Practice Relating to Rule 139. Respect for International Humanitarian Law
New Zealand’s Military Manual (1992) states: “New Zealand is required to comply with the LOAC which is part of international law.”
The manual further states:
The law of armed conflict, like other branches of international law, possesses no permanent means to secure its observance or enforcement. Observance is secured by the States which are bound by particular treaties both themselves acting and persuading other States to act in accordance with the terms of those treaties, and themselves giving effect to and persuading other States to give effect to the requirements of the customary law.
In the Tamil X case in 2009, New Zealand’s Court of Appeals allowed an appeal against the High Court’s refusal to grant judicial review of a decision made by New Zealand’s Refugee Status Appeals Authority that the appellant was not a refugee because he fell within the exclusion provision of Article 1F of the 1951 Refugee Convention. The Court of Appeals found that it had not been shown that there were serious reasons for considering that the appellant had committed a war crime or crime against humanity in terms of Article 1F(a) of the Convention. In his judgment, Justice Baragwanath further stated:
It is now established that such [customary international law] norms bind rebels engaged in armed conflict if they violate the laws of war. There must follow from such obligation the reciprocal right of a rebel to be treated as a lawful belligerent so long as the laws of war are complied with.