New Zealand Yearbook of International Law
Last Updated: 14 July 2015
INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL CRIMINAL
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
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
and other non-peacekeeping operations under its
protection. In June 2010, New Zealand amended its domestic legislation to
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
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
“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
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
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
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
For example, the NZDF report focuses on the UNAMA’s
conclusion that the use of torture is not a de facto institutional policy
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
most notably in the New Zealand context, the NDS facility in
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
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
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
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
evidence available that was sufficient to raise real concerns
about systematic torture in certain facilities in Afghanistan –
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
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
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
into account. The former Minister is correct that New Zealand
itself cannot, and should not, be responsible for everything that
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
University of Auckland
1 Treasa Dunworth “International Humanitarian Law and International Criminal Law”  NZYbkIntLaw 15; (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”  NZYbkIntLaw 11; (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”  NZYbkIntLaw 11; (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 -, ,[ 9], - and .
15 Ibid, at .
16 Ibid, at  and .
17 Ibid, at .
18 Ibid, at .
19 Ibid, at .
20 Ibid, at .
21 Ibid, at .
22 Ibid, at .
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  EWHC 1445 (Admin).
30 UNAMA Report, above n 10, at .
31 UNAMA Report, above n 10, at .
32 See generally, Treasa Dunworth “International Law”  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 )  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 .
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 .