New Zealand is likely to support an international effort to once again make waging an aggressive war a war crime.

A crime of aggression, under which politicians and military leaders can be held individually responsible for invasions and other major attacks, came into force yesterday at the International Criminal Court, reviving global legal powers last exercised at the Nuremberg and Tokyo war crimes trials of the 1940s.

The new offence cannot, however, be enforced retrospectively over conflicts such as the 2003 Iraq invasion.

The decision has its origins in the so-called Kampala Amendment of 2010 to the Court’s original 1998 charter which first introduced the possibility of making aggression a crime that could be prosecuted at the ICC.

The wording, which came into effect yesterday, defines aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

In New Zealand a 2013 Foreign Affairs, Defence and Trade select committee report recommended the government give priority to New Zealand becoming one of the 30 founding states needed to implement

Thirty-five nations have ratified the decision, but so far New Zealand is not one.

Most are European — Germany, the Netherlands, Spain, Australia, Switzerland etc.; none are from Asia.

The only Asia-Pacific state to have so far ratified is Samoa.

 Justice Minister Andrew Little


But at a high-powered seminar in Wellington last night Justice Minister Andrew Little confirmed that New Zealand was finally looking to ratify.

“That work is underway,” he said.

“Obviously we need to take advice; we need to reconcile it with our domestic procedures.

“Regrettably we cannot give a time frame for that.

“As a country, we have been a supporter of the International Criminal Court from its outset.”

Little said that as Minister of Justice the decision to ratify did not fall totally under his portfolio.

“But I know the Minister of Foreign Affairs who has spoken about this today is committed to seeing New Zealand ratifying this as appropriate as we get our advice together and find time in our legislative calendar,” he said.

Chris Finlayson

And there was support for Little’s positions from his Opposition counterpart, the former Attorney General, Chris Finlayson.

Stressing that it was a personal view, he said he strongly supported ratification and legislation to give effect to it.

“But there is a caveat,” he said.

“I still worry about its impact on the international criminal court which at times still seems to be struggling to gain widespread acceptance in the world.”.

He said there was a need not to move too fast “because we certainly don’t want more states pulling out of the Court.”

So far only Burundi has withdrawn, and the Philippines have given notice of withdrawal after the ICC announced a preliminary examination into President Rodrigo Duterte’s “war on drugs.

Burundi withdrew after the ICC started an investigation into crimes against humanity by President Pierre Nkurunziza during an election campaign in 2015 when reports claimed he was responsible for “killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances”.

The United States, however, is not even a member of the ICC. President George W Bush refused to join in 2002 when the court was founded.

Sir Geoffrey Palmer450

The case for New Zealand supporting the decision to make waging aggressive war a crime was summed up by former Prime Minister, Sir Geoffrey Palmer.

“As a small nation like New Zealand, we have to be in favour of progress at international law,” he said.

“We must be supporters of a rules-based system at international law because might is not right and we don’t have any.”

Palmer said New Zealand had a long tradition of supporting the international rule of law.

‘We have to go on doing that because it is in our own self-interest.”

Kennedy Graham

The seminar had been convened by the former Green MP and diplomat, Kennedy Graham who is now the Director of the New Zealand Centre for Global Studies.

He told the seminar that the decision to include aggression was “up there with the UN Charter.”

“Aggression now becomes a leadership crime for 35 countries,” he said.

“Many more will ratify.

“And in due course, the movement will reflect a majority (of countries).

“One-day human behaviour on this planet will be civilised at the global level.”

No one at the seminar was suggesting the move at the ICC would somehow suddenly change human behaviour.

“if by the end of the 21st century this court is well established, and is recognised throughout the globe and not just by the small countries, as the pre-eminent international tribunal to bring these monsters to heal then that will be a triumph for humanity,” said Finlayson.