Israel is commiting genocide in Gaza

Its official: a UN independent international commission of inquiry has found that Israel is committing genocide in Gaza:

The COI, set up by the UN in 2021 and staffed by three independent experts, cited the killing of civilians and children in a “scorched-earth military strategy”, starvation and deaths caused by restrictions on food and medicines, mistreatment of detainees, forced displacement and the physical devastation of much of the territory to support its finding.

The COI also accused Benjamin Netanyahu, Israel’s prime minister who has been accused of war crimes by the international criminal court, and other senior Israeli leaders of incitement of genocide, and said there was clear evidence of their genocidal intent, a key legal requirement.

“The commission concludes that statements made by Israeli authorities are direct evidence of genocidal intent … The commission also concludes … that genocidal intent was the only reasonably inference that can be drawn from the totality of the evidence,” Pillay, a former UN human rights chief, told reporters.

As they point out, all states have an obligation under international law to use all means reasonably available to them to stop genocide. We're a small country on the other side of the world, but the very least we can do would seem to be sanctioning them like we sanction Russia, cutting off the hundreds of millions in trade which genocide-enablers are currently profiting from, supporting an international tribunal to prosecute those responsible, and a global intelligence and law enforcement effort to identify, locate, arrest, and deliver them for trial. Plus of course recognising Palestine.

But realistically, Rimmer - who at this stage is just a local agent for far-right foreigners - isn't going to permit any of this. And while he's nominally only deputy prime minister, Luxon's utter spinelessness has left him de facto in charge of our government. So if we want justice for Gaza, we're going to have to throw these bums out to get it.

Climate Change: the ICJ ruling

Last night the International Court of Justice provided its advisory opinion on Obligations of States in respect of Climate Change. Its very long, but the TL;DR is that states have real obligations under climate change treaties and other international law, including an obligation to limit fossil fuels, and that failing to uphold them may result in legal liability to pay compensation to injured parties. Importantly, these obligations are not just restricted to climate change treaties like the UNFCCC and Paris Agreement, but stem from all sorts of other treaties and agreements, including Montreal Protocol, Biodiversity Convention, Convention on the Law of the Sea, international human rights law, and ultimately, customary international law. So merely sticking your fingers in your ears and withdrawing from climate change treaties - fuck you, America - may change some specific obligations, but ultimately does not remove them or prevent liability.

Internationally, the door is now open for countries suffering climate damage to start suing laggards and deniers and start demanding reparations, with the backing of the international legal system. But the real difference will be its effects on how laws are interpreted within states, and on climate change litigation across the world. Because most legal systems recognise or refer to the relevant international law, and most courts pay attention to the ICJ's definitive interpretation of what that means. So if countries are not meeting the obligations the ICJ says they have, their own courts may be able to say so and force them to do so.

What does it mean for Aotearoa? To give one example, back in January the National-led regime issued a new Paris NDC of a 51-55% cut in emissions by 2035 (from a 50% cut by 2030). This was... unambitious, especially in light of advice from He Pou a Rangi that we could do 55-60% by domestic action alone, and that a fair target would be in the real of 70-75%. That unambitious NDC is clearly illegal in international law, as it clearly does not reflect our "highest possible ambition", and may not be consistent with the (now legally binding) 1.5 degree target. Another country - the Cook Islands, say - could sue us to force us to raise it. The next government has a cast-iron case for doing so. And all future advice on such targets will reflect the ICJ's ruling (at least if it is competent).

Another example: states have concrete obligations to limit fossil fuels, and granting new permits was marked as an action inconsistent with that. So the legal ground under the regime's plans to restart offshore drilling and subsidise the gas industry just shifted. The climate change clauses in our free trade agreements will be interpreted accordingly, so if it wasn't already illegal and in breach of those FTAs, it definitely is now. And MFAT should be screaming at the regime about that.

Most importantly: our climate change legislation refers explicitly to our international obligations in various places - target reviews, the setting of emissions budgets and emissions reduction plans, and ETS volume limits and unit price settings. The relevant legal instruments are incorporated directly into the law of Aotearoa in the schedules to the Climate Change Response Act. In interpreting them and deciding on those obligations, New Zealand courts are likely to find the ICJ ruling persuasive. While international obligations are explicitly one of only a number of factors for consideration, there's an assumption that the government will behave legally and consistently with its obligations, so in practice they're a limit. Which means that targets, budgets, and plans which are inconsistent with the legally binding 1.5 degree temperature threshold, or with the requirement to exercise due diligence in reducing emissions - might be ruled to be unlawful and forced to be reconsidered. Judicial review just got easier, and the Environmental Law Institute's case challenging the ERP may benefit significantly.

