New Zealand Yearbook of International Law
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Treasa Dunworth[∗]
On 27 November 2006, the District Court in Auckland issued an arrest warrant for Lieutenant General Mosche Ya’alon, former Chief of Staff of the Israeli Defence Force, who had recently arrived in New Zealand. The warrant related to allegations that, in Gaza, Palestine on 22 July 2002, he had committed an offence against s11(1) International Crimes and International Criminal Court Act 2000 and s3(1) Geneva Conventions Act 1958.[1] Both of those New Zealand statutes asserted jurisdiction over war crimes even when committed outside of New Zealand. The episode was part of a global attempt to hold Ya’alon, as well as many other Israeli military commanders and political leaders, to account for their actions in the Palestinian Occupied Territories. The day after the Court issued the warrants but before they had been executed by the Police, the Attorney-General filed a warrant with the Court staying further proceedings on the Information filed. In light of that, the following day, the District Court stayed the proceedings and cancelled the arrest warrants.[2] Mosche Ya’alon continued his trip unimpeded.
In New Zealand, the attempt was the first time that either statute had been invoked,[3] and this article explores two central questions arising from it. The first is at what point in a private prosecution should consent be sought when the consent of the Attorney-General is required by statute? The second question is what factors ought to be considered in exercising a discretion to stay proceedings? In exploring those issues, a disjuncture becomes apparent between the way in which New Zealand represents itself as committed to upholding international criminal justice and the actual result and reaction in this case. This leads us to a more fundamental question: how might we provide greater certainty and transparency to decisions in domestic legal systems whether or not to prosecute alleged war criminals?
On 22 July 2002, an Israeli F16 fighter plane dropped a one ton bomb on the Al Daraj neighbourhood of Gaza City, directly hitting its target - the home of Salah Shehadeh, the leader of Hamas’ military wing, Iz Adin al-Kassam. The attack not only killed him, but also his wife and one of his daughters. Seven members of the family of Ra’ed Mohamad Ibrahim Mattar, who lived next door, were also killed. In total, 15 people died and 150 were injured, many houses were completely destroyed and damage to residential property was extensive. Speaking at a special debate in the Security Council two days later, Israel did not dispute these facts:
In the pre-dawn hours yesterday morning, Israeli forces undertook military action as part of our ongoing effort to protect civilians from the unrelenting threat of Palestinian terrorism. The target of the attack was Salah Shehada (sic), one of the most prolific and brutal terrorists in the history of the Middle East. Along with him a second leading Hamas operative was killed.
To our great regret, 14 Palestinian civilians were also killed in the attack. [4]
Rather, Israel sought to justify the attack – part of its state policy of ‘targeted assassinations’ - on self-defence grounds.[5] Addressing the loss of civilian lives and infrastructure, Israel informed the Security Council that it had not anticipated the extent of the collateral damage that would result from the strike.
Condemnation of Israel’s actions was widespread. During the debate in the Security Council, not a single state spoke in support of the Israeli action and most deplored the attack vigorously.[6] Even the United States, Israel’s traditional ally, was not prepared to condone the attack. US Ambassador Negroponte said during the Council debate:
President Bush made clear that the heavy-handed action Israel took on 23 July did not serve the cause of peace. He further expressed his concern about the strike’s toll on civilian lives. We have made his concerns known directly to the Israeli Government. [7]
At the time of the attack Mosche Ya’alon was the Commander in Chief of the Israeli Defence Force. In an interview with Christian Action for Israel in August 2002, in response to a question about the Shehadeh assassination Ya’alon, having confirmed that he participated in the decision to carry out the attack, he went on to say:
In quite a few cases, we avoided attacking [Shehadeh] because his wife was with him, or his daughters. Shehadeh had six daughters. More recently, we made things easier for ourselves and said that even if his wife is with him, we will attack him. [8]
Thus, there is a public admission by Ya’alon that he knew, in participating in the decision to launch the attack, that Shehadeh’s wife, a civilian, would almost certainly die. As regards the deaths of the other civilians, Ya’alon said:
So I sent the air force to do its homework and they came back to me with the answer that a one-ton bomb was more certain. The assessment was that the result would be the destruction of Shehadeh’s house and damage to the empty neighboring building, and shattered windows in the area and tin siding that would be sent flying from the tin shacks. People wounded, not killed. In retrospect, though, it turned out that the neighboring house was not empty. The execution of the air force was perfect, but the intelligence gap in regard to the neighboring house caused a hitch. Six children were killed in that house. [9]
Following the attack, various attempts were made in Israel and elsewhere to hold the State of Israel as well as political and military leaders individually accountable. For example, in addition to its challenges to the general policy of targeted assassinations, the Yesh Gvul movement in Israel filed a petition in the Israeli High Court to require the Attorney-General and the Military Advocate General to mount a criminal investigation into the bombing.[10] In the United Kingdom, in 2005, the Palestinian Centre for Human Rights attempted to obtain an arrest warrant in respect of Doron Almog, who was responsible for the Southern Command of the Israel Defence Forces from 2000-2003, and thus involved in the decision to carry out the Al Daraj attack.[11] This followed earlier attempts, also in the United Kingdom, to indict Shaul Mofaz, the Israeli Defence Minister, for war crimes against civilians in the West Bank.[12] In late November 2006, with no-one yet held to account for the loss of civilian life in Al Daraj, the now retired Moshe Ya’alon arrived in New Zealand on a private visit.[13] The attempt to start a criminal prosecution shifted to Auckland.
In New Zealand, there were two statutory options to pursue in considering an indictment against Mosche Ya’alon – the Geneva Conventions Act 1958 and the International Crimes and International Court Act 2000. Section 3(1) Geneva Conventions Act 1958 provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the Conventions[14] or of the First Protocol[15] is guilty of an indictable offence.
In the Fourth Geneva Convention, dealing with protections of civilians in time of war (including occupation), Article 147 defines grave breaches as
those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhumane treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.[16]
Thus, by virtue of the 1958 Act, and on the basis of his involvement in the assassination of Shehadeb, Ya’alon was subject to the jurisdiction of the New Zealand courts for a breach of s3(1), namely wilful killing, wilfully causing great suffering or serious injury to body or health and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.
Section 11(1) International Crimes and International Criminal Court Act 2000 (ICC Act) provides:
Every person is liable on conviction on indictment to the penalty specified in subsection (3) who, in New Zealand or elsewhere, commits a war crime.
Section 11(2) goes on to define a war crime:
For the purposes of this section, a war crime is an act specified in—
(a) article 8(2)(a) of the Statute[17] (which relates to grave breaches of the First, Second, Third, and Fourth Geneva Conventions); or
(b) article 8(2)(b) of the Statute (which relates to other serious violations of the laws and customs applicable in international armed conflict); or
(c) article 8(2)(c) of the Statute (which relates to armed conflict not of an international character involving serious violations of article 3 common to the 4 Geneva Conventions of 12 August 1949); or
(d) article 8(2)(e) of the Statute (which relates to other serious violations of the laws and customs applicable in armed conflict not of an international character).
