Legal Beagle by Graeme Edgeler

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Legal Beagle: A war crimes inquiry; or why Nicky Hager is wrong

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  • Graeme Edgeler,

    ps In light of Nicky's comments that he thought Police were not the appropriate organisation to investigate war crimes in New Zealand, I sought comment a few days ago from Crown Law as to whether anyone other than the Police or Military Police could do so. The request was acknowledged, but they had not replied by the time I went to print.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • BenWilson,

    Has this been done elsewhere in the world?

    ETA: I mean the local bobbies investigating war crimes committed abroad by their armed forces. It sounds hopelessly impractical.

    Auckland • Since Nov 2006 • 10633 posts Report Reply

  • Raymond A Francis,

    Thanks Graeme, good to hear some sense on this matter amongst all the bull from both Left and Right.
    Question , has anyone in the NZ forces been tried for a War Crime?
    Google doesn't say yes but did throw this up
    "Date: 29 September 1994 Detective Senior Sergeant Steve Upton to serve on international tribunal investigating war crimes in former Yugoslavia. Includes portrait."

    45' South • Since Nov 2006 • 576 posts Report Reply

  • william blake,

    The legal advice to STFU has been closely observed, from the grunts all the way up the food chain to the Minister. The conspiracy of silence, as you point out Graeme, has led to corruption of evidence, crumbling of memory and statutes of limitations being reached. The accused innocents with their right to silence will probably never get a chance
    to clear their names in a court of law.

    Since Mar 2010 • 378 posts Report Reply

  • Katharine Moody,

    With respect to your last sentence, Graeme, why "should we not let that happen"? Meaning, why is it a less satisfactory body to conduct the investigation?

    Wellington • Since Sep 2014 • 798 posts Report Reply

  • Graeme Edgeler, in reply to Katharine Moody,

    With respect to your last sentence, Graeme, why “should we not let that happen”? Meaning, why is it a less satisfactory body to conduct the investigation?

    Several reasons:
    1. This is how it’s supposed to work. Countries that have signed up to war crimes treaties with the intention of meeting their obligations under them.
    2. It would be a rejection of what we’re supposed to stand for as a country if we were to refuse to investigate allegations of war crimes when they arise, and the decision of the ICC Prosecutor that they needed to prosecute would be international recognition that we had failed.
    3. An ICC investigation would be ongoing and could potentially be destablising for the New Zealand political environment.
    4. I also think we owe it to any NZer accused of a war crime to do the investigation ourselves.
    And probably some others as well.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler, in reply to BenWilson,

    ETA: I mean the local bobbies investigating war crimes committed abroad by their armed forces. It sounds hopelessly impractical.

    Much of the investigation would of course occur in New Zealand. Documents held by the NZDF will be held here, and the intelligence officers and SAS soldiers you would need to interview - many of whom it seems are willing to talk, if Nicky Hager's footnotes are anything to go by - are likely all in New Zealand, could be gotten to New Zealand, or could be interviewed by eg MPs flown to their current postings.

    In countries with larger militaries, war crimes investiations would often be matters for Military Police. UK war crimes prosecutions have tended to be at Courts Martial following investigation by the RMP. I will note that the prosecution resulting from the 2011 Helmand Province incident, started after video was found on computer by civilian police.

    My guess is that this would be more of a stretch for our Military Police than theirs, but I might be wrong. I'm certainly not envisaging that there would be no involvement for MPs in a Police-led investigation.

    In the US Federal Jurisdiction, the principle investigative and prosecutorial agencies are the FBI and the Department of Justice (of course there are a bunch of others too, ATF, etc.). War crimes could certainly be investigated by Military Police/NCIS whatever, but the DOJ does have a Human Rights and Special Prosecutions Section which has responsibility for war crimes (often, I suspect, for war crimes by other countries, use of child soldiers, etc.).

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • simon g,

    I'm certainly not going to substitute my "reckons" for proper legal analysis, but it's worth considering how a NZ police investigation would actually happen.

    They would presumably be transported to Afghanistan by the NZDF, housed and fed by the NZDF, given security at the scene by the NZDF, etc. (or by approved NZDF allies). For years journalists and politicians have hopped on the Hercules, gone to Afghanistan supposedly on our behalf and brought back nothing more informative than their personal right to say "yeah, been there". Meanwhile a solitary reporter/investigator has achieved far more than any of those embedded visitors, simply because he was more interested in finding harsh truth than lazy confirmation.

