New Zealand Prime Minister Arrested for Aggression

Editor's note: This is an imaginary article from 2013 written by Peter Dyer. It illustrates one possible scenario, should Kennedy Graham's International Non-Aggression and the Lawful Use of Force Bill become law. It highlights how such landmark legislation could work, not only for the cause of international law, but for the benefit of New Zealand leaders.

           February 2013 (Reuters) In a dramatic first test of landmark legislation, New Zealand’s Prime Minister was arrested this morning by New Zealand’s Attorney-General and charged with aggression.

           There was near-chaos on the steps of Parliament as a cordon of police officers kept Prime Minister Joanna Locke and Attorney-General Nicki Pirihimana clear of a raucous mixture of government supporters and anti-war demonstrators. After serving an arrest warrant, Ms Pirihimana escorted the Prime Minister to a waiting police van.

           According to the warrant, Ms Locke’s decision to send New Zealand Special Forces to participate in last November’s American-led invasion of Pakistan (“Operation Pakistani Security”) was a prima facie violation of New Zealand’s 2011 International Non-Aggression and Lawful Use of Force Act (INLUF).

           INLUF makes it “unlawful for a New Zealand leader to plan, prepare, initiate or execute an act of aggression.”

Aggression is defined in the law as “the use of armed force by the State of New Zealand against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the purposes of the Charter of the United Nations.”

           Designed to neutralise Al Qaeda in Pakistan, Operation Pakistani Security was not authorised by the United Nations Security Council.

           Ms Locke’s arrest was no surprise. She had led the governing National Party in a fierce fight against the bill. She repeatedly vowed to defy it “publicly and proudly”, in order to test its legality, if and when it became law.

           Parliament’s first sitting day of 2013 thus renewed in sensational fashion a decades-old, divisive national argument in New Zealand grounded in conflict between allegiance to traditional allies and the imperatives of international law.

           In addition to Ms Locke, it is likely that several of the cabinet officers who participated in this decision, such as Minister of Foreign Affairs Salem McRoberts and Minister of Defense Pamela Wax will face arrest and trial as well.

           If convicted, Ms Locke and the Ministers could be sentenced to up to ten years in prison.

           Operation Pakistani Security began on 15 November with massive American and NATO aerial bombardment of suspected Al-Qaeda compounds in tribal areas in Northwest Pakistan. The bombing was followed by incursions from Afghanistan by Special Forces of several countries, including the New Zealand SAS (Special Air Service).

           On 1 November, two weeks before the bombing began, US Secretary of State Jonathan Annandale, a long-time friend of Ms Locke, made a formal request to the Prime Minister for participation by the NZSAS in the upcoming military operation.

           As required by INLUF, the Prime Minister sought and obtained written advice from the Attorney-General concerning the legality of Operation Pakistani Security

           Ms Pirihimana advised that unless and until the UN Security Council authorised it, Operation Pakistani Security would not be legal, either in international law or, because of INLUF, in New Zealand domestic law.

           This advice was submitted to Parliament on 5 November. A week later, after meeting with Mr McRoberts, Ms Wax and several other key cabinet members, Ms Locke made the decision to deploy the NZSAS to Pakistan, in accordance with Secretary Annandale’s request.

           The burden of this case now falls on the shoulders of Special Prosecutor Sir Lawrie Roia. The office of Special Prosecutor was established by the 2011 legislation.

           Sir Lawrie was unavailable for comment. His office released a statement: “The legal rights of any and all defendants who are to be tried for aggression will be scrupulously observed, as will the legal obligations of the State under the International Non-Aggression and the Lawful Use of Force Act.”

           Although a number of countries have legislation outlawing aggression, it is believed this is the first time a sitting head of State has been arrested for this crime.

Notes:

Any and all names, characters, pictures, scenes, and events portrayed in this text are fictitious. Any resemblance to any real or actual person (living or dead) is pure coincidence.

However, the International Non-Aggression and the Lawful Use of Force Bill is no fiction. Green MP Kennedy Graham recently (30 July) introduced this remarkable legislation. The first reading was 19 August. The first vote is likely to be Wednesday, 9 September.

Neither is it fiction that a number of other countries have already adopted such legislation.

Dr Gerhard Werle, Professor of International Criminal Law at Humboldt University, Berlin, has compiled a list of 17 countries here that have criminalised acts in connection with aggression.

In the first reading, National promised to vote against the bill. Although, on the face of it, it’s understandable that any party in power would look on such legislation in less than a kindly light, Dr Graham makes the interesting and compelling argument that one of the primary purposes of such a law is actually to protect New Zealand leaders. From the bill’s Explanatory Notes:

“ The purpose of this bill is to achieve two related objectives:

1. To ensure that the use of armed force by New Zealand is always in conformity with international law and in particular the UN Charter; and

2. To protect New Zealand leaders from external pressure to commit the New Zealand Defense Force to any illegal action overseas...

3.“Small States often use armed force as part of a larger coalition; in such situations their freedom to make independent, objective judgment on the legality of a proposed action is constrained. This Act will relieve our leaders of much of that burden. The people of New Zealand and their leaders deserve the protection of law in those circumstances.”

For example, had such a bill as Dr Graham’s been in place before April, when US Secretary of State Hillary Clinton asked the Prime Minister to redeploy the SAS to Afghanistan, Mr Key would have been legally obliged to seek an official declaration from the Attorney-General concerning the requested deployment’s legality, which some in New Zealand believe to be dubious.

If, in this scenario, the Attorney-General had ruled that the deployment would not be legal, the Prime Minister would have been relieved of much of the burden of refusing the American request.

He would have had no other legal option.

In addition, in this scenario, he would have avoided the risk, however remote it seems today, of eventually being held personally accountable in a court of law for succumbing to pressure to violate the law.

The value to national leaders of such legislation is likely to increase as momentum continues to build in the international movement to hold national leaders accountable for war crimes (eg Rwanda, the Balkans, Uganda, Congo, Liberia, Sudan, Cambodia and more).

As Dr Kennedy told me: “Committing an act of aggression is essentially the single biggest violation it is possible to commit under the UN Charter. The international community has been moving since the 1940s and particularly in the last five years or so to translate aggression into an international crime in the International Criminal Court. What this would do is reflect that by making it a crime in New Zealand domestic law.”

The ultimate goal is a more secure world, brought about through the rule of law.

From the bill’s explanatory notes: “It is in the interest of every State to strengthen the fabric of international law. An effective law-based system of international peace and security is a more enduring guarantor of national security than reliance on a balance of power through military strength.”

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at p.dyer@inspire.net.nz.

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