Thus, Ya’alon could also be subject to the jurisdiction of the New Zealand courts by virtue of s11(1) ICC Act. Acknowledging the overlap between the two statutes, s11(4) ICC Act provides that nothing in that section affects or limits the operation of s3 of the Geneva Conventions Act 1958.
Importantly, both Acts assert extra-territorial jurisdiction over war crimes.[18] Not only do s3(1) Geneva Conventions Act and s11(1) of the ICC Act assert jurisdiction over ‘every person’ who ‘in New Zealand or elsewhere’ commits a war crime, the extra-territoriality is confirmed as applying even to non-New Zealanders. Section 3(3) Geneva Conventions Act states:
This section applies to persons regardless of their nationality or citizenship.
Section 8(1)(c) ICC Act is even more explicit, providing that proceedings may be brought under the Act regardless of
(i) the nationality or citizenship of the person accused; or
(ii) whether or not any act forming part of the offence occurred in New Zealand; or
(iii) whether or not the accused was in New Zealand at the time that the act constituting the offence occurred or at the time a decision was made to charge the person with an offence.
Both Acts, however, have a brake on this otherwise sweeping assertion of extra-territorial jurisdiction, requiring the consent of the Attorney-General to proceed with a prosecution, although as will be discussed below, the terms of each Act are materially different in respect of the consent requirements.
In the light of the extra-territorial jurisdictional reach of the New Zealand legislation, acting on behalf of the Mattars – the family who had lived next door to Salah Shehadeh – Janfrie Wakim filed Informations with the District Court in Auckland. Although criminal prosecutions are generally taken by the state in New Zealand, in this instance, the Informant was exercising her right under s 345(2) Crimes Act 1961 to bring a private prosecution.
Wakim alleged that Ya’alon was guilty of war crimes by virtue of his participation in the decision to carry out the assassination of Salah Shehadeh and sought his arrest for those crimes.[19] Specifically, the crimes alleged were a breach of s 3(1) Geneva Conventions Act 1958. Wakim also invoked Section 11 ICC Act, alleging breaches of Article 8(2) of the Rome Statute being grave breaches of the Geneva Conventions including wilfully causing great suffering, or serious injury to the body or health (Article 8(2)(a)(iii)); extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (Article 8(2)(a)(iv)); intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (Article 8(2)(b)(i) and Article 8(2)(e)(i)); and finally, intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Article 8(2)(b)(iv)).
The Informations were filed on Friday, 24 November and the application was heard on Monday, 27 November.[20] Judge Deobhakta, in the Auckland District Court, was satisfied that the material presented to the Court disclosed ‘good and sufficient reasons’ to believe that Ya’alon was together with others responsible for the bombing at Al Daraj that resulted in the deaths of several persons and destruction of civilian property and that the Informant had made out a prima facie case for the issue of the arrest warrants.[21] Interim Suppression Orders were also made by the Court to preserve the secrecy of the application.[22] With the issue of the arrest warrants by the District Court, Counsel for the Informant forwarded them to the New Zealand Police for execution.[23] On the same day, the materials were prepared for the purpose of obtaining the consent of the Attorney General as required under both Acts. They were sent by overnight courier to Wellington.[24]
On Tuesday, 28 November, concerned that the warrants had not been executed, the Informant returned to the District Court to move for orders regarding their execution.[25] Meanwhile, the Attorney-General had received the Informant’s request for consent to prosecution under both Acts.[26] That same afternoon, the Attorney-General filed a warrant with the Court staying further proceedings on the Informations filed. The Court cancelled the arrest warrants and stayed the Informations.[27]
On 1 December, the Attorney-General issued a short public statement setting out his grounds for granting the stay of proceedings.[28] The press release said:
Attorney-General Michael Cullen today said his decision in the Moshe Ya'alon case was made on the basis that there was insufficient evidence to support any possible prosecution.
‘On advice from Crown Law I was assured the material supplied to support the warrant did not meet the evidentiary standards required for a court in New Zealand to be able to convict this man of the crimes that were alleged against him.
‘The materials supplied to support the allegations could not be relied upon to show a prima facie case against the defendant.
‘After careful analysis Crown Law was satisfied that the proceedings were invalid and the District Court Judge was unwittingly acting without jurisdiction.
‘I should point out, to the best of my knowledge, no arrest warrants have been issued in any other country and that the International Criminal Court, where war crime cases are heard, is not pursuing this matter. We have certainly received no request in this matter from any overseas authority.’
At this point then, the main basis for the decision to stay the proceedings seemed to be that, contrary to the finding of the District Court, there was insufficient evidence to show a prima facie case against Ya’alon, although there is some indication that the process followed by the Informant might not, in the view of the Attorney-General, have complied with statutory requirements with his suggestion that the Informations were ‘invalid’.
On 13 February 2007, the Attorney-General further elaborated his reasons for the stay.[29] He said:
(1) It is the law in New Zealand that before any criminal proceedings can be commenced charging a person with war crimes the person bringing the charges must obtain the consent of the Attorney-General. This provision is compatible with New Zealand’s relevant international obligations.
(2) The informations were laid without the necessary consent on 24 November 2006. Arrest warrants were sought from and issued by a District Court Judge on Monday 27 November. The Solicitor-General (who is not a political appointee and whose constitutional role includes advising the Attorney-General on matters of legal principle) was not shown the information on which the warrants had been sought and issued until the afternoon of 28 November. By that time the warrants had been in existence for over 24 hours.
(3) The Solicitor-General reviewed the material that had been filed in the District Court. It was his opinion that the material contained no admissible evidence to support a prosecution on the charges laid.
(4) It was his further opinion that the informant had deliberately sought to lay informations and have the accused arrested before the Attorney-General had an opportunity to consider whether to consent to the criminal proceedings. This was not the candid and principled approach that the Solicitor-General and Attorney-General would expect in setting the criminal law in motion, especially in a case involving serious matters in the context of New Zealand’s international obligations.
(5) It was for these two reasons that it was his opinion that the prosecution should not continue, a view with which I fully agreed, and upon which I acted.
Thus, in addition to the question of insufficient admissible evidence to show a prima facie case, the Attorney-General was of the view that the informant ought to have provided him with full information prior to the Information being laid in the District Court, rather than waiting until the arrest warrants had been issued by the Court. Given that this is a key factor in the decision to stay the proceedings, and there is a suggestion that the Informant acted in an underhand manner, the point warrants close consideration.
An examination of the two statutes relied on in the Informations show that the consent requirements are materially different. Section 3(5) Geneva Conventions Act 1958 provides that:
No one shall be prosecuted for an offence against this section without the leave of the Attorney-General.
