Franks Stephen: Diplomatic Privileges and Immunities Amendment Bill — First Reading 
Franks Stephen: Diplomatic Privileges and Immunities Amendment Bill — First Reading 
[Volume:610;Page:7373] 
STEPHEN FRANKS (ACT NZ) 
: 
 I rise for the ACT party to oppose the passage of this bill. This bill cements in the International Criminal Court’s jurisdiction in this country by revising and expanding the range of immunities that may be enjoyed by people working for that court in New Zealand. We say Parliament should be spending time on the task that the Foreign Affairs Defence and Trade Committee and this Parliament failed in when we passed the International Crimes and International Criminal Court Bill in 2000. We should be looking at the immunities we may need in order to protect New Zealanders from forms of justice and from offences that would be repugnant to our law—the things that were not reserved out of the reach of that court which may well become a victors’ tribunal. 
The United States has stayed out of the International Criminal Court for the very good reason that it is dominated and is potentially permanently dominated by countries that may not share the values that are embedded in our traditions of law and freedom. Despite the very good intentions of those who support it and the best wishes of those who have set it up that court could well end up becoming one of the very worst evidences of the kind of globalisation that the Greens usually oppose. Paradoxically in this case they are keen to see globalisation extended. The Europeans who have been very keen on the court do not appreciate the sentiment in the United States and the United States Congress against it. 
Unlike most of the European Parliaments Congress is not a rubber stamp. The United States Congress has active constitutional concerns in its Congress. The United States is as the Green member Mr Locke said going around the world and making sure that at least it protects its soldiers from possible victors’ tribunal political show trials. Trials like that could be conducted at the urging of members of national legislatures—like Mr Locke—who are not interested in the topic or in the real merits of a case but who are interested in fulminating against only what they see as the power of the United States and against the values they so detest that the United States upholds. 
We believe this bill should be a chance for Parliament to take a good look at what it has signed up to. We should recognise for example that our troops in the Solomon Islands could easily end up in a position where should events turn in a nasty direction and history go against New Zealand we could well find people coming back and accusing our people in the Solomon Islands of activity that under the very vague statute that sets up the International Criminal Court could be classified as war crimes. 
For example it may be given the dire ethnic tensions in the Solomon Islands that a form of separation is seen as the most practical way of stopping the dreadful attacks and assaults that have occurred. I hope that will not happen and as I understand it it is unlikely at this stage. But some kind of separation is not beyond the realms of possibility given that it has been called for by many people in the Solomon Islands. Of course the very root of much of the problem in the Solomon Islands started when there was a call to send the Malaitans back to Malaita. 
If the New Zealand troops and police are involved in anything that ends up adopting that kind of separation they may well fall foul of the apartheid crime under the international statute. That crime is not defined; it could mean just about anything that a tribunal wanted to make it mean. We could find in 15 or 20 years’ time that those New Zealanders who went there in idealism are being hauled before a court that simply wants to make a political point of attacking a relatively defenceless former ally or ally of the United States. Far stranger things have happened in international affairs than an attack by proxy in order to see what the major power does in response. New Zealand has set itself up for that by naively signing up to a tribunal and a set of rules that do not define the core offences and that should be of concern to us. 
We are concerned also that the immunities that are spoken of here in this bill are immunities for people who may share none of our values. These are diplomatic immunities for people who may come in here to press a charge that would be double jeopardy if it were made under New Zealand law. There is no right to a trial by jury. There is no certainty that the judicial philosophy of the International Criminal Court will respect our traditional liberties or protections. There is a power for example for evidence to be given by bodies that have no real connection with the victims: non-governmental organisations. The statute provides for non-governmental organisations to represent victims. That is just a recipe for political show trials without the accused having a chance to face the real accuser. 
Those breaches of the liberties that took hundreds of years to evolve in our law could be cured if this bill instead of meekly submitting to the wish of those who want to make New Zealand look respectable in third-way forums had restrictions on the surrender of New Zealand citizens. For example this bill may have been an opportunity to ensure that a New Zealand citizen could not be hauled before the International Criminal Court unless the New Zealand courts were satisfied that it was for an offence that would be an offence under New Zealand law or under the statute as properly interpreted. 
We could have this law ensure that we have the lawful authority to make sure that United States troops are not at risk of an opportunist seizure while in New Zealand. The countries that Mr Locke referred to which are signing agreements with the United States not to hand over United States citizens to the International Criminal Court will be places where United States forces can go when invited without having to worry about an opportunist act by that court or its agents to seize people whom they could not otherwise seize. In fact the immunities that are being provided for in this bill may one day be an opportunity for the enemies of New Zealand to embarrass New Zealand by endeavouring to seize and hand over people whom the International Criminal Court is prosecuting when the New Zealand ally—the United States or another country that comes to similar arrangements—is not considered by us to have been in breach of international law at all. 
When this bill goes to the select committee if it follows the pattern of the previous legislation it will come back with an utterly anodyne report that does not address the real issue. When the International Crimes and International Criminal Court Bill came back to this Parliament from the Foreign Affairs Defence and Trade Committee the report did not even mention the vital fact that neither Australia at that time nor the United States proposed to sign up and that as they were our two most closely allied countries the bill would therefore be a problem in our relationship with them. The committee failed even to note for the information of this Parliament that the bill would be a major problem in the relationship with our then two closest allies. 
Since then of course the Prime Minister of Australia has been rolled by his Foreign Minister and Australia has signed up to the Rome Statute. But it has also made it very plain to the United States that Australia is sympathetic to the concerns of the United States. I would not be surprised if Australia in the new spirit of realism it has exhibited in its foreign affairs at some stage considers repudiating the treaty in the same way as the Bush Government has. Until the offences under the Rome Statute are properly defined we are living under a statute that if it had been in force at the time could have seen for example our service people in Malaysia prosecuted as war criminals for the successful suppression of the terrorist rebellion in Malaysia and the kampong policy. It could also have seen for example our officers at Monte Cassino prosecuted as war criminals for the mistake they made in relation to the abbey at Monte Cassino and it could in future see our people who participate in good faith in humanitarian efforts involved in actions that the International Criminal Court may decide for political reasons are war crimes. 
This bill should not proceed until Parliament looks at the International Crimes and International Criminal Court Act properly.