¿¡QUE!?
By Katie Llanos-Small, December 1st, 2006
What is Michael Cullen playing at by overruling a judge’s order for the arrest of Moshe Ya’alon?
It has been over a year since I studied politics, but I vaguely remember something about the separation of the judiciary and the executive as being kind of fundamental to the whole idea of a democratic system. That is, politicians cannot just step in whenever they feel the urge and overturn a court’s decision.
I don’t know the details of this situation, and perhaps my legally-minded friends will set me straight here. But it doesn’t seem quite right that the deputy Prime Minister can just completely reject a decision made by a judge, does it?
Someone help me out here, I am really confused.
Other posts by Katie Llanos-Small
December 1st, 2006 at 7:01 pm
It does sound vaguely unconstitutional huh?
I know that New Zealand courts have jurisdiction to hear cases about war crimes and crimes against humanity under the International Crimes and International Criminal Court Act 2000. S 13 of that act says that the Attorney-General’s consent is required for a prosecution, but it goes on to say that an arrest warrant CAN be issued.
Michael Cullen has said that Crown Law advised him that there is not a strong enough evidentiary basis to bring the case and (as far as I understand the press release - http://www.scoop.co.nz/stories/PA0612/S00022.htm) that this means the judge had no jurisdiction…
Aside from all of that there are some really interesting issues with attempting to bring a case like this in NZ.
Firstly, from a pragmatic point of view, is NZ the best place for a case like this? A case such as this would require a huge amount of time and funding (for example getting evidence and witnesses to NZ), not to mention expertise (although I can imagine Ken Keith would have loved to get something like this when he was here!). There is a real concern that the quality of the decision would not be as good as it would be in an international court.
On the other hand if domestic courts are not willing to take on cases like this what does that say about our commitment to condemning the atrocities that have been condemned, at least nominally, by the international community? The Rome Statute of the International Court of Justice contemplates that the first port of call is state courts, rather than the ICJ itself.
Universal jurisdiction (where domestic courts claim jurisdiction over a non-national on the basis that it is in the interests of the international community) is a controversial area. Trying a non-citizen for acts committed in another country invades the sovereignty of that nation, and soveriegnty is still the basic building-block of our international system. A document called the Princeton Principles on universal jurisdiction (www.princeton.edu/~lapa/unive-jur.pdf) sets out one way to approach it and insists upon the obligation of states to exercise universal jurisdiction in relation to international crimes. Somewhat ironically, the first case in which a state seized international jurisdiction was an Israeli case in which Nazi war criminal was kidnapped in order to be tried in Israel (Attorney-General of the Government of Israel v Adolf Eichmann 36 ILR 5 (1961) ).
I guess that doesn’t answer your question, but it is a fascinating issue! If anyone actually does know how the AG can override an arrest warrant I’d be really curious to find out!
December 3rd, 2006 at 9:58 am
That is a really terrific analysis Cat. You seem to have all the bases covered: cost & effectiveness factors point to not doing something like this in NZ, but if everyone thought that way the whole system would collapse. Fascinating stuff. Thank you.
December 5th, 2006 at 9:43 am
Wonderful analysis, Cat.
“If anyone actually does know how the AG can override an arrest warrant I’d be really curious to find out!”
Not being a lawyer, and having performed merely a perfunctory reading around the issue I thought the AG could only enact powers such as these to stay prosecution, not to prevent arrest. I doubt anything will come of his actions though.
But it does beg the question: if Cullen believes he has this power, why doesn’t he utilise it to stop the ongoing persecution of a certain Algerian academic staying at a friary in Auckland?