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International Non-Aggression and Lawful Use of Force Bill — First Reading


International Non-Aggression and Lawful Use of Force Bill

First Reading

  • Debate resumed from 19 August.

PHIL TWYFORD (Labour) : I rise in support of Kennedy Graham’s International Non-Aggression and Lawful Use of Force Bill. Labour believes there is much to recommend in this bill, and we support its referral to the select committee. I will focus my comments on clause 9 of the bill, which requires a New Zealand leader to obtain the written advice of the Attorney-General before deciding to commit the armed forces of New Zealand to action involving the use of armed force.

The National Government members who spoke in this debate before me, before the debate was interrupted a month ago, repeatedly stated their support for the underlying intent of the bill. Dr Wayne Mapp talked about Dr Graham’s deep commitment to the progressive development of international law, saying National understands the underlying motivations behind this bill. The other doctor, Dr Paul Hutchison, said the sentiment behind this bill was extremely worthy, and that perhaps it was something that New Zealand must seriously consider in the future.

But here is the truth: in spite of those soothing words, National does not even support the most modest element in this bill. It does not support the idea of having the Attorney-General provide a legal opinion on any proposed armed intervention by New Zealand. This is the most modest element in the bill. It would not constrain the executive, it would not prevent the deployment of New Zealand troops to take part in an international intervention, and it would not limit New Zealand’s ability to participate in a Kosovo-type humanitarian situation. It would simply require the Attorney-General to produce to this House a legal opinion on the lawfulness of any proposed armed intervention. But this National Government does not want a bar of that. It does not want this bill to go to a select committee, where it could be debated and improved.

Putting aside for a second the issue of the passage of this bill, I am told that the National Government has even rejected the idea of supporting the proposal in the bill for an opinion by the Attorney-General to be discussed at a select committee. This idea is not for National, but it is good enough for the United Kingdom, which is moving to make a legal opinion by the Attorney-General a requirement as a parliamentary convention. This was signalled by the Prime Minister, Gordon Brown, in a speech to the House of Commons in June, but it is not good enough for National. It is a practical, simple suggestion that is designed to enhance public and parliamentary scrutiny of the most heavy responsibility of the executive: sending young New Zealanders to war.

As advanced by Kennedy Graham, the proposal is that 7 days in advance of any deployment, except in situations of self-defence, the Prime Minister would be expected to table in this House an opinion from the Attorney-General concerning the lawfulness of the deployment and its consistency with international law and, in particular, with the UN Charter. Why does the National Government not want to have an informed discussion in this House before young Kiwis are sent off to battle? Why does it not want there to be a discussion on that, informed by a dispassionate legal opinion by no less than the Attorney-General? The answer is Iraq. National members on the Government side of the House will remember that their party leader, the Prime Minister, John Key, said he would have sent troops to take part in George Bush’s illegal invasion of Iraq. In their hearts, they are not committed to international law. In rejecting this provision in Kennedy Graham’s bill, they are showing their true colours. They want to be able to send our troops to fight overseas, regardless of whether that is consistent with international law.

We saw with the recent deployment of SAS troops to Afghanistan how susceptible the National Government is to pressure from bigger and more powerful allies. What started out as an international operation to root out al-Qaeda after attacks on New York City has become, several years later, an unwinnable quagmire. Kennedy Graham’s proposal in this bill would have generated an opinion that surely would have advised that the Afghanistan deployment was consistent with international law. An opinion from the Attorney-General would not have stopped the deployment, but if applied in the future it might save National and this country from engaging in unwise interventions. Thank you.

Dr KENNEDY GRAHAM (Green) : The Government cited three reasons to oppose the International Non-Aggression and Lawful Use of Force Bill: it will surrender our foreign policy to a Security Council veto, it will divide out nation, and it will be blatantly misused. Each of those statements is effortlessly refuted, at least in logic.

The Minister of Defence is irritated by the veto, and craves the freedom to circumvent it, yet in San Francisco, although we argued against the veto, we signed the charter in full acknowledgment of its inclusion, and we abide by that reality today. Dr Mapp prefers the NATO interpretation that the doctrine of responsibility to protect enables Western powers, with New Zealand tagging along behind whenever summoned, to intervene militarily without UN authorisation. The same freedom for so-called legitimate if illegal actions of the Kosovo type is not to be extended to China or Russia. That level of hubris predates even 1945.

The rule of international law is contemptuous of outmoded notions of political superiority. At some stage, before long, the International Criminal Court will adopt the crime of aggression. New Zealand will agree, voluntarily or otherwise, and on that day the Government will discreetly forget what it has said in this debate.

Will this bill divide the nation? Of course not. The New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987 imposed criminal liability on the Prime Minister to respect the prohibition on nuclear-armed warships in our harbours. Far from dividing the nation, the warships stopped coming. The nation remains united on the nuclear-free policy. Notwithstanding the historical writhing of the National Party, the Prime Minister celebrates our nuclear-free policy before world leaders at the United Nations this week—hardly a nation divided.

Would the bill result in misuse? There is no greater risk of this legislation being abused than any other. Dr Hutchison has a low opinion of the judiciary; I do not. In fact, I find the expression of such a view in this legislature to be quite reprehensible. We should be worth more.

Finally, the Government allowed itself a touching philosophical flourish. The bill is, Dr Hutchison said, perhaps something that New Zealand must consider in the future. In other words, it is ahead of its time. To put the record straight, I say to members that this bill is half a century behind. If it is premature to make national leaders liable in criminal law for aggression, then this country owes a formal apology to Japan for participating in the trial and execution of its leaders six decades ago. The House should then call upon the Prime Minister to convey that apology immediately after dispatching this bill to the void.

I am disappointed at the Government’s position on my bill, but I am not surprised. The bill would take a major step forward in civilising the world through civilising ourselves. It requires vision and courage, so I am not surprised. Nor am I discouraged, for it is clear to me, whether or not it is clear to my colleagues across the floor, that this bill, even in this failed incarnation, is a beacon to the country and to elsewhere.

The bill has been distributed to over 100 Parliaments around the world, and it is already being seen as a model for other countries to emulate. Work has begun in the Argentine Senate. The disposition of each of those countries to adopt it sooner or later will reflect considerations that transcend the particular reasons, so stated in this House, for not proceeding today.

It is never difficult and it is always tempting to find rationalisations for not proceeding with a far-reaching initiative in politics. We can go home tonight knowing we have done our duty to this House. We have considered, deliberated, and pronounced. The only thing left to do is explain to our children tomorrow why we would not act today.

Whether we have done our duty to the nation and to humanity is less clear. The Prime Minister and his Government have an opportunity today for statesmanship, but recoiled before the mirror. We are what we think, even to a lilliputian degree. It is likely that future generations will understand us better than we, today, understand ourselves. Very well then; let us proceed to the vote.

A party vote was called for on the question, That the International Non-Aggression and Lawful Use of Force Bill be now read a first time.

Ayes 58 New Zealand Labour 43; Green Party 9; Māori Party 5; Progressive 1.
Noes 64 New Zealand National 58; ACT New Zealand 5; United Future 1.
Motion not agreed to.