Historic moment for New Zealand
Yesterday marked a historic moment. For 35 countries that have chosen to do so, committing aggression with their armed forces will become an individual crime for their leaders, justiciable in their domestic courts or in The Hague. New Zealand is not among this first group, but it can join them any time by a constitutional act of ratification.
On October 24, 1945, aggression against another country was made illegal under the United Nations Charter. But that has always been a matter of state responsibility. If aggression or breach of the peace occurs, the Security Council may authorise military force in response. The clearest example was Iraq in January 1991, forced out of Kuwait after invading it in August the previous year. But Saddam Hussein was not convicted for aggression against Kuwait.
The Nuremburg and Tokyo trials of the 1940s convicted fascist leaders, but these were one-off judicial courts, and so the UN era began with no permanent court for individual crimes.
In 1989 Trinidad and Tobago persuaded the UN to return the item to its agenda. With Canadian, European Union and broader support, negotiations recommenced, and within a remarkably short time the Rome Statute of 1998 agreed to establish the International Criminal Court (ICC). Four crimes are identified – genocide, war crimes, crimes against humanity, and aggression. The court came into existence in July 2002. Since then it has asserted jurisdiction over the first three crimes.
But aggression was deferred until two requirements were met. A precise legal definition was necessary. Second, the relationship between the Security Council, with its political mandate for state aggression, and the court, with its legal mandate for aggression as an individual leadership crime, had to be agreed.
In 2010 a conference was held in Kampala, Uganda, at which, against expectations, agreement was reached on these two goals. The conference also agreed to have a reaffirming decision, by a two-thirds majority, to assert jurisdiction over aggression no sooner than January 2017.
Last December, this duly occurred by consensus of ICC member states, and aggression became an individual leadership crime within the ICC jurisdiction yesterday. There are those who say this occurrence is historically equivalent to the UN Charter itself. We agree.
The assertion of jurisdiction is a relatively small step, in terms of its immediate magnitude. Of the 193 UN member states, only 123 are members of the ICC. The United States, Russia and China, and other large states such as India, are not. But the United Kingdom and France are.
Only 35 have ratified the Kampala Amendment and have thus become liable. But one is notably large and important in every sense (Germany). Others carry considerable influence (Austria, Belgium, the Netherlands, Switzerland, Portugal Spain, Finland, Poland, Argentina and Chile). Fourteen are Nato states.
Should New Zealand join? Of course it should. If it is good enough for the German chancellor and the prime minister of Samoa to be accountable under law for aggression, it is good enough for our own leaders. New Zealand signed on to the Kampala Amendment back in 2010. No reason to delay further.
A member’s bill making aggression a crime was given a first reading debate in Parliament in 2009. The penalty for a New Zealand leader could stretch to 10 years in prison. The bill was voted down, but the vote was close – 64 to 58.
It is time the Kampala Amendment was brought into the House, and for that vote to be reversed.