New Zealand Yearbook of International Law
Last Updated: 7 February 2019
STAGE-FRIGHT IN “GODSOWN”: THE NEW ZEALAND PARLIAMENT AND THE INTERNATIONAL NON-AGGRESSION AND LAWFUL USE OF FORCE BILL
In 2009, draft legislation was put forward in the New Zealand Parliament entitled the International Non-Aggression and Lawful Use of Force Bill 2009 (reproduced below). The draft, submitted as a Member’s Bill, was voted down after the First Reading in the House, and thus not referred to a Select Committee. The vote was 64 to 58.
The purpose of the Bill, as stated in the Explanatory Note, was to achieve two related objectives:
To that end, the Bill would have:
(a) Required that New Zealand observe its binding obligation under the UN Charter not to commit an act of aggression;
(b) Made it a criminal offence in New Zealand law for any New Zealand leader to commit an act of aggression;
(c) Required a New Zealand leader to obtain the written advice of the Attorney-General before deciding to commit the armed forces of New Zealand to action involving the use of force;
(d) Anticipated the inclusion at some future time of ‘aggression’ within the jurisdiction of the International Criminal Court (ICC) as one of the most serious crimes of concern to the international community and a punishable offence under international criminal law as envisioned in the Statute of Rome 1998 (the Rome Statute), and expected this Act to be compatible with that Statute if it were amended to include aggression within the Court’s jurisdiction; and
(e) Recognised that New Zealand may engage in the use of armed force, under the UN Charter, in exercise of the inherent right of individual or collective self-defence or in any other manner properly authorised by the Security Council of the United Nations.
The Bill would not have curtailed New
Zealand’s freedom, under the UN Charter, to use armed force in
self-defence of itself
or others, or to use armed force in any other manner
consistent with the Charter – such as an enforcement action authorised
the Security Council.
Unlike some cases of domestic legislation, the Bill would not have extended universal jurisdiction to New Zealand in the prosecution of aggression. The Bill would thus have differed from the International Crimes and International Criminal Court Act 2000 (NZ), which established universal jurisdiction for New Zealand over genocide, war crimes and crimes against humanity. Thus, nothing in the Bill would have authorised New Zealand courts to prosecute non-New Zealand leaders outside New Zealand for any act of aggression. The Bill would have focused solely on New Zealand leaders, for acts committed by the New Zealand Defence Forces.
II. HISTORICAL BACKGROUND TO THE BILL
The UN Charter forbids any country to use force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the Charter (Article 2(4)). It is the responsibility of the Security Council to determine whether an act of aggression has been committed by a state (Article 39). If the Council determines that a state has committed an act of aggression, it can authorise an enforcement action in response (Article 42). Under the Charter, however, non-aggression is a state responsibility only, not an individual criminal offence.
Over the past half-century, the international community has moved purposefully to make aggression an individual crime in international law. The UN Charter requires the General Assembly to make recommendations for encouraging the progressive development of international law (Article 13). In 1946 the Assembly affirmed as an international crime the planning, preparation, initiation or waging of a war of aggression (UNGA Resolution 95 (I)). Since then, aggression has been accepted by states as a crime in customary international law.
Building upon that foundation, the international community has moved, in the post-Cold War world, to legislate against aggression in treaty law. The Rome Statute, establishing the ICC, identifies aggression as one of the four ‘most serious crimes of concern to the international community as a whole’. Under the Statute, ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. Effective prosecution must be ensured ‘by taking measures at the national level and by enhancing international cooperation’.
In the specific case of aggression, however, this crime will not be justiciable in the ICC until agreement is reached among states parties on two matters: a binding definition and the conditions under which the Court is to exercise jurisdiction. A Special Working Group of the Assembly of States Parties has undertaken work on these issues. It may, however, take some time before agreement is reached among all 110 states parties for aggression to become justiciable within the ICC. Considerable progress has been made with regard to the definition of aggression, a majority of states parties generally favouring the adoption of that provided by the UN General Assembly in 1974. Regarding the jurisdictional conditions, a more difficult issue has been the relationship between the political responsibilities of the UN Security Council for determining aggression and the judicial responsibilities of the ICC for prosecuting aggression as a crime. However, the ICC is to act as a complementary court of secondary instance, domestic courts retaining primary responsibility.