Thus, the question of when consent must be sought turns on what is meant by the term ‘shall be prosecuted’. In R v Ostler & Christie, the Court held that the swearing of an Information is the commencement of a proceeding or a prosecution.[30] Thus, there are strong grounds to support the Attorney-General’s view that the 1958 Act requires his consent to be sought prior to an Information being laid. On this basis, it would seem correct to have stayed the proceedings, or at least to have challenged the procedure before the Court.[31]
The consent provision of the ICC Act is materially different to that of the 1958 war crimes legislation. Section 13 provides:
(1) Proceedings for an offence against section 9 [genocide] or section 10 [crimes against humanity] or section 11 [war crimes] may not be instituted in any New Zealand court without the consent of the Attorney-General.
(2) Despite subsection (1), a person charged with an offence against section 9 or section 10 or section 11 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.
Unlike the 1958 provision, s13 cannot be read as meaning that consent must be sought prior to filing an Information. It is clear from the plain language of the section that subsection (1) is qualified by subsection (2) which explicitly allows for an arrest warrant to be issued and executed ‘even though the consent of the Attorney-General … has not been obtained’.
If Parliament had intended the consent requirement to take effect at the same point as the 1958 Act (that is, on the Attorney-General’s understanding, prior to the Information being filed), then the simplest approach would have been to replicate the language of that earlier Act. Because the wording of the ICC Act is materially different, the inference must be that the drafters intended a different outcome. There is no question that the 1958 Act was actually considered during the drafting process because it had been necessary to examine the relationship between the existing war crimes legislation and that under the Rome Statute implementing legislation.[32] In the course of that consideration, the consent provisions of the earlier legislation will have been clear and could have been replicated.
It was also open to the drafters to choose from a range of other examples of consent provisions. An examination of other Attorney-General consent provisions reveals that there is a range of expressions used to require consent,[33] some of which go so far as to explicitly prohibit the laying of an Information without consent of the Attorney-General. For example, s 25 of the Flags, Emblems, and Names Protection Act 1981 provides:
No information for an offence against any of sections 11 to 15 of this Act shall be laid without the consent of the Attorney-General. [34]
In the United Kingdom, a statutory provision similar to s13 fell to be considered by the Bow Street District Court when an application for an arrest warrant against General Shaul Mofaz, the Israeli Defence Minister was filed.[35] As with Ya’alon in New Zealand, it was alleged that he had committed grave breaches of the Geneva Conventions, in this case on the basis of Mofaz’s involvement in Israel’s targeted killings policy. Although District Judge Platt refused to issue the warrant on immunity grounds, he first considered the issue of jurisdiction and Attorney-General’s consent. While the relevant provisions of the Geneva Conventions Act (UK), like the New Zealand Act, had a consent provision,[36] that had to be read subject to s 25(2)(a) Prosecution of Offences Act 1985, which provides that any such consent provision
shall not prevent the arrest without warrant, or the issue of execution of a warrant for the arrest, of person for any offence, or the remand in custody or on bail of a person charged with any offence.
Noting that the proceedings would require the consent of the Attorney-General, District Judge Pratt said:
I am quite satisfied that I do not require the Attorney General’s consent before the issue of any warrant although his consent would be needed if the proceedings were to progress further. [37]
The object and purpose of the ICC Act supports the natural and ordinary meaning of s13 – that consent is not required for the laying of an Information. The purpose of the Act, to allow New Zealand’s ratification of the Rome Statute, the aim of which is to put an end to impunity for the perpetrators of serious international crimes, needs to be considered. The very existence of the International Criminal Court, which New Zealand has consistently supported, is a manifestation of the international community’s determination to bring to account those alleged to be responsible for genocide, crimes against humanity and war crimes. There is a real danger of flight risk for any person about to face such allegations and thus, the ‘arrest first, seek consent later’ approach makes sense.
Finally, another New Zealand example supports this interpretation. In October 2007, the Police obtained and executed arrest warrants under the Terrorism Suppression Act 2002 prior to seeking consent to prosecution as required under s 67 of that Act. The terms of s 67 are substantially similar to that of the ICC Act. In that case, although consent was not given, there was no suggestion that the Police ought to have sought consent prior to the arrest warrants.[38] In fact, the Solicitor-General stated that the Police had
acted very properly in referring the evidence to my office so that I could make an assessment as to whether or not charges should be brought under the … Act.[39]
It is difficult to reconcile why the process of arrest and then seek consent was considered entirely appropriate in the case of the Terrorism Suppression Act but thought to be underhand in the context of comparable legislative wording.[40]
To conclude on the question of when consent ought to be obtained, there is a strong (but not conclusive) case to argue that under the 1958 Act it should have been obtained prior to the laying of the Information. As for the ICC Act, the situation is different. The legislation is clear on its face that an Information may be laid and an arrest warrant issued prior to consent being sought. This is evident not only from the clear language of the statute, but also from its object and purpose. Thus, far from not being a ‘candid and principled approach’, the laying of the Information was an exercise of the long-standing right of private prosecution, entirely within the terms of the Act.
The second question arising from the Ya’alon stay is what constraints, if any, exist on the exercise of the Attorney-General’s discretion to stay proceedings in the context of a war crimes prosecution? In this case, there are three separate legislative provisions to consider. First, the Law Officer has a general power to stay proceedings and it seems that in the present case, it was this more general power that was relied on by the Attorney-General.[41] Section 173 Summary Proceedings Act 1957 provides that:
The Attorney-General may, at any time after an information has been laid against any person under this Part of the Act and before that person has been committed for trial or for sentence, direct that an entry be made in the Criminal Records that the proceedings are stayed by his direction, and on that entry being made the proceedings shall be stayed accordingly. [42]
In addition to this general statutory power to stay proceedings, as discussed above, both the ICC Act and the Geneva Conventions Act require the consent of the Attorney-General to proceed with a prosecution. Fundamental and difficult questions arise when considering whether, and if so how, the Attorney-General might be constrained in exercising a discretion either to stay proceedings under the Summary Proceedings Act or to refuse consent to proceedings pursuant to either s13 ICC Act or s3(5) Geneva Conventions Act. While the consequences of staying, rather than simply refusing consent to proceed may be different, it is suggested that there is no reason to treat the question of constraints any differently.
