Practice Relating to Rule 157. Jurisdiction over War Crimes
New Zealand’s Military Manual (1992) states:
The [1949 Geneva] Conventions make one further departure of significance. For the first time they provide in treaty form a clear obligation upon States to punish what the Conventions describe as “grave breaches”, even if those States are not parties to the conflict, the offenders and the victims not their nationals, and even though the offences were committed outside the territorial jurisdiction of the State concerned. In other words, the Conventions have introduced the concept of universal jurisdiction in so far as grave breaches are concerned, and if the State in question is unwilling to try an offender found within its territory, it is obliged to hand him over for trial to any party to the Convention making out a prima facie
The manual also provides:
Any State into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though the holding State was neutral during the conflict in which the offence was alleged to have been committed. Since 1945, it has been generally accepted that if the holding State is unwilling to institute its own proceedings, it may if it wishes hand the offender over to a claimant State on presentation of prima facie
evidence that the alleged offender has committed the offence in question.
In addition, the manual states:
According to customary international law, war crimes, including grave breaches, may be tried by a military tribunal including officers of forces of States other than that establishing the tribunal, provided those forces may claim to be particularly affected or interested in the trial in question …
Such interest would arise if the accused is a member of an allied force, if the victims of the offence are nationals of the State of such force, or if the offence had been committed in the territory of such a State.
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, which provides for the punishment of grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I committed by “any person … in New Zealand or elsewhere”, states: “This section applies to persons regardless of their nationality or citizenship.”
New Zealand’s International Crimes and ICC Act (2000) provides:
(1) Proceedings may be brought for an offence
(a) against section 9 [genocide] or section 10 [crimes against humanity], if the act constituting the offence charged is alleged to have occurred
(i) on or after the commencement of this section; or
(ii) on or after the applicable date but before the commencement of this section; and would have been an offence under the law of New Zealand in force at the time the act occurred, had it occurred in New Zealand; and
(b) against section 11 [war crimes], if the act constituting the offence charged is alleged to have occurred on or after the commencement of this section; and
(c) against section 9 or section 10 or section 11 regardless of
(i) the nationality or citizenship of the person accused; or
(ii) whether or not any act forming part of the offence occurred in New Zealand; or
(iii) whether or not the person accused was in New Zealand at the time that the act constituting the offence occurred or at the time a decision was made to charge the person with an offence.
In Wakim v Ya’alon in 2006, New Zealand’s District Court at Auckland was requested by the complainant to issue warrants for the arrest of a former Israeli military commander, during his visit to New Zealand, for war crimes allegedly committed in Israel. The Court granted the request stating:
The Al Daraj bombing received world-wide condemnation. It also appears that the State of Israel justified it as a necessary military necessity [sic] and was quite unrepentant at its result. This Court understands that other attempts by the complainants at obtaining judicial remedies in this matter in the State of Israel have been exhausted of frustrated. The complainants feel they have been denied justice. They therefore seek “universal justice” in different jurisdiction.
It is not for this Court to delve into the merits of their complaints. I am satisfied that the Informant in this case is entitled to as a resident of New Zealand to seek warrants for the arrest of Mosche Ya’alon for alleged war crimes in the State of Israel; that he is presently within the jurisdiction of New Zealand Courts and this Court has power to issue such warrants provided other conditions are met.
Any prosecution would have required the leave of the Attorney-General to proceed. The Attorney-General subsequently filed a warrant staying further proceedings and the District Court then cancelled the arrest warrants.
In 2009, in a statement before the Sixth Committee of the UN General Assembly, made on behalf of Canada, Australia and New Zealand, the counsellor and legal adviser of Australia stated:
Universal jurisdiction is a long-established principle of international law. It vests in every State the competence to exercise, on behalf of the international community, criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, no matter where those crimes occur. The principle first developed a[s] customary international law in relation to piracy to prevent pirates from enjoying impunity or safe haven. It has since been extended to include genocide, war crimes, crimes against humanity, slavery and torture.
The nature or exceptional gravity of these crimes renders their suppression a joint concern of all members of the international community. The principle of universal jurisdiction is an important mechanism through which the international community aims to ensure that individuals who commit these crimes do not enjoy safe haven anywhere in the world.
Primary responsibility for investigating and prosecuting serious international crimes, as with all crimes, rests with the State where the crime occurs. Where the territorial State establishes effective legal frameworks to prosecute and punish these crimes, the need for other States to assert jurisdiction is, as a practical matter, diminished. The territorial State is best placed to obtain evidence, secure witnesses and enforce sentences. And perhaps most importantly, it is also well placed to ensure that the “justice message” is delivered to affected communities.
However, it is a fact that many such crimes go unpunished, including through the movement of the accused to another country. Universal jurisdiction assists to cover that jurisdictional gap. With that in mind, we call upon all States to incorporate grave crimes into their domestic laws. We further call upon all States to provide each other with practical assistance to promote the rule of law and develop the capacity of domestic criminal justice systems to prosecute grave crimes. This is the front line in the fight against impunity and it should be our first priority.
Universal jurisdiction has a place in our collective system of criminal justice as a complementary mechanism to ensure an end to impunity.
On the rare occasion where a national court has asserted universal jurisdiction, State practice suggests that this has usually been due to a connecting link between the offence and the forum State, for example the presence of the accused on the territory of the forum State.
The national court should always exercise universal jurisdiction – and indeed all forms of extraterritorial jurisdiction – in good faith and in a manner consistent with other principles and rules of international law. This is essential to ensure that the desire to end impunity does not in itself generate an abuse of the principle.
National courts should at all times observe the minimum fair trial guarantees, including the right of the accused to be tried in his or her presence and without delay. Judicial independence and impartiality must be maintained to ensure that the principle is not manipulated for political ends.
In order to prevent impunity for these crimes, we encourage States, consistent with their international obligations and domestic practices, to cooperate to provide all available means of assistance, including mutual assistance, in order to ensure sufficient evidence for prosecution. By cooperating with national courts in prosecutions involving universal jurisdiction we all further our shared aim to end impunity.