There has never been any international impediment to individual states proceeding on their own accord to legislate nationally – to make an act of aggression by one’s leaders (and perhaps other leaders) a crime in domestic law. Nor does the international work underway within the ICC constitute such an impediment – the only challenge being that a state party to the Rome Statute would need to ensure that its legislation always remain consistent with any new obligations under the Statute.
The crime of aggression has been implemented into domestic law in some 25 national criminal codes, including three North Atlantic Treaty Organisation (NATO) countries and Russia. The method of implementation differs, depending upon a country’s legal system. Some have simply implemented the crime as provided for in customary international law. Others have crafted national legislation with a view to protecting specific domestic legal values. In all cases, aggression is treated as exclusively a ‘leadership crime’; it cannot be committed by ordinary members of a country’s armed forces – only by its most senior political leaders.
III. PARLIAMENTARY DEBATE AND ORAL QUESTIONS
The debate in First Reading on the Bill, held in August and September, was an opportunity for the Government and opposition to advance views on the question of aggression as a criminal offence in domestic law. In short, the Government was opposed to the Bill, primarily on the grounds that it would constrain New Zealand’s freedom of action to employ armed force overseas under the ‘Responsibility to Protect’ doctrine.
As explained by the Minister of Defence, New Zealand wished to ‘preserve’ the freedom to use force even in situations when the UN Security Council did not authorise it. The Government envisaged a case, such as the 1999 ‘Kosovo’ kind, when the Council did not authorise force yet NATO states proceeded with armed force against Yugoslavia. Some Western experts claimed, variously, that such action was legal (NATO possesses the legal authority to use force irrespective of UN authorisation) or, failing that, it was ‘legitimate if illegal’ on humanitarian grounds. Some political credibility to that view was claimed by the failure of Russia to have the Council condemn such use of force by a vote of 12-3 (China and Russia, plus Namibia). But given the importance of those two permanent members, such an expression of opinion fell short of a categorical global endorsement. Nor was it clear whether the majority supported the claim of legality or legitimacy. Lawsuits by Serbia against participating NATO states for, inter alia, breach of the prohibition of the use of force against another state before the International Court of Justice failed for want of jurisdiction.
The ‘Responsibility to Protect’ doctrine emanates from two influential policy documents. The first, the report of the Independent Commission on State Sovereignty and Intervention (ICSSI), refashioned the doctrine of humanitarian intervention as the ‘Responsibility to Protect’ doctrine. In the modern world, the doctrine asserts, it remains the primary responsibility of national governments to protect their citizens from gross and systematic abuses of human rights. But if a government is unable or unwilling to ensure that protection, the responsibility to protect defaults to the international community including the responsibility to intervene by force.
The Commission identified a set of criteria by which an informed judgment could be made for determining when such interventions were justified. Drawing largely on traditional just war doctrine, the Commission identified five ‘basic criteria of legitimacy’, namely: seriousness of threat, proper purpose, last resort, proportional means, and ‘balance of consequences’.
The Commission, however, made it explicitly clear that the ‘Responsibility to Protect’ doctrine was applicable only in the event that it had prior authorisation from the Security Council. And the doctrine, it was equally clear, did not attract immediate and overwhelming support from non-Western states, not least China and Russia which saw the doctrine as a potential vehicle for Western interventionism.
The ICSSI report was published immediately before 9/11. What was thus emerging as a marriage between enforcement of peremptory norms and domestic jurisdiction became compounded by the volatile debate over how to handle terrorism, the invasion of Afghanistan and then of Iraq.
