Domestic implementation of international criminal law
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Crimes Crime of Aggression
No provision
The following Bill was tabled by MP Kennedy Graham but was rejected in first reading on 23 September 2009:International Non-Aggression and Lawful Use of Force Bill. Member's Bill 62—1
[Bill no: 62-1 - Introduction: 30 July 2009 - First reading negatived (23 September 2009)]
New Zealand Parliamentary Counsel Office. [ENG]
See also:
International Non-Aggression and the Lawful Use of Force Bill. (2012 version)
Green Party of Aotearoa New Zealand, Wellington, New Zealand, 02 April 2012. [ENG]
International Non-Aggression and the Lawful Use of Force Bill. (Member's Bill - Kennedy Graham). (2009 version)
By MP Kennedy Graham, Wellington, New Zealand, 21 April 2009. [ENG]Crimes Against Humanity
Crimes against humanity are included in Part 2 ("International crimes and offences against administration of justice"), Section 10, of the International Crimes and International Criminal Court Act 2000. Their definition is the same as in the Rome Statute of the International Criminal Court:
"10. Crimes against humanity
See:
(1) Every person commits an offence and is liable on conviction to the penalty specified in subsection (3) who, in New Zealand or elsewhere, commits a crime against humanity.
(2) For the purposes of this section, a crime against humanity is an act specified in Article 7 of the Statute.
(3) The penalty for a crime against humanity is,—(a) if the offence involves the wilful killing of a person, the same as the penalty for murder:
(b) in any other case, imprisonment for life or a lesser term."
Compare: Statute art 7
Section 10(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
International Crimes and International Criminal Court Act 2000.
Public Act 2000 No 26, Parliamentary Counsel Office, Wellington, New Zealand, 06 September 2000. [ENG]Genocide
Genocide is included in Part 2 ("International crimes and offences against administration of justice"), Section 9, of the International Crimes and International Criminal Court Act 2000. Its definition is the same as in the Rome Statute of the International Criminal Court:
"9. Genocide
See:
(1) Every person commits an offence and is liable on conviction to the penalty specified in subsection (3) who, in New Zealand or elsewhere,—(a) commits genocide; or
(2) For the purposes of this section, genocide is an act referred to in Article 6 of the Statute.
(b) conspires or agrees with any person to commit genocide, whether that genocide is to take place in New Zealand or elsewhere.
(3) The penalty for genocide, or conspiring with, or agreeing with any person to commit genocide is,—(a) if the offence involves the wilful killing of a person, the same as the penalty for murder:
(b) in any other case, imprisonment for life or a lesser term.
Compare: Statute art 6
Section 9(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81)..
International Crimes and International Criminal Court Act 2000.
Public Act 2000 No 26, Parliamentary Counsel Office, Wellington, New Zealand, 06 September 2000. [ENG]War Crimes
➤ War crimes are included in Part 2 ("International crimes and offences against administration of justice"), Section 11, of the International Crimes and International Criminal Court Act 2000. Their definition is the same as in the Rome Statute of the International Criminal Court:
"11. War crimes
See:
(1) Every person commits an offence and is liable on conviction to the penalty specified in subsection (3) who, in New Zealand or elsewhere, commits a war crime.
(2) For the purposes of this section, a war crime is an act specified in—(a) Article 8(2)(a) of the Statute (which relates to grave breaches of the First, Second, Third, and Fourth Geneva Conventions); or
(3) The penalty for a war crime is,—
(b) Article 8(2)(b) of the Statute (which relates to other serious violations of the laws and customs applicable in international armed conflict); or
(c) Article 8(2)(c) of the Statute (which relates to armed conflict not of an international character involving serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949); or
(d) Article 8(2)(e) of the Statute (which relates to other serious violations of the laws and customs applicable in armed conflict not of an international character).(a) if the offence involves the wilful killing of a person, the same as the penalty for murder:
(4) Nothing in this section affects or limits the operation of section 3 of the Geneva Conventions Act 1958 (which makes a grave breach of the Geneva Conventions an offence under New Zealand law)."
(b) in any other case, imprisonment for life or a lesser term.
Compare: Statute art 8
Section 11(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81)..
International Crimes and International Criminal Court Act 2000.
