to the financing of the International Criminal Court and is discussed further in paragraphs 31 to 34.
29. Article 120 contains an explicit prohibition on reservations so that states cannot choose to opt out of the Rome Statute’s carefully negotiated provisions.
Economic, social, cultural and environmental effects of the Rome Statute entering into force for New Zealand and of the Statute not entering into force for New Zealand
30. There are no direct economic, social, cultural or environmental effects of the Rome Statute entering or not entering into force for New Zealand. However, as set out in paragraphs 11 to 14, there are a number of general advantages of becoming a party. In particular, the establishment of the International Criminal Court will contribute to the maintenance of international peace and security which benefits all countries. At the same time there will also be some financial costs associated with the establishment and running of the Court.
31. Part 12 of the Rome Statute states that funding for the International Criminal Court is to come from three sources:
32. The relative proportion of United Nations to State Party financing is not specified in the Rome Statute itself but is one of the matters to be considered, in the first instance, by the Preparatory Commission which meets at regular intervals this year. Subsequently it will be a matter for which the Assembly of States Parties has responsibility. The Assembly is also required by article 79 to set up a trust fund for the victims of offences which will require funding.
33. If, in the future, New Zealand receives a request from the International Criminal Court under Part 9 it will usually bear the costs of execution of that request. Article 100 sets out certain costs that will be borne by the Court, which include the costs associated with the transport of a person being surrendered to the seat of the Court. A similar approach is taken with bilateral extradition and mutual assistance requests.
34. If the International Criminal Court were to sit in New Zealand for any period there are likely to be some associated costs, such as detaining the accused in prison and providing courtroom facilities. There would also be costs in the event that New Zealand accepted sentenced prisoners to serve their sentences in a New Zealand prison as those costs are generally borne by the custodial state.
35. At the conclusion of the Rome Conference a programme of further work was mandated by resolution. This is being carried out through a Preparatory Commission which is dealing with the Rules of Procedure and Evidence (article 51); the elaboration of the ‘Elements of Crimes’ (article 9);a definition of aggression; and financial and various other administrative issues. The first two matters have been give priority and are due to be completed by June 2000.
36. Article 121 provides that any State Party may propose amendments to the Rome Statute after it has been in force for seven years. As a general rule amendments enter into force one year after seven-eighths of States Parties have ratified the change. Any amendments to the crimes under the Court's jurisdiction apply only to those States Parties that accept them. In effect this amounts to an ‘opt in’ provision for additional crimes.
37. Article 122 deals with amendments to specified articles that are of an institutional nature, such as those relating to judges. Generally these are to be adopted by consensus or by a two-thirds majority and enter into force six months later.
38. New Zealand can demonstrate its continued commitment to the concept of an International Criminal Court by early ratification of the Rome Statute. Implementing legislation will first need to be passed. Because the Rome Statute is very detailed and differs in material respects from the Statutes of the International Tribunals for the Former Yugoslavia and for Rwanda it is not simply a matter of extending the existing International War Crimes Tribunals Act 1995. It is therefore proposed that there would be stand-alone legislation that would contain the following provisions:
(a) Creation of new domestic offences in respect of international crimes
The Rome Statute does not expressly require States Parties to create domestic offences in respect of genocide, crimes against humanity and war crimes. However, the principle of complementarity underpins the International Criminal Court’s jurisdiction, with the result that if a State Party wishes to exercise jurisdiction over the crimes, the Court must defer to the state in the first instance. In order for a State Party to exercise jurisdiction in respect of international crimes, its domestic law must contain the relevant offences.
New Zealand does not have discrete offences relating to genocide or crimes against humanity. The Geneva Conventions Act 1958 does create offences in relation to the grave breaches mentioned in the four Geneva Conventions and the First Protocol to those Conventions. As the formulation of the war crimes offences in the Rome Statute differs in some respects from that in the Geneva Conventions it seems desirable to create a new domestic offence based on the Rome Statute even though there is some overlap with the existing offence in the Geneva Conventions Act.
It is therefore proposed that:
New offences be created relating to the three international crimes of genocide, crimes against humanity and war crimes.
