BlogsEventsFeaturesImage galleriesMediaMFAT speeches200520062007200820092010Media contact informationMinisters releasesPublications
Mr. Chairman,
I will speak today on three topics: protection of persons in the event of disasters; the immunity of State officials from foreign criminal jurisdiction; and the obligation to extradite or prosecute
Protection of Persons in the Event of Disasters
We thank the Special Rapporteur Mr. Eduardo Valencia-Ospina for his preliminary report on the “Protection of persons in the event of disasters”.
This is a challenging but important subject. In times of disaster, people are at their most vulnerable and, very often, the mechanisms of civil society struggle to function, especially in the early phases. Such situations require the delivery of practical help where it is most needed. This is why we had understood the original intent of the topic to be essentially practical in nature, a study of the law and principles to apply immediately after a disaster to facilitate immediate assistance.
For these reasons, we consider that a pragmatic, rather than “rights-based” approach might be a more useful way of dealing with this topic. This way the topic could include a stronger emphasis on obligations of States in the event of natural disasters, and principles and guidelines for international and non-governmental organisations rather than emphasising the rights of individuals. That said, if a rights-based approach is retained, we consider it important to focus on the consequences that might flow from those rights, including implementation and enforcement of those rights.
We support the Special Rapporteur’s suggestion of proceeding with the topic by focussing initially on natural disasters, and on the goal of laying down a clear framework of legal rules, guidelines or mechanisms which will facilitate practical international cooperation in disaster response. We consider, however, that to try to cover all phases of a disaster, including mitigation and prevention, may be overly ambitious and that it may be useful to take a step-by-step approach in the elaboration of the topic.
Immunity of State Officials from Foreign Criminal Jurisdiction
New Zealand welcomes the inclusion of the topic ‘Immunity of State officials from Foreign Criminal Jurisdiction’ in the work-programme of the Commission, and would like to thank Special Rapporteur Mr Roman Kolodkin for his excellent preliminary report.
We note that this report only covers some of the questions for further consideration by the Commission, and that many other important preliminary issues, in particular the scope of the immunity, remain to be addressed.
The articulation of the rationale for the immunity of State officials from foreign criminal jurisdiction is an important first step in analysing many elements of this topic. In assessing the scope of the immunity one must bear in mind the fundamental principles of sovereign equality; non-interference in internal affairs; the stability of international relations; and independent performance of state activities. At the same time, consideration should be given to other principles and values, such as individual accountability, and the international community’s commitment to end impunity for serious international crimes.
The balance of conflicting principles affects the scope of the topic with respect of persons covered, and also the scope of any exceptions to the immunity. Immunity ratione personae is obviously much broader than immunity ratione materiae and has historically only applied to a small class of officials. We therefore consider that any application of immunity ratione personae to include officials other than Heads of State, Heads of Government and Foreign Ministers would need to be clearly justified, including a careful analysis of customary international law and the relevant state practice. In this regard, we tend to support the more restrictive approach adopted by the ICJ in the Certain Questions of Mutual Assistance in Criminal Matters. We are cautious about the suggestion to develop criteria for immunity ratione personae, as this has the potential to go well beyond an exercise in codification. The development of criteria, for example, to apply to Ministerial-level officials with an international representation component in their duties, or to officials travelling with Heads of State, Heads of Government and Foreign Ministers, could substantially increase the scope of personal immunity.
Moreover, we consider that it would be very useful for the Special Rapporteur, in examining the scope of immunity in his subsequent report, to devote special attention to the central question of whether State officials enjoy immunity in the cases of crimes under international law. On this issue we prefer the approach of the Commission in the 1996 draft Code of Crimes against the Peace and Security of Mankind, which provides for an exception to immunity when a State official is accused of international crimes. The exception to immunity seems particularly appropriate when the prohibition of an international crime has reached the status of a jus cogens norm. We look forward to the Special Rapporteur’s work on this area of the topic, and to his careful study of State practice, international and national judicial decisions, and legal literature in his next preliminary report.
The Obligation to Extradite or Prosecute
New Zealand has considered carefully the report of the Special Rapporteur on the issue of the ‘obligation to extradite or prosecute’. We consider that the first and most fundamental question to be determined is whether an obligation to extradite or prosecute exists under customary international law. We encourage the Special Rapporteur to continue to review State practice and opinio juris in this area to enable him to reach a conclusion on this matter.
Once this question has been determined, we look forward to the Special Rapporteur engaging with the working group to develop a more detailed understanding of the scope of an obligation to extradite or prosecute. For example, we would welcome further guidance as to when States could be considered to have exhausted this obligation.
Mr Chairman
Finally, New Zealand would like to commend the Director of the Codification Division, Ms Mahnoush Arsanjani, for her many years of excellent service to the Commission and this Committee. Ms Arsanjani’s significant expertise will be missed, and we wish her the very best for her future endeavours.
Thank you
Mr Chairman