Public Act 2000 No 26, Parliamentary Counsel Office, Wellington, New Zealand, 06 September 2000. [ENG]
➤ Grave breaches of the Geneva Conventions and the First Protocol are punishable offences under the Geneva Conventions Act 1958:
Geneva Conventions Act 1958.
Public Act 1958 No 19, Parliamentary Counsel Office, Wellington, New Zealand, 18 September 1958. [ENG]
Jurisdiction
➤ The jurisdictional regime for sections 9 (genocide), 10 (crimes against humanity) and 11 (war crimes) of the International Crimes and International Criminal Court Act 2000 ("ICC Act") is provided for in Section 8 of the ICC Act which reads:"8. Jurisdiction in respect of international crimes
See:
(1) Proceedings may be brought for an offence—(a) against section 9 or section 10, if the act constituting the offence charged is alleged to have occurred—
(2) Subsection (3) applies if a person to whom subsection (1)(a)(ii) applies is convicted of an offence against section 9 or section 10.(i) on or after the commencement of this section [Editor's Note: 1 October 2000]; or
(b) against section 11, if the act constituting the offence charged is alleged to have occurred on or after the commencement of this section; and
(ii) on or after the applicable date but before the commencement of this section; and would have been an offence under the law of New Zealand in force at the time the act occurred, had it occurred in New Zealand; and
(c) against section 9 or section 10 or section 11 regardless of—(i) the nationality or citizenship of the person accused; or
(ii) whether or not any act forming part of the offence occurred in New Zealand; or
(iii) whether or not the person accused was in New Zealand at the time that the act constituting the offence occurred or at the time a decision was made to charge the person with an offence.
(3) If this subsection applies, the maximum term of imprisonment or the maximum fine that may be imposed on the offender is either—(a) the maximum term or the maximum fine that could have been imposed under the laws of New Zealand at the time of the offence, if that maximum has subsequently been increased; or
(4) In subsection (1)(a)(ii), applicable date means,—
(b) the maximum term or the maximum fine that can be imposed on the day on which sentence is to be passed, if that maximum is less than that prescribed at the time of the offence.(a) in relation to an offence against section 9, 28 March 1979:
(b) in relation to an offence against section 10, 1 January 1991."
International Crimes and International Criminal Court Act 2000.
Public Act 2000 No 26, Parliamentary Counsel Office, Wellington, New Zealand, 06 September 2000.
➤ Jurisdiction for war crimes is also provided in Section 3 of the Geneva Conventions Act:
Geneva Conventions Act 1958.
Public Act 1958 No 19, Parliamentary Counsel Office, Wellington, New Zealand, 18 September 1958. [ENG]
➤ See also:
Information submitted by New Zealand on the scope and application of the principle of universal jurisdiction.
The scope and application of the principle of universal jurisdiction (Agenda item 86), General Assembly of the United Nations, Sixth Committee (Legal), sixty-fifth session (4 October to 11 November 2010). [ENG]
[General Assembly resolution 64/117 (A/RES/64/117) of 15 January 2010, "[R]equests the Secretary-General to invite Member States to submit, before 30 April 2010, information and observations on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, their domestic legal rules and judicial practice, and to prepare and submit to the General Assembly, at its sixty-fifth session, a report based on such information and observations." This document contains the reply provided by New Zealand to the said request.]
Ad-Hoc Tribunals (incl. ICTY and ICTR)
International War Crimes Tribunals Regulations 1995.
(SR 1995/138), Parliamentary Counsel Office, Wellington, New Zealand, 03 July 1995.
International War Crimes Tribunals Act 1995.
Public Act 1995 No 27, Parliamentary Counsel Office, Wellington, New Zealand, 09 June 1995.
International Criminal Court
Rome Statute of the International Criminal Court: New Zealand signed the Rome Statute of the International Criminal Court on 07 October 1998 and deposited its instrument of ratification on 07 September 2000.
Upon ratification New Zealand made the following Declaration:"Consistent with the constitutional status of Tokelau and taking into account its commitment to the development of self-government through an act of self-determination under the Charter of the United Nations, this ratification shall not extend to Tokelau unless and until a Declaration to this effect is lodged by the Government of New Zealand with the Depositary on the basis of appropriate consultation with that territory"
Implementing Legislation:
International Crimes and International Criminal Court Act 2000.
