Do we have a separation of powers problem here?
The Army has an obligation to investigate allegations of war crimes.
The Police also have jurisdiction.
There may be a problem here (perhaps predetermination?) but I don't think it's a separation of powers issue. Investigating crimes is the job of the executive.
Wayne Mapp has posted on Pundit revealing that he was one of the sources for the book.
Wayne Mapp has posted on Pundit that he has been interviewed by Jon Stephenson. He does not say he was one of the sources for the book.
(He may well be, but he has not said he is in that post)
The follow-up questions at Keating’s press conference were the first sign the tactic was working (short-term, at least): the assembled journalists kind of forgot to say “So General, no dead people then?”.
He quite clearly stated there were dead people. He said they were all insurgents, one killed by the SAS, the others by the helicopter under direction from the SAS ground air controller.
Kathryn Ryan said RNZ had discovered a NYTimes report from 2010 – two days after the abortive raid reported in Hit and Run. That report named the same two villages as the book, which suggests that the Defense Department’s “Look… over there… another village” claim is complete and utter bollocks.
This is not a new discovery. The article is footnoted in Hit & Run.
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.
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.
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.
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.
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.
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.
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.).