INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL LAW

I. Introduction

Still no progress has been made regarding New Zealand’s  acceptance of the Red Crystal Emblem. This is disappointing  given that New Zealand signed the Protocol in 2006, which entered into force in 2007 and has, at the time of writing, 60 States Parties (including United States, United Kingdom, France, Germany and Australia). While in the overall scheme of things, the Emblem Protocol is  probably not the key to international peace and security, the lack of progress on such a simple matter raises questions about the current government’s commitment to strengthening the treaty framework of international humanitarian law. Similarly, the Protocols to the Cultural Property Convention languish.1

By contrast,   progress  was  made with  the  Optional  Protocol to  the Convention on the Safety of United Nations  and Associated  Personnel, which entered into force on 19 August 2010.2  New Zealand had been one of the original States Parties to the original 1994 Convention and supported the subsequent extension of the treaty by means of the Optional Protocol to include humanitarian, development and other non-peacekeeping operations under its protection. In June 2010, New Zealand amended its domestic legislation to reflect the extension.3 Following this minor amendment, on 20 September 2011, New Zealand ratified the Protocol.

II. Cluster Munitions

New Zealand continues  to  be involved with the  Cluster  Munitions Convention and, in that context, has taken a particular interest in issues of national implementation of the treaty’s prohibitions.

At home, questions have been raised about the continued investment by the New Zealand Superannuation Fund in companies that deal with cluster munitions – an issue that had arisen even during the negotiation of the treaty. At that time, it was understood  that the Fund would divest itself of all those shares.4 In August 2011, in response to a question raised in Parliament by the Green Party, the Guardians of the Fund confirmed that the Fund continued to own shares  in five relevant companies  (GenCorp ($126,037); Kaman ($35,000); Saab AB ($1.6 million); Tata Power ($442,000) and Zodiac Aerospace  ($216,000)) despite  the  earlier undertakings.5   The Guardians raised two points in defence, neither of which are adequate justifications for the on-going investments.

First, the Guardians argue that the holdings are a very minor part of the entire investment portfolio. While it is true that these figures are miniscule in the context of the overall holdings  of the Fund, that is irrelevant. Any investment  is a direct breach of the Cluster Munitions Act 2009, s 10(2) of which provides:

A person commits an offence who provides or invests funds with the intention that the funds be used, or knowing that they are to be used, in the development or production of cluster munitions.

This provision was included at Select Committee stage precisely to address the concerns being raised about investment by the Superannuation Fund as well as any other Crown financial institution. It was clearly the intent of the legislature to prohibit investment and equally clearly, any investment breaches this provision.

The Guardians’ second point of response is that the best way to terminate cluster  munition  development or manufacture is  through  “engagement” rather than taking a more robust, divestment, approach. The statement issued by the Guardians states:6

Only through engagement can we ensure that we have the facts necessary to influence company behavior. We believe it is better to try to change unacceptable behavior than to walk away from it.

However, the option of “engagement”  is not available in light of the clear words of s 10(2). While it is correct that the treaty itself is less explicit in its prohibitions, only prohibiting “assistance” and not “investment”, the New Zealand legislation prohibits investment and therefore it is no longer within the discretion of the Guardians to decide that the legislative  prohibition should be read down in order to “encourage compliance”.

Given New Zealand’s  leadership  in bringing about the treaty in the first instance, and its continued leadership in working on issues of national implementation for the Convention as  a whole, this  lapse  is regrettable. Not only is the response of the Fund unsatisfactory,  so is the failure of the Government to deal with it.7

III Aggression – The Kampala Resolution

As discussed in the previous review, New Zealand joined the consensus at the Review Conference for the Rome Statute of the International Criminal Court in July 2010, amending the treaty to include jurisdiction over the crime of aggression, although that jurisdiction will not activate until 2017 at the earliest.8  In June, the Government announced that it does not intend to ratify the amendment until after 2017. This is because the “Government wants to be sure that the court, which is a very new institution,  is ready to assume the additional burden of the jurisdiction of the crime of aggression before it supports the activation of that jurisdiction.”9
There was also agreement  in Kampala to add two further war crimes to the Rome Statute, whereby the International Criminal Court would have jurisdiction over the war crimes of using poisonous weapons and expanding bullets in armed conflict not of an international character (both already war crimes in international armed conflict). The International Crimes and International Criminal Court Act 2000 will need to be amended to include the two new crimes before New Zealand can ratify the changes. There is no indication that any such steps have yet been taken.

