New Zealand has adopted the Rome Statute of the International Criminal Court. This treaty forms part of New Zealand domestic law. As part of the International Crimes and International Criminal Court Act, it makes a number of actions, long-recognised internationally as war crimes, express crimes under New Zealand law. A couple of these are in issue to this allegation. Section 11(2) of the Act, and Article 8(2)(b) of the Statute include the following as war crimes:
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;
The maximum penalty for someone convicted of a war crime is life imprisonment.
So these are very serious allegations.
Lots of people are saying that there appear to be war crimes. No-one appears to have appreciated what that means. It means we need an investigation into war crimes. In New Zealand, this is a job for the Police.
I think about this not only from the perspective of New Zealand legal obligation to investigate allegations of war crimes, and the right of victims of alleged war crimes to have those allegations investigated, and prosecuted, but also from the perspective of those who are alleged, even if implicitly, anonymously, or collectively, to have committed war crimes.
I agree with Graeme that the Police should investigate.
An inquiry cannot be allowed to interfere with a possible prosecution. The possibility that evidence heard by a commission of inquiry could be evidence that might be heard by a jury at a criminal trial (or more importantly, might be inadmissible at a criminal trial) could mean that there would need to be substantial suppression orders, lest the fairness of future criminal proceedings be threatened.
So you shouldn’t do an inquiry and then a Police investigation. The Police investigation should come first.
I do not know whether allegations contained in Hit & Run are true, or whether the allegations, even if true enough to properly found a charge, are capable of being proved by admissible evidence beyond a reasonable doubt. But the Soldiers who were present, those who ordered them to take part, and everyone else involved at whatever level of the New Zealand Defence Force or the New Zealand Government has rights. And one of those rights is to have any allegations against them that need investigating, investigated by a competent authority, without improper pressure being placed on the investigator. They also have the right to have any decision over whether to lay a charge, decided only after a thorough investigation, and considering not only incriminating evidence, but evidence that tends to show their innocence. This is most likely to happen if any criminal investigation begins as soon as possible, and is not prejudiced by a full public inquiry.
I think Graeme makes a compelling case.
Nicky Hager and Jon Stephenson have authored a book alleging war crimes; they’re not necessarily certain who, but the describe events that could amount to war crimes committed by New Zealanders. This has consequences.
When confronted with allegations of war crimes, New Zealand is obliged not just to find out what happened, but to investigate, and if appropriate, prosecute. But it would be wrong to pursue an inquiry that may prejudice the rights of those now under suspicion of committing war crimes. Commissions of inquiry do not investigate crimes. This is the job of the Police.
The Police should launch an investigation. They are the competent authority.