• Paul East


I am very privileged to be able to speak at this opening of the Heads of Prosecuting Agencies in the Commonwealth Conference. It is indeed an important occasion when we have gathered together speakers and participants from places as diverse and widespread as the United Kingdom, Australia, Northern Ireland, Canada, Hong Kong, Singapore, Vanuatu, and Fiji to talk about problems which are now truly international.

At one level the problems within the jurisdictions are common to many countries. Ultimately the goal must be to achieve social stability and safety so that citizens are protected from lawlessness and acts of aggression. Equally however this must be achieved in a way that does not unduly encroach upon the rights and freedoms of individual action and expression. Achieving that is a delicate balancing act and one that is harder to do if the society also faces deep internal divisions because of competing interests from different races and socio-economic groups.

What unites us all throughout the Commonwealth however is a common language and a common system of justice. These two factors are capable of having an enormous influence in achieving cooperation.

Our system of course is an adversarial one and the lynchpin of it is the protection of being able to be judged by one's peers through the jury system. It has been interesting to contrast that in recent weeks with the inquisitorial system employed in European countries which has come so tragically to our attention with the death of the Princess of Wales.

An adversarial system does nevertheless have a common goal for all those who take part, which is that the guilty should not go unpunished and the innocent should not be unprotected. Such values underlie any discussion around effective partnership in the criminal justice system and cooperation between prosecuting authorities, police and courts both at a national and at a local level.

The programme that lies ahead of you for the next two days covers a range of topics of most significant importance to prosecutors in the 1990s. For all of us, British justice has been imposed on an indigenous race with varying degrees of acceptance, and the aboriginal experience is not an isolated one; it is relevant in many other jurisdictions as well.

The independence of the public prosecutor is another issue that you will be addressing in the days ahead. Once again New Zealand and the Commonwealth have inherited the British system where the discretion to prosecute vests in the police and is thankfully independent from the political process.

A relatively new development has been the advent of mutual legal assistance and streamlining international cooperation in obtaining evidence and extradition formalities. These developments are a response to the increasing way in which crime in the 1990s is crossing national boundaries. Now more than ever before countries need to cooperate if crimes are to be detected and evidence obtained.

In recent years international terrorism and drug trafficking in particular have motivated governments worldwide and the United Nations to look hard at systems for international cooperation. Earlier this month a United Nations' review of criminal policy was considered at the Annual Conference of the International Association of Prosecutors held in Ottawa, Canada. The United Nations proposed model treaties as a basis for negotiations in areas of international cooperation to enhance compatibility between legal and procedural approaches taken in different countries.

The law on extradition, in particular, has come a long way from the days in the 19th century when extradition was facilitated by treaties between governments which were incorporated into domestic law by statute on an individual basis. Since then many countries of the world have enacted extradition legislation which enables treaties to be entered into and recognised, and have moved on to enact legislation which of itself recognises an extradition request from a foreign country.

In many ways the United Kingdom Parliament as heading the Commonwealth, led the world when it enacted the Fugitive Offenders Act 1881. It is still in force in New Zealand, although not in the United Kingdom, and recognises a system whereby a warrant can be backed in another country in the Commonwealth to enable a fugitive's return to face trial or to serve out a sentence.

For me all of these concepts and the development that has taken place over the years establish an incontrovertible need for an international court and also an international prison. Step by step such a prospect is coming steadily closer.

I first spoke on the subject of an international criminal court a few years ago at a conference in New York. The idea is not a new one and draft statutes had been developed by the United Nations as early as 1951 as a result of the "cold war". In 1992 however, the United Nations Security Council established a commission of experts to investigate violations of international humanitarian law in the former Yugoslavia. As a result an international tribunal was established for the prosecution of the persons responsible. The Security Council followed the same procedure in 1994 in connection with the events in Rwanda. These events set the stage for work to be done on a more permanent institution.

Originally the General Assembly adopted a resolution in November 1992 and the International Law Commission drafted a statute for an international criminal court. The Commission recommended that an international conference of plenipotentiaries be convened to study the draft statute and to conclude a convention of the establishment of an international criminal court. Following on from this the United Nations General Assembly established in 1994 an ad hoc committee to review issues arising out of the draft and in 1995 the preparatory committee was formally established by resolution of the General Assembly of the United Nations in October 1995.

The committee's brief was to draft a treaty with the statutes of the proposed court as an appendix. In December last year the General Assembly fixed a date for an establishment conference, to take place next year.

The preparatory committee focused on the status and nature of the court and the method of its establishment, the relationship between the court and the United Nations and the financing of the court. Many of the issues are ones that are common to criminal law enforcement agencies at a national level.

There has been general support for the view that the court should be an independent judicial institution. Some countries have favoured an autonomous international body while others prefer that the court form part of the United Nations. There is already a precedent for the latter with the establishment of the International Tribunal for the former Yugoslavia as a subsidiary organ by a resolution of the Security Council.

The options for establishing the court are to amend the Charter of the United Nations, to establish the court by resolution of the General Assembly or by a multi-national treaty. While a resolution of the General Assembly would be efficient and time saving there would be doubts about its legal standing, which would be overcome by a treaty.

The International Law Commission's recommendation was to establish the court by a multilateral treaty and that could provide the necessary independence and authority for the court. That suggestion has the attraction that members states could become parties to the treaty, thus giving the court authority without the risk of long delays.

There are a number of issues to settle also about the nature of the court, its standing in the international community, and its processes. Should it be a full time permanent body or one that sits as and when required? Should it be an international legal personality with treaty making capacity? Should it be competent to request advisory opinions from the International Court of Justice?

How to appoint its judges raises a number of other questions. There is need for a geographical representation and a gender balance. There is need to settle also the number of judges and whether their terms should be renewable or non-renewable or short or long.

There are also difficult issues bringing countries within the jurisdiction of the Court and in giving the Court jurisdiction to investigate, prosecute and try cases of criminal offending which go beyond the boundaries of the nation state.

Something that New Zealand in particular has called for is an independent prosecutor. It is a call which is shared by the Lawyers Committee for Human Rights who believe that the prosecutor should have a discretionary power to initiate proceedings, although acknowledges the need for safeguards to balance the prosecutorial discretion.

The proposals currently being discussed for the jurisdiction of an international criminal court focus on serious crimes of concern to the international community. After the end of the Second World War civilised nations hoped that we would never again see genocide on a scale that occurred in Nazi Germany. Sadly that was not to be and experiences in Vietnam, Cambodia and more recently in former Yugoslavia and Rwanda have led to calls for an international court to deal with crimes against humanity.

It also needs to deal with the crimes which transcend national boundaries such as international terrorism and trade in narcotics. It remains an international scandal that the perpetrators of the sabotage of the PAN AM flight over Lockerbie in 1988 remain at large because the Libyan government refused to hand them over. The narcotics trade poses different problems in that drugs usually pass through a number of countries and not all of them will recognise the transactions as a breach of their criminal law.

It is my hope, and the hope of the many nations and lawyers working in this area, that the world will move towards much greater cooperation in the detection of crime, its prosecution and its punishment. Once again it may be that the Commonwealth with its established links, common language, and common source of legal system can help to lead the way.

I hope that the next two days will be enjoyable and interesting for everybody here, and that you will all go away with renewed enthusiasm to address problems which, in the final analysis, are basically the same at both national and international level.