IV. Detention Practices in Afghanistan

Since December 2001, New Zealand has contributed to the international presence in Afghanistan in the form of deployment of Special Air Service personnel  (NZSAS). While allegations  of detainee abuse  and torture in Afghan detention facilities and concerns about the role of the international forces  in Afghanistan  in transferring  to those  facilities are not  new,10  it was not until 2010 that questions were raised in the New Zealand media as to the handling of persons captured by the NZSAS, or in the presence of NZSAS, and the subsequent detention of those persons or transfer to other Afghan, or United States authorities.11    In  an interview in August 2010, the then Minister of Defence, Wayne Mapp, confirmed that he had ordered an inquiry by the New Zealand Defence Force into detention and transfer practices in Afghanistan.12   It was another fourteen months before the results of that inquiry were made known, and only then following the release of a comprehensive report by the United Nations  Assistance Mission in Afghanistan (UNAMA).13

The Minister released the two reports on 21 October 2011. The date is significant – it was  a Friday afternoon, heading into a holiday weekend, during which New Zealand was to play against France in the final of the World Cup Rugby Tournament. Consequently, the reports were lost in the World Cup frenzy, and the Minister  specifically and Government generally, successfully avoided any real challenges in the media.

The first report, dated 31 August 2011, runs to 21 paragraphs, a good proportion of which is  a reiteration, in general terms, of New Zealand’s international obligations in Afghanistan and general statements about New Zealand’s commitment to the rule of law.14 A strong theme in the report, as with the statements of the Minister generally, is the inability of New Zealand to influence behaviour in Afghanistan, either due to the small  size of the deployment,15 the narrow scope of the deployment16 or the sovereignty of Afghanistan.17  This has been a repeated stance of the Minister in interviews as well – that New Zealand is in Afghanistan to assist with capacity building and strengthening of the rule of law but that this “cannot imply a responsibility to bring about changes throughout the whole of the Afghan legal system or society”.18

The second report, dated 20 October 2011, and thus finalised after the release of the UNAMA report, runs to 20 paragraphs. Again, there is an emphasis on the capacity building nature of the New Zealand involvement.19  Although the report acknowledges the credibility of the UNAMA report, its selective and careful references to the details reported by UNAMA downplays the impact of their findings. For example, the NZDF report focuses on the UNAMA’s conclusion that the use of torture is not a de facto institutional policy of the Afghan National Directorate of Security (NDS) specifically or the Afghan government more generally, and that in some facilities, UNAMA stated that more investigation is required to determine whether torture is used systematically.20  The NZDF report does not repeat, much less emphasise,  the central finding of the UNAMA report that there was compelling  evidence of torture in certain facilities, most notably in the New Zealand context, the NDS facility in Kabul.

The first NZDF report reveals that members of the NZSAS were with the Afghan Crisis Response Unit (CRU) on 58 occasions when persons have been arrested, “most” of whom were arrested pursuant to an arrest warrant.21 The report does not specify the time-frame but presumably it is from the time of original deployment in December 2001 through to the time of finalising the report in 2011. “A small number” of those 58 persons were “transferred to the NDS in Kabul”.22  Presumably, although it is not stated, this refers to the NDS National Counter-Terrorism Department 90/124 in Kabul.

The confirmation of NZSAS presence or involvement with this “small number” is important and raises serious questions,  which are neither interrogated much less answered  in either of the NZDF  reports. The UNAMA report concluded that there was compelling  evidence that NDS officials had systematically tortured detainees at detention facilities in Herat, Khadahar, Khost, Laghman and Kabul.23 UNAMA interviewed 28 persons held at the Kabul facility,24 26 of whom reported torture, being 93% of those interviewed.25  UNAMA also gathered substantial information on torture in that facility by interviewing detainees at other facilities who had previously been detained in Kabul.26 On the basis of those interviews, UNAMA found that NDS officials in the Kabul facility used beatings, suspensions, twisting and wrenching of genitals and electric shocks as methods  of torture.27  Not surprisingly then, the NDS facility in Kabul is now deemed “prohibited”.28

The NZDF  reports do not adequately address these findings. The first report (prepared prior to the release of the UNAMA report), having noted the decision of the United Kingdom High Court in Maya Evans that there was a real risk of torture at the Kabul facility,29  still does not properly consider the implications of the “small number” of detainees who were transferred there. Rather, the report says that the ISAF regards the facility  as the “detainee arrangement of choice”, and “is regarded”  as the one to which the ICRC has the best access and which has the best record-keeping. Even in the second report, when the UNAMA findings had been made known, there was no proper consideration of the fate of those “small number” of detainees, nor the consequent  legal implications.  It does confirm that “to the best of our knowledge no one who has been arrested during CRU operations since the completion of the UNAMA report has been taken to any of the prohibited facilities.”30 While it is good to know that the UNAMA report is being taken seriously, this does not help with addressing any past problems.