The first question is whether there is any fetter on the discretion at all? There is some early writing suggesting that the discretion is entirely unfettered,[43] but the better, and more widely advocated view, is that the discretion is constrained. Discussing the question at some length, Professor Edwards, in one of the leading texts on the role and function of the Attorney-General, concludes that the discretion cannot be unfettered.[44] Professor Dickens, writing in 1972, agrees with this view as a matter of principle.[45] He argues that because at common law, the right to proceed with a prosecution was employed by all, when an Act restricts that right by providing a statutory discretion to grant or refuse consent, it cannot be unfettered.[46] He relies, in part, on Lord Reid’s acknowledgement, in Anisminic Ltd. v Foreign Compensation Commission, that there ‘is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly.’[47]
In a 1998 study, the Law Commission of England and Wales considered the question of consents to prosecution extensively.[48] It is clear from its report that, while the need for consent provisions was accepted, they ought to be considered in the light of the fundamental right of the individual to set the criminal law in motion.[49]
Courts in a number of other (comparable) jurisdictions have also confirmed that the discretion is not unfettered, and that judicial review is available in some cases.[50] In Teo v Attorney-General, the Samoan Court of Appeal held that the decision of the Attorney-General to discontinue a private prosecution was reviewable, but only on the grounds of ‘flagrant impropriety in the exercise of discretion.’[51] The Court also discussed the question of the public interest in the decision making.[52] Similarly, in Director of Public Prosecutions v Matalulu, the Fijian Court of Appeal, considering the question whether the decision of the DPP to enter a nolle proseque was amenable to judicial review, and having canvassed a number of cases from a variety of jurisdictions, concluded that
there is now little or no support for the proposition that such decisions are completely beyond the reach of judicial review albeit the occasions on which it may successfully be invoked are likely to be rare because of the width of the power and the mix of factors that may legitimately be taken into account in its exercise.[53]
In New Zealand, there seems to be consensus that the Law Officers’ discretion is not unfettered.[54] The only directly relevant case appears to be Amery v Solicitor-General,[55] which involved an application for judicial review of the Solicitor-General’s decision to stay a private criminal prosecution against the French agents Alain Mafart and Dominique Prieur, who had already been sentenced for their part in the sinking of the Rainbow Warrior.[56] Because the Court dismissed the case on abuse of process grounds, it did not decide the question whether the decision of the Solicitor-General was reviewable. However, it did note that ‘there is a good deal that can be said in favour of the conclusion that … [the exercise of the discretion] is reviewable.’[57]
There is no judicial authority directly on point, so it is appropriate to look at analogous cases dealing with prosecutorial discretion. In Polynesian Spa Ltd v Osborne, Randerson J in the High Court observed that
the Courts show considerable restraint in interfering with the exercise of prosecutorial discretion. Hallett[58] is authority for the proposition that judicial review is only likely to be obtained in such a case where there has been a failure to exercise discretion, such as by the adoption of a general policy that in certain classes of cases, prosecutions will not be brought. There may be other grounds but it is likely only to be in exceptional cases that a Court would intervene where a decision has been taken not to prosecute in a specific case not affected by factors such as the adoption of a general policy.[59]
While this suggests judicial restraint, it is also confirmation that the discretion to stay proceedings is not entirely unfettered. The Crown itself accepts that there are limits to the discretion to stay because in its Prosecution Guidelines, the Crown Law Office set out the factors which would be considered in exercising the discretion.[60]
Once it is accepted that the discretion is not entirely unfettered, the question then becomes what might constrain the exercise of the discretion. The foregoing discussion already reveals a first possible constraint: that the Attorney-General may not act with ‘flagrant impropriety’, although apart from noting that this sets the threshold very high, it is difficult to ascertain precisely what it means.[61] Nonetheless, it seems clear that it would be difficult, if not impossible to sustain an argument in the present case that the Attorney-General has acted in such a manner.
The obligation of the Attorney-General to act in the public interest constitutes a second constraint. Professor Edwards expresses the view that ‘regard to the public interest is a pervading principle that provides the necessary flexibility in the Law Officers’ exercise of their statutory powers.’[62]
In New Zealand, as Professor Joseph explains, it is accepted that by convention, the Attorney-General discharges his obligations in the public interest.[63] But what, exactly, does acting ‘in the public interest’ entail? In 1998, John McGrath QC, then Solicitor-General, elaborated what might be meant by it as follows:
[T]he Attorney-General has a separate responsibility to represent the public interest on behalf of the general community by enforcing the law as an end in itself. In that capacity, the Attorney-General must act independently of the political interests or preferences of the government of the day and is a guardian of the public interest.[64]
While that is helpful in determining a boundary between the public interest and political interests, it remains difficult to translate into a concrete application. The point is well illustrated by the decision of the Attorney-General to stay proceedings in the celebrated Superannuation Act cases in 1976.[65] The Attorney-General stayed six private prosecutions taken against an employer for failing to make deductions and therefore contributions to the national superannuation scheme. The Prime Minister had suspended the operation of the scheme, on the basis that it would soon be abolished by legislation which would have retrospective effect. As Professor Brookfield points out, the case raised conflicting principles of ‘public interest’:
On the one hand there was the law to be upheld …and on the other practicalities of modern party government according to which it was reasonable to anticipate in some degree the legislation that would in all probability – virtual certainty – be passed. [66]
Similarly, in the case of Ya’alon, the ‘public interest’ is not uncontested. On the one hand, there is a public interest in ensuring that the law is observed. Parliament chose to assert extra-territorial jurisdiction, and the New Zealand courts therefore have the power to consider the allegations and it will be for the judicial system to determine whether or not there is a prima facie case to answer. On the other hand, it can be questioned whether it is in the public interest, or the interests of justice, to indict a retired Israeli General in New Zealand for decisions and actions taken half a world away, not involving any New Zealanders. From the Mattar family’s point of view, it would seem that while the situation is far from ideal (there have been continuous attempts to have the Al Daraj bombing litigated in Israel itself), a prosecution would perhaps have brought some modicum of justice. In assessing the ‘public interest’, it is also relevant that the allegation involves an international crime, that is, one that by definition offends all of humanity in addition to the direct victims of the crime. On that basis, New Zealand is acting as an enforcer or guardian of the international public interest.
A third potential source of constraint on the exercise of the discretion to stay proceedings or to refuse consent to proceed, comes from the Prosecution Guidelines of the Crown Law Office. They provide:
6.2 In New Zealand the power to stay has been sparingly exercised. That conservative approach is likely to continue.
6.3 Generally speaking the power of entering a stay will be exercised in three types of situation:
(a) Where a jury has been unable to agree in two trials …
(b) If the Solicitor-General is satisfied that the prosecution was commenced wrongly, or that circumstances have so altered since it was commenced as to make its continuation oppressive or otherwise unjust, a stay will be directed.
(c) A stay will be directed to clear outstanding or stale charges …
6.4 The possible circumstances which may justify a stay under heads (b) and (c) above are almost infinitely variable. In general terms however the same considerations will apply as are involved in the original decision to prosecution, always with the overriding concern that a prosecution not be continued when its continuance would be oppressive or otherwise not in the interests of justice.[67]
There are two aspects of the Guidelines relevant to the Ya’alon decision. The first is the ‘interests of justice’ in paragraph 6.4 and the second is the wrongfully commenced prosecution referred to in paragraph 6.3(b). Precisely what is meant by the ‘interests of justice’ is not elaborated elsewhere in the Guidelines but it seems likely that the idea here is similar to, if not on all fours with, the more general idea of the ‘public interest’ discussed above. On that basis, it is difficult to definitively conclude whether or not staying the proceedings was in the ‘interests of justice’.
