Interview: Dr Kennedy Graham

Was it right to send the SAS to Afghanistan in 2001-2005? Is it right to send them back this year, as Prime Minister John Key has decided?

Will it be legal?

Was it ever legal?

The SAS has been accused of enabling American abuse of prisoners of war in Afghanistan in 2002. Violence in Afghanistan has now reached its highest level since the 2001 American invasion. The United States, looking for more help, has requested that New Zealand redeploy the SAS in Afghanistan.

The Prime Minister has just said “Yes.”

These and other developments are heating up the question of overseas deployment of New Zealand armed forces, especially in Afghanistan.

Controversy on this subject is not new. It goes back at least 40 years, to the Viet Nam war.

As it did in Viet Nam, it can spring from a variety of problems, including poorly defined missions; ineffective strategy and tactics; and confusion about whether or not we’re doing the right thing.

One of the most vexing sources of confusion can be the question of legality.

Will New Zealanders in uniform be asked to put their lives on the line in an action that may violate international law?

Outside the Green Party, few in New Zealand have raised this issue.

But the legal question is critical, especially for the leaders who have participated in this decision, and it’s not just because of future elections. Increasingly statesmen are being held personally accountable in international courts for violations of international law, as they have been in Rwanda and the Balkans, and as they may be in Uganda, Liberia, Sudan and elsewhere.

It is not an exaggeration to say that nothing is more fundamental to the development and the ultimate goal of international criminal law than to hold national leaders accountable to law.

What if the Prime Minister and Cabinet got it wrong?

There is nothing in our legal structure to ensure that a decision with such profound international consequences is in accordance with international law.

Unfortunately in making the decision New Zealand leaders have had little more to rely on than the quality of their advice and their personal judgements.

At the end of the day they are on their own.

Green MP Dr Kennedy Graham thinks New Zealand’s people and leaders deserve better. To that purpose he has drafted the International Non-Aggression and the Lawful Use of Force Bill. On 30 July this Bill was picked on the Parliamentary Ballot. It would make any overseas deployment of New Zealand armed forces that violates international law a violation of New Zealand domestic law as well.

I sat down with Dr Graham and asked some questions.

Q: Dr Graham, what is the purpose of this Bill?”

A: The purpose of the Bill, is, in a formal sense, to ensure that the use of armed force by New Zealand is always in conformity with international law and, in particular, the United Nations Charter. And to that end the Bill requires that New Zealand observe its binding obligation under the Charter not to commit an act of aggression. Committing an act of aggression is essentially the single biggest violation it is possible to commit under the UN Charter.

I want to draw the distinction between the obligation not to commit aggression and the obligation not to commit war crimes. They are different things and my bill does not address the issue of war crimes as such that may be committed by soldiers in the field. It addresses the question of a leadership obligation by leaders of a country, in this case New Zealand, not to send the people, the boys there, the women there, illegally. That’s the distinction.

The international community has been moving since the 1940s and particularly in the last five years or so to translate aggression into an international crime in the International Criminal Court. What this would do is reflect that by making it a crime in New Zealand domestic law.”

[From the Bill’s explanatory notes: “Small States often use armed force as part of a larger coalition; in such situations their freedom to make independent, objective judgment on the legality of a proposed action is constrained. This Act will relieve our leaders of much of that burden. The people of New Zealand and their leaders deserve the protection of law in those circumstances.”]

Imposing a legal obligation on leaders, actually, politically gives leaders protection. So, with responsibility comes protection. With freedom comes risk. It is a positive correlation on both sides.

Q: How does the bill work, then? How does it go about preventing aggression?

A: It makes it a criminal offence in New Zealand law for a New Zealander to commit an act of aggression. Of course, it defines what aggression is. It defines what a New Zealand leader is.

And the other major part of the Bill which is very closely related is that it requires a New Zealand leader to obtain the written advice of the Attorney-

General seven days before making any decision to commit or not to commit the armed forces of New Zealand to action overseas. That legal written advice of the Attorney-General must be tabled in Parliament, at least seven days before any such decision is made.

