Graham Kennedy: General Debate 
Graham Kennedy: General Debate 
[Volume:664;Page:11749] 
Dr KENNEDY GRAHAM (Green) 
: 
 I rise to draw the attention of the House to the quite extraordinary breakthrough that came out of the review conference at the International Criminal Court in Kampala last Saturday. At that conference the States parties agreed against all expectations to adopt aggression as a justiciable crime in international law. There are many caveats entered into the agreement and there is a considerable time delay before it becomes justiciable but the fact that agreement has been reached on this most critical of all issues of international law is nothing short of remarkable. I believe that it will come to be seen as the most important advance in international peace and security since 1945 when the United Nations Charter was adopted. 
The meeting agreed that aggression would become a crime under the Rome Statute once a decision has been made by a two-thirds majority of the 111 States parties. This decision will be made only after January 2017 but if 7 years ahead seems far away we would do well to recall that work towards making aggression a crime has been ongoing since 1920—exactly 90 years ago. In that historical light 7 years is a fleeting period. The definition of the crime and its associated elements have been agreed on and the most intractable issue of all the relationship between the court and the UN Security Council has been sorted. In short the council may determine an act of aggression as it is empowered to do under the Charter and refer such a case to the court for investigation and possible prosecution. This will apply to any country whether or not it is a member of the court. Even in the event that the Security Council does not make such a determination the International Criminal Court prosecutor may investigate a case of aggression provided a pre-trial chamber gives the green light. In such a case however he may proceed only against those countries that are members of the court and that have accepted the jurisdiction of the court over the crime. Notwithstanding these shortcomings the fact that agreement was reached on aggression is little short of astounding. We can now foresee the day when aggression will become a crime in international law. 
This House will recall the member’s bill that I submitted last year: the International Non-Aggression and Lawful Use of Force Bill. My bill was debated in August and September and it was voted down on its first reading although not by a large majority—only 64 to 58. It could have become law. The aim of that bill as described at the time was to put into domestic law a provision that would have had the same effect in New Zealand as the emerging international law now in the International Criminal Court will have. It would have criminalised in New Zealand law aggression by a New Zealand leader if he or she illegally committed our armed forces overseas. 
The Government’s opposition to that bill rested on the complaint that it would have rendered this country’s foreign policy subject to a Security Council veto preventing New Zealand forces from collaborating with others in a humanitarian intervention of the Kosovo type. That reasoning was simply wrong. The responsibility to protect doctrine as was made clear by the UN Secretary-General in his seminal report of 2004 is always subject to a Security Council veto. As we predicted last September the day has come when the New Zealand Government will be obliged to fall into line and agree with the notion of aggression becoming a crime. The fact that it is adopted by the International Criminal Court does not absolve New Zealand of responsibility to make aggression a crime in domestic law. Indeed it will not only be obliged to implement aggression as a crime in our domestic law; it will acknowledge that our domestic courts are expected to prosecute in the first instance before such a matter is referred to the international court in the Hague. So when the time comes for the Government to implement the international agreement making aggression a crime it will effectively be doing what it was invited to do last year and found disingenuous reasons for not proceeding. I wish the Government well in assisting the court to hasten the day when this occurs.