Its less clear what it will mean for cases like Smith v Fonterra, but I guess we'll find out.

Ideally, we shouldn't have to sue our own governments to get them to stop grovelling to the fossil fuel industry and adhere to their clear international obligations. But the ICJ has just given us a weapon to do so, and the people of the world should use it.

A criminal nation

The European Court of Human Rights has found Russia guilty of horrific human rights violations during its unlawful invasions of Ukraine:

Russia has committed flagrant and unprecedented abuses of human rights since it invaded Ukraine in 2014, including extrajudicial killings, sexual violence and forced labour, the European court of human rights has found.

The court’s grand chamber unanimously held that between 11 May 2014 and 16 September 2022, when Russia ceased to be a party to the European convention on human rights it had committed “manifestly unlawful conduct … on a massive scale”.

[...]

In its judgment, published on Wednesday, the court said there was evidence of widespread and systemic use of sexual violence, accompanied by acts of torture, such as beatings, strangling or electric shocks. Civilians and prisoners of war were subjected to mock executions, the severing of body parts and electric shocks, including to intimate areas of their bodies, the court said.

Finding repeated violations of the convention, many of which had taken place over a period of more than eight years, the court said: “These actions seek to undermine the very fabric of the democracy on which the Council of Europe and its member states are founded by their destruction of individual freedoms, their suppression of political liberties and their blatant disregard for the rule of law.

The court also found Russia guilty of shooting down Malaysia Airlines Flight 17, murdering 298 people.

Russia withdrew from the court in September 2022, so the ruling isn't directly enforceable. But its enforceable within Europe, and Russian assets frozen there could lawfully be seized to pay compensation. More importantly, if Russia ever wants to normalise its relationship with Europe, it is going to have to address this, accept the ruling, and make restitution. And until it does, the world is justified in treating it as a criminal nation.

Making the world a more dangerous place

Like much of the rest of the world, I've been watching in horror for the last week as nuclear-armed, genocidal Israel started a war of choice against Iran, bombing its military facilities and cities, then screaming like a Russian when its victim hit back. And now they've dragged the nuclear-armed US into their little war, making things even more dangerous.

Firstly, the war is clearly an illegal act of aggression under international law. Iran had taken no aggressive action against Israel, let alone the US, and there was not a clear and imminent threat of it doing so which would justify a pre-emptive strike. Instead, its just Israel kicking over another neighbour in an effort to distract from its ongoing genocide in Gaza. It is a clear international crime - the supreme international crime, even - and its architects should be facing trial in The Hague for it. Which makes the New Zealand government's refusal to condemn the attacks pure cowardice, a betrayal of our long-standing support for peace and international law.

The ostensible purpose of the war is to "stop Iran getting a nuclear weapon". Which is ridiculous on a number of levels. Most obviously because Iran has been a member of the non-proliferation treaty for over 50 years, and had renounced weapons of mass destruction in 2003. Israel and the US didn't believe them, so they signed an anti-nuclear deal in 2015, which subjected them to enhanced monitoring in exchange for a relaxation of sanctions. The first Trump administration tore it up, simply out of hostility to anything done by his predecessor. In response, Iran began to gradually do the things it was no longer forbidden to do, to remind the US of why it had signed the deal in the first place, and the US finally seems to have figured out that withdrawal was a mistake. They were due to restart negotiations to restore it a week ago - the day before Israel started bombing. And then, when Iran was about to start talking to the EU (who were also partners to the deal), the US started bombing. You'd almost get the impression certain countries had simply renounced diplomacy entirely...

But even taking the supposed goal seriously, it seems unlikely to succeed - and more likely to have the opposite effect. On the immediate level, the US has now admitted that it has no idea where Iran's stockpile of highly enriched uranium is anymore, while Israeli bombing means the IAEA has lost track of all sorts of stuff. Nuclear material and equipment may have been destroyed, or it may have been moved to be used in secret later, so any future monitoring effort is basically doomed. But given that the bombing has destroyed all trust between Iran and the IAEA, that's pretty much moot.

