ICC Review Conference & the Crime of Aggression Dr Kennedy Graham

I rise to draw the attention of the House to the quite extraordinary breakthrough that came out of the Review Conference of the International Criminal Court in Kampala last Saturday.

At this Conference, the states parties agreed, against all expectations, to adopt aggression as a justiciable crime in international law. There are many caveats entered into this 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 it will come to be seen as the most important advance in international peace and security since 1945 when the UN Charter was adopted.


The meeting agreed that aggression would become a crime under the Rome Statute once a decision has been taken by a two-thirds majority of the 111 states parties. This decision will be taken only after January 2017. But if seven years ahead seems far away, we do well to recall that work towards making aggression a crime has been ongoing since 1920, exactly ninety years ago. In that historical light, seven years is a fleeting period.

The definition of the crime, and its associated elements, have been agreed. 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 under the UN 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 Council does not make such a determination, the ICC 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 which have accepted the jurisdiction of the Court over the crime.

Notwithstanding these shortcomings, the fact that agreement was reached on aggression was little short of astounding. We can now foresee the day when aggression will be a crime in international law.

This House will recall the members bill which I submitted last year, the International Non-Aggression and Lawful Use of Force Bill. This was debated in August and September, and voted down in 1st reading, though 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, legislation that would have the same effect in New Zealand as this emerging international law in the ICC. It would have criminalised, in NZ law, aggression by a NZ leader if he or she illegally committed our armed forces overseas.

The Government's opposition to this Bill rested on the complaint that it would have rendered this country's foreign policy subject to a Security Council veto, preventing NZ forces from collaborating with others in a humanitarian intervention of the Kosovo type.

That reasoning, of course, was simply wrong. The responsibility to protect doctrine, as was made clear by UN Secretary-General, in his seminal report of 2004, is always subject to a Security Council veto. And, as we predicted last September, the day has come when the NZ Government is now obliged to fall into line and agree with the notion of aggression becoming a crime.

The fact that it is adopted by the ICC 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, but such legislation will acknowledge that it is our domestic courts that 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.