As to the ‘wrongfully commenced prosecution’, clearly a failure to seek consent at the required time could, in principle, constitute a wrongfully commenced prosecution and thus, would satisfy the grounds to stay the proceedings. However, in this case, as elaborated in some detail above, the Informant did not wrongfully commence proceedings under the ICC Act and thus, this does not substantiate a decision to stay proceedings under that Act. As conceded earlier, the situation may be different under the 1958 Act and it is possible that the proceedings under this latter Act might be properly stayed.
A fourth constraint on the Attorney-General’s discretion is the object and purpose of the ICC Act and the Geneva Conventions Act.[68] Even when the discretion being exercised is that in the Summary Proceedings Act, the substantive Acts are relevant to the decision. In Padfield v Minister of Agriculture, Fisheries and Food, Lord Reid, in the context of considering a Minister’s exercise of his statutory discretion whether or not to refer certain complaints to a committee of investigation, stated that ‘Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act.’[69] While that case concerned the exercise of a Minister’s statutory discretion and Ya’alon involves the Law Officer’s discretion, the essential point remains: the object and purpose of the legislation must be a guide in determining the parameters of a statutory discretion.[70]
The purpose of the Geneva Conventions Act 1958 was to ‘enable effect to be given’ to the Four Geneva Conventions 1949, to which New Zealand was about to become a State Party. Each of the four Conventions impose on the ratifying states an obligation to search for those who have allegedly committed grave breaches and prosecute them in their national courts. For example, Article 146 of the Fourth Geneva Convention provides:
The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case…
In the light of this obligation, the purpose of s3, which creates an indictable offence of grave breaches of the Geneva Conventions and of the First Geneva Protocol, is clear: it is to ensure that in New Zealand, those alleged to have committed war crimes – regardless of where – can be prosecuted in New Zealand.
Turning to the International Crimes and Criminal Court Act 2000, its stated object and purpose is to ‘make further provision in New Zealand law for the punishment of certain international crimes, namely, genocide, crimes against humanity, and war crimes’.[71] Unlike the Geneva Conventions, the Rome Statute does not explicitly require its state parties to criminalise in their domestic law any of the crimes falling under the jurisdiction of the International Court. However, criminalisation is required implicitly on account of the principle of complementarity.[72] The International Criminal Court is a court of last resort, that is, it will only prosecute when a state that would otherwise have jurisdiction is ‘unable or unwilling’ to prosecute.[73] Thus, member states need to ensure that they have the legal ability to prosecute an alleged offender. National prosecutions are not a second best alternative to a prosecution by the ICC itself – rather, they are an important part of the international criminal justice project. The Preamble to the Rome Statute recognises this,
Affirming that the most serious crimes of concern to the international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level [and]
Recalling that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.
The South African implementing legislation for the Rome Statute also reflects this synergy between domestic and international enforcement. Section 5 Implementation of the Rome Statute of the International Criminal Court Act 2002 provides that no prosecution may be instituted without the consent of the National Director of Public Prosecutions.[74] Section 5(3) goes on:
The National Director must, when reaching a decision on whether to institute a prosecution in this section, give recognition to the obligation that the Republic, in the first instance and in line with the principle of complementarity as contemplated in Article 1 of the Statute, has jurisdiction and the responsibility to prosecute persons accused of having committed a crime. [75]
While New Zealand has no counterpart in its legislation, it is clear from the tenor of the Act as a whole that the intention is that New Zealand is able to take its part in enforcing international criminal justice.
Thus, it is clear from both the 1958 and 2000 Acts that their object and purpose as a whole is to ensure that alleged war criminals are brought to justice. As to the consent provisions themselves, there is nothing to indicate their specific purpose, or any explicit acknowledgement that the discretion contained therein is constrained by the overall object and purpose of the legislation. Similarly, the general power to stay in the Summary Proceedings Act is not constrained on the face of the statute.[76]
The foregoing discussion has considered the constraints on the power to withhold consent to a prosecution or stay a proceeding. The next issue to consider is whether there should be special considerations in the context of an attempted war crimes prosecution or some other prosecution with distinctly international involvement? More particularly, should international political concerns be considered in decisions relating to war crimes prosecutions? In the aftermath of the Rainbow Warrior affair, the Attorney-General made a decision to stay all outstanding charges on the grounds of international concerns. As John McGrath explains:
Such a decision could only be justified in the context of international obligations and broad national interest considerations, including the future of New Zealand’s trade with Europe. No question of the administration of justice arose. [77]
This approach is confirmed by Paul East, the Attorney-General who made the decision. He explained:
[A]ny decision to stay the charges had to be made in the context of broader national-interest considerations which made it appropriate for the law officer who holds political office to make the decision…. I did not regard pressing ahead with the prosecution as being in New Zealand’s national interest. [78]
The Law Commission of England and Wales, examining the issue of prosecutions involving national security or some international element, clearly considered that such factors were not only appropriate for the Attorney-General to consider, but that offences involving such issues ought to have consent provisions so that the Attorney-General can consider such issues.[79]
These examples would seem to suggest that it is appropriate to consider the ‘national interest’ or international political concerns. However, in the specific context of the ICC, the question is not so clear. In a published paper discussing New Zealand’s national implementation of the Rome Statute, Juliet Hay, who was closely involved in that process, says this:
In deciding whether to give consent, the Attorney-General looks not only at the sufficiency of the evidence, but also at other relevant factors. These include the existence of a New Zealand link, for example, if the victim or the perpetrator is a New Zealander; the location of the alleged offending; New Zealand’s international obligations, including relevant developments in international law; and, in a case over which the ICC or another state also has jurisdiction, which is best placed to mount a successful prosecution. There are no particular formalities prescribed in New Zealand law for the waiver of jurisdiction. [80]
The factors listed focus on international legal considerations, particularly questions of over-lapping jurisdictions, but conspicuously do not address questions of international politics or New Zealand’s ‘national interest’. In the Ya’alon decision itself, the Attorney-General denied taking into account international political considerations, saying:
I am, of course, acutely aware of the polarising effect of the enduring conflict between the state of Israel and Palestinians. But considerations arising from that circumstance did not give rise to matters that did, or could, play any part in my decision. [81]
Thus, it becomes clear that the question as to whether the national interest or international factors ought to be considered in the exercise of the discretion to stay or refuse consent is one on which there seems to be disagreement.