In the longer term, if Iran didn't already have a Bomb, it now has a very strong incentive to get as many as possible as soon as possible, to deter future bullshit. And apparently a bunch of countries are willing to help them with that. Along with the invasion of Ukraine, its basically the death of the NPT, and the birth of a more dangerous, nuclear-armed world. Oh joy.

And that's the real tragedy here. Nuclear weapons were invented 80 years ago, and are now well-understood technology. There are now nine nuclear-armed states, a bunch of countries like Japan, Germany, and South Korea who can build them at the drop of a hat, and a much larger group who could build them if they set their mind to it. Iran is one of those countries. Its a large, modern state, with universities, research institutes, and a nuclear power program. The interesting question isn't whether it has nuclear weapons, it's why it doesn't. And the answer to that is the same as for other large, modern states: because it didn't want them. Because weapons are wasteful, and it didn't feel the need - even when its spent the last 20 years being constantly threatened by Israel and the US. The Israeli-US bombing campaign has almost certainly destroyed that, both for Iran and a bunch of other countries who feel threatened (or might feel threatened) by the hegemon or their neighbours. It is stupid, counterproductive, and dangerous. But its the world Netenyahu and Trump have given us. And we should curse them forever for it.

(As for the Iranian regime, fuck ‘em, they’re tyrants. But that’s a problem the Iranians will deal with in their own time and in their own way. And again, its hard to see how Israel or the US are helping to do anything other than keep the tyrants in power...)

Doing less than the bare minimum

Last night, after nearly two years of genocide in Gaza, the New Zealand government finally began to do the right thing, and sanctioned two Israeli cabinet ministers for promoting genocide. Which is a good first step, but its not enough. Firstly, the sanctions are just a travel ban, saying "you can't come here", which is pretty whoop-di-shit as far as sanctions go. Secondly, wanted international criminals Benjamin Netanyahu and Yoav Gallant are not sanctioned - and nor is the state of Israel itself. In other words, the New Zealand government is still doing as little as possible.

This isn't good enough. Israel is carrying out a genocide in Gaza and an illegal occupation of the West bank, in flagrant violation of international law. We should be treating it like we treat Russia, with a full trade and investment ban and restrictions on financial dealings. IDF members should be banned from travelling here. Israeli officials complicit in or with political responsibility for these crimes should similarly be subject to asset seizures, travel bans, and trading restrictions, just like Putin and his cronies. And those sanctions should stay in place until the genocide and occupation stops, reparations (such as they can be) are made, seized land is returned, and everyone responsible is sent to The Hague to face justice before international courts. That seems like the absolute minimum we should be doing. Instead, though inaction, our government is sending a clear message that it approves of genocide. And that is not acceptable.

Justice for Afghanistan?

The International Criminal Court is seeking arrest warrants against senior members of the Taliban regime on the grounds that their persecution of women is a crime against humanity:

The international criminal court’s chief prosecutor has requested arrest warrants for the Taliban’s supreme leader and Afghanistan’s chief justice on the grounds that their persecution of women and girls in Afghanistan is a crime against humanity.

It marks the first time the prosecutor has built a case around systemic crimes against women and girls, legal experts say. It is also a rare moment of vindication for Afghan activists, who over the last three years have often felt abandoned by the international community even as Taliban oppression deepened.

[...]

Karim Khan, the ICC chief prosecutor, said in a statement that the Taliban’s supreme leader, Haibatullah Akhundzada, and chief justice, Abdul Hakim Haqqani, are “criminally responsible” for ongoing persecution of girls, women, the LGBTQ+ community and their allies.

Good. And not just because of Afghanistan. There's also Iran and Saudi Arabia, and of course the US is increasingly going full-Gilead. And while none of those countries are parties, establishing a principle in international law that gender persecution is a crime against humanity will still enable their regimes to be held to account in future under other legal jurisdictions. Members of the Republican Party might not be able to take European holidays ever again.

Justice for Gaza!

It finally happened: the International Criminal Court prosecutor is seeking an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for war crimes in Gaza:

The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant.

