Mercenary Activities (Prohibition) Bill first reading

Phil Goff Speech: Delivered in Parliament 9.30pm, November 5

I move that the Mercenary Activities (Prohibition) Bill be now read a first time. I propose that the Bill be referred to the Foreign Affairs, Defence and Trade Committee.

This Bill contains legislation needed for New Zealand to become a party to the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, which entered into force in 2001.

The Bill establishes new criminal offences for activities involving mercenaries that are not currently punishable under New Zealand law.

The use of mercenaries in armed conflicts is an age-old phenomenon. In recent decades however, the international community has tried to curb this practice.

These attempts reflected growing concern that the use of foreign mercenary forces could impede the exercise of the right to self-determination and violate the fundamental rights of individuals, including the right to life.

New Zealand has long opposed the use of mercenaries. The involvement of mercenaries as an additional party to a conflict impedes peaceful resolution of that conflict.

During the Bougainville crisis, the Papua New Guinea government considered the use of foreign military personnel. New Zealand opposed this, arguing that the crisis would be resolved only through a comprehensive peace process. The mercenaries were withdrawn and the ensuing peace process did prove successful.

By passing this bill and becoming party to the Convention, New Zealand will demonstrate its belief that the use of mercenaries is unacceptable as a method of conflict resolution and that this issue needs to be tackled at the international level.

The Convention identifies particular conduct involving mercenaries that should be proscribed. This includes the conduct of the mercenaries themselves and those who recruit, use, finance or train them.

The Convention also includes measures aimed at increasing international cooperation so that individuals who commit the specified acts can be brought to justice.

The Bill’s definition of “mercenary” reflects the definition in the Convention. It encompasses two types of mercenaries, both of which have the objective of making a profit from participating in conflict.

The first type of mercenary is a person who is recruited to fight in a foreign, armed conflict. This definition is based on a provision in the First Protocol to the Geneva Conventions. In this context, the monetary incentive must be measurable, with the person being paid substantially more than members of the armed forces of the parties to the conflict for corresponding duties.

The second type of mercenary is a person who is recruited to participate in a “concerted act of violence” in another country (for example, aimed at overthrowing the government). Again the person’s main objective in performing the act must be to make a significant financial gain.

The definition of “mercenary” is not intended to catch those persons who join foreign armies on the same basis as locally recruited staff, or those persons who are motivated to fight overseas by personally held convictions rather than profit.

The definition also would not catch New Zealanders recruited into the legitimate armed forces of their countries. Nor would it encompass those working overseas for companies or non-governmental organisations in security related activities, as long as those activities do not include fighting in a civil conflict.

These definitions reflect the international consensus on those who should clearly be regarded as “mercenaries”. There are, however, calls for the definition to be extended to reflect current realities, including the increasing involvement of mercenaries in criminal activities, such as illicit trafficking, including arms and drugs, and even selective assassinations. Consideration to extend the scope of the Convention has been the subject of recent recommendations by the UN Special Rapporteur on Mercenaries. However, in this Bill the definition of a mercenary remains as currently prescribed in the Convention.

The Bill creates five new offences, each with maximum penalties of 14 years imprisonment.

The approach taken in the Bill is to model the new offences on similar existing offences where possible. For example, the offences relating to recruitment and financing are similar to those in the Terrorism Suppression Act 2002.

The Bill also creates two offences relating to the training of mercenaries as a precondition to, or after, recruitment.

The Bill aims to catch those who intentionally train people to be mercenaries in order that they can sell their fighting skills to other countries for profit. It does not therefore cover those in the New Zealand armed forces who train our troops or who, as part of their duties, go overseas to assist with the training of armed forces in other countries. It also would not catch ex-New Zealand soldiers who assist with up-skilling the armed forces of a particular country.
What is caught, however, is the situation where those being trained are part of an “army for hire”, prepared to go anywhere and fight in any war or overthrow any government for money.

Extraterritorial jurisdiction is taken in certain situations, for example, allowing prosecutions of New Zealand nationals or of others alleged to have committed a Convention offence who are found in New Zealand but for some reason are not extradited.

Other provisions include those relating to cooperation with other states in their criminal investigations and proceedings, and are similar to those in the Terrorism Suppression Act.

These new offences will discourage New Zealand’s use as a base for mercenary activities. The broad jurisdiction, allowing prosecution here for acts done overseas, will help to ensure that mercenaries do not regard New Zealand as a ‘safe haven’.

This Bill will put New Zealanders on notice that they cannot under our law agree to be recruited to fight and kill simply because it is lucrative to do so.

This Bill therefore reaffirms New Zealand’s longstanding position that it does not condone the use of mercenaries.

I commend this Bill to the House.

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