The strain of the Iraq crisis occasioned by competing doctrinal preferences within the international community led the Secretary-General to convene the High-Level Panel on Threats, Challenges and Change. The Panel’s report also dwelt at length on the ‘Responsibility to Protect’. It, too, made it clear that the doctrine was valid only with Security Council authorisation:
We endorse the emerging norm that there is a collective international
responsibility to protect, exercisable by the Security Council
military intervention as a last resort, in the event of genocide and other
large-scale killing, ethnic cleansing, or
serious violations of international
humanitarian law which sovereign Governments have proved powerless or unwilling
Upon receiving the Panel’s report, the Secretary-General submitted his own report to the 2005 UN General Assembly. He made his support for ‘Responsibility to Protect’ clear:
I believe that we must embrace the responsibility to protect, and, when
necessary, we must act on it. This responsibility lies, first
and foremost, with
each individual State, whose primary raison d’être and duty is to
protect its population. But if national
authorities are unable or unwilling to
protect their citizens, then the responsibility shifts to the international
community to use
diplomatic, humanitarian and other methods to help protect the
human rights and well-being of civilian populations. When such methods
insufficient, the Security Council may out of necessity decide to take action
under the Charter of the United Nations, including
enforcement action, if so
Yet the Secretary-General made it categorically clear that the Responsibility to Protect doctrine was valid only with a UN Security Council authorisation: 
The task is not to find alternatives to the Security Council as a source of
authority but to make it work better. When considering
whether to authorize or
endorse the use of military force, the Council should come to a common view on
how to weigh the seriousness
of the threat; the proper purpose of the proposed
military action; whether means short of the use of force might plausibly succeed
in stopping the threat; whether the military option is proportional to the
threat at hand; and whether there is a reasonable chance
of success. By
undertaking to make the case for military action in this way, the Council would
add transparency to its deliberations
and make its decisions more likely to be
respected, by both Governments and world public opinion. I therefore recommend
Security Council adopt a resolution setting out these principles and
expressing its intention to be guided by them when deciding
whether to authorize
or mandate the use of force.
Upon receiving the Secretary-General’s report, the General Assembly debated the issue at length, before deciding upon a cautious approach:
Each individual State has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against
responsibility entails the prevention of such crimes, including their
incitement, through appropriate and necessary
means. We accept that
responsibility and will act in accordance with it. The international community
should, as appropriate, encourage
and help States to exercise this
responsibility and support the United Nations in establishing an early warning
The international community, through the United Nations, also
has the responsibility to use appropriate diplomatic, humanitarian
peaceful means, in accordance with Chapters VI and VIII of the Charter, to help
protect populations from genocide, war
crimes, ethnic cleansing and crimes
against humanity. In this context, we are prepared to take collective action, in
a timely and
decisive manner, through the Security Council, in accordance with
the Charter, including Chapter VII, on a case-by-case basis and
with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities
manifestly fail to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against humanity. We
need for the General Assembly to continue consideration of the
responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity and its implications, bearing in mind the
principles of the Charter and international law.
We also intend to commit
ourselves, as necessary and appropriate, to helping States build capacity to
protect their populations from
genocide, war crimes, ethnic cleansing and crimes
against humanity and to assisting those which are under stress before crises and
conflicts break out.
It is thus abundantly clear that the doctrine of ‘Responsibility to Protect’, as it is set out in the principal UN documentation, remains compatible with the principle of non-aggression as it is set out in the UN Charter and the recommendations of the ICC’s special working group on the crime of aggression. It cannot therefore be credibly claimed that the criminalisation of aggression in the domestic law of New Zealand would be incompatible with the doctrine of ‘Responsibility to Protect’.
Independent of the doctrinal niceties of the ‘Responsibility to Protect’ doctrine, the fact remains that the crime of aggression is scheduled to be considered at the Review Conference of the Assembly of States Parties in Kampala in mid-2010. Whatever the final decisions taken there, the NZ Government will be obliged to adopt a clear position on incorporating aggression as a justiciable crime in international law and, through implementation, in domestic law.
The Government appears reluctant to adopt a policy of categorical support for the criminalisation of aggression, as an exchange on the subject in the House during Question Time in November shows. This sits oddly with its readiness, six decades ago, to send a judge to the Tokyo International Military Tribunal, which decided upon the guilt Japanese leaders for aggression and pronounced their execution. And it sits equally oddly with the statement of the Prime Minister, in September 2009, that:
It is a fundamental tenet of our domestic legal systems that wrong doers must
be brought to justice. The ICC is the mechanism for
applying that same principle
to persons accused of the most serious international
If and when, however, the 110 states parties agree to make aggression a justiciable crime, it is almost inevitable that New Zealand will act accordingly.
INTERNATIONAL NON-AGGRESSION AND THE LAWFUL USE OF FORCE BILL
The Parliament of New Zealand enacts as follows:
This Act is the International Non-Aggression and the Lawful Use of Force Act 2009.
