Armed Forces Law Reform Bill – First Reading


The Green Party will be supporting the Armed Forces Law Reform Bill going to the select committee. The bill updates the systems of military justice in what seems to be the correct direction, allowing more due process to apply. It makes sure that courts martial, which the previous speaker, Ron Mark, refered to, are done in the proper manner, with the right to call witnesses, and the right to present one’s defence properly if one is subject to a court martial, paralleling the civilian system of justice as much as possible. Of course, within the military system there are some more summary levels of justice, where the superior officer is the prosecutor, the judge, and the jury, and gives the sentence. But I think our system will now have more protections in it than it had previously.

One of the motivations in updating these procedures is partly to be in line with overseas jurisdictions and partly because of a greater sense of fairness we have in our society now with the New Zealand Bill of Rights Act; also, it is about being more aware of the need for due process in all aspects of society. There is also the reality of the Defence Force operating in an environment of relatively low unemployment and finding it quite difficult to get people to join up, and, when they have joined up, to retain them for any length of time.

One of the problems is that it is difficult for people who join the armed forces to have to be away overseas, often for quite a while, as it creates difficulties for family life. So the Defence Force has to have good systems of pay and conditions and, in this respect, good processes of justice so that people do not feel they are hard-done-by and leave the armed services for those reasons. The bill reflects a good, modernising pressure from society on the armed forces.

We can compare ourselves with overseas forces and learn from them, but we can also learn some negative things from overseas. Historically, great injustices have been perpetrated against our Defence Force people. In the past this House has debated the unjust executions of New Zealand personnel in the First World War, and we have had bills before this Parliament rectifying those injustices. A former member for Invercargill, Mark Peck, put a lot of effort into that area during his time in Parliament. So I think we are recognising here that we need proper systems of discipline that will allow for fairness.

In those historic World War One trials United Kingdom officers were the ones conducting disciplinary proceedings and getting it wrong, and some of our soldiers were wrongly executed. The United Kingdom system today is not perfect. I refer to another, more recent, case in which the discipline of the United Kingdom armed forces detrimentally affected a New Zealander. That was the case of Malcolm Kendall-Smith, who was a member of the British armed forces. He refused to return to serve in Iraq and was court-martialled on the basis of refusing a lawful order. The trial was not done according to the procedures we would consider just. His main defence was that the US and British occupation of Iraq was illegal in international law. I think that can be clearly established but the judge in the trial said that the only thing he was going to take into account was whether Malcolm Kendell-Smith had obeyed a legal order, or what he determined to be the legality of the order. He did not look at the case in terms of the background of the illegality or otherwise of the occupation of Iraq. He refused to consider that as part of the case. That is something we would not want to imitate here.

The bill refers briefly to prisoners of war. The legislation this bill is amending states that prisoners of war are subject to the disciplinary proceeding outlined in that legislation. That is something we are very much cognisant of these days, in terms of the situation with Guantánamo Bay, in particular, with the mistreatment of prisoners of war by the United States and the illegal rendition of prisoners, taken in places like Afghanistan and elsewhere, to third countries where they are tortured. Egypt, Syria, and Jordan are countries to which people have been rendered by the United States and subsequently tortured. Horrific cases came out of that. It is important that we get it right in terms of our treatment of prisoners of war, including the prisoners of war that New Zealand troops capture in Afghanistan.

The Minister of Defence, Phil Goff, admitted recently that the SAS unit in Afghanistan a few years ago did take prisoners of war and pass them over to the US-led forces, and they may well have been rendered to torture in a third country. We still have no guarantee that that did not happen. So the issue is very much alive for us. It is disappointing that the Minister of Defence will not even accept that the people captured in the conflict in Afghanistan have prisoner of war status. If it is not accepted, then it means that those people would not be subject to the procedures of this legislation. We could get into the difficult position potentially of even New Zealand citizens being subject to mistreatment in the way that an Australian citizen, David Hicks, has been mistreated. He has been kept 5 years in horrible conditions and, in effect, been tortured over that time. He is yet to be brought before a justice system — even a military justice system.

The military tribunals set up by the United States have been widely criticised for not allowing a full application of justice. In the case of David Hicks, the charge against him — something to the effect that he supported the enemy or associated with the people on the other side — would not in the Australian or New Zealand jurisdictions be considered a crime; it would be more a question of a prisoner of war status. That is where we have to be very aware of what we do in terms of military law. How we apply international law to military law and connect the two is very important, because we do not want to end up in the situation of the United Kingdom where military justice is not applied in the broader sense; or of the United States, where military tribunals have been subject to wide criticism; or of Australia under John Howard, where he will not even defend the rights of an Australian citizen, David Hicks, to proper treatment. John Howard has been rightly condemned, in Australia from across the board, for not standing up for justice — for not standing up for David Hicks.

It is disappointing that our Prime Minister, when she goes off to America next week, will not be bringing up with George Bush the cases of the rights of people who have been captured or seized by the Americans and mistreated in Guantánamo Bay, and elsewhere — being rendered to third countries for torture. She effectively said in response to a question of mine yesterday that if she were the British Prime Minister, or the Australian Prime Minister, and if we had our citizens in Guantánamo Bay, then it would be relevant to take up the issues, but because New Zealand does not have people in that situation we should not bother about it. Yet Guantánamo Bay is something that has to engage — and does engage — the international community. Amnesty International, Human Rights Watch, and all of those international organisations that have supporters and members in New Zealand have taken up the case of people being mistreated by the American justice system, or “injustice system”.

We should do likewise, and I do appeal at this late stage to Helen Clark that when she goes to Washington she should please not forget human rights. She talks about human rights in Zimbabwe — rightly — as she did the other day in criticising the latest arrest by the Zimbabwe regime of the leaders of the democracy movement. I ask the Prime Minister not to be inconsistent. If it is OK for New Zealand to advocate and speak out for human rights in Zimbabwe, it is right to speak truth to the superpower and support human rights there.