A second concern about the reports  is the way in which New Zealand is distancing  itself from the problem. There is  no suggestion  that New Zealanders personally have been involved in mistreatment much less torture. It seems (apart from a single detainee mentioned separately in the reports who is being monitored by the ICRC) that all of the detentions arose in the context of operations with the CRU and importantly, there are no allegations of torture or mistreatment by the CRU in UNAMA report. The real issue is what happens to the detainees once the CRU transfers them to another authority – Afghan or otherwise. While it may be correct that the transfers do not come even close to the threshold required for a finding of complicity in terms of individual criminal responsibility of the SAS personnel,31   that conclusion  does  not  adequately address  New Zealand’s  responsibilities more generally under the Torture Convention.32 Admittedly, there are real difficulties in establishing clear lines of responsibility and accountability in Afghanistan in light of the complexity of the legal relationships involved but this should not, and does not, absolve New Zealand of its own commitment to the rule of law and in particular to its obligation to prevent torture.

A third criticism needs to be made of the New Zealand response. There has been a less  than enthusiastic  willingness on the part of the (then) Minister of Defence to investigate and release the reports. Allegations of torture and serious mistreatment  in Afghanistan detention facilities are not new. While the UNA M A report is useful  in terms of its credibility and authority, there had been considerable evidence available that was sufficient to raise real concerns about systematic torture in certain facilities in Afghanistan – in particular the NDS facility in Kabul. Earlier UN reports had expressed concern about reports of torture by NDS officials,33 credible international human rights groups had detailed their concerns,34 the Afghan Independent Human R ights Commission had expressed its concerns,35   and the matter had been raised in litigation in the United Kingdom36 and in Canada.37 The Minister should have dealt with these concerns more proactively.

The prohibition against  torture includes  an obligation on the part of states to investigate allegations of torture and other ill-treatment. Both the European Court  of Human  Rights  and the Human  Rights  Committee have emphasised that the prohibition on torture and ill-treatment  places the state under an obligation to investigate allegations of violations of torture and ill-treatment, even when the primary allegation itself  has  not  been substantiated.38  Importantly, in the present context, the duty to investigate exists even when the state in question is not alleged to have directly perpetrated the violations, but where there is an allegation that the state had knowledge of a violation.39 In light of the credible reports and investigations, there are grounds to suggest that New Zealand was aware of these concerns and that therefore, New Zealand’s  duty to investigate has been triggered. Further, the jurisprudence of the European Court of Human Rights provides that an effective investigation  must  be independent, and that this means “not only a lack of hierarchical or institutional connection but also a practical independence” of the investigating authority.40 Thus, the two reports by the NZDF are inadequate to satisfy this standard.41

It is not enough for the Minister to suggest that Afghanistan  is a complex security environment and to thereby imply that a more robust investigation would be impossible.  The European Court  has  recently considered  the question of the duty to investigate (in the context of the right to life) in difficult security situations (namely Iraq in 2004), finding that those conditions do not absolve states of their responsibility to investigate. In Al-Skeini & others v The United Kingdom, the Court said:42

[T]he obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation  is conducted into alleged breaches of the right to life.

New Zealand, self-proclaimed champion of the international rule of law, ought to have shown better leadership than brushing  off concerns  about detention practices in Afghanistan with two short internally-generated reports, which do not  satisfy  the international obligation to conduct an independent investigation. It is accepted that such an investigation or enquiry would need to take into account security concerns. However, an independent, but human rights compliant, investigation could be structured in such a way as to take these concerns into account. The former Minister  is correct that New Zealand itself cannot, and should not, be responsible for everything that happens in Afghanistan but neither should New Zealand be part of a system that seems to have been turning a blind eye to torture and mistreatment of detainees.