Karim Khan said his office had applied to the world court’s pre-trial chamber for arrest warrants for the military and political leaders on both sides for crimes committed during Hamas’s 7 October attack and the ensuing war in Gaza.

[...]

In an extraordinary rebuke of Israel’s treatment of Palestinians and its conduct in the war in Gaza, Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. Monday’s statement notably does not include any Israel Defense Forces (IDF) officials, such as its chief of staff, Lt Gen Herzi Halevi, focusing instead on political decision-making.

The latter seems like a significant omission, since they're the people actually doing the war crimes. But maybe they're next in the queue?

Meanwhile, the question for Aotearoa: when are we sanctioning Netanyahu and his criminal regime? We have rightly sanctioned Putin and his cronies for their illegal war in Ukraine. We can hardly do less to a genocidal war criminal.

Justice for Gaza?

The New York Times reports that the International Criminal Court is about to issue arrest warrants for Israeli officials, including Prime Minister Benjamin Netanyahu, over their genocide in Gaza:

Israeli officials increasingly believe that the International Criminal Court is preparing to issue arrest warrants for senior government officials on charges related to the conflict with Hamas, according to five Israeli and foreign officials.

The Israeli and foreign officials also believe the court is weighing arrest warrants for leaders from Hamas.

If the court proceeds, the Israeli officials could potentially be accused of preventing the delivery of humanitarian aid to the Gaza Strip and pursuing an excessively harsh response to the Hamas-led Oct. 7 attacks on Israel, according to two of the five officials, all of whom spoke on the condition of anonymity because they were not authorized to publicly discuss the matter.

The Israeli officials, who are worried about the potential fallout from such a case, said they believe that Prime Minister Benjamin Netanyahu is among those who might be named in a warrant. It is not clear who might be charged from Hamas or what crimes would be cited.

Good. Israel is clearly perpetrating genocide in Gaza, as well as committing other war crimes and crimes against humanity. And as their ultimate political authority, Netanyahu bears legal responsibility for those crimes. He must be held to account for them. Israel is hardly going to do that themselves, so international justice is what we're left with. That process may be slow and imperfect, largely amounting to stigmatisation and a de facto lifetime travel ban from all civilised nations, but its what we've got, and it seems better than the alternatives.

Climate change violates human rights

That's the ruling of the European Court of Human Rights today:

Weak government climate policies violate fundamental human rights, the European court of human rights has ruled.

In a landmark decision on one of three major climate cases, the first such rulings by an international court, the ECHR raised judicial pressure on governments to stop filling the atmosphere with gases that make extreme weather more violent.

The court’s top bench ruled that Switzerland had violated the rights of a group of older Swiss women to family life, but threw out a French mayor’s case against France and that of a group of young Portuguese people against 32 European countries.

[...]

The court, which calls itself “the conscience of Europe”, found that Switzerland had failed to comply with its duties to stop climate change. It also set out a path for organisations to bring further cases on behalf of applicants.

The other cases were thrown out for technical reasons, not on the merits, so that's not actually a problem. What is weird is that this ruling was made under Article 8 - the right to respect for private and family life, home and correspondence - rather than the Article 2 right to life. Reading the actual judgement, the reason for this seems to be that it was a bit easier, but it also notes that there's a very similar argument under the right to life. But the ruling itself flows from accepted principles of effective protection for human rights:

The Court found that Article 8 of the Convention encompasses a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life.

In this context, a contracting State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change.

Whether this argument works in Aotearoa (which also recognises the right to life) will depend on whether the courts recognise a duty of effective protection.

As for Europe, the consequences of this ruling should be significant, and should force ECHR parties (including the UK) to revise their climate policies, or face legal action. And hopefully that will see deeper emissions cuts

Aoteraoa, Ukraine, and Gaza

Today the government designated the political wing of Hamas as a terrorist entity, making supporting them a criminal offence. I honestly don't know much about Hamas' organisation, or how involved its politicians were in planning its crimes in October last year, but when Israel is actively carrying out a genocide in Gaza, designating the political representatives of its victims as "terrorists" seems a little on the nose. And it invites the obvious question: when will we apply a similar designation to the Israeli government and its genocidal "defence forces"?