    Perhaps the NZ police would show the same independence and determination as Jon Stephenson. But given their track record on challenging their political overlords, even in the comfort of home, it's hard to hold out much hope.

    Auckland • Since Nov 2006 • 1321 posts Report Reply

  • Neil,

    I would approach the villages involved to see if they would want an investigation of possible war crimes or rather some form of reconcilation process.

    An investigation would take time and money with possibly no satisfactory outcome.

    Since Nov 2016 • 352 posts Report Reply

  • Graeme Edgeler, in reply to simon g,

    I’m certainly not going to substitute my “reckons” for proper legal analysis, but it’s worth considering how a NZ police investigation would actually happen.

    ...

    Perhaps the NZ police would show the same independence and determination as Jon Stephenson. But given their track record on challenging their political overlords, even in the comfort of home, it’s hard to hold out much hope.

    I'm not really going to dispute any of this. The point of my piece was manifold, but included the following:

    1. Pointing out that there were allegations of war crimes;
    2. Pointing out the correct response to an allegation of a crime is a criminal investigation;
    3. Noting that when New Zealand becomes aware of allegations of war crimes, it is required to investigate them;
    4. Noting what this means a criminal investigation, with a view to prosecuting if appropriate;
    5. Noting whom New Zealand entrusts with criminal investigations;

    I considered expanding on the likely inadequacies of a police investigation, but the post was already long, and the time for relevance was short. And the possible inadequacies of a criminal investigation does not mean we are not required to conduct one.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • william blake,

    http://www.radionz.co.nz/news/national/327353/afghan-raids-evidence-of-cover-up,-lawyers-say

    Hager may be 'wrong headed' Graeme, but his whole legal team et.al? The book has already broken the silence on the deaths in Afghanistan and as you suggest good legal advice, in a criminal proceeding will probably shut the whole situation down for good. An inquiry may be a more productive avenue to explore.

    Since Mar 2010 • 378 posts Report Reply

  • Kevin McCready,

    Proof reading and spell checking? Mataparae? etc.

    Auckland • Since Jun 2013 • 119 posts Report Reply

  • Kevin McCready,

    The International Crimes and International Criminal Court Act 2000 (NZ)
    Article 29—Non-applicability of statute of limitations
    The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

    I couldn't find authority on our military police being subject to any statute of limitations. Limitation Act 2010 doesn't mention police, military or war.

    BTW some of the language in the International Crimes and International Criminal Court Act 2000 is a bit wishy washy - qualified by words grave, serious, etc, presumably so that acts against the law which aren't grave or serious etc are not caught.

    A war crime includes "Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;" - nothing there to excuse "Oh sorry, our intel was wrong."

    A war crime includes "Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives." That might cover setting fire to Naimatullah's room with his Quran and holy books (page68-69 #HitandRunNZ)

    Auckland • Since Jun 2013 • 119 posts Report Reply

  • Sacha, in reply to Graeme Edgeler,

    considered expanding on the likely inadequacies of a police investigation, but

    The police prosecution service's consistent abdication of action on many political matters in recent decades seems highly material. Wouldn't trust them to put out a fire in a rubbish bin, let alone conduct an investigation into something authority-challenging like this.

    Ak • Since May 2008 • 19685 posts Report Reply

  • Graeme Edgeler, in reply to Kevin McCready,

    Article 29—Non-applicability of statute of limitations
    The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

    I couldn’t find authority on our military police being subject to any statute of limitations. Limitation Act 2010 doesn’t mention police, military or war.

    The limitation act deals with civil claims, not criminal matters.

    War crimes are not time limited, whether tried at Courts martial or in ordinary courts. However, most other lesser offences (eg failing to follow orders) in the Armed Forces Discipline Act are subject to limitation. See section 20 of that Act.

    Mataparae

    Thanks! If there are any others, please let me know. I had a quick read through at the end, but the time for publishing was fast approaching, and I’m sure there are bits where I could have done a better editing job.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler, in reply to Sacha,

    The police prosecution service’s consistent abdication of action on many political matters in recent decades seems highly material. Wouldn’t trust them to put out a fire in a rubbish bin, let alone conduct an investigation into something authority-challenging like this.

