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Dunworth, Treasa --- "International Humanitarian Law and International Criminal Law" [2010] NZYbkIntLaw 11; (2010) 8 New Zealand Yearbook of International Law 214

Last Updated: 10 August 2015

INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW

I. Introduction

The major event in 2010 in the area of international criminal law was the successful outcome of the First Review Conference of the International Criminal Court.1 Within New Zealand, however, it was an uneventful year, with little or no progress being made on routine treaty actions. For example, what can only be described as glacial progress was made in respect of the Red Crystal Emblem. Having signed the Emblem Protocol back in 2006, domestic legislation in the form of the Geneva Conventions (Third Protocol-Red Crystal Emblem) Amendment Bill 2010 was finally introduced into Parliament on 24 August 2010. The Bill amends the Geneva Conventions Act 1958 and introduces the new Red Crystal Emblem as a protected emblem in New Zealand. The Bill also increases the maximum penalty for a breach of the Act from $1,000 to $10,000. The legislation must be passed prior to ratification, but other than the tabling in Parliament, no further action has been taken. No progress at all has been made on the other relatively straightforward pending treaty action – the Protocols to the Convention for the Protection of Cultural Property in the Event of Armed Conflict,2 discussed in last year’s Review.3

II. Cluster Munitions Convention

The Cluster Munitions Convention entered into force on 1 August 2010, with New Zealand being among the original States Parties.4 New Zealand attended the First Meeting of the States Parties held in Vientiane, Laos from 9-12 November 2010, in the course of which it acted as Friend of the Chair for National Implementation Measures. New Zealand looks set to continue this leadership role in terms of promoting the implementation of the treaty at a national level.

III. Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel 1994

The Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel entered into force on 19 August 2010, having received the requisite 22 ratifications.5

The 1994 Convention and its Optional Protocol have been particularly important for New Zealand in light of its extensive involvement in peace operations. In fact, New Zealand took a lead role in bringing about the original treaty, the aim of which was to create a regime for the prosecution and extradition of persons accused of attacking United Nations (UN) personnel. Thus, the treaty protects UN personnel, peacekeepers and so- called “associated personnel”, meaning persons engaged or deployed as members of the military, police or civilian components of a UN operation. It also includes other officials or UN experts on mission, as well as persons assigned to assist. Under the 1994 treaty, each State Party was to criminalise attacks on such personnel under its domestic law and to prosecute offenders, or extradite them for prosecution elsewhere. The treaty entered into force in 1999 and New Zealand implemented it in its domestic law through an amendment of the Crimes (International Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980.

Even at the time of adoption, the scope of protection under the Treaty was relatively narrow. Thus, New Zealand worked towards a Protocol to extend the category of those protected under the original treaty, to include humanitarian, development and other non-peacekeeping operations. Agreement on that expansion was reached in 2005 and New Zealand signed the Protocol the following year. Some minor amendments were necessary to the domestic legislation prior to ratification and this had been delayed for several years. However, in June 2010, the amendment was enacted (simply by broadening the definition of “UN operation” in s 2(1) of the existing Act). Ratification of the Treaty is expected in the near future, but had not been effected by the end 2010.

IV. International Non-Aggression and Lawful Use of Force Bill

Last year’s Review discussed the attempt by Kennedy Graham of the Green Party to enact his Private Members’ Bill, the International Non-Aggression and Lawful Use of Force Bill.6 If enacted, it would have created a crime of aggression in New Zealand domestic law, and established a Special Prosecutor to prosecute such a crime. It would also have required the government to table the advice of the Attorney-General on any proposed military intervention at least seven days in advance of any such action.

As pointed out in the Explanatory Memorandum and in Parliament, one of Graham’s aims in promoting the Bill had been to support international initiatives to develop a crime of aggression. Somewhat ironically, while efforts on the domestic front failed, there was a significant advance internationally. In July 2010, at the First Review Conference of the States Parties of the Rome Statute of the International Criminal Court, agreement was reached on both the definition of a crime of aggression and the conditions under which the Court could exercise jurisdiction over it.7 This was a culmination of more than 60 years efforts to criminalise aggression. That being said, in practical terms, the success is modest: the agreement will not take effect until the earliest in 2017, and only then with a further vote in favour of the agreement by a two-thirds majority of the Assembly of States Parties. Further, unlike other amendments, it will only enter into force with the ratifications of 30 states.8 Thus, it is still some time away before the amendment takes effect.