Public Act 2000 No 26, Parliamentary Counsel Office, Wellington, New Zealand, 06 September 2000.
According to the "Comments by New Zealand on the scope and application of the principle of universal jurisdiction, including information on the relevant applicable international treaties, domestic legal rules and judicial practice", prepared by the New Zealand Permanent Mission to the United Nations on April 28th, 2010:
"To date, New Zealand has not pursued any prosecutions under sections 9, 10 or 11 of the ICC Act. In 2006, an attempt was made to bring a private prosecution under section 8(1) of the ICC Act against Moshe Ya'alon, a former Israeli general who was visiting New Zealand. An arrest warrant for General Ya'alon was issued by a District Court judge in Ex Parte Application for Issue of Warrant to Arrest Lieutenant General Moshe Ya'alon of Israel (District Court, Auckland, Civ-2006-004, 27 November 2006). Pursuant to section 13 of the ICC Act, the consent of the Attorney-General was necessary in order to proceed with the prosecution. The Attorney-General declined to give his consent on advice that the evidence against General Ya'alon was insufficient to warrant pursuing a prosecution. The prosecution was permanently stayed by the Attorney-General and arrest warrants were extinguished on 28 November 2006 (Wakim v Ya'alon (District Court, Auckland, Civ-2006-004, 27 November 2006, Judge Deobhakta)".
The following cases deal with refugee status related matters regarding individuals implicated in genocide and other crimes against humanity arising from the 1994 genocide in Rwanda, or in crimes against humanity in Sri Lanka:
- X v. Refugee Status Appeals Authority; Attorney-General (Minister of Immigration) v. Y.
[2009] NZCA 488, New Zealand: Court of Appeal, 20 October 2009.
- Attorney-General v. X and Z.
[2007] NZCA 388, New Zealand: Court of Appeal, 5 September 2007.
- Z v. Attorney General.
High Court Auckland, CIV 2007-404-330, 8 March 2007; 30 March 2007. [ENG]
Complementarity and the Crime of Aggression.
By Roger S. Clark, Oct11
The New Zealand Constitution.
New Zealand Parliament. [ENG]. [Last accessed 22Nov17] [External Link to pdf document]
The Constitution of New Zealand. (1852 with Amendments through 2014)
Comparative Constitutions Project, University of Texas at Austin. [ENG]. [Last accessed 22Nov17]. [External Link to pdf document]
Crimes Act 1961. (Public Act 2061 No 43, 01 November 1961. Updated)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
Criminal Procedure Act 2011. (Public Act 2011 No 81, 17 October 2011. Updated)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
International Non-Aggression and Lawful Use of Force Bill 2009 (Member's Bill - Kennedy Graham)
New Zealand Parliament. [ENG]. [Last accessed 22Nov17] [External Link]
International Crimes and International Criminal Court Act 2000. (Public Act 2000 No 26, 06 September 2000. Updated)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
International War Crimes Tribunals Regulations 1995. (SR 1995/138, 03 July 1995)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
International War Crimes Tribunals Act 1995. (Public Act 1995 No 27, 09 June 1995. Updated)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
Geneva Conventions Act 1958. (Public Act 1958 No 19, 18 September 1958)
New Zealand Parliamentary Counsel Office. [ENG]. [Last accessed 22Nov17] [External Link]
New Zealand Legislation. (Kia ora. Acts, Bills & Legislative Instruments)
Parliamentary Counsel Office, New Zealand. [ENG]. [Last accessed 22Nov17] [External Link]
New Zealand Legislation.
New Zealand Legal Information Institute. [ENG]. [Last accessed 22Nov17] [External Link]
New Zealand Gazette.
New Zealand Gazette Office, Government Information Services, Department of Internal Affairs. [ENG]. [Last accessed 22Nov17] [External Link]
New Zealand Case Law.
New Zealand Legal Information Institute. [ENG]. [Last accessed 22Nov17] [External Link]
List of International Humanitarian Law Treaties to which New Zealand is a State party
International Committee of the Red Cross. [ENG]. [Last accessed 22Nov17]. [External Link]