And then of course it defines the elements of the crime and imposes a penalty for conviction: imprisonment up to ten years.

And it creates a new office: a special prosecutor. His job would be to receive information from any New Zealand national or resident in New Zealand pertaining to any alleged possible act of aggression. The special prosecutor is also free to initiate such an investigation him or herself. Beyond that the normal judiciary machinery would take over.

Q: Why does New Zealand need this Bill? Does aligning ourselves with a weak, ineffective and essentially unenforceable regime of international criminal law serve our interests? Aren’t our interests better served by aligning ourselves, in war and peace, with our most powerful friend, with whom we share strong bonds of language and culture? And if other members of the international community express concerns about potential or perceived illegality of resulting actions, isn’t that outweighed by the benefits of aligning with the world’s most powerful country?

A: Short answer is “No.” Long answer is that for the better part of 5000 years, small nations have sought to find protection in sheltering under the umbrella or the wing of a more powerful ally, either close by or, in the global age, anywhere on the planet. That’s a very atavistic way of maintaining stability and trying to ensure your own security.

We had the better part of four and a half thousand years where we just assumed and took war to be the natural state of being. We came out of the jungle into a human political jungle. You leapt on a horse and charged off madly in all directions and created empires. And there was no notion that would be other than normal and natural, including slaughtering villages when you slipped from grace.

So we began to try to set up mechanisms to avert it. But they were political only. It’s only in the last hundred years, out of five thousand, that we have begun to recognise that not only can you have a political mechanism, you can make war illegal. And so we’ve had a couple of cuts at that, with the League of Nations, which made it partially illegal, and the United Nations, 64 years ago, which essentially made aggression illegal. And the use of force suddenly became not natural but rather a legal or an illegal activity. And that is absolutely seminal and critical in the evolution of human history.

International law is weak and fragile. It needs to be strengthened.

If you have an enlightened power, major power, then that enlightened major power will lead the world in the strengthening of law. The United States did that for the first half of the 20th century. It led the world in strengthening international law. It no longer leads the world in strengthening international law, but it is able to resume leadership and everybody would hope it does, along with China and Russia and India and the United Kingdom and the European Union. In the mean time, it is totally possible for a small nation, and it is in the national interest of a small nation, to move on its own accord to help strengthen international law. And to do that you don’t legislate in this country for the United States. You legislate in this country for New Zealand. So we do it. It’s in our national interest.

Q: So you see the international movement towards a system of criminal law, especially regarding war and aggression, as basically from the small countries up, originating at the grass roots.

A: Well, it doesn’t have to be. It can be, it doesn’t have to be. New Zealand would not be the first country. As it happens, Germany, which is not a small country, and it has a distinctive past, which is one of the reasons, has made aggression a crime in its constitution. And it has legislated in its own criminal code to that end. Paraguay has done the same. There are over 20 other countries that, in one way or another, have imported aggression as a crime in customary international law in their country so we’re actually not blazing the trail.

We would be actually reflecting what is a whole movement out there in the world, that is going on in simply, slowly but surely and with great respect for our political leaders who have tough, tough jobs, ensuring that they walk down a legal path increasingly, from now on. We are making progress in that respect. And it is a protection to our leaders.

I’m a Member of Parliament. If I were to become a cabinet minister and someone said to me: “Well here’s a bill, and it’s going to imprison you for anything from, say, six months to ten years if you participate in a decision by which you are committing aggression under the UN Charter. Do you want the job or not?” I will say: “Yes, thank you very much. I will take it.” And I’ll take it on the full knowledge that that is part of responsibility of the job.

Q: And it also gives you that legal safeguard.

A: Well, that’s the point. That legal safeguard is a constraint and a protection.

Q: And I reckon it also helps you actually make that decision when it comes time.

