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No Right Turn: New Zealand and Guantanamo

No Right Turn

New Zealand and Guantanamo

Where does the New Zealand government really stand on Guantanamo? It's a question I've been trying to get to the bottom of since noting their shame ful silence in the public arena and weasely non-answers to recent Parliamentary questions.

So, I've been using the Official Information Act to pry into the issue. The key focus of my queries has been any legal opinion held by MFAT on the legality of Guantanamo under international law, but I've also been interested in public statements the government has made on the matter - and I've turned up some interesting material. The first point is that the government has not made any public statement condemning Guantanamo Bay or raising concerns about its legality under international law. They've repeatedly said that detainees must be treated in accordance with international humanitarian law, but they have not said "we think that this treatment violates that law". The second point is that, as of December 2004, they hadn't raised the issue in private either. An internal MFAT email from that month notes that while NZ diplomats had spoken to the US to seek assurances on the treatment of anyone handed over by NZ forces serving in Afghanistan,

[w]e have not spoken explicitly to the Americans about their treatment of detainees in Guantanamo Bay.

The released documents also included several letters to concerned members of the public from early 2005 claiming that the New Zealand government had "explain[ed] our views on this matter to the US Government". Either they moved very quickly to do so, or the then-Minister (Phil Goff) was lying to those people. I'll submit a followup request to try and determine which.

Despite this, the government is concerned. A January 2002 memo (written shortly after the first batch of 100 prisoners arrived at Guantanamo) reviews the legal arguments surrounding Prisoner of War status and notes that the US's treatment of detainees is bound not just by the Geneva Conventions, but by the International Covenant on Civil and Political Rights as well. A second memo from March 2002, issued after the US's announcement of rules of procedure for the Military Commissions which would try detainees noted that those rules derogated from the principles of the ICCPR and expressed concern that the US intended to detain its prisoners indefinitely without trial, contrary to both US domestic law and the ICCPR. A later document from the UN Commission on Human Rights from December 2002 noted that while the US could undoubtedly derogate from the relevant portions of the ICCPR (Articles 9 and 14, governing Habeus Corpus and the right to a fair trial), it had not yet formally done so (and still has not, according to last month's Special Rapporteur's report [PDF]). Finally, a background paper on the legal situation prepared by an MFAT intern called Guantanamo a "legal black hole" and concluded that

United States domestic law is reluctant to acknowledge its international obligations under the Geneva Conventions. It is prepared to afford Constitutional rights to alien detainees, but is hesitant to recognise any rights that may exist under international humanitarian law.

This document was however plastered with disclaimers saying that it "does not reflect the views of the Ministry or the Government", so I'm not sure how much weight can really be placed on it.

So where does the government really stand on Guantanamo? I think its fairly clear from the above that they do think it violates international law - unfortunately, they're just too cowardly to say so.


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