Graham Kennedy: Financial Review Debate — In Committee 
Graham Kennedy: Financial Review Debate — In Committee 
[Volume:653;Page:2452] 
Dr KENNEDY GRAHAM (Green) 
: 
 I speak to page 4 of the financial review of the Justice and Electoral Committee on the Crown Law Office and address one issue that was explored—namely the application of universal jurisdiction for war crimes. During the select committee’s review the Solicitor-General Dr David Collins provided an explanation of New Zealand’s approach to a person who may be in this country and who is suspected of having committed a war crime elsewhere. I appreciate the constructive response of the Solicitor-General to the questions that were put to him and the material that he subsequently supplied. Under the Geneva Conventions Act 1958 and the International Crimes and International Criminal Court Act 2000 New Zealand has established universal jurisdiction for the prosecution of anyone in that position the stated objective being to end impunity for perpetrators of serious international crimes. Yet in the only case to date where the issue has arisen we may have faltered at the first hurdle. 
When a former Israeli Chief of Defence Force was issued with an arrest warrant by a District Court during his visit to New Zealand the then Attorney-General stayed the proceedings the very next day. His decision rested on advice from the Solicitor-General that the evidence “could not be relied upon to show a prima facie case”. I hesitate to pronounce on that judgement by Mr Collins whom I hold in high regard but I note four points. 
First the Israeli Government had acknowledged to the United Nations Security Council that 14 civilians had been killed in an air attack for a targeted assassination in Gaza and the suspect had publicly admitted a decision-making role. Israel claimed self defence as legal justification yet council members including the US condemned the attack as being heavy-handed action. Israel knew that at least one civilian was with the targeted militia leader and that others might be in the vicinity. The action it appears constituted incidental loss of life disproportionate and excessive to any anticipated military advantage and thus there was a prima facie case for a war crime. Second under the 1958 Act the Attorney-General’s obligation is not simply to pronounce on the substance of evidence that a New Zealand resident may have supplied and that a judge may have decided upon but rather to search for suspected persons and bring them before our courts. Third although the consent of the Attorney-General is required before an information can be laid under the 1958 Act that is not the case under the 2000 Act. Fourth New Zealand cannot engage in self-absolution from such a criminal prosecution on the grounds that the International Criminal Court was not active on the matter because the primary responsibility under the principle of complementarity rests with national courts. For these reasons and having consulted extensively with legal scholars I come to the unavoidable conclusion that New Zealand failed its international obligations on this matter. 
That is history. I now address the current Attorney-General Christopher Finlayson who is held in high esteem throughout this country with the following points to ensure that we meet our responsibilities in the future—for these kinds of issues are certain to recur. I ask whether he can confirm the following: first that an information may be laid and an arrest warrant issued under the International Crimes and International Criminal Court Act 2000 without his consent; second that independent of the evidential merit of such an information the Government has an obligation under the Geneva Conventions Act 1958 to search for suspected persons and bring them before the courts of this country; and third that in deciding upon consent for prosecution his judgment of the national interest and the public interest will faithfully reflect the legitimate claim of any New Zealand resident in ensuring natural justice over suspected war crimes committed anywhere over and above any political interest in our bilateral relations with any other country. Thank you.