I move, That the International Non-Aggression and Lawful Use of Force Bill be now read a first time. I intend to move at the appropriate time that the bill be referred to the Justice and Electoral Committee. The purpose of the bill, as stated in the explanatory note, is twofold. First, "To ensure that the use of armed force by New Zealand is always in conformity with international law and in particular the UN Charter;", and, second, "To protect New Zealand leaders"—that is to say, our Ministers of the Crown—"from external pressure to commit the New Zealand Defence Force to any illegal action overseas." The essential content of the bill is also twofold. First, it makes it a criminal offence for any New Zealand leader who is constitutionally in a position to direct the defence forces to commit the forces to any act of aggression overseas. Secondly, it requires that before committing the defence forces to any action overseas, such leaders receive written legal advice from the Attorney-General that such action is consistent with international law, and in particular the charter of the United Nations, and that such advice be debated in Parliament.
This bill does not constrain in any way New Zealand leaders in the exercise of their constitutional obligation to defend the realm. It is directed exclusively at ensuring that the proactive use of force by New Zealand overseas is strictly consistent with the United Nations Charter. Nor does it seek to accord to Parliament any power of executive decision pertaining to the New Zealand Defence Force. That power remains with Cabinet, Parliament being accorded simply the right to comment in advance upon the legal merits of a proposed action. When the lives of New Zealanders are at stake, their representatives must be given a voice. The bill establishes a new body, the Special Prosecutor, to be responsible for any investigation and prosecution. That is because the traditional agent for such action in the New Zealand judicial system, the Attorney-General, is not in this case an appropriate mechanism. Elementary logic of the legal system and constitutional law precludes a person who, through executive action, has participated in an official decision from determining, through judicial action, the matter of its own legality.
The International Non-Aggression and Lawful Use of Force Bill aims not to divide the country or this House, but to unite them. The political rationale on which it rests is compelling. In the 21st century New Zealand is rendered safer through the rule of international law than through a 19th century reliance on unfettered military power. In times past, even in the 20th century, international law was seen as essentially prescriptive in intent, and, at best, only fitfully enforceable. It worked simply when major powers wished it to, in the pursuit of their national interests. Today there is a newfound recognition that the emerging global society can rest only on the rule of law, whether its interaction is in trade, finance, environmental protection, or the use of military force. It is thus in New Zealand's national interest to contribute to the strengthening of that law. Indeed, international law is, in certain ways and to a certain extent, transforming into global law. That progression is in all our interests, not only for New Zealand but for the rest of humanity, provided that such law reflects a global legitimacy in terms of a balanced input from all cultures, and a fair and balanced application and enforcement. Action for strengthening international law proceeds along two avenues of endeavour. At the international level, work is under way to add aggression as a crime of the International Criminal Court. New Zealand is contributing to that work, and it is to be hoped that this will be completed within a matter of years. The International Criminal Court's jurisdiction, however, will always be of secondary instance, with national courts retaining primary responsibility, so it is our responsibility to introduce domestic legislation to ensure that the criminalisation of aggression falls within our national jurisdiction. By doing this now New Zealand contributes to the international work in a meaningful and proactive way.
Allow me to anticipate and address some possible areas of opposition to the bill, which, I should acknowledge from the outset, I will sincerely respect. First, some may contend that New Zealand should wait until the International Criminal Court completes its negotiating process before proceeding to legislate domestically against aggression. But that constitutes an unnecessary deferral. There is nothing to prevent any country from introducing national legislation in advance, and there are good reasons for doing so. Indeed, many countries have legislated against aggression as a crime against peace. Two have specifically identified it as a leadership crime. This New Zealand bill is distinctive in directly tying the domestic crime to the obligations of the United Nations Charter, which, I submit, is the proper way to proceed.
Secondly, others may doubt that New Zealand should proceed unilaterally, when a small nation such as ours poses no threat to anyone, and always abides by the rule of law, reflecting, as it were, a peerless brand of enlightened internationalism. In fact, New Zealand does not have an unblemished record on the use of force. We stood aside in 2003 when British, Australian, and US forces used force in an action that most jurists and the UN Secretary-General regarded as illegal, but in 1956 we actively supported the United Kingdom in its aggression against Egypt, a move that was overwhelmingly condemned by the United Nations, including the United States. To those who say that such action half a century ago does not reflect the New Zealand of today, I say then let us demonstrate our national maturity by enshrining non-aggression in our criminal law, for the pressure of any major power on New Zealand to commit armed force in a coalition remains as potent today as it was then.
Third, there may be those who perceive it as a gratuitous insult to render our national leaders open to criminal liability for directing our own armed forces, but that is the old way of perceiving international peace and security. In the 21st century the rule of law reaches into the hitherto sacral domain of national security, and no person, whether citizen or leader, is above the law. Indeed, the intent of the bill is not to intimidate our leaders but to protect them through the reach of domestic law. It is the same logic that extends a binding obligation under our 1987 legislation upon the Prime Minister to refuse entry of nuclear-capable warships into our national territory. In that law and in this bill "obligation" equates to protection.
Fourth, others may lament that the issue of aggression in international law is too complex, and the definition of aggression too imprecise for any meaningful domestic legislation to be justiciable. But our domestic criminal legislation is replete with complex challenges of definition, interpretation, and judgment. The definitions of murder, manslaughter, rape, and assault are just a few examples of concepts pertaining to human behaviour where Parliament legislates, lawyers argue, juries decide, and judges pronounce. In no way is the concept of aggression intrinsically different, even at the international level.
Finally, some may question the underlying philosophical premise that our nation is made safer through law and power. To them I say, with respect, that they stand on the wrong side of history. This bill derives not from idealism but from a sobered and forward-looking realism. The bill does not descend from the heavens wreathed in fine raiment; rather does it emerge from the fires of war clothed in the burnt and shredded uniforms of our fallen soldiers, they who bear silent witness to the agony of human conflict. It is in tribute to those who have departed, and with eternal hope for generations yet to come, that I commend this bill to the House, and request that it be given due consideration. Thank you.
Subscribe to email newsletters
