Dr Ken Graham launching the Bill, July 2009  - image courtesy Scoop

My International Non-Aggression Bill met its Maker last Members’ Day (23 Sept.) in the House.  While that was disappointing, it was not all doom and gloom.

First off, the vote was a respectable one  – 64 against (National-ACT) 58 for (Greens, Labour, Maori Party).

Secondly, the Bill has generated considerable interest around the world, being distributed to MPs in about 100 countries and being emulated by some colleagues in the Argentine Senate.  Consideration is being given to some comparable work in the UK Parliament.

I always knew it would be a big ‘ask’ of this Government to criminalise international aggression (in violation of the UN Charter) in domestic criminal law.  And so it proved.

They want the freedom to circumvent any veto in the Security Council, in the name of the ‘responsibility to protect’ doctrine.

I have never been in need of advice about ‘Responsibility to Protect’, having addressed this issue as a consultant to Kofi Annan’s UN High-Level Panel on Threats, Challenges and Change back in ‘04.  But where I differ from the Government is that we cannot have it both ways.

You cannot insist on the freedom accorded by that doctrine to use force that is not sanctioned by the UN and deny the same freedoms to other major powers (Russia, China).  Not, at least, if you apply minimal standards of logic and political integrity.  The freedom for the West to intervene in Kosovo, which our Defence Minister unctuously cited would have to be married with the freedom of another major power to intervene militarily on behalf of, say, Palestine against Israel.

So, as long as we insist on, or acquiesce in, retaining the veto, we must accept the consequences.  My Bill never sought to change international law on non-aggression – it simply held up the mirror to all countries about transforming our state responsibility for non-aggression under the UN Charter into an individual legal obligation in domestic criminal law.  In other words, putting our criminal liability where our mouth is.

As it happens, ‘aggression’ is likely to become an international crime as part of the International Criminal Court’s jurisdiction within the next year.

That is, three core crimes are already part of the ICC jurisdiction (genocide, war crimes, crimes against humanity).  These are already crimes in NZ domestic law.  Aggression is likely to be added next year.  Then, this Government will be obliged to address the issue of translating it into domestic criminal law.

It is a shame they could not take the step this year, but likely they will be required to do so, next year or shortly thereafter.

Meanwhile, the Government could also have accepted the other part of my Bill – requiring it to obtain a written legal opinion of the Attorney-General affirming the legality of any proposed deployment of our troops overseas – and table it in Parliament for deliberation at least seven days in advance of an executive decision.

Its refusal to do that displays a 19^th-century mindset.  The message to the public and to Parliament is – don’t worry your pretty little heads on these great issues of state.  International law is too arcane for you to understand.  It is best left to the high-priesthood – international lawyers closeted in the Foreign and Defence Ministries.  We, the Government, assure you that anything New Zealand does is always in accord with international law.  Now, no more questions – it is time for bed.

That doesn’t wash in the 21^st century.  The public, including many international lawyers outside government, know about international law and global security.  They can follow matters as closely as diplomats and politicians.  And it will no longer be fobbed off on that score.

The public has a right to know the precise legal basis on which our armed forces operate overseas.  It is unpatriotic, and self-demeaning, for any NZ Government to talk down to the public on matters of such high importance.

The ‘non-aggression’ issue is not about to go away.  I expect to remain active on this for some time to come.  And it will be the Government undertaking policy change over the next few years, not the Green Party.

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