But beyond that, we should think about what our obligations are as a country which supports human rights and international law and opposes genocide. And unfortunately, we have a very illustrative example right to hand: Ukraine. Ukraine is a victim of invasion by a neighbour which has explicitly announced their intention to eliminate its culture and people, and who has given effect to that intention with numerous war crimes since the invasion began. And in response, the New Zealand government has:

• Applied sanctions to the Russian economy and leadership;
• Explicitly called for Putin to be tried for war crimes and crimes against humanity.
• Provided money and other support to arm Ukraine to defend itself;

I have not been especially vocal about this, because I have a low tolerance for horror at the moment. But I think that's an appropriate response for a small country at the bottom of the world with our values. Its doing what we can to support Ukraine to defend itself and to support a peaceful world with international law.

But I think we should be doing the same for Gaza too. Hamas's attacks on 7 October were a terrorist act. But the Israeli response since has been disproportionate, indiscriminate, and explicitly genocidal. And that's something we should not tolerate. We should be sanctioning Israel, Netanyahu, and senior members of his genocidal regime. We should be supporting their arrest and extradition to The Hague for trial for genocide. And we should be arming the Palestinians. A people are being exterminated while we watch. The very least we can do is give them the means to defend themselves against it.

We should not be supporting foreign wars

Yesterday the government announced that it was sending a handful of New Zealand troops to the Middle East, to participate in the US bombing campaign against Yemen. The numbers and roles - six people, doing target selection - is very much a token contribution. At the same time it reveals a fundamental difference in outlook between this government and the previous one. When the US started bombing people, Labour would say "no thanks". National by contrast is eager to join foreign wars, sucking up to the Americans and British so they can be "part of the club".

The government's justification is protecting trade and the "rules-based international order". Sure, but rule #1 of that order is "don't commit genocide", and the US is currently preventing that rule being enforced against Israel. Rule #2 is "no war without UN permission", and the US is breaking that one too: there is no UN mandate for this operation. Basicly, National is siding with the lawless here, and we shouldn't be doing that.

What's the alternative? Simple: stay out of it. If the US wants to piss all over the rules-based international order while purporting to uphold it, let them do it alone. That would actually be consistent with our long-standing foreign policy of support for international law. By getting involved, National have shown themselves to be nothing more than sociopaths, willing to kill - or have others kill for them - for social status. They're utterly despicable, and we should regard them as criminals.

Meanwhile, if we don't want our governments to do this sort of shit in future, we need to take a hard look at the capabilities of the NZDF, and start removing the ones which enable this. NZDF performs many useful functions for us - disaster relief, search and rescue, peacekeeping. But getting involved in foreign wars is not one of them. There's no reason for a country without an air force and which opposes American bombing campaigns to have people trained in choosing who to murder from the sky. Likewise, there's no reason for us to have an SAS, or frigates, or gold-plated ASW aircraft. These capabilities serve no purpose other than allowing governments to drag us into illegal and immoral military operations. And as a peaceful nation which supports international law, we are better off without them.

Israel is an apartheid state

Israel is an apartheid state. That's been the conclusion of investigative journalists, the US government, the United Nations, and Israeli human rights groups. And now, its a conclusion shared by Israel's former spy-chief:

A former head of the Mossad intelligence agency has said Israel is imposing a form of apartheid on the Palestinians, joining a growing number of prominent Israelis to compare the occupation of the West Bank to South Africa’s defunct system of racial oppression.

[...]

Pardo told the Associated Press that Israel’s mechanisms for controlling the Palestinians, from restrictions on movement to placing them under military law while Jewish settlers in the occupied territories are governed by civilian courts, matched the old South Africa.

“There is an apartheid state here,” he said. “In a territory where two people are judged under two legal systems, that is an apartheid state.”

When a person at the heart of a state's establishment tells you about that state, believe them. They're in a position to know. The question then is what to do about it. When South Africa ran an apartheid regime, it was subjected to boycotts and sanctions, and made an international pariah. That would be a start. But Apartheid is now a crime in international law. If that law is to mean anything, those responsible for that crime need to be prosecuted.

Judicialising the climate struggle

The United Nations has asked the International Court of Justice for a ruling on climate change obligations:

The UN General Assembly has adopted a Vanuatu-led resolution calling for an advisory opinion from the International Court of Justice (ICJ) on climate change and human rights.

