Crown Law Office
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I thank the honourable member Kennedy Graham for raising those questions, and for having given me advance notice of them, because they are important questions and are worthy of consideration
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I thank the honourable member Kennedy Graham for raising those questions, and for having given me advance notice of them, because they are important questions and are worthy of consideration
The first question is answered thus: under section 13 of the International Crimes and International Criminal Court Act 2000 the consent of the Attorney-General is required before any proceeding for an offence under sections 9 to 11 of that Act can be instituted. As with all prosecutions requiring prior consent, a person may be arrested on warrant before an information is laid, but no information may actually be laid. In relation to the issue concerning the Israeli officer, an information had been placed before the District Court, and a warrant to arrest was issued on that information. That, in fact, made the proceeding a nullity because there was no jurisdiction to issue the warrant on the information, and there was no evidential basis to arrest, either.
The second question the honourable member raised asked whether the Government had an obligation, independent of the evidential merit of the information, to search for suspected persons. If there is reliable information that a war crimes suspect is in a particular jurisdiction—say, this country—then the State party has an obligation to locate that suspect. I understand that New Zealand did exactly that a decade or so ago in relation to a possible World War II genocide suspect. But the key point is that the Government can take no formal step without evidence of a standard necessary to arrest and detain. That principle applies whether or not the trial would be in New Zealand and whether or not the suspect would be extradited. The principle or obligation had no application to the Ya’alon case; the Government knew where the general was but until the evidence was sound it had no possible authority to detain him. My understanding is that whatever the relevant international obligation, the obligation to search for war crimes suspects is subject to the usual safeguards in our criminal procedure. The material supporting the criminal allegations in the case the member has raised was essentially an information pack that had been emailed from a source in London and that contained no admissible evidence. So if the person concerned had been arrested, there probably would have been an application to the court for habeas corpus, and I imagine that it would have been granted.
The third question the honourable member raised was about what steps the Attorney-General must take in determining whether the prosecution is to proceed, and whether his judgment of the national interest will faithfully reflect the legitimate claim of any New Zealand resident in ensuring natural justice over suspected war crimes committed elsewhere, over and above any political interest in our bilateral relations with any country. I agree that that is a very important question. The issue of national interest in relation to a criminal action is always a matter for the Attorney-General in Cabinet, acting as the senior law officer. The nature of the relevant national interest will differ from case to case, so no particular assurances could be given to the member as to the weight to be given to particular values. That approach was recently endorsed by the House of Lords in a decision about the BAE Systems bribery scandal—the member may well be aware of it—involving Saudi Arabia and The Corner House litigation, where the Director of the Serious Fraud Office took steps in relation to a prosecution.
I hope those answers satisfy the member. The matters are of great moment. I am grateful to the member for giving me the opportunity to at least reflect upon some of those questions, and I would be happy to take the matter up privately with him at any time.
The second question the honourable member raised asked whether the Government had an obligation, independent of the evidential merit of the information, to search for suspected persons. If there is reliable information that a war crimes suspect is in a particular jurisdiction—say, this country—then the State party has an obligation to locate that suspect. I understand that New Zealand did exactly that a decade or so ago in relation to a possible World War II genocide suspect. But the key point is that the Government can take no formal step without evidence of a standard necessary to arrest and detain. That principle applies whether or not the trial would be in New Zealand and whether or not the suspect would be extradited. The principle or obligation had no application to the Ya’alon case; the Government knew where the general was but until the evidence was sound it had no possible authority to detain him. My understanding is that whatever the relevant international obligation, the obligation to search for war crimes suspects is subject to the usual safeguards in our criminal procedure. The material supporting the criminal allegations in the case the member has raised was essentially an information pack that had been emailed from a source in London and that contained no admissible evidence. So if the person concerned had been arrested, there probably would have been an application to the court for habeas corpus, and I imagine that it would have been granted.
The third question the honourable member raised was about what steps the Attorney-General must take in determining whether the prosecution is to proceed, and whether his judgment of the national interest will faithfully reflect the legitimate claim of any New Zealand resident in ensuring natural justice over suspected war crimes committed elsewhere, over and above any political interest in our bilateral relations with any country. I agree that that is a very important question. The issue of national interest in relation to a criminal action is always a matter for the Attorney-General in Cabinet, acting as the senior law officer. The nature of the relevant national interest will differ from case to case, so no particular assurances could be given to the member as to the weight to be given to particular values. That approach was recently endorsed by the House of Lords in a decision about the BAE Systems bribery scandal—the member may well be aware of it—involving Saudi Arabia and The Corner House litigation, where the Director of the Serious Fraud Office took steps in relation to a prosecution.
I hope those answers satisfy the member. The matters are of great moment. I am grateful to the member for giving me the opportunity to at least reflect upon some of those questions, and I would be happy to take the matter up privately with him at any time.