Despite the rejection of the Bill earlier in the year, New Zealand supported the resolution on the Crime of Aggression (it was adopted by consensus). Responding to a question put to him by Kennedy Graham in Parliament, the Attorney-General, Chris Finlayson, stated that while the Government supports the agreement reached in Kampala, it does not intend to ratify the amendment until after 2017. The reason for this is that the “Government wants to be sure that the court, which is a very new institution, is ready to assume the additional burden of the jurisdiction of the crime of aggression before it supports the activation of that jurisdiction”.9

There was a second important development at the Review Conference whereby agreement was reached to include three further crimes under the jurisdiction of the Court. All three crimes relate to the use of prohibited weapons and all three were already included as crimes in international armed conflict. Article 8(2)(b)(xvii) of the Statute provides for jurisdiction over the use of poison or poisoned weapons; art 8(2)(b)(xviii) over asphyxiating, poisonous or other gases; and art 8(2)(b)(xix) over the use of expanding bullets. The amendment agreed to at Kampala now includes these three crimes when committed in non-international armed conflict.10

The amendment will come into effect for each State Party one year after accepting the amendment.11 An amendment to the International Crimes and International Criminal Court Act 2000 will be required before New Zealand can proceed to ratification. There was no indication of any moves in this direction by the end of 2010. However, it is hoped that New Zealand will move swiftly to adopt these amendments and so participate in the overall trend whereby the gap between the protections available in international armed conflict and non-international armed conflict is gradually closing.

V. Protection of Children in Armed Conflict

New Zealand endorsed the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups12 on 27 September 2010.13 The Paris Commitments is a policy document aimed at preventing the recruitment of children into armed conflicts and highlighting the actions governments can and should take to protect children affected by conflict. The Principles are operational guidelines relating to how those Commitments can be honoured, with an emphasis on finding ways of achieving sustainable reintegration into society of children formerly associated with armed forces and armed groups. Both the Commitments and the Principles were originally adopted in 2007 as a result of a joint initiative by the French Ministry of Foreign Affairs and the UN Children’s Fund. They now have the support of 95 states.

New Zealand became a State Party to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict14 on its entry into force in 2002. The Protocol requires states to prohibit and criminalise forcible recruitment of children under the age of 18 years into armed forces or armed groups. By endorsing the Commitments and Principles, New Zealand has accepted that a much broader approach is required to deal with the problem of children associated with armed groups. The Principles advocate a more proactive approach, focused on reintegration of children, and, where necessary, dealing with those children through a juvenile justice lens and seeking to engage with long-term preventative strategies.

New Zealand also spoke during the Security Council debate on Children in Armed Conflict in June 2010, making a number of recommendations as to how the Security Council could take a more active role in protecting children in armed conflict.15

Treasa Dunworth

University of Auckland

1 Opened for signature 17 July 1998, entered into force 1 July 2002 (‘Rome Statute’).
2 Opened for signature 14 May 1954, entered into force 7 August 1956.
3 Treasa Dunworth, “Year in Review: International Humanitarian Law and International Criminal Law” [2009] NZYbkIntLaw 15; (2009) 7 NZYIL 321.
4 Opened for signature 2 December 2008, entered into force 1 August 2010.
5 Adopted 8 December 2005, entered into force 19 August 2010.
6 Dunworth, above n 3, at 325-326.
7 The Crime of Aggression RC/Res 6 (2010).
8 Ibid at Annex I.
9 (22 June 2010) 664 NZPD 11995.
10 Amendments to Article 8 of the Rome Statute, RC/Res 5 (2010), inserting new arts 8(2)(e)(xiii), (xiv) and (xv) respectively.
11 Rome Statute of the International Criminal Court, art 121(5).
12 Adopted at the Paris Conference, 5-6 February 2007.
13 Jim McLay, New Zealand Permanent Representative to the United Nations, “Ministerial Follow-Up Forum to the Paris Commitments and Paris Principles on Children Associated with Armed Forces or Armed Groups” (media statement, 27 September 2010) .
14 Adopted 25 May 2000, entered into force 12 February 2002.
15 Jim McLay, New Zealand Permanent Representative to the United Nations, United Nations Security Council – Children in Armed Conflict (media statement, 16 June 2010).