The resolution was tabled by Vanuatu and a core group of 17 countries, aiming to clarify what the obligations of states are in protecting the rights of current and future generations from the adverse effects of climate change.

The motion, sponsored by more than 130 countries, was greeted with cheers.

While an ICJ advisory opinion isn't binding, it will be influential, and likely to be accepted by countries who wish to appear to be good international citizens, and by courts who find international legal arguments convincing. The latter group includes Aotearoa, so this is a ruling that will make a difference here. And we have Vanuatu - and a bunch of USP law students - to thank for it.

The police knew coercing photographs from kids was illegal

In September last year, the Privacy Commissioner and Independent Police Conduct Authority issued a joint report on their investigation into the police's practice of coercing "voluntary" photographs from young Māori on the street. The report uncovered illegality, systematic racism, and widespread ignorance among police officers of the limits on their behaviour, including some practices so obviously illegal that the Privacy Commissioner was forced to issue a Compliance Notice to stop them. The report mentioned that the police had conducted their own internal review into the issues it covered, and a sharp-eyed person used FYI, the public OIA request site, to request a copy. Today, three months after the statutory deadline, the police finally provided a response, including a copy of the report. That report shows that, contrary to their public statements, the police's processes for handling this data are not robust, and they know it (or at least, they would if they read beyond the summary, which in usual police fashion, minimises their own wrongdoing and buries the true scale of their non-compliance). But it gets worse, because the report included legal advice, which was not properly redacted. This shows that:

• Photographing and fingerprinting children and young people is likely inconsistent with the UN Convention on the Rights of the Child and its principle that the best interests of the child be a primary consideration in all actions concerning children;
• They know that their claims of "consent" where children are concerned are pure bullshit. "There are a number of barriers to obtaining full and informed consent including the power imbalance between the young person and the Police officer, literacy issues, and communication disabilities... These factors can make it difficult for an officer to adequately explain the points in the POL545/545A forms to the level required not least because the officer does not have the training to recognise them or to address them." There are multiple cases already where evidence coerced from children and young people in this way has been thrown out by the courts on these grounds.
• Even if officers were properly trained, "some young people, particularly those aged under 15 years are not usually able to provide full and informed consent".
• These concerns effectively poison all existing material taken from young people.
• The nature of the youth justice system and its focus on allowing young people to make amends and leave offending in the past means that indefinite retention of information on children and young people is not a "lawful use", regardless of "consent".

Chris Hipkins is on record as saying that he wants to simply legalise the police's criminal behaviour, effectively putting them above the law. But this wouldn't just involve overturning the most basic principles of the Privacy Act - it would also require overturning fundamentals of the youth justice system. Which in turn would put us in violation of UNCROC, which has been incorporated into New Zealand law through the Oranga Tamariki Act. And as with "three strikes" and mandatory minimum non-parole periods, I'm not sure the courts would stand for that.

Update: The report is now on DocumentCloud. To read the redacted bits, click on "Document" (on the bottom left) and change it to "Plain text".

Justice for Ukraine?

Overnight, Russia launched more missiles against Ukraine, targeting apartment blocks and electricity facilities in an effort to terrise civilians and freeze them to death over winter. And there are more photos of Russian war crimes in occupied areas doing the rounds. So I'm glad to see some progress at the UN towards holding Russia's leadership to account for their crimes:

A draft resolution is circulating at the United Nations in New York for a Nuremberg-style tribunal to hold the Russian leadership accountable for crimes of aggression in Ukraine amid signs that US opposition to the proposal may be softening in the face of lobbying by the Ukrainian president, Volodymyr Zelenskiy.

[...]

The international criminal court has already started investigating war crimes in Ukraine, but Ukraine’s leadership argues that the ICC is hampered in that while it can try those charged with individual war crimes, it cannot prosecute the Kremlin leadership over the broader crime of aggression since Russia is not a signatory to the relevant statute.

Van Schaack, speaking in London at a Lawyers for Justice in Libya event, said the US had not taken a firm position on a special tribunal. However, she believed there was merit in holding trials in absentia of Russians accused of war crimes if it was not possible to extradite them.