This Act comes into force on the day after the date on which it receives the Royal assent.
In this Act, unless the context otherwise requires,
act of aggression has the meaning given to it by section 6
manifest violation of the Charter of the United Nations means any action which, prima facie, contravenes the provisions of the Charter of the United Nations in a significant manner
New Zealand leader means a New Zealand citizen or a permanent resident of New Zealand, who is in a position in New Zealand or elsewhere, effectively to exercise control over, or to direct, political or military action by the State of New Zealand
political independence means the sovereign equality of any state
purposes of the United Nations means the purposes of the United Nations Organization as specified in Article 1 of the Charter of the United Nations
sovereignty means the legitimate and exclusive jurisdiction exercised by a government of a state on behalf of the citizens of that state
territorial integrity means the inviolability of a state’s existing territorial boundaries.
The purpose of this Act is to implement New Zealand’s obligation under the Charter of the United Nations to refrain from the use of armed force in any manner inconsistent with the purposes of the United Nations, by making an act of aggression a crime in New Zealand law.
5 Aggression by any New Zealand leader a criminal offence
(1) It is unlawful for a New Zealand leader to plan, prepare, initiate or execute an act of aggression which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations, in the event that such an act of aggression is committed.
(2) Every person who breaches subsection (1) commits the crime of aggression, and is liable on conviction on indictment to a maximum sentence of ten years imprisonment.
6 Definition of act of aggression
(1) An act of aggression means the use of armed force by the State of New Zealand against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the purposes of the Charter of the United Nations.
(2) For the purpose of subsection (1), any of the following acts, regardless of any declaration of war, shall, in accordance with General Assembly Resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
(a) the invasion or attack by the armed forces of New Zealand on the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof:
(b) bombardment by the armed forces of New Zealand against the territory of another State or the use of any weapons by New Zealand against the territory of another State:
(c) the blockade of the ports or coasts of a State by the armed forces of New Zealand:
(d) an attack by the armed forces of New Zealand on the land, sea or air forces, or marine and air fleets of another State:
(e) the use of armed forces of New Zealand which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement:
(f) the action of New Zealand in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State:
(g) the sending by, or on behalf of, New Zealand of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
7 Lawful use of armed force
(1) Nothing in this Act shall prevent the lawful use of armed force by the State of New Zealand under Chapter VII of the Charter of the United Nations, namely the exercise of the inherent right of individual or collective self-defence of any Member of the United Nations or the use of armed force authorised by the United Nations Security Council.
(2) No person who directs political or military action by New Zealand in accordance with Chapter VII of the Charter of the United Nations is liable for the crime of aggression.
8 Implementation in New Zealand of non-aggression obligation
(1) Proceedings for an offence against section 5 may be brought if the act constituting the offence charged is alleged to have occurred on or after the commencement of this section, regardless of:
(a) whether or not any act forming part of the offence occurred in New Zealand; or
(b) whether or not the person accused was in New Zealand at the time that the act constituting the offence occurred or at the time the decision was made to charge the person with an offence.
(2) Proceedings for an offence against section 5 may only be brought in a New Zealand court by the Special Prosecutor appointed under section 10.
9 Legal advice to New Zealand leader
(1) A New Zealand leader must, before deciding to commit the armed forces of New Zealand to action involving the use of force, obtain written advice from the Attorney-General to determine whether such action is consistent with the obligations of New Zealand under the Charter of the United Nations.
(2) The written advice obtained under subsection (1) must, except in exceptional circumstances involving the immediate use of armed force in the exercise of the inherent right of individual or collective self-defence under the Charter of the United Nations, be laid before the House of Representatives for its consideration at least seven days before any decision referred to in subsection (1) is made.
10 Special Prosecutor
(1) There shall be a Special Prosecutor appointed by the Governor-General on the advice of the Attorney-General.
(2) The Special Prosecutor holds office for five years from the date of appointment at the pleasure of the Governor-General and shall not be re-appointed.
(3) Any person who is a New Zealand citizen or who is a resident of New Zealand may bring to the attention of the Special Prosecutor any information regarding an alleged crime of aggression or any other action regarding the possible contravention of this Act by a New Zealand leader.