    Well, the other possible organisation in New Zealand that I can think of are military police. If you have another suggestion of who could conduct the criminal investigation New Zealand is required to conduct, I would welcome hearing it.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • PaulL,

    The serious fraud office perhaps? They deal with serious and political crimes, and there's arguably fraud here. A quick read of their website says their remit is largely financial, but you never know.

    Since Mar 2017 • 1 posts Report Reply

  • Sacha,

    I'm fine if the govt decide to do nothing and this ends up with the ICC. Screw em.

    Ak • Since May 2008 • 19685 posts Report Reply

  • BenWilson, in reply to Graeme Edgeler,

    I guess a better question would be: Have any of the countries where you're suggesting non MP police investigate war crimes actually successfully done so? Has what you're saying ever actually happened, with any success?

    Auckland • Since Nov 2006 • 10633 posts Report Reply

  • Graeme Edgeler, in reply to BenWilson,

    Have any of the countries where you’re suggesting non MP police investigate war crimes actually successfully done so?

    None I know of. But I haven't looked very far. I suspect none of the war crimes investigations carried out by MPs in other countries included allegations against a former Chief of Defence and Governor-General, the current Chief of Defence, the current Chief of the Army, and the Deputy Chief of the Army.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Joe Wylie, in reply to Graeme Edgeler,

    I suspect none of the war crimes investigations carried out by MPs in other countries included allegations against a former Chief of Defence and Governor-General, the current Chief of Defence, the current Chief of the Army, and the Deputy Chief of the Army.

    Allegations against such figures, or their US equivalents, were at least implied in the accusatory letters from enlisted eyewitnesses to their elected representatives detailing the events that eventually led to prosecutions over the My Lai massacre.

    The US army's response to the inevitable political pressure was to ensure that responsibility was quarantined to the lowest ranks possible in the chain of command. By identifying SAS influence in senior ranks as the root of the NZ army's current problem, Hager and Stephenson appear to be pre-empting the standard military response of scapegoating blame to lower ranks. It's far from clear to me how involving the civilian police will increase the likelihood of a resolution where such concerns are genuinely addressed.

    flat earth • Since Jan 2007 • 4591 posts Report Reply

  • Alfie,

    Sorry Graeme, but you have to forgive those of us who hold a cynical view of “independent” enquiries set up by this government and see them as a convenient way of brushing serious issues under the carpet.

    As an example, take Judith Collins’ shameful role in Dirty Politics. The facts should have ended her political career. But choosing the people who ran the enquiry and Key's role in severely restricting the terms of reference allowed her to claim that she’d somehow been exonerated. Reappointing her as Minister of Justice was the icing on the cake.

    Another example – the David Bain compensation enquiry. Justice Binnie’s conclusion didn’t suit the government so they shopped around and found Callinan – a proven right wing hanging judge who produced the result they wanted.

    Some common themes emerge here. A Nicky Hager book followed by National government denials and suspect enquiries resulting in a perversion of the democratic process.

    Will they get away with it again this time?

    Dunedin • Since May 2014 • 1386 posts Report Reply

  • Graeme Edgeler, in reply to Alfie,

    Sorry Graeme, but you have to forgive those of us who hold a cynical view of “independent” enquiries set up by this government and see them as a convenient way of brushing serious issues under the carpet.

    You may note that I'm suggesting an investigation is the most important thing.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Alfie, in reply to Graeme Edgeler,

    You may note that I’m suggesting an investigation is the most important thing.

    Indeed. But given the barely credible spin being employed this morning, can you appreciate my scepticism that either this government or an SAS-dominated military can be trusted to conduct a genuinely independent investigation?

    Dunedin • Since May 2014 • 1386 posts Report Reply

  • Katharine Moody, in reply to Graeme Edgeler,

    You may note that I’m suggesting an investigation is the most important thing.

    And given the most recent developments, I think an investigation - as opposed to an inquiry - is the only way to go. I assume the legal team acting for the villagers can file a complaint with the NZ Police, provide them with what evidence they have and let the Police run through the proper process. I assume they (the Police) might decide there is not enough credible evidence to support a prosecution or perhaps that they are not the appropriate authority to investigate - but whatever, surely that process should get underway.

    The executive branch of government has far less influence in respect of a Police investigation than it would an inquiry, I suspect.

    Wellington • Since Sep 2014 • 798 posts Report Reply

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