Leaving aside the specifics of the Ya’alon decision for a moment, it is unrealistic to say that the Attorney-General could never take into account the national interest or international political factors. That being said, in the light of the constraints discussed above, they should only be invoked in exceptional circumstances. That the exercise of the discretion should normally focus on more prosaic legal grounds is reflected in the fact that in New Zealand the decision to stay proceedings or to refuse consent is almost always made by the Solicitor-General, who then makes a recommendation to the Attorney-General. In contrast to the office of the Attorney-General,[82] the Solicitor-General’s role is purely a legal one. Thus, in the Rainbow Warrior case, the Attorney-General took the decision saying it was not a question of ‘administration of justice’ but rather a political matter. It is therefore interesting to contrast the denial in Ya’alon that international factors were considered, when it is at least arguable that they are appropriate considerations.
In contrast, the Attorney-General appears to have taken into account the fact that, in his view, there was not a prima facie case made out by the Informant.[83] This aspect of the decision is problematic given that the Judge himself considered that there was sufficient evidence and, of course, should the matter have proceeded further in the courts, the point would be further tested. Using this legal test on which to base his decision, the Attorney-General is essentially acting as a judicial officer, again raising questions as to the nature of the Office.
One final point calls to be made in considering what might constrain the Attorney-General and that relates to the prerogative power. It might be argued that the stay in Ya’alon was an exercise of the prerogative power of nolle prosequi, rather than any statutory power and therefore it is not subject to any control.[84] Although the point can be debated, it does seem to be the case that a prerogative power continues to exist alongside the statutory power.[85] In any event, it cannot be the case that while the exercise of a statutory power would be constrained in some way, the exercise of the prerogative to reach the same decision would be unfettered.[86]
The foregoing discussion takes issue with some aspects of the Attorney-General’s decision to stay proceedings against Ya’alon, in particular the hostility with which the Attorney-General appeared to act towards the Informant. Such a defensive stance is not helpful in attempting to distill a principled approach to how the Attorney-General ought to exercise his discretion (statutory or prerogative) in the situation of war crimes prosecutions. To date, there have only been a handful of stays in New Zealand, some of which have been referred to earlier, and none of which have dealt with international crimes. But the trend towards asserting extra-territorial jurisdiction is marked and thus, unless the right of private prosecutions is to be curtailed, these situations will inevitably recur.
The need to move beyond consideration of the question on an ad hoc basis, and engage in a proper dialogue about general principles is particularly acute in considering the prosecution of international crimes. The advent of globalised international criminal justice, coupled with a discernible favouring of litigation by human rights groups, makes it inevitable that domestic legal systems will face increasing attempts to try those alleged to have committed international crimes. New Zealand, which has always positioned itself as a champion of accountability for war crimes, and has drafted its legislation with an extremely broad jurisdictional scope, clearly envisaged being part of that trend. As the Ya’alon case illustrates, however, difficult issues and conflicting interests may arise in translating the rhetorical claim that there will be no impunity into a practical reality.
It is of course hard, if not impossible, to divorce the instant case from its political context – the tragedy of the Israeli-Palestinian conflict. But there will never be a war crimes prosecution that is not so tragically situated and so politically fraught. It is precisely because of the political sensitivities that there needs to be an open, engaged and thorough consideration of the exercise of the discretion of the Attorney-General at a general level of principle, rather than in the context of a specific case.
The question of when consent must be sought by an Informant is perhaps the easiest to tackle. It is essentially one of statutory construction. Although there is debate as to whether judicial review of the Attorney-General’s decision is available, the mechanism of a declaratory judgment in a particular case might prove useful in resolving this preliminary question.[87] In Wybrow v Chief Electoral Officer, the Court of Appeal was asked, pursuant to the Declaratory Judgments Act 1908, for a declaratory order determining the meaning of certain provisions of the Electoral Act 1956. Similarly, the issue of when, precisely, consent needs to be obtained by a private informant under s3 Geneva Conventions Act or s13 ICC Act is also one of statutory construction and thus some judicial consideration by means of a declaratory order may be beneficial.
Coming to some understanding about what, if any, constraints might be placed on the Attorney-General in exercising his discretion is a more arduous task. However, a possible way forward would be to have the Law Commission conduct an enquiry into the issue, as was done in England.[88] While this might consider the Attorney-General’s discretion to stay or withhold consent generally, it would be useful to consider the question of international crimes, or at least issues with an international element, separately because of the different issues which arise.
Prosecutions of alleged war criminals will always be contentious and this is especially so in a domestic context. A great deal of attention has been paid to the question of the extent to which the Prosecutor at the International Criminal Court should be open to scrutiny for his prosecutorial decisions. That debate reflects the understanding that every prosecution (or non-prosecution) in the International Court will be politically fraught and contentious. By contrast, in the domestic context, the question has been neglected almost entirely. This is surprising given the integral role of domestic prosecutions in the overall international justice project. By opening up the question for genuine debate, New Zealand could make good on its rhetorical claim to being a champion of a true international criminal justice system.
[∗] Senior Lecturer, Faculty of Law, University of Auckland. Special thanks are owed to the Rt Hon EW Thomas, David Chisholm, Claire Nielsen and Janfrie Wakim. Thanks are also owed to Associate Professor Neil Boister, Associate Professor Bill Hodge, Professor Philip Joseph, Khylee Quince, Kris Gledhill and Alison Cleland. All errors and omissions remain my own.
[1] Janfrie Julia Wakim v Lieutenant General Mosche Ya’alon, Decision of His Honour Judge A. Deobhakta on Ex Parte Application for Issue of Warrants to Arrest, CIV-2006-004 (27 November 2006).
[2] Janfrie Julia Wakim v Lieutenant General Mosche Ya’alon, Final Decision of His Honour Judge A. Deobhakta, CIV-2006-004 (29 November 2006).
[3] Mirroring developments in Canada, Australia and elsewhere, the possibility was raised in the early 1990s that certain alleged Nazi war criminals were present in New Zealand, and that criminal prosecutions for war crimes might be taken against them. However, following a Solicitor-General’s report and Police investigations, the Cabinet resolved that no further action should be taken. For an account, see Paul East, ‘The Role of the Attorney-General’ in Joseph (ed), Essays on the Constitution (1995) 184, 208-212. Compare the experience in other jurisdictions: Gillian Triggs, ‘National Prosecutions of War Crimes and the Rule of Law’ in Durham & McCormack (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law (1999) 175-193.
[4] 57 UN SCOR (4588th mtg), UN Doc S/PV.4588 (2002).
[5] For a thoughtful and thorough analysis, see David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16(2) European Journal of International Law 171.
[6] Bahrain, Chile, Cuba, Denmark, Egypt, India, Indonesia, Islamic Republic of Iran, Iraq, Israel, Japan, Jordan, Kuwait, Malaysia, Pakistan, Saudi Arabia, South Africa, the Sudan, Tunisia and Yemen all requested an invitation to participate in the discussion. The Council also invited the Permanent Observer of Palestine to participate in the meeting.
[7] Above n 4.