A: Well that’s the other part of the Bill, which requires legal, written advice from the Attorney-General which is laid before Parliament. That way you actually have your protection. The only difference is the advice from the Attorney-General would be open to be second-guessed by a special prosecutor and judges in a court of law, as opposed to 2003 when the British Prime Minister simply turned around to his Attorney-General, whom he appointed, and said: “I don’t like this legal memorandum. Send me a second one that says: ‘It’s legal.’” And that was not subject to second guessing by anybody. He would not let that legal opinion be subject to a transcendent, objective, judicial judgement. That’s the difference.

Q: “Small States often use armed force as part of a larger coalition.” This is part of the Bill’s explanatory notes.

A: Yes.

Q: “In such situations their freedom to make independent, objective judgment on the legality of a proposed action is constrained.”

My question is: if your Bill becomes law, would it not put leaders between a rock and a hard place? Is it unrealistic or asking too much to make a Prime Minister choose between the likelihood of criminal prosecution in New Zealand and punishment from powerful countries such as trade barriers, and so forth?

A: That’s what leadership is all about, isn’t it? Leadership is about steering the ship of state between a rock and a hard place. Scylla and Charybdis, isn’t it? You have a whirlpool on one side and gales to the left. And you steer it through. And if you can’t do it, and you get it wrong, you are voted out or you are liable.

We have just seen, for the first time in New Zealand political history, an MP being charged and convicted and, potentially, imprisoned for violating the law. What’s new? Politicians have no divine right to be superhuman and free of the constraints of law. And if this law makes it a tougher job, then it makes it a more challenging job for statesmanship. That’s what we’re after.

Q: All men are equal under the law. All men and women.

A: Including, now, increasingly, at the global level. As opposed to just the national level.

Q: It seems reasonable to assume that anybody who is working to strengthen the fabric of international law must believe that eventually it is possible to persuade the world’s most powerful countries, in particular the US that, as you say in the Bill: “An effective law-based system of international peace and security is a more enduring guarantor of national security than reliance on a balance of power through military strength.”

Do you believe it is possible to persuade the world’s most powerful countries of this, and why?

A: I don’t think we have to persuade them. I think there is a self-evident merit to this. We all have, as individual humans, a self-interest in security and abiding by law. That includes Americans, Chinese, Indians and Russians as much it does New Zealanders and Costa Ricans. You have to do your own house first. You can’t legislate for China and Russia and the Americans. You legislate for yourself. And then there’s an emulation. We did it with the nuclear-free zone.

Q: I guess the hope or the assumption, or maybe both, is that eventually the United States will see the merit in an international system of criminal law.

A: Oh, there’s no doubt about that.

Q: There’s no doubt in your mind?

A: No, no. I mean, is it two years away, 20 years away or 200 years away? But there’s absolutely no doubt that the normal logic of reason and vision, mixed together, capture the imagination of people and their leaders. And that happened over the last three or four centuries. It happened a century ago with the establishment of the League of Nations and a second cut at it with the United Nations. And you can rest assured it’s going to happen again in the course of the next hundred years.

Now, it’s not a bad idea if, as leaders and statesmen, you can foresee that and make a qualitative turn so that you can have paradigmatic change introduced in times of normalcy instead of times of following war. That’s the challenge I’ll answer to. It’ll happen.

Q: In your Bill the proposed maximum sentence for aggression is ten years imprisonment. At the first Nuremberg trial, eight Nazis were convicted of aggression. Five of these were executed for committing, among other offenses, the supreme international crime. Why only ten years for starting or enabling illegal war?

A: Because ten years is enough. Because, well firstly, we don’t have capital punishment, so why not life imprisonment? Because I think you draw a distinction between a premeditated war of aggression of the kind that the Axis Powers engaged in and an act of aggression. This bill is focusing on an act of aggression. You can have one military operation. I mean, I don’t think New Zealand is about to engage in a premeditated war of aggression to try to dominate Southeast and East Asia. If it did, then you could have life imprisonment.

But in the real world, the only liability for a New Zealand leader would be sending our armed forces into an operation that is not authorised by the United Nations Security Council and is not an act of self-defence but is contained in time and space. That it is not a premeditated war of aggression. It’s an act of aggression. If we get it wrong, we commit a crime and it could be a potential imprisonment.