Treasa Dunworth
University of Auckland

1    Treasa  Dunworth  “International Humanitarian  Law and  International Criminal Law” (2009) 7 NZYIL 321.
2     Adopted 8 December 2005, entered into force 19 August 2010.
3     Amending s  2(1) of the Crimes  (International Protected Persons,  United  Nations  and Associated Personnel,  and Hostages) Act 1980. See Treasa Dunworth “Year  in Review: International Humanitarian Law and International Criminal Law” (2010) 8 NZYIL 214.
4      Dunworth, above n 1, at 323.
5      Hayden Donnell “Super Fund investing in cluster bombs – Greens” New  Zealand  Herald  (New Zealand, 26 August 2011).
6      New Zealand Superannuation Fund  Written Question  (26 August  2011) <www.scoop. co.nz>.
7      See letter from the Aotearoa New Zealand Cluster Munitions  Coalition to Minister of Finance and Minister of Disarmament and Arms Control regarding compliance with the Cluster Munitions Prohibition Act 2009’s prohibition on investment in the development and production of cluster bombs (2 September 2011).
8      Treasa Dunworth “International humantarian Law and International Criminal Law” (2010) 8 NZYIL 214 at 215-216.
9      (22 June 2011) 664 NZPD 12009.
10    See United Nations Assistance Mission in Afghanistan Treatment of Conflict-Related Detainees in Afghan Custody (Kabul, Afghanistan, October 2011) at 2 and citations therein [“UNAMA Report”].
11    Interview with Wayne Mapp, Minister of Defence “New Zealand’s  Defence Force May Face Human Rights Legal Action” (Morning Report, National Radio, 16 August 2010); Interview with Wayne Mapp, Minister of Defence (Q+A, TVNZ, 24 April 2011). See also Jon Stephenson  “Eyes Wide Shut” Metro (New Zealand, 1 May 2011) at 38.
12    Morning Report interview, ibid.
13    Memorandum addressed to Minister of Defence from Chief of Defence Force (1455/DLS/ Comd) (31 August 2011) and Memorandum addressed to Minister of Defence from Chief of Defence Force (3304 AFG) (20 October 2011) <www.beehive.govt.nz>.  See also UNAMA Report, above n 10.
14    Ibid, at [2]-[4], [6],[ 9], [18]-[19] and [21].
15    Ibid, at [5].
16    Ibid, at [8] and [13].
17    Ibid, at [13].
18    Ibid, at [5].
19    Ibid, at [3].
20    Ibid, at [6].
21   Ibid, at [7].
22   Ibid, at [8].
23   UNAMA Report, above n 10, at 3 and detailed at 16-35.
24   UNAMA Report, above n 10, at 17.
25   UNAMA Report, above n 10, at 18.
26   UNAMA Report, above n 10, at 18.
27   UNAMA Report, above n 10, at 18.
28   UNAMA Report, above n 10, at 52.
29   UNAMA Report, above n 10, at 15. See R (on the application of Maya Evans) v Secretary of State [2010] EWHC 1445 (Admin).
30   UNAMA Report, above n 10, at [8].
31    UNAMA Report, above n 10, at [19].
32    See generally, Treasa Dunworth “International  Law” [2011] NZ Law Rev 569 at 587-590.
33    In 2007 the UN High Commissioner for Human Rights stated “On the issue of detention, including the transfer of detainees by international forces to their Afghan counterparts, I have shared my concerns regarding the treatment of detainees with the Government, ISAF and representatives of contributing states. Transfers  to the National Security Directorate (NDS) are particularly problematic” (statement on conclusion of visit to Afghanistan, Kabul, 20 November 2007).
34   Amnesty International Detainees transferred to torture: ISAF complicity? ASA /11/011/2007 (2007); Human Rights Watch “Canada/Afghanistan:  Investigate Canadian Responsibility for Detainee Abuse” (press release, 27 November 2009).
35    Afghanistan Independent Human Rights Commission Torture, Transfers and Denial of Due Process: The Treatment of Conflict-Related  Detainees in Afghanistan (17 March 2012).
36   Maya Evans, above n 29.
37   Amnesty International Canada v Canada (Chief of the Defence Staff ) [2008] 292 DLR (4th) 127.
38    In the European Court of Human Rights, see: Assenov et al v Bulgaria (90/1997/874/1086) ECHR 28 October 1998; Labita v Italy (26772/95) ECHR 6 April 2000. In the Human Rights Committee, see: Casafranca v Peru (981/2001) ECHR 19 September 2001; Zelaya Blanco v Nicaragua (328/1988) ECHR 20 July 1994.
39    Yasa v Turkey (22495/93) ECHR 2 September 1998; Kaya v Turkey (22535/93) ECHR 19 February 1998; Cakici v Turkey (23657/94) ECHR 8 July 1999.
40    Isayeva v Russia (57947/00) ECHR 24 February 2005 at [210].
41    See also Submission  to the Detainee Inquiry in the United Kingdom and in particular the letter dated 8 February 2011 to the Detainee Inquiry from various non-governmental organisations on what would constitute a human rights-compliant inquiry pursuant to the human rights obligations of the United Kingdom.
42    Al-Skeini and Others v The United Kingdom (55721/07) Grand Chamber, ECHR 7 July 2011 at [164].