New Zealand and the axis of impunity

A couple of months ago, I posted a map of the axis of impunity - those countries which have signed so-called "Article 98" agreements with the USA exempting US citizens from ICC jurisdiction. The map was based on a list from Citizens for Global Solutions, which also included information on who had firmly rejected such an agreement. One striking absence from that part of the list was New Zealand.

So, I asked, using the Official Information Act to request copies of any documents relating to Article 98 agreements, their legality, and any general policy towards signing them, as well as whether any countries had requested such an agreement and any documents or advice relating to such requests. Unfortunately, the OIA has an exemption for information which is likely to prejudice the international relations of the New Zealand government, and this severely restricted the information I was able to obtain. However, I did get some answers. The most important one is this:

In 2002 the New Zealand Government received a request from the United States to enter an "Article 98" agreement. The New Zealand Government is a strong supporter of the International Criminal Court and considers that the Rome Statute contains sufficient safeguards to protect against frivolous or politically motivated prosecutions. The New Zealand Government does not share the United States' concerns about the International Criminal Court. As a consequence the New Zealand Government has not entered into such an agreement with the United States.

The Ministry of Foreign Affairs has documents on its files relating to the United States' request. However, these documents cannot be disclosed to you as disclosure would prejudice the international relations of the New Zealand Government [OIA: s 6(a)]

I also received three documents: An MFAT briefing dated 12 December, 2002, titled "International Criminal Court: US Request For Article 98 Agreement", one dated 16th December, 2002, titled "Parliamentarians for Global Action: International Criminal Court", and an extract from a briefing for the Parliamentarians for Global Action conference in Ottawa in November 2002. All are heavily censored, sometimes comically. Guys, we know Romania's Article 98 agreement is a cause of tension with the EU. The most interesting censorship is a constant reference to a "[DELETED] US campaign" against the ICC. From the context its fairly clearly a country (the names are sometimes reversed) - so which is it? Israel? China? And why is MFAT covering their arse?

The first document contains a fairly thorough look at the issues around Article 98 agreements, though much is excised. In particular, opinion on the scope of Article 98 has been censored - though elsewhere it states that

Even if the question of the legality of new agreements is settled we consider that, at the most, article 98(2) contemplates a Status of Forces type agreement

And

We do not interpret Article 98(2) as authorising agreements that could potentially cover all the citizens of a state irrespective of the circumstances.

Some attention is paid to the EU decision, which has as bedrock principles that any agreement can only apply to persons formally "sent" to the host nation (in other words, military and diplomatic personnel, not former heads of state on European holidays), and that they cannot create impunity: the agreement must create an obligation for the US to investigate and prosecute. The EU also rules out reciprocity; they want their people to be subject to international law. The third document says that New Zealand

would also regard these guidelines as the bottom line for any negotiations. Indications are, however, that an agreement along these lines is not acceptable to the United States...

(Original emphasis)

The most interesting section is on our existing arrangements with the United States which could fall under Article 98. There's diplomatic immunity of course - though the Pinochet case shows that that's not all its cracked up to be. We also have an extradition treaty with the United States, which bars resurrender to a third state of a person extradited. Unfortunately, they've censored the block discussing the legal implications of this, but I think extradition requires charging someone, which means it may not be too much of a problem. More interestingly, there is also the Antarctica Memorandum of Understanding (1958), which is a SOFA-type arrangement covering US personnel (both military and civilian) working for the American Antarctic program. From the look of it, this grants immunity to New Zealand law for any offence "affecting only United States personnel or property or committed in the performance of official duty", but requires the US to "take whatever steps are necessary to punish personnel who have committed acts which are offences" against New Zealand law. Again, the legal implications are censored, but from the look of it this would grant immunity from the ICC for anyone covered (though again it would also require the US to act). And as a scary side note, that "official duty" clause grants US personnel complete impunity if they set up a secret torture camp in New Zealand. The document notes elsewhere that the MOU is in need of updating - but I don't think that that little loophole is what they had in mind.

(There's an obvious followup request here for copies of the relevant treaties, though I may be able to find them elsewhere).

Finally, there's a list of "talking points for use if the issue is raised by US contacts". These basically mirror the answer above ("we do not share these concerns" etc), and have a clear statement that

We would not be willing to enter an agreement that would put us in breach of our existing obligations under the Rome Statute, and possibly also other international obligations, including those under extradition treaties with other states.

So, we are not willing to be part of the Axis of Impunity. I never really thought we would be, but its always good to know...