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Non aggression pacts tend to get a bad press, both in real life and in fiction. Hitler and Stalin, two of the most violent tyrants of the 20th century, signed up to a non-aggression pact in 1939 that lasted only until Hitler opened up the Eastern Front in mid 1941. Even in the Star Wars saga the concept of non-aggression has fared poorly, and been no substitute for the alleged virtues of The Force. The Chiss Ascendancy for instance, did pass a Non-Aggression Law that forbade their ruling families from carrying out any acts of pre-emptive or aggressive military action. This all ended quite badly – let’s not talk about the war with the Yuuzhan Vong – and even while it lasted, the Non-Aggression Law didn’t stop the Chiss from being lured into aggression, in mistaken self defence.
Luckily, Green Party MP Kennedy Graham has learned from the past, real and fictional. At the very least, his private members Bill – it is called the International Non-Aggression and the Lawful Use of Force Bill – provides a new framework for talking about peace issues in New Zealand. Regardless of whether it ever gets drawn from the private members’ ballot, this Bill has a ready-made constituency for its line of reasoning.
What does it entail? If the Bill was taken on board by other parties in Parliament and passed into law, it would mean that New Zealand armed forces could be sent away to fight only if those missions were judged to be compatible with international law. There would be less chance of our troops being put in harm’s way simply because someone in the Pentagon or Canberra had got on the phone, and found a sympathetic ear in Wellington.
This issue is very timely. Right now, the Key government is still mulling over its reply to a US request to re-deploy our SAS troops in Afghanistan. As it happens, there is no doubt whatsoever that our 140-strong Provincial Reconstruction Team in Bamiyan is legally entitled to be there, thanks to UN resolution 1833, which was renewed in mid-October last year.
Fine. By the same token, it is quite unclear whether the prior UN resolutions 1368 and 1373 – both of which were essentially self defence measures, passed during September 2001 – do still, eight years later, provide a valid legal basis for the SAS re-deployment. “It might reasonably be queried,” Graham says laconically, “whether an act in America in 2001, still justifies self-defence in Asia in 2009…” Well, exactly.
Meaning : the ‘self defence’ principle – enshrined in section 51 of the UN Charter – has to be stretched to breaking point to justify the sort of missions in which the SAS might be engaged in southern Afghanistan, or over the border into Pakistan. In Parliament on June 16, Graham tried in vain to find out if and when the government believed that the US-led Operation Enduring Freedom had been granted a UN mandate, renewed or otherwise. And if so, whose self defence was being promoted – sufficient to validate the actions being taken right now by special forces in the name of Operation Enduring Freedom, within Afghanistan? If this really is Obama’s War, doesn’t it need a fresh UN mandate – at least before we sign up our special forces for it?
All of the usual UN self-defence tests of necessity, proportionality and immediacy are relevant here. Especially since the vaguely phrased UN resolution 1368 rationale for Operation Enduring Freedom could be argued to have now lapsed, and been subsumed under the explicit UN endorsement (via resolution 1833) of the ISAF forces in Afghanistan, which as mentioned, is what justifies our presence in Bamiyan. So, an SAS re-deployment as part of Operation Enduring Freedom would not, under the terms of Graham’s private member’s Bill, pass muster? “Not in my personal opinion,” Graham says, “ but I would be quite happy to accept the verdict of a judge on the matter.”
Graham is keen not to use his Bill to re-litigate old grievances, such as Vietnam. When pushed, he cited to me the Suez deployment in 1956 as being the (only) clear example of an illegal mission of aggression that involved the deployment of New Zealand troops. His Bill, he stresses, is forward looking. As he explains, the Bill enables New Zealand (a) to take concrete steps to show that in our domestic decisions we support the international rules about how and when aggression is to be waged and (b) to protect the political leaders making those hard calls, by offering them a procedure to follow when such situations arise.
The system being proposed is pretty simple. Under Graham’s Bill, if any New Zealand leader faces a decision to commit our troops to an act of aggression, he or she – unless rare and exceptional circumstances apply – must first seek a legal opinion from the Attorney-General. Essentially, the A-G would have to deliver a written opinion – ‘On whether the action proposed is consistent with the obligations of New Zealand, under the Charter of the United Nations.”
