Wednesday, March 08, 2023

Can our government really hold itself to account for torture?

Newsroom has an important story on the Royal Commission into State Abuse's formal finding of torture at Lake Alice, and what it means for the government. Firstly, in terms of legal liability, which the government response has always been focused an avoiding, and how the tactics used in that avoidance - hiding evidence and impeding investigations - seems to cross the line and make a bunch of government lawyers accessories after the fact, in turn exposing them to criminal charges. But as the article points out, there are huge conflicts of interest which may undermine any prosecution and prevent justice for these crimes:

Since the Crime of Torture Act was passed in 1989 there have been no prosecutions for torture in New Zealand, despite a number of examples of abuse of children by the state that clearly qualify. Part of the problem is that the legislation is aimed at government officials but prosecutions have to have the approval of the Attorney General, which creates an inherent conflict of interest. To prosecute a state employee raises the possibility of creating legal liability for the Crown. New Zealand also expressed reservations about article 14 of the Convention about providing compensation, and reserved the right to only provide compensation to victims of torture at the discretion of the Attorney General. This effectively gives the government control over how the crime of torture is handled by police, even though the legislation is aimed at Crown officials. This completely blurs the line of separation of powers.

The perpetrator – and the Crown is now officially a perpetrator of state-sponsored torture – gets to decide whether its own officials should be charged and punished. Other criminals do not get this unusual privilege. It also creates a legal and political riddle – how are the police to assess certain actions by Crown Law, like not providing evidence to the police? Who do they seek advice from on whether that was criminal – the Solicitor General? The Attorney General? They were in charge when some of these actions happened.

Another complicating factor, not mentioned in the article, is that public servants have long enjoyed immunity for "good-faith actions or omissions when carrying out or intending to carry out their responsibilities". So there's going to be an interesting (and potentially devastating) question there of whether covering up a crime can ever be considered to be in "good faith".

I want to see justice for these crimes, and I want to see those responsible - including those responsible for systematically covering them up - prosecuted. It needs to happen, not just to provide justice, but also to provide a warning to future public servants and guide their behaviour. Maybe we can resolve these conflicts by getting the police outside legal advice and outside prosecutors (but then: the police work for the government too, and they never forget that). But if we can't resolve those conflicts, then we should turn the case, and the suspects, over to an appropriate independent international tribunal. After all, torture is a crime in all civilised states, and many claim universal jurisdiction for it. If our government can't provide impartial justice, we should ask another country or international body to do it for us.

Secondly there's a huge issue lurking for the government on its routine and ongoing subjection of children to prolonged solitary confinement, which has been ruled to be torture by the European Court of Human Rights. If the Royal Commission recognises the obvious and makes a similar finding, then the government will be facing liability for tens of thousands of cases, as well as having to change policies throughout the metal health, youth justice and corrections systems. Pretty obviously, they're not going to want to do that. But I'd like to think that legislating to legalise a specific, recognised form of torture, knowing that it is torture, is a bit far, even for our Hilary Calvert Parliament.