Sunday, April 09, 2006



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 shameful 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. unortunately, they're just too cowardly to say so.

8 comments:

Since we’re not allies on the war on terror and only on reconstruction, one wonders what harm it will do for the government to issue a statement one way or another. It can’t be any worse than the Al Gore presidency gag from a few years ago.

Posted by   : 4/09/2006 02:19:00 PM

If the Gitmo detainees are prisoners of war ("bound by the geneva conventionS") then how can they have a right to Habeas Corpus?

Posted by Graeme Edgeler : 4/09/2006 05:21:00 PM

Graeme: The ICCPR would apply if they're not POWs.

Posted by Idiot/Savant : 4/09/2006 10:57:00 PM

That only gets you so far.

You say: "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"."

And you quote: "It is prepared to afford Constitutional rights to alien detainees, but is hesitant to recognise any rights that may exist under international humanitarian law."

But do not seem to grasp that for the United States obligations relating to treatment of the detainees under the ICCPR and the obligations relating to treatment of the detainees under the US Constitution are identical. The United states has various reservations to the ICCPR, reservation 3 being:

"That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

Posted by Graeme Edgeler : 4/10/2006 01:32:00 PM

Graeme: there's an important difference in terms of jurisdiction. The US seems to think that its constitutional rights apply only to citizens. The ICCPR, as clarified by the UNHRC and the ICJ, applies to all people "within the power or effective control" of a State Party.

Posted by Idiot/Savant : 4/10/2006 07:41:00 PM

I ought to quote yourself back to you then (from your MFAT source):

"It is prepared to afford Constitutional rights to alien detainees"

Posted by Graeme Edgeler : 4/10/2006 08:28:00 PM

Yes - slowly, and its an uncertain process. There are cases before the Supreme Court at the moment, but there is also remember a law which denies anyone held at Guantanamo access to the US courts, which may undermine that whole process.

Ideally, the US would recognise its international obligations, and people wouldn't have to go to court to have them (in whatever form they are implemented) enforced.

Posted by Idiot/Savant : 4/10/2006 09:50:00 PM

"but there is also remember a law which denies anyone held at Guantanamo access to the US courts"

for this purpose they are treated identically to prisoners of war (who don't have access to the courts).

"Ideally, the US would recognise its international obligations"

Which, gievn the reservations entered by the US to the ICCPR, are identical to its constitutional ones.

Posted by Graeme Edgeler : 4/11/2006 12:47:00 AM