Unless rare and exceptional circumstances require an immediate response – and helpfully, such general conditions are also set out in the UN Charter – the Bill requires that the Attorney General’s written opinion must be laid before Parliament for seven days, before a final decision is made. Not that Parliament gets to decide on the deployment – our leaders retain that power – but the House will at least get a chance to debate it.
Furthermore, the Bill envisages a new position ( involving a five year appointed term) of a Special Prosecutor. This would probably be a retired judge, Graham told me – who would hear complaints, could initiate investigations and adjudicate on the deployment decisions that have been taken. Obviously, this would not be a full-time job.
In cases where the required legal procedure had not been properly followed, this would create a criminal offence, for which the politicians involved could be prosecuted, and imprisoned for up to ten years. That reflects the reality that it is no small thing to put soldiers in danger, and better reasons than political expedience are needed to justify it.
So far, so good. What this process would rule out would be the blind allegiance – “where Britain, the United States and Australia go, we go” – that was advocated by National’s then-Defence spokesperson Simon Power in May 2004, with respect to the invasion of Iraq, the previous year.
If the Bill had existed at the time, all of our force deployments from the Korean War onwards would have qualified for consideration under its rules – but only Suez, it seems, would have clearly been out of step with international law, which has itself evolved over recent decades. Not that aggression hasn’t been dubiously rationalized at times during that period. The notion of self defence can be very elastic. One nation’s blatant act of aggression, can be viewed by itself and others as a legitimate act of ‘self defence.’ Which does pose a practical problem for Graham’s Bill.
In other words, bringing New Zealand practice on waging aggression into compliance with international law is not the end of the matter – not when international law is capable of major contortions on the subject. It has been that way ever since the Caroline Doctrine of 1837, which first successfully put ‘anticipatory self defence’ on the table as a rationale for a national act of aggression.
Just last week, US Vice-President Joseph Biden was indicating that a pre-emptive attack by Israel on Iran, in order to stop Iran from gaining a nuclear capacity was Israel’s ‘sovereign right’ to pursue. In some contexts, so the argument goes, one can’t wait until the Doomsday Device is built and operational before responding meaningfully in self defence.
To be fair to Graham, he is not a starry eyed novice on how the international law on state aggression can be twisted to dubious ends. In 2003, when Kofi Annan set up his special expert group to report back on the Iraq crisis and the related threats to global peace, Graham wrote a consultancy paper for that Commission, and testified before it. It should also be noted that the report of this so called Threats, Challenges and Change expert panel was not delivered until December 2004, more than 18 months after the invasion.
This was no isolated case of systemic lag, or failure. As the collusion between Attorney-General Lord Goldsmith and Prime Minister Tony Blair over the legality of the invasion of Iraq has shown, the law can be used to provide a figleaf of legitimacy for a pre-determined political course of action. Judges such as Lord Bingham can only come along later to expose the shoddy foundation of whole exercise.
This has happened in the US as well. The US Attorney-General Alberto Gonzales and his subordinate John Yoo consciously set about concocting a legal definition of ‘torture’ that would enable the Bush administration and US military interrogators to bypass the UN Torture Convention. Lawyers can be the poachers, and not the gamekeepers in this particular neck of the woods.
Graham is well aware of how ‘complex’ such international laws can be in practice. Yet having a legal process set out in his Bill, he maintains, is better than having nothing at all. On points of detail about how his Bill would operate – yes he says, the Special Prosecutor would have the power to second guess and subsequently rule upon the advice tendered by the Attorney-General. And no – when asked about clause 10 (1) (3) – although ordinary citizens would be able to complain to the Special Prosecutor about a possible contravention of the Act by a New Zealand leader, the Special Prosecutor would not have the power to issue an injunction and prevent an illegal deployment from taking place.