(4) The Special Prosecutor may commence an investigation, on the basis of information received, or on his or her initiative, to assess evidence of an act of aggression by a New Zealand leader, and to consider whether to proceed with any trial pursuant to that evidence.
(5) The Special Prosecutor shall have the powers and duties of a prosecutor under Part 5 of the Rome Statute of the International Criminal Court (as incorporated in the Schedule to the International Crimes and International Criminal Court Act 2000) that are necessary for the purposes of subsection (4).
(6) In the event that the Rome Statute of the International Criminal Court, through amendment or additional protocol, includes aggression as a justiciable offence under the jurisdiction of the International Criminal Court, the Special Prosecutor will first consider undertaking prosecution of any person under this section before deciding whether to refer the situation to the International Criminal Court, pursuant to the relevant provisions of the International Crimes and International Criminal Court Act 2000.
(7) If a Special Prosecutor commences an investigation under subsection (4), the Special Prosecutor shall be paid, without further appropriation than this section, –
(a) remuneration at a rate and of a kind determined by the Remuneration Authority in accordance with the Remuneration Authority Act 1977; and
(b) the costs of that investigation.
(8) The Special Prosecutor may be removed or suspended from office by the Governor-General, upon an address by the House of Representatives, for disability affecting performance, or for misconduct.
Nothing in this Act shall be interpreted as limiting in any way the existing immunities enjoyed by any member of the New Zealand Defence Force regarding the execution of their military duties.
12 Consequential amendment to Remuneration Act 1977
Schedule 4 of the Remuneration Act 1977 is amended by inserting in the appropriate alphabetical order:
“Special Prosecutor for the Crime of Aggression”
[∗] Senior Adjunct Fellow,
University of Canterbury, Member of Parliament, New Zealand (Green Party). Parts
of this paper have been published
in ‘Crimes of Aggression: A Question of
National Integrity’ (2009) 34(6) New Zealand International Review
 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945).
 Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002).
 Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal, GA Res 95(1), 1st Sess, 55th plen meeting, (1946).
 Rome Statute of the International Criminal Court, above n 2, Preamble  and .
 New Zealand, Parliamentary Debates (Hansard), 19 August 2009, 656, 5740 <http://www.
parliament.nz/en-NZ/PB/Debates/Debates/6/b/b/49HansD_20090819_00001543-International-Non-Aggression-and-Lawful.htm> at 16 November 2009; New Zealand, Parliamentary Debates (Hansard), 23 September 2009, 657, 6818 <http://www.parliament.nz/en-NZ/PB/Debates/Debates/2/1/b/49HansD_20090923_00001127-International-Non-Aggression-and-Lawful.htm> at 16 November 2009.
 For a short introductory discussion, see Jorri Duursma, ‘Editorial: Justifying NATO’s Use of Force in Kosovo?’ (1999) 12 Leiden Journal of International Law 287-295.
 See, for example, Case Concerning Legality of Use of Force (Yugoslavia v The United States of America) 2 June 1999, ICJ, General List no.114, at International Court of Justice, <http://www.icj-cij.org/docket/files/114/8036.pdf> at 16 November 2009.
 International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the Independent Commission on Intervention and State Sovereignty (2001) <http://www.iciss.ca/report2-en.asp> at 15 November 2009.
 A More Secure World: Our Shared Responsibility: Report of the Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, UN Doc A/59/565 (2004), , and recommendations 55-57.
 In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General of the United Nations for decision by Heads of State and Government in September 2005, UN Doc A/59/205 (2005), .
 Ibid .
 2005 World Summit Outcome Document, 15 September 2005, UN Doc A/60/L.1, , .
 New Zealand, Parliamentary Debates (Hansard), 17 November 2009, Questions for Oral Answer 12 <http://www.parliament.nz/en-NZ/PB/Business/QOA/d/8/c/49HansQ_20091117_
00000012-12-International-Non-aggression-Measures.htm > at 12 November 2009.
 Hon. John Key, ‘Statement to the Opening of the 64th General Assembly’, (Speech delivered at the UN General Assembly, New York, 26 September 2009) <http:www.beehive.govt.nz/
speech/statement+opening+64th+general+assembly> at 15 November 2009.