Prosecution of War Crimes by Foreign Governments—New Zealand

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.

27 thoughts on “Prosecution of War Crimes by Foreign Governments—New Zealand

  1. I want to give a shout out to the AHKG and the RCI. 100% amazing job. The details and facts in their reports without a doubt will guarantee an arrest warrant. Not to mention laying everything out on a silver platter for an Attorney General to prosecute. If you think about it, it’s like it was presented in this way to do just that. They did their job well.
    Now I want you all to pay attention to what was said “…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.
    Alot of you are puzzled and wondering where the justice is riiightt? This is not the only incident. In 2020 Trump sanctioned members of the ICC for trying to investigate the U.S. military for war crimes in Afghanistan. There was a lot of evidence to initiate the investigation, but the ICC stopped. 2021 Biden lifted the sanctions and told them no investigating the U.S. and Israel. Not one word about investigating the U.S. or Israel coming from the ICC anymore. The Hauge PCA compromised by the U.S. when it stopped the HK moving the Larsen case to fact finding. Citing a rule that doesn’t even apply to the case, if it did then the case wouldn’t have gone to arbitration in the first place. Are you guys’ sick n tired of this? Want to know how to make it stop? Nah, you all probably hate me if I gave you that answer.

      • Aloha Mamo, before I give the answer, I have a question. What is the common denominator that prevents justice in the examples I mentioned?

          • The common denominator is that the U.S. has control of the banking system and they have weaponized it. This is what allows them to sanction countries and individuals like the ones at the ICC. Countries or individuals get their monies and assets frozen or confiscated without due process. It gets stolen. They also get cut off from SWIFT, IMF and the World bank and can no longer do commerce to survive. Any other country or company that disobeys the sanctions and continues to do business with a sanctioned country or individual will also be cut off. It is a VERY effective punishment and scares the heck out of every country since they are not set up to effectively get around the system to survive. With the U.S. using the money system as a weapon they can easily destroy a country without having to go to war. Well, all except Russia who is doing very well and banking profits regardless of the sanctions. Putin prepared for this a long time ago.
            The solution is to create an alternate system to replace the corrupted system that is being used as a weapon. It was never supposed to be used in this way, but the U.S. is desperate to keep its position as the Alpha of the world no matter what.
            The ones that have created an alternate system that can replace the corrupted one is BRICS. Why do you think the U.S. forced Russia to fight Ukraine? They are using Ukraine as a proxy to weaken Russia before they use Taiwan just like Ukraine to go to war against China. They are trying to stop BRICS. Like I said earlier, you guys will probably hate me for giving you the answer. Many of you don’t realize what is really going on. Russia is fighting to take down the corrupted system and replace it with a fairer system. If Russia succeeds, then international agencies and venues will not be afraid to give us a fair trial on the merits of our case without suffering detrimental repercussions from the United States. Be honest. Do you see any other alternative to free us from the grip of the oppressor? I don’t.

          • Wow I’m impressed by what Russia is doing to take down this CORRUPTED SYSTEM the US is using.Mahalo Kekoa.

        • People are too weak to fight. Not willing to take risks. My answer is people need to stand up and fight together. What’s yours?

          • Renounce your US citizenship & stand in your correct deportment as a Hawaiian national oppressed by an occupying government. Come out of her, do not share in her sins and be subject to her plagues. Take no fruit from the poisonous seed. Exodus!

        • @ Kekoa,
          Wow, deep-stuff about the BRICS and SWIFT system’s battling it out. Much mahalo for sharing the insight. I just saw on the news, that Ukraine sent in drones to bomb a Russian Airbase, which the U.S. is saying they’re not involved. But, it makes sense now, the motivations to start moving the fight into Russian territory with the use of Ukraine. I guess Taiwan is the next piece to put into play against China.
          There is belief that WWIII may start around the next US presidential elections, because that may be prime time for the forces at be to fuel hostilities between the Democrat and Republican parties to battle it out. I would imagine if America is in a second civil war, the SWIFT’ers will have a more difficult time against the BRICS’ers.
          I remember about two months ago, Putin saying that he is aware of America and its annexation of Texas, which to me, sounds like he’s aware of the “annexation” of the Hawaiian Kingdom. Either the Hawaiian Kingdom is a model for how long it will take for an illegal annexation to not matter in many hearts and minds of people, or a place to start something.
          Exciting times ahead!

          • Why would anyone hate you for sharing your information kekoa? Much appreciated mana’o! To add to it…with such a basket of currencies backed by gold of BRICS foreign governments that control nearly half of world trade, the international order will shift toward BRICS bank due to the weaponization of the dollar and the fact that the value of the dollar is based on GDP and thus is no store of value. As long as US can print, they can inflate and there by weaponize the dollar by exporting their inflation (laundering) like they doing in Ukraine. If you look further at the bilateral trade agreements being made since Saddam Hussein suggested sanctions on the US because of Hawai’i’s occupation, then you will see that over the last 30 years the dollar has been getting the shaft from foreign governments. In Namibia, you can get arrested for using a dollar. Meanwhile, Utah is the only state that recognized gold and silver as money which is constitutionally sound although federally irrelevant. Furthermore, governments are buying up tons of gold increasing their assets to offset the liabilities in dollar. As game changing as all this is…just
            wait until Feb. 11 when Schabas, Lenzerini and Keanu go public!!! Celebrations abound!!!

