There is some confusion as to who or what is responsible for prosecuting war criminals, in particular, war crimes committed against the civilian population of an occupied State. The simple answer are governments who signed and ratified the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. This responsibility is further amplified when governments signed and ratified the Rome Statute that established the International Criminal Court (ICC) in The Hague, Netherlands.
One such country is New Zealand. Professor Treasa Dunworth wrote a revealing law article in the New Zealand Yearbook of International Law titled “From Rhetoric to Reality: Prosecuting War Criminals in New Zealand” in 2008. According to Professor Dunworth, in order to pursue the prosecution of war criminals by New Zealand courts there are two statutory options, the Geneva Conventions Act of 1958 and the International Crimes and International Criminal Court Act of 2000 (ICC Act). New Zealand signed the Rome Statute on October 7, 1998, and deposited its instrument of ratification with the Secretary General of the United Nations on September 7, 2000.
Prosecution of war criminals must be evidence based and not politically driven. The Geneva Conventions Act and the ICC Act allows New Zealand to prosecute any person irrespective of their nationality and where the war crime was committed.
Under the Rome Statute, the national courts of contracting States have the responsibility to deal with cases of international crimes first called complementary jurisdiction to the ICC. The ICC deals only with cases under limited circumstances. Article 1 of the Rome Statute provides that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this State, and shall be complementary to national criminal jurisdictions.”
According to the Handbook on Complementarity, there are at least four reasons for the complementary system: 1) it protects the accused if they have been prosecuted before national courts; 2) it respects national sovereignty in the exercise of criminal jurisdiction; 3) it might promote greater efficiency because the ICC cannot deal with all cases of serious crimes; and 4) it puts the onus on States to do their duty under international and national law to investigate and prosecute alleged serious crimes (that is, it is not just a matter of efficiency but a matter of law, policy, and morality).
Under New Zealand law there are two ways to get a war criminal arrested, which is separate from the prosecution, which can only take place with the consent of the Attorney-General. The most common way to get an arrest warrant is for the Attorney-General to pursue a public prosecution by seeking an arrest warrant, or by a process for a private prosecution for war crimes where a person, whether a citizen of New Zealand or not, acts as an “Informant” in order to file an application of information before a District Court. This right of a private person to file an application comes under section 345(2) of the Crimes Act of 1961. This section was repealed and replaced by section 15 of the Criminal Procedure Act of 2011 where “Any person may commence a proceeding.”
On November 27, 2006, a New Zealand District Court in Auckland issued an arrest warrant for Lieutenant General Mosche Ya’alon, former Israeli Chief of Staff of the Israeli Defense Force. Ya’alon approved the order of bombing a Palestinian terrorist in Gaza that also killed civilians, which is a war crime. On behalf of the family killed, Janfrie Wakim filed information with the District Court in Auckland. Wakim alleged that Ya’alon was guilty of war crimes by his participation in the decision to carry out the assassination of Salah Shehadeh. Wakim provided the District Court with compelling evidence of the war crimes.
The war crimes alleged were a breach of section 3(1) of the Geneva Conventions Act. Wakim also invoked Section 11 of the ICC Act, alleging breaches of Article 8(2) of the Rome Statute being grave breaches of the Geneva Conventions including wilfully causing great suffering, or serious injury to the body or health (Article 8(2)(a)(iii)); extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (Article 8(2)(a)(iv)); intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (Article 8(2)(b)(i) and Article 8(2)(e)(i)); and finally, intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Article 8(2)(b)(iv)).
Wakim filed on a Friday November 24 and the application was heard on Monday November 27. District Court Judge Deobhakta was satisfied that the Informant made a compelling case for the issuance of an arrest warrant for Ya’alon. On Tuesday November 28, after receiving Wakim’s request for consent of the Attorney-General to prosecute as required under both war crime statutes, the Attorney-General filed a warrant to put a hold on the proceedings. The District Court cancelled the arrest warrants and the proceedings eventually came to a close.
The Attorney-General justified his actions by stating in a press release that “there was insufficient evidence to support any possible prosecution.” The Attorney-General later stated, “It is the law in New Zealand that before any criminal proceedings can be commenced charging a person with war crimes the person brining the charges must obtain consent of the Attorney-General. This provision is compatible with New Zealand’s relevant international obligations.
Section 3(5) of the Geneva Conventions Act states, “No one shall be prosecuted for an offense against this section without the leave of the Attorney-General.” And section 13 of the ICC Act states, “Proceedings for an offense against section 9 [genocide] or section 10 [crimes against humanity] or section 11 [war crimes] may not be instituted in any New Zealand court without the consent of the Attorney-General.”
However, section 13 of the ICC Act also states, “a person charged with an offence against section 9 or section 10 or section 11 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.”
A plain reading of section 13 of the ICC Act explicitly allowed for the arrest warrant of Ya’alon “even though the consent of the Attorney-General…has not been obtained.” While there is no exception to the consent provision in the Geneva Conventions Act, it must be read in light of section 25(2)(a) of the Prosecution of Offences Act of 1985, which provides that any such consent provision of the Attorney-General “shall not prevent the arrest without warrant, or the issue of execution of a warrant for the arrest, of person for any offence, or the remand in custody or bail of a person charged with any offense.”
The action taken by the Attorney-General in the Ya’alon case was political and not legal. For the Attorney-General to state “there was insufficient evidence to support any possible prosecution” undermines District Court Judge Deobhakta’s decision that there was enough evidence, which was the basis for the arrest warrants in the first place. Ya’alon entered and departed New Zealand territory without being arrested.
This episode was not a failure of the law but a failure to comply with the letter of the law. And more importantly, Ya’alon is still a war criminal because there is no statute of limitation for war crimes. In other words, Ya’alon may still find himself in a New Zealand courtroom. Professor Dunworth ends her article with, “New Zealand could make good on its rhetorical claim to being a champion of a true international criminal justice system.”
Individuals found to be guilty of war crimes by the Royal Commission of Inquiry’s War Criminal Reports could well find themselves before a New Zealand Court for prosecution. There are 121 other countries, like New Zealand, that are contracting States to the Rome Statute and have similar provisions in their laws for the prosecution of war criminals under complementary jurisdiction to the ICC. Most of these countries have extradition treaties and if their citizens or subjects were the victims of war crimes committed outside of their home country, like the Hawaiian Kingdom, their governments could also seek extradition warrants when the war criminals travel to an extraditing country.