There have been no domestic prosecutions of international crimes under customary international law in New Zealand. Although the question has never been tested, it seems that a crime at customary international law could not be prosecuted in the domestic sphere without implementing legislation to incorporate the crime into domestic law.1
Similarly, there have been no domestic prosecutions of international crimes under conventional international law in New Zealand. The New Zealand Court of Appeal confirmed in New Zealand Airline Pilots' Association Inc v Attorney-General that New Zealand holds a dualist approach to international treaties.2 Citing Lord Aitken in Attorney-General for Canada v Attorney-General for Ontario3 Keith J said:4
[W]hile the making of a treaty is an Executive act, the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. The stipulations of a treaty duly ratified by the Executive do not, by virtue of the treaty alone, have the force of law.
On the basis of this dualist approach then, no domestic prosecution can proceed on the basis of an international treaty without domestic enactment. Thus, the New Zealand courts have no jurisdiction over the crimes created by the Rome Statute in the absence of the domestic implementing legislation.
Grave breaches of the four Geneva Conventions were criminalised in New Zealand by the Geneva Conventions Act 1958. Grave breaches of the First Additional Protocol to the Conventions have been criminalised in New Zealand since 1993 by virtue of the Geneva Page 174 Conventions Amendment Act 1987. Torture became a crime in New Zealand by virtue of section 3 of the Crimes of Torture Act .5
There are a number of other Acts that criminalise in New Zealand acts or omissions that might be considered international crimes: Anti-Personnel Mines Prohibition Act 1998; Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980; Nuclear-Test-Ban Act 1999; and Terrorism Suppression Act .6
There has been no domestic prosecution under any of these Statutes.
International Crimes and International Criminal Court Act 2000 (hereinafter referred to as 'the Act' or, where the context requires, 'the principal Act'). The Act is available on the Internet at http://www.legislation.co.nz/.
The main provisions of the Act fall into two general categories: those relating to cooperation with the International Criminal Court (ICC) and those creating crimes in New Zealand. The provisions in the first category came into force as from 1 July .7 The remainder of the Act (including the incorporation of the core crimes into domestic law) came into force on 1 October .8
The Act is administered by the Ministry of Justice.9 The Ministry of Foreign Affairs and Trade is an authorised channel in terms of requests for assistance to New Zealand from the ICC.
The New Zealand approach was to implement the Rome Statute in a stand-alone Act. However, in order to ensure consistency with other legislation, a handful of consequential amendments were necessary. These are listed in sections 181-187 of the principal Act and include: Page 175
The purpose of the 1968 Act is to make provision for diplomatic privileges and immunities in New Zealand and for privileges and immunities of international organisations and related persons. Section 10D, inserted by section 183 of the principal Act, empowers the Governor-General of New Zealand to confer on the Judges, Prosecutor and staff of the ICC such privileges and immunities as may be required by Article 48 of the Statute.
In June 2002, the Diplomatic Privileges and Immunities Amendment Bill was introduced into Parliament. When enacted, it will repeal the existing provision in the 1968 Act, replacing it with more detailed provisions and allow New Zealand to ratify the Agreement on Privileges and Immunities.
Section 99 of the Extradition Act 1999 governs the priority that the Minister of Justice ought to give in a situation of competing requests for extradition. Section 184 of the principal Act inserts section 99(3) into the Extradition Act whereby competing requests from the ICC for surrender and one or more countries for extradition must be dealt with, not under the terms of the Extradition Act, but under the terms of the principal Act.
Section 3 of this Act criminalises in New Zealand law grave breaches of the four Geneva Conventions 1949 and the First Additional Protocol 1977. The section is amended by the principal Act to ensure consistency in the penalties established by both Acts.
Section 21P of the Penal Institutions Act 1954 provides protection for certain telephone calls to or from prison inmates so that the calls are not monitored. This amendment adds to the list of protected calls those that take place between an inmate and a person acting in his or her official capacity on behalf of the ICC.
The purpose of the 1991 Act is to provide authority to confiscate the proceeds of serious criminal offending. Various provisions of this Act are amended to ensure that New Zealand can co-operate with the ICC pursuant to Article 93(1 )(k) of the Statute relating to the identification, tracing, freezing or seizure of proceeds, property or assets.
A notable feature of the co-operation provisions in the Act is the clear concern to ensure that New Zealand will be able to co-operate fully with the Court. For example, section 27, dealing with the execution of requests, provides:
"(1) If the ICC makes a request for assistance, the request must be dealt with in accordance with the relevant procedure under the law of New Zealand (as provided in this Act). Page 176
(2) If the request for assistance specifies that it should be executed in a particular manner that is not prohibited by New Zealand law or by using a particular procedure that is not prohibited by New Zealand law, the Attorney-General or the Minister, as the case may be, must use his or her best endeavours to ensure that the request is executed in that manner or using that procedure, as the case may be."
While Parts 4 and 5 (sections 32-123) set out the detail of arrest, surrender and other forms of co-operation, Part 3 of the Act sets out some general provisions relating to requests for assistance. Requests must be made through an 'authorised channel'; that is, usually through diplomatic channels via the Ministry of Foreign Affairs and Trade,10although there is a provision for urgent requests.11
Sections 15 to 21 of the Act create several 'offences against the administration of justice', which supplement the co-operation provisions. The offences are directed at Judges and other officials of the Court itself as well as creating offences of bribery, giving false evidence, interference with witnesses or officials or conspiring to obstruct, prevent, pervert or defeat the course of justice.
Generally speaking, requests for arrest and surrender will be made through diplomatic channels to the Ministry of Foreign Affairs and Trade, which will then transmit them to the Minister of Justice.12 Part 4 of the Act (sections 32-80) deals specifically with detailed procedures for arrest and surrender.
On receipt of a request for surrender, the Minister "may" notify a District Court Judge and request the Judge to issue a warrant for the arrest of the person whose surrender is sought.13 The Judge "must" issue the warrant if s/he is satisfied that the person is in New Zealand, suspected of being in New Zealand or may come to New Zealand and if there are reasonable grounds to believe the person is the person to whom the request relates.14
Following arrest, the person must be brought before a District Court Judge "as...