The EU has already expressed support for such a tribunal, so the question here is whether its done by them or the UN. The latter obviously has more moral weight, and will be a stronger condemnation by the international community of Russia's crimes. And its in the interests of the international community to do it: non-aggression and human rights are the cornerstones of the modern international order (even if they are observed in the breach), and allowing aggression and war crimes to go unpunished will encourage them. Whereas trying aggressors and criminals protects everyone.

Whether Putin and his cronies actually end up before such a tribunal obviously depends on how the war ends (and what happens inside Russia in response). But at the least, this will make sure they can never set foot outside Russia or its tiny club of fellow tyrannies ever again. And that they'll never be able to enjoy their stolen wealth ever again.

Monstrous and illegal

In September 2021 Ahamed Samsudeen was killed by police after stabbing eight people in an Auckland supermarket. Samsudeen was a former refugee who seems to have been turned into a terrorist by the SIS and police (at the least you can say that their treatment of him did not help the situation, and it seems to have made it considerably worse). After an attempt to prosecute him for terrorism collapsed in the face of the inconvenient fact that he hadn't actually broken the law yet, the government tried to deport him, but were barred from doing so by international human rights law. But now the government has a "solution" for this "problem": simply ignore that law:

The government is looking into whether it will change the law to make it possible to send would-be terrorists, or refugees who have been serious offenders, back to their home countries.

[...]

Immigration Minister Kris Faafoi said the government is talking to other countries about how they deal with deporting protected people - those who face the risk of persecution in their home countries.

"We're currently in a phase where we are asking some experts for some feedback to the proposals. Some of that includes talking to other countries about the regimes that they have in place to relocate people. It's not as easy as it sounds and obviously, that was one of the sticking points with the individual involved.

"So we haven't come to a final position yet. But we have, I guess - in comparison to where we were in September last year, we've advanced a lot of the policy discussions."

The most obvious problem with this is that it is blatantly illegal under international and New Zealand law. While the Refugee Convention allows people granted refugee status to be deported back to persecution when they have been convicted of a "particularly serious crime" and so constitute a "danger to the community", or where there are reasonable grounds for regarding them as a "danger to the security of the country", they are still protected by the the Convention Against Torture and the ICCPR, which forbid deportation to torture and death. Those protections are recognised in sections 130 and 131 of the Immigration Act, and beyond that by the affirmation of the right to life and the right not to be subjected to torture or cruel treatment. While the former can easily be changed, the BORA rights are considered non-derogable by the courts (reflecting international law on the issue), so if the government wanted any change to stick, it would have to either directly amend the BORA, or write a nakedly explicit "fuck the BORA" clause into the Immigration Act. Both are obviously constitutionally improper. And even then, it would just move the problem from New Zealand courts to the United Nations (either the Human Rights Committee or the Committee Against Torture, depending). So, this isn't actually a "problem" they can solve, unless they want to turn us into an outlaw regime like Australia which pisses on international human rights law.

Secondly, what is the "problem" they are trying to solve? Looking at their chosen example, its not "people who have been convicted of crimes", but people who haven't been convicted, people who haven't actually committed crimes at all. Which gets us into issues of punishment without trial, which again is simply not the sort of thing countries which respect human rights do. Aotearoa likes to think of itself as one of those countries, and Labour likes to think of itself as a party which supports that. But clearly the current government haven't got the memo, because faced with some legally inconvenient people, their "solution" is simply to get rid of them, and bugger legal process or human rights protections. Which is the sort of mindset you'd expect from someone like Putin, not a New Zealand politician.

What the government is proposing is simply monstrous and illegal. It should not proceed. But beyond that, it exposes a sickness at the heart of government, a mindset of convenience and expediency and a disregard for fundamental human rights. A government infected by such a sickness should not be allowed to continue. Instead, it should be removed from office at the next election.

Send Putin to The Hague

The International Criminal Court has formally opened an investigation into war crimes in Ukraine, after being asked to by 39 countries:

The prosecutor of the international criminal court (ICC) in The Hague has announced that he will launch an investigation into possible war crimes or crimes against humanity in Ukraine.

Karim Khan said that although Ukraine was not a member of the ICC, it had awarded jurisdiction to the court. He said that there was grounds to open an investigation based on a previous preliminary investigation on Crimea and the Donbas published last year, and on current events in Ukraine.

“I have already tasked my team to explore all evidence preservation opportunities,” Khan, a British lawyer, said.