Q: In Section 5(1) of your Bill, you say: “It is unlawful for a New Zealand leader to plan, prepare, initiate or execute an act of aggression.”

How far down the chain of command do you envision the cutoff line for “leader”? Would “leader” include any military personnel?

A: Yeah that’s a good question, and a tough question, but my own take on this is that it would be confined to the Ministerial level--people who are participating in a Cabinet decision.

Q: In April, after a meeting in Washington DC between Foreign Minister Murray McCully and US Secretary of State Hillary Clinton, the United States officially requested that New Zealand redeploy SAS troops to Afghanistan.

If your Bill was law now, how do you think it might have affected Prime Minister John Key’s decision-making process?

A: Well, we don’t want to personalise this, you see. Let’s just say “the Prime Minister” as opposed to the person.

Q: Right, right. That’s what I-actually what I meant.

A: Yeah, because it isn’t (laughs) trying, it’s not trying to get John Key in jail.

Q: No…

A: It’s trying to make sure that the Prime Minister of this country and, by implication a suggestion that the Prime Minister of every other country through their own national legislation, ensure that they’re very, very careful about the committing of troops overseas.

Q: The US Ambassador to NATO, Ivo Daalder, recently spoke to the New Zealand Herald in Afghanistan and said: “Being part of this Western effort is important. It is important for the self-definition of who New Zealand is, I would say….God forbid there be a threat directly to New Zealand. Wouldn't it then be good for a country like Holland or Canada or Slovakia or the US to be there [for you]?"

A: Yeah, I say, with great respect, he’s got it wrong. This doesn’t happen actually to be a western operation. This is the international community. We happen to live on a planet in the 21st century. We’re not talking about the 19th century. We’re not even talking about the mid-20th century. We’re talking about the 21st century, in which the global community of peoples is starting to recognise that there’s a thing called law at a global level, and if you go to operate with your military force anywhere on this planet, you do it in accordance with law. And you do it not according to western perceptions of political wisdom.

The American ambassador is implying that we live in a jungle world where tigers are out there by the label of “terrorists” and they’re just waiting to strike at us. But in fact, if you engage in a lawless world of that nature, you create them. So you’re creating your own fiction. You’re turning your own fiction into a reality. And yes, they’ll strike. Why are they striking at Australia? Not New Zealand? Because we create them. Why the distinction? Because we didn’t go out.

If you remember in the fighting in Afghanistan in 2001, the rationale for continued military operation at the end of 2001 was “to drain the swamp” so that there would be “no mosquitoes to breed.” Which is a most unedifying analogy. But that was the one that was used.

Well, look at what has happened. So these kind of atavistic, simplistic mind sets by which we rationalise the use of force-I’m not a pacifist. I’m not against the use of force. I’m happy with the policeman’s truncheon. I recognise the legitimate use of force and I also recognise it at the global level, but it’s got to be legal. And so, how do you get there? By making it legal in your own country, first off.

Q: And what do you think is the future of this Bill? What do you think might happen?

A: Well, I go to bed at night and I stare up the skies, stars, and I say: “Tell me, stars, what is the future of this bill?” And the stars come back to me and they say: “Don’t worry. The self-evident merits of this Bill will shine through clearly for the rationality and the reason of everyone, including 122 Members of Parliament.”

So I suppose they would see the merit of it. And the merit rests on two things: on living your life not just as an individual citizen but as a nation in the comity of nations, according to law; and on the obverse of that, which is a political one and it’s there in the note, is that it is a protection.”

So I think they’ll recognise the merits of it. It’s a distinction here between being a politician and a statesman and I trust that the Prime Minister, the Foreign Minister and the Defence Minister and so on show statesmanlike quality.

Q: Do you intend to frame your argument in that perspective?

A: Well, I think it’s self-evident in the Bill. But, short answer, yes.

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at p.dyer@inspire.net.nz.

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