          • Aloha La’ahiwa, I hope there will be no WWIII. That would be a disaster for us because we are a major target. In MHO it will have nothing to do with a battle between the Dems and Repubs. since they are one and the same. Both parties do the bidding of the Military Industrial Complex and the deep state. Luckily the Taiwanese people are on it. They have seen how Zelensky has pimped out Ukraine to the United States and the European Union to make billions for himself at the destruction of the country and people. The President of Taiwan who is playing the same game as Zelensky is with the West just had to step down as leader of her party because the Taiwanese people voted for the opposition parties’ candidate. They don’t want to be another Ukraine dying for the U.S. because the U.S. has a problem of not being the Alpha running the world. Hopefully they will replace those leaders that are pro U.S. and avoid a war.

      • Mahalo Kekoa for explaining the common denominator. Ver much appreciated to gain understanding. Yes, I pray we don’t have WWIII.

  2. The US will protect their Federal citizens within their legal jurisdiction just as they did the American insurgents and their properties (not trying to discredit any efforts)…and as far as we know, they are noncompliant to the necessary and ordinary principles of customary, and for that matter conventional international law which guides peace and order. They have operated out of the bounds of these regimes since their original charters all while under exceptions and necessity which they use for self defense and interest in pursuit of manifest destiny.
    A citizen is simply a subject, not a sovereign. Per US v Anthony, prior to the 14th amendment there were no US citizens or citizens of the federal government…there were only citizens of the several states who were American nationals. It is these nationals who were the constitutional sovereigns of America according to John Jay as to where in the kingdom, only the crown was sovereign…whom everyone was subject to within the crowns jurisdiction.
    But American nationals then became subject to the Federal government by the 14th amendment and for which no framework of rights existed but was crafted over the years since and until today. In order to free the slave Congress created a legal fiction, US citizens, too whom were to be prescribed Congressional remedies in the aftermath of the abolition of slavery. And history tells us the law merchant and contracts is what keeps the world going round. Merchants who trade in commerce has always been around since time immemorial.
    So, Hawaiian subjects may have been government less by 1898 but they were never stateless. However without our kingdom governments protection our ancestors was forced into the federal economic coded matrix to earn a living. You may even know some of these US codes or titles, perhaps even some codes of Federal regulations. IMHO the Uniform Commercial Code is most important.
    Anyway, their codes prescribe and describe privileges, benefits, regulations and rules for and in their sphere and scope of public service.(DMV, DOE, DHHS, DHHL, etc.)
    We all have been Americanized and brainwashed and are now subject to our own social contracts with Federal agencies such as Social Security Administration, State of Hawaii Department of Health & Human Services, Department of Labor, Federal Reserve member banks etc. We are not Hawaiian but Federal subjects who must follow the law.
    We all know this and we are who they now protect…we are the US citizens subject to our contracts with Federal and state agents who are successors of usurpers. We run to them for unemployment, work, money, school, groceries, etc. We as US citizens must break the mold and stop subscribing to the Federal constructed trust of Congress. We must stand on an equal footing if we expect MFN treatment and subject our person’s to the crowns jurisdiction as 3rd party beneficiaries. We must rise to prove why we are a most favored nation!!!

  3. So shouldnʻt the Royal commission of inquiry or Representatives of the Hawaiian kingdom (whoever that could be) be focusing on making politically beneficial relations as well as with these countries who are signatories to these conventions? Not that you are not doing such things but I imagine we should have delegates in all these coutries to try and gain enough political leverage to not end up having Ige themʻs arrest warrants pulled by politically motived AGʻs.
    I volunteer to be a delegate in Sardinia😂. My good friend lives there and is going to law school to work specifically on the Hawaiian occupation issues!

    • Aloha Makaio, having good international relations and allies are a very good thing but it won’t stop these countries from bending to the will of the United States. They will succumb to U.S. political pressure and sanctions and not prosecute war crimes committed by U.S. citizens.

        • No. Hawaiians are a minority in our own homeland, we don’t have the numbers to fight. It would be suicide and the end of the Hawaiian people. The US would LOVE for us to fight, they’ve been waiting for us to die off so they have no one left to contest them, we’d only be hastening the process for them if we fight.

        • Aloha Makaio, no need fight. The U.S. is losing its grip on being the unipolar ruler of the world using its so-called rules-based order in which they make the rules that benefit only them. Countries are forming an alliance to form an alternate system that will be multi polar and based on international law which all countries have agreed on. More and more countries are seeing the bigger picture and moving toward that direction. Let things take its course and play out. God works in mysterious ways. Proverbs 16:18 Pride goes before destruction, And a haughty spirit before a fall. Just stay humble, pray and keep the faith.

  4. Mahalo your excellency Dr. Keanu Sai, for clearing up the process that I was asking about.

    So it’s seems like there was political corruption interfering with judicial due process in New Zealand… do you think there even exists a court that we could rely on to not be tempted by the gain of political benefits or who wouldn’t be afraid of going up against the US? I don’t have much faith in the global legal system after seeing how quick people sell their souls.

    • The line in the sand is drawn by those who choose either good or evil. Stand on the righteous side, wait for it. Move in silence for the fish can hear the fisherman!

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