[8] An Interview with IDF Chief of Staff Lieutenant General Moshe Ya'alon, August 2002, available at <http://christianactionforisrael.org/isreport/aug02/yaalon.html> at 28 March 2008. Compare this admission to the statement of the Israeli Defence Force announcement the day after the attack: ‘The IDF attack last night was directed at Salah Shehade and him alone. The strike was accurate, carried out using designated technology. There was no intention of harming members of his family or other civilians’ available at Israeli Defence Force website, at <http://web.archive.org/web/20030711164142/www.idf.il/english/
announcements/2002/july/23.stm> at 28 March 2008.
[9] Ibid.
[10] Yoav Hess et al v Judge Advocate General et al, HCJ case 8794/03, discussed in Daniel Machover and Kate Maynard, ‘Prosecuting Alleged Israeli War Criminals in England and Wales’ (2006) The Denning Law Journal 95, 109-111.
[11] Although the Bow Street Magistrates’ Court issued a warrant in respect of allegations relating to house demolitions, that warrant was never executed because Almog, who had just arrived in Heathrow, refused to disembark and simply returned to Israel without entering the jurisdiction. See Daniel Machover and Kate Maynard, above n 10, 96-97.
[12] The Judgment of the District Court is reproduced in full in Colin Warbrick, ‘Immunity and International Crimes in English Law’ (2004) 53 International and Comparative Law Quarterly 769, 771-774. The application failed on the grounds of immunity.
[13] The New Zealand Herald, quoting the Honorary Consul for Israel, David Zwartz, reported that he was in New Zealand on a private fundraising visit organized by the Jewish National Fund. David Eames and Ruth Berry, ‘Government overrules war-crimes arrest order’ New Zealand Herald, 1 December 2006, available from http://www.nzherald.co.nz.
[14] Commonly referred to as the Four Geneva Conventions, being the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘First Geneva Convention’); the Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Second Geneva Convention’); the Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Third Geneva Convention’); the Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Fourth Geneva Convention’).
[15] Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘First Geneva Protocol’), arts 11, 85.
[16] For the application of the Fourth Geneva Convention to the Occupied Territories, see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136.
[17] Being the Rome Statute for the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, (entered into force 1 July 2002) (‘Rome Statute’).
[18] Although New Zealand’s criminal law is generally territorial in nature – see s 6 Crimes Act 1961.
[19] Wakim v Ya’alon, (Ex Parte Application) above n 1, 3.
[20] Wakim v Ya’alon (Final Decision), above n 2, 2.
[21] Wakim v Ya’alon (Ex Parte Application), above n 1, 5.
[22] In an attempt to avoid the situation which arose in the attempted Almog prosecution, above n 11.
[23] Wakim v Ya’alon (Final Decision), above n 2, 2.
[24] David Chisholm, Counsel for the Informant, presentation at Law as a Sword Symposium, Faculty of Law, University of Auckland, 15 March 2008.
[25] Wakim v Ya’alon (Final Decision), above n 2, 3.
[26] Letter dated 13 February 2007 from the Attorney-General to Bill Doon, copy on file with the author. Note that by virtue of s9A Constitution Act 1986, the Solicitor General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General. See also John McGrath, ‘Principles for Sharing Law Officer Power – the role of the New Zealand Solicitor General’ (1998) 18 New Zealand Universities Law Review 197.
[27] Wakim v Ya’alon (Final Decision), above n 2, 4.
[28] ‘Comment on the Moshe Ya’alon Case’ 1 December 2006 available from <http://www.beehive.govt.nz/release/> at 12 June 2008.
[29] Letter to Bill Doon, above, n 27.
[30] [1941] NZLR 318, 337 (Smith J). See also William C. Hodge, Doyle and Hodge Criminal Procedure in New Zealand (1991), 75.
[31] Although an alternative view is also possible. Judge Deobhakta says that the Court ‘was always aware that any prosecution by the Informant against the defendant in New Zealand needed the leave of the Attorney-General to proceed. However, absence of such leave at the start did not prohibit the Court from issuing an arrest warrant under the Act.’ Above n 2, 3.
[32] Juliet Hay, ‘Implementing the ICC Statute in New Zealand’ (2004) 2 Journal of International Criminal Justice 191, 193-195.
[33] New Zealand provisions include s 6, Antarctica (Environmental Protection) Act 1994, s 3(3) Antarctica Act 1960, s 74(4) Armed Forces Discipline Act 1971, s18 Aviation Crimes Act 1972, s5 Chemical Weapons (Prohibition) Act 1996, s65D Civil Aviation Act 1990, s3(4) Companies (Bondholders Incorporation) Act 1934-35, s7(4) Continental Shelf Act 1964, s155(5) Cook Islands Act 1915, ss8A(3), 10B(1), 78B, 106, 123(4), 124(5), 144B and 400 Crimes Act 1961, s14 Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980, s6 Crimes and Misconduct (Overseas Operations) Act 2004, s12 Crimes of Torture Act 1989, s144 Films, Videos, and Publications Classification Act 1993, s113ZE Fisheries Act 1996, s25 Flags, Emblems, and Names Protection Act 1981, ss28(5) and 29 Inspector-General of Intelligence and Security Act 1996, s20(3) Intelligence and Security Committee Act 1996, s17 Maritime Crimes Act 1999, s19 Mercenary Activities (Prohibition) Act 2004, s28A Misuse of Drugs Act 1975, s15 New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987, s6 Nuclear-Test-Ban Act 1999, s134A Radiocommunications Act 1989, s12 Secret Commissions Act 1910, s27 Submarine Cables and Pipelines Protection Act 1996, s20A Summary Offences Act 1981, s67 Terrorism Suppression Act 2002, s9 United Nations Convention on the Law of the Sea Act 1996, s4(2) United Nations (Police) Act 1964 and s10 Visiting Forces Act 2004.
[34] See also, s8A(3) Crimes Act 1961; s400 Crimes Act 1961; s5(3) Misconduct (Overseas Operations) Act 2004 and s15(1) New Zealand Nuclear Free Zone Disarmament and Arms Control Act 1987, although the strictness of the provision is sometimes mitigated by allowing arrest prior to consent.
[35] Warbrick, above n 12. The short judgment dated 12 February 2004 is set out in full.
[36] Section 1A(3) Geneva Conventions Act 1957 (c52) (‘proceedings … shall not be instituted … except by or with the consent of the Attorney General’).
[37] Warbrick, above n 12, 772.
[38] Crown Law Office, ‘Decision of the Solicitor-General in Relation to the Prosecution of People under the Terrorism Suppression Act 2002’ 8 November 2007 available from <www.crownlaw.govt.nz> at 12 June 2008. Consent was not granted because of insufficient evidence to support the allegations.
[39] Ibid, para 7.
[40] Indeed, in the Terrorism Suppression Act situation, there was a two week interval between the arrests being made on 15 October and consent being sought on 29 October.
