No Right Turn
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 shame ful 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 - unfortunately, they're just too cowardly to say so.
ENDS