The jurisdiction for all three offences should be universal, allowing proceedings to be brought in New Zealand courts for conduct that occurs elsewhere, regardless of the person’s nationality.
The maximum penalty for the three offences should be life imprisonment, with mandatory life imprisonment if the particular offending involves murder.
The new offences should come into force on passage of the legislation rather than awaiting the entry in force of the Rome Statute. The offences should be able to apply to conduct that occurred before the date of enactment if that can be done in a way that does not contravene the New Zealand Bill of Rights Act 1990.
Article 124 is a transitional provision that allows a state to ratify the Rome Statute but to postpone the entry into force of article 8 -the war crimes provision- for 7 years. The International Criminal Court would not then have jurisdiction over war crimes involving that state’s territory or nationals for 7 years. This is one of the compromises made at Rome to which New Zealand agreed reluctantly as it limits the Court’s jurisdiction in the short term. It is not proposed that New Zealand should postpone the Court’s jurisdiction by adopting this provision.
(b) Provisions relating to cooperation
The majority of the provisions to be included in the implementing legislation will relate to the articles on cooperation contained in Part 9 of the Statute. The Extradition Act 1999 and the Mutual Assistance in Criminal Matters Act 1992 are drafted with bilateral relationships in mind and, while amendment would be possible, it seems preferable to have stand-alone legislation to deal with cooperation with the International Criminal Court. As already noted the cooperation provisions fall into two groups: those relating to surrender of persons to the Court and those relating to the provision of other forms of assistance primarily during the investigation and trial.
(c) Provisions relating to the protection of national security and third party interests
Some aspects of Article 72 of the Rome Statute (which relates to the protection of security interests) and article 73 (which relates to the protection of third party interests) will need to be reflected in the legislation. Both constitute grounds for refusing requests under Part 9.
(d) Sittings of the International Court and investigations in New Zealand
Certain machinery provisions are needed to allow the International Criminal Court to sit in New Zealand. These are similar to the provisions found in the International War Crimes Tribunals Act 1995. The legislation will also need to ensure that the Prosecutor is able to carry out investigations in New Zealand in the manner contemplated in the Rome Statute.
(e) Creation of domestic offences relating to the administration of justice
To comply with article 70 of the Rome Statute new domestic offences relating to the administration of justice will need to be created for offending involving the proceedings of the International Criminal Court. In addition, there will need to be provisions that allow New Zealand to provide assistance to the Court in relation to the Court’s own proceedings for these offences.
(f) Enforcement of sentences and orders
Machinery provisions will be needed to ensure New Zealand is able to enforce fines and orders for forfeiture or reparation against the convicted person. These will link in to existing domestic procedures. For instance, in the case of forfeiture, the relevant procedures are found in the Proceeds of Crime Act 1991.
It is also proposed that the implementing legislation will allow for the possibility of ICC prisoners serving their sentences in New Zealand prisons. Part 10 of the Rome Statute contains more detail than the equivalent provisions in the Statutes for the International Tribunals for the Former Yugoslavia and for Rwanda. As a result, the implementing legislation will need to contain a number of provisions to give effect to the obligations that Part 10 imposes on custodial states.
39. The Ministries of Justice, Defence and Women’s Affairs, the Departments for Courts, Corrections and Prime Minister and Cabinet, the Crown Law Office, New Zealand Defence Force, New Zealand Police, New Zealand Immigration Service, New Zealand Security Intelligence Service, and Treasury, have been consulted about ratification.
40. During the negotiations that preceded the Rome Conference the New Zealand delegation took account of the views of a number of non-governmental organisations. In February 2000 a meeting was held to discuss ratification with key interest groups. While some groups have expressed disappointment at the outcome on nuclear weapons, most consider that the overall benefits of having such a court outweigh that particular disadvantage. At the February meeting two groups indicated that they did not support ratification.
41. The Statute allows a State Party to withdraw from the Rome Statute by notifying the Secretary-General of the United Nations, in writing. The withdrawal then takes effect one year after the date of notification or on a specified later date (article 123(1)).
42. If an amendment to the Rome Statute to which article 121(4) applies is accepted by seven-eighths of States Parties but is one which a particular State Party does not support, that State may withdraw from the Statute with immediate effect