[41] ‘In the end the Attorney-General … filed a warrant staying further proceedings …’ Wakim v Ya’alon (Final Decision), above n 2, 4. The Attorney-General himself referred to his decision ‘to stay the criminal charges’, letter to Bill Doon, above n 26.
[42] See also s77A Summary Proceedings Act for stay of proceedings where defendant is proceeded against summarily and s378 Crimes Act 1961 providing for a stay once a person has been committed for trial or for sentence or after an Indictment has been filed. Neither provision has application in the present case. The background to the legislative power to stay is discussed by FM Brookfield, ‘The Attorney-General’ (1978) New Zealand Law Journal 334, 337-338. There may also be a prerogative power to stay, see below at n 84.
[43] See discussion by Dickens, ‘The Attorney-General’s Consent to Prosecutions’ (1972) 35 Modern Law Review 347. In the context of a stay of proceedings under s77A Summary Proceedings Act, note the assertion by the Attorney-General that his discretion is unfettered: ‘Superannuation: Retrospective Termination’ (1976) New Zealand Law Journal 269.
[44] JLJ Edwards, The Law Officers of the Crown (1964) 246.
[45] Dickens, above n 43.
[46] He explains the historical shift from private prosecutions to the taking of criminal prosecutions by the state and how consent provisions were introduced in response to concerns about vexatious proceedings.
[47] [1968] UKHL 6; [1969] 2 AC 147, 170. Discussed by Dickens, above n 43, 352.
[48] Law Commission, Criminal Law Consents to Prosecution: A Consultation Paper (Consultation Paper No 149), 30 July 1997 and Law Commission, Consents to Prosecution (Law Com No 255), 14 July 1998.
[49] Law Commission (No 255), ibid (iii), citing Edwards, above n 44.
[50] The question of judicial power to review is of course a separate, although closely related, issue.
[51] Teo v Attorney-General [2002] NZAR 793, 799.
[52] Ibid 799 and 801.
[53] [2004] NZAR 193, 214.
[54] Philip Joseph, Constitutional & Administrative Law in New Zealand (3rd edn, 2007) 678-680.
[55] [1987] NZCA 77; [1987] 2 NZLR 292.
[56] Cf R v Barlow [1996] 2 NZLR 116 involving a decision of the Solicitor-General not to stay proceedings, which raises quite different issues.
[57] Amery, above n 55, 293.
[58] Hallett v Attorney-General (No 2) [1989] NZHC 3; [1989] 2 NZLR 96
[59] [2005] NZAR 408, 424. The case involved the powers of an Inspector under the Health and Safety in Employment Act 1992 to recommend a prosecution.
[60] See below at n 67.
[61] Teo, above n 51. In Matalulu, the Court said that ‘the term “flagrant impropriety” seems to have acquired the status of a term of art in this area of Canadian public law. We have reservations about its utility as descriptive of more than a visceral response to official misconduct which may vary according to the sensibilities of the Judge who is asked to accept its application to a particular case.’ Above n 53, 214.
[62] Edwards, above n 44, 246.
[63] Joseph, above n 54, 679.
[64] John McGrath QC, ‘Role of the New Zealand Solicitor-General’ (1998) 18 New Zealand Universities Law Review 197, 203. See also Paul East QC, above, n 3, 186 who explains it this way: ‘The Attorney-General represents the public interest … and can, where appropriate, take legal action to see that the law is observed and justice done.’
[65] Brookfield, above n 42, 338. See also Fitzgerald v Muldoon [1976] 2 NZLR 615.
[66] Above, n 42, 338.
[67] Crown Law Office, Prosecution Guidelines, 9 March 1992.
[68] Edwards, above n 43, 245. See also Dickens, above n 43, 350-1.
[69] [1968] UKHL 1; [1968] A.C. 997, 1030.
[70] This raises the further question of the role, or function, of the Attorney-General and whether it is political or legal. See below, n 82.
[71] Section 3.
[72] Article 17, Rome Statute, above n 17.
[73] Ibid.
[74] Government Gazette, Vol. 445, 18 July 2002, No. 23642. The full text of the Act is available at <http://www.info.gov.za/acts/2002/a27-02/> at 12 June 2008.
[75] See discussion by Max du Plessis, ‘South African’s Implementation of the ICC Statute’ (2007) 5(2) Journal of International Criminal Justice 460, 465.
[76] Some consent provisions do provide some indication, but this seems to be relatively unusual. See for example, s s6 Antarctica Act 1994 as to the expediency of any proceedings; s 400(1)(b) Crimes Act 1961 (dealing with offences on ships and aircraft) as to the consent of the other state; and s10(3) Visiting Forces Act 2004 which allows the Attorney-General to take into account ‘any applicable agreement’ and to make enquiries.
[77] McGrath, above n 64, 209-210.
[78] East, above n 3, 207.
[79] Law Commission (No 255), above n 48, paras 6.40 and 6.46.
[80] Juliet Hay, ‘Implementing the ICC Statute in New Zealand’ (2004) 2 Journal of International Criminal Justice 191, 197. The author is writing in her personal capacity, rather than expressing the view of the Ministry of Foreign Affairs and Trade.
[81] Letter to Doon, above n 26.
[82] In New Zealand, the office might be described as a hybrid – an amalgam of legal and political responsibilities. The political responsibilities are reflected in the fact that, in contrast to some overseas jurisdictions, the Attorney-General is almost always a member of Cabinet. Professor Joseph points out that David Lange was the only Attorney-General since 1876 to have held office outside Cabinet and then only between August 1989 and November 1990. However, reflecting the legal functions, the Attorney-General, with two exceptions (the Rt Hon George William Forbes from 1933-1935 and the incumbent Attorney-General, Dr Cullen) has always been a lawyer. See generally, Joseph, above n 54, 1135; East, above n 3; McGrath, above n 64 and Grant Huscroft, ‘Politics and Principle in Public Law Advocacy – the Role of the Solicitor-General’ (1999) 18 New Zealand Universities Law Review 584. For an interesting defence of a non-lawyer being in office, see Michael Cullen, ‘Address to the Legal Research Foundation’ 25 May 2005, available at <www.beehive.govt.nz> at 12 June 2008.
[83] ‘Comment on the Moshe Ya’alon Case’, above n 28 (second paragraph).
[84] Edwards, above n 44, 227 and JLJ Edwards, The Attorney General, Politics and the Public Interest (1984), 447.
[85] Joseph, above n 54, 645-649.
[86] Attorney-General v De Keyser’s Royal Hotel Limited [1920] UKHL 1; [1920] AC 508. For discussion, see Joseph, above n 54, 647.
[87] Rt Hon E W Thomas, paper presented to ‘Civil Society: Law as a Sword’ held at the Faculty of Law, University of Auckland, 15 March 2008, copy on file with the author, discussing in particular his involvement in Wybrow v Chief Electoral Officer [1980] 1 NZLR 147.
[88] Above, n 48.
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