The possible scenarios are legion. Imagine, I asked Graham, if events in Fiji deteriorate to where a New Zealand leader felt impelled to send in our troops to protect New Zealand citizens. Would that situation require the full written opinion/seven day interval before a decision to deploy troops was made ? No, Graham replies: “Self defence under article 51 of the UN Charter does stretch to protecting your nationals. So the principle is there, allowing you to go in and protect nationals.’
From that point of course, things could get murky, very quickly. “You have to be very careful if you are Prime Minister what that means in terms of your actual deployment, once you’ve protected your nationals. Because retroactively you could send in your troops to protect your nationals and then forget to go home. In that situation, the right of self defence lapses, and you might be vulnerable to a retroactive investigation by a Special Prosecutor for having violated self defence, in which case you then have committed aggression.”
In his view, a legal response would have to consist of what he calls ‘an in-and-out operation.’ He cites the raid on Entebbe, and the US action in Grenada in 1983 as examples, as opposed to an ‘occupation of territory’ exercise of aggression.
Unfortunately, the Grenada example is no help. To many observers even at the time, Grenada was a bogus act of self defence of US citizens meant to bring about regime change in Grenada and to serve as a political distraction from the 243 US Marines who had just been killed in a bomb attack in Lebanon. In the case of Fiji, New Zealand might start out intending a short sharp defensive action – but wouldn’t the Fijian military justifiably treat it as an invasion and re-act accordingly, which would quickly escalate the military operation beyond the defence of one’s own expats ?
Graham is unfazed. “It [military action] would have to be basically about evacuating [New Zealand citizens rather than going on, into stabilising the situation,” Any consequent escalation, he continues, would be likely to be viewed by a Special Prosecutor with ‘some circumspection’ in determining whether aggression had occurred, and whether self-defence had been properly pursued. Article 9 (2) of his Bill does explicitly recognize, he says, a right to self defence. In other words, a determined leader (with a team of lawyers riding shotgun) could probably drive a tank through some of the main provisions in the Bill. Better this than nothing though, as he says.
No, Graham hasn’t discussed the Bill with any Labour MPs. Does he think the National Party and Act are likely to support the Bill ? Graham : “ I think there’s a good chance that they will.” Why? “Because its in their interests.” How so, given that the tradition of the National Party has been to answer in the affirmative any calls for military support from our traditional allies? “Well let’s see…They [the National Party] were not vociferously clamouring to go into Iraq in 2003. And the evidence from 2003 to 2009 is that it would have been a palpably stupid mistake. We all learn as we go. I don’t think the current government would go into Iraq on the same basis as the three so called allies of New Zealand did, in 2003. That was a palpable illegality.”
Perhaps so. Yet legal self defence or naked aggression seems very much in the eye of the beholder. After all, didn’t Goldsmith, under much the same process as Graham is advocating, come up with a stamp of legitimacy to bail Tony Blair out of a sticky corner ? “Yes. But you see, that’s the very point. I take your point about the political figleaf….And that is absolutely intriguing, because it is exactly the Blair/Goldsmith experience that generates and ignites the motivation for this Bill. Because as long as you leave critical decisions like that – with thousands of your own people dead on the sands – to a purported legal memorandum that is done at a political directive, you’re going to continue to have that problem.”
In Britain, Graham continues, the Goldsmith memo was secret. “It was leaked. All the more reason for the transparency that I’ve outlined in my Bill, for deliberation. Now, that concentrates the mind – for the Prime Minister and for the Attorney-General, in terms of getting it right. Because the main safety catch against your point is that there is a Special Prosecutor sitting there with special investigatory powers, to make sure that it is done correctly. That’s the point. It isn’t just a political figleaf.’
The truth, Graham concludes, has a habit of coming out, later. “It may take a long time, but it almost always does come out. All the more reason to place these decisions – and they’re sometimes quite excruciating decisions – within the framework of objective law. ”
Footnote : Today (10th July) Kennedy Graham is participating in Christchurch in a colloquium on non-aggression – along with Attorney General Chris Finlayson, and other notables.
See also: Scoop Audio and Report – Green MP: NZ leaders could face criminal liability