Which is good, because war crimes and crimes against humanity are undoubtedly being committed by Russian forces in Ukraine, and they need to be prosecuted. But thanks to a quirk of the Rome Statute, the real crime here - the crime of aggression ( "the supreme international crime" which "contains within itself the accumulated evil of the whole") - will not be part of the investigation. Neither Ukraine or Russia is a party to the Rome Statute (though Ukraine has accepted jurisdiction), so the ICC cannot prosecute for aggression. Which means firstly, that we need to reform the Rome Statute so that it can; and secondly, that until that happens, we will need a special-purpose tribunal to prosecute this crime and hold Putin accountable.

Climate Change: Off to the World Court?

Vanuatu is leading a push to take the issue of climate change to the World Court:

Vanuatu will ask the International court of justice for an advisory opinion on the rights of present and future generations to be protected from climate change.

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Ahead of the summit, Vanuatu will expand “its diplomacy and advocacy” by forming a coalition with fellow Pacific Islands and other vulnerable nations to push the initiative.

An advisory opinion would require a majority vote at the UN General Assembly. I'd expect Aotearoa to support this. Its in perfect alignment with our stated goals and values - environmental protection and a law-governed international order. OTOH, you'd also think that of the IUCN's deep-sea mining moratorium, which the government abstained from.

An advisory opinion isn't legally binding. But it would be influential. National courts will listen to it. Governments will listen to it. And even if it doesn't result in the outcome we want, it will almost certainly tell us what we need to do to get it (in the way that the Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons effectively told us we needed the Treaty on the Prohibition of Nuclear Weapons to establish a cusomary prohibion).

You can read more about the campaign here.

Time to outlaw ecocide

We live in a time of historic ecological crisis, with the Earth on the verge of dangerous levels of anthropogenic climate change, threatening the ecology, food supplies, world peace, and the habitability of some of the most densely-populated parts of the planet. And while this is going on, some people are trying to actually make it worse for their own profit. Now, a group of laywers and diplomats are working to make that a crime in international law:

Legal experts from across the globe have drawn up a “historic” definition of ecocide, intended to be adopted by the international criminal court to prosecute the most egregious offences against the environment.

The draft law, unveiled on Tuesday, defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.

The Stop Ecocide Foundation initiative comes amid concerns that not enough is being done to tackle the climate and ecological crisis.

If adopted by the ICC’s members, it would become just the fifth offence the court prosecutes – alongside war crimes, crimes against humanity, genocide and the crime of aggression – and the first new international crime since the 1940s when Nazi leaders were prosecuted at the Nuremberg trials.

This is something New Zealand should support. The environment needs protecting, and those who have worked to destroy it need to be punished. And for grave crimes of ecocide, an international venue is appropriate where national governments refuse to act. As for the definition, "wanton acts committed with knowledge" would seem to cover most fossil fuel executives and those profiting from deforestation, which seems entirely appropriate.

But beyond supporting this as a change in international law, New Zealand should also take steps to criminalise it in domestic law as well. Ecocide is a crime even if the international community refuses to recognise it. And it is time we treated it as such.

A victory for international justice

Back in 2015, Palestine became a party to the Rome Statute of the International Criminal Court. In 2018, it complained to them about war crimes carried out on their territory by occupying Israeli forces. And now, the ICC has ruled that it has jurisdiction and can investigate:

The international criminal court has announced that it has jurisdiction in Palestine, clearing its chief prosecutor to investigate alleged atrocities despite fierce Israeli objections.

Israel’s prime minister, Benjamin Netanyahu, condemned the ruling and said the country would “protect our citizens and soldiers in every way from legal persecution”.

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Bensouda, a Gambian lawyer, has said she would investigate both the Israeli military as well as Palestinian armed groups, including the Gaza-based Hamas faction, which has been accused of “intentionally directing attacks against civilians”, according to her office.

Good. Both Israel and Hamas have carried out indiscriminate attacks against civilians. In addition, Israeli blockades deprive palestinians of the necessities of life, while its legal structure is essentially an apartheid regime. The only way these crimes against humanity will end is when their perpetrators are prosecuted and held to account. And the fact that the Israeli government is fighting so hard to stop that from happening tells us everything we need to know: they're guilty, and they know it.