One Law For All

Hon Heather Roy, Associate Minister Of Defence
Monday March 30 2009

Hon Heather Roy speech to the 22nd Annual United States Pacific Command Military Law & Order Conference; Monday, March 30 2009.

Honourable Dr David Keegan, Captain Pedrozo, Brigadier Riordan, distinguished guests, ladies and gentlemen. Tena koutou katoa. Good morning and welcome. Thank you for your introduction.

On behalf of the Government of New Zealand I wish to extend a very warm welcome to you all to this 22nd Annual United States Pacific Command Military Law and Operations Conference.

It is very pleasing that New Zealand is able to co-host this conference, and I'm delighted to welcome all overseas delegates to our country. I hope you are able to take the opportunity to explore beyond the conference environs during your stay.

You are a diverse, highly qualified and experienced group. Some of you are serving military planners and operators. Many of you are legal professionals - from both the armed forces and the civil sector. There are also members of the audience representing other areas of government, academia and the judiciary. You come from a wide range of nations throughout our strategic area of interest and bring to this forum a wealth of different experiences.

However, all these backgrounds intersect at the point where law and military operations meet. I am personally familiar with this point. As a territorial soldier, I managed to avoid a formal charge on my basic training but frequently succumbed to - what some would claim to be - the 'unlawful' punishment of press-ups for misdemeanours. On one occasion, my entire platoon had to leopard-crawl 100 metres through snowy tussock because I had parted company with my rifle.

We all learned a lot from these 'extra-judicial events', and it is important to bear that in mind as this conference proceeds. Wars are not won by the writing and enforcement of good laws - they are won by good people fighting for just causes. Law is an enabler - not a combat multiplier. Legal considerations have a significant shaping effect on modern military operations, but are not the centre of gravity of a conflict.

Notwithstanding that, the rule of law is a key determinant in a nation's ability to enforce its will through military force. I know that you are aware of the important difference I have drawn.

There is scarcely any activity carried out by armed forces anywhere in the world that does not attract legal scrutiny. Sometimes that scrutiny reaches as far as the International Court of Justice in the Hague and, in that context, I wish to acknowledge the presence here today of Sir Kenneth Keith. At other times, this scrutiny arises in domestic fora. The international media keenly report on legal challenges and debates relating to military operations and the Asia-Pacific region is no exception to this rule.

Confidence that military operations comply with all relevant laws is critical. This has been a key element in ensuring domestic support for deployments for more than 50 years. In assuring service members of the 'rightness' of their mission it must be regarded as an essential element of morale and, therefore, combat power. It is vital in maintaining international and regional support for operations - without which, force projection and sustainability become impossible.

New Zealand values the rule of law in international affairs. Our nation has long regarded respect for international law as a natural element of stable statehood and peaceful relations between communities. We see our vital interests enhanced significantly by operating within a framework of widely accepted and applied legal norms that operate even when normal relations between nation-states have broken down.

However, the relevance of the nation-state is in the dock as we meet here. One of the many challenges for legislators is how to address the issue of non-State actors - ranging from loose ideological networks, to those who identify more closely with causes other than country of birth or residence.

Your conference agenda includes many topics that deal with the complex legal issues for armed forces engaged in activities that fall outside traditional war-fighting.

One of these topics is piracy. The New Zealand economy relies on the flow of goods to and from international markets. Over 99 percent of our exports and imports are carried by sea. It follows that New Zealand is firmly committed to maintaining the safety and security of our Sea Lines of Communication.

New Zealand welcomes initiatives from international organisations - like the International Maritime Organisation and the United Nations Security Council - in deploring the resurgence of piracy, which threatens trade routes and the prosperity of countries that rely on them. I note that the world's second largest organisation after the United Nations, the World Customs Organisation, is chaired by the New Zealand Comptroller of Customs.

International law, however, only recognises as piracy those acts of violence and robbery that are committed on the high seas or in areas beyond national jurisdiction. This poses challenges when the acts occur in the territorial waters of countries with limited ability to police them. I'm sure the discussions you will have at this conference will contribute to the development of new approaches to addressing this issue.

You will also be talking about the important subject of civilians on the battlefield. Although the protection of civilians from the effects of war has long been a major focus of the law of armed conflict, it is a regrettable fact that we continue to see countless examples of disproportionate civilian suffering in war.

The law continues to develop in an attempt to ameliorate this suffering. Many of you come from nations that - like New Zealand - took part in the Oslo process to ban cluster munitions in order to bring to an end the unintended and unacceptable harm that they cause to civilians. Some come from nations that were not part of that process but which, nevertheless, continue to work within the UN framework of the Conventional Weapons Convention to address the humanitarian cost of these weapons. No doubt you will address the impact of these developments to ensure that they remain relevant to the modern military environment.

However, there are other civilians now likely to be found on the battlefield. As many armed forces commercialise support functions, civilians are also appearing on the battlefield in roles that confuse traditional demarcations between civilian and combatant. This includes the use of private security companies to fulfil roles once performed by service personnel or police. The actions of some of these companies have been the subject of criticism. It is important that they do not operate in a legal vacuum and are subject to both appropriate protection and accountability.

I note with interest the recent Montreux document drawn up by the International Committee of the Red Cross in discussion with 17 States. It sets out rules and good practices to ensure that private security companies comply with the laws of armed conflict and human rights.

Your discussions will also include expert presentations on the legal aspects of operations as diverse as disaster relief, fisheries management, maritime security and combating trans-national crime. All these issues give rise to serious legal questions, and I am particularly interested in finding whole-of-Government solutions to these subjects as part of the National Security portfolio that I have spoken of at length as a political way forward.

Conferences such as this play a vital role in exploring how the different legal systems and military doctrines throughout our region view these issues. They enable you to identify and focus on the common ground between you. It is in focussing on what we agree on - be that political or legal - that we can progress. A problem orientation does not achieve the same outcome.

In this increasingly litigious world that we live in, there is a temptation in politics to try to write laws to cover every scenario. But we know that is impossible. During my own time in Parliament over the past seven years, when confronted with new legislation to consider, I have found it useful to have solid principles to fall back on.

While I don't expect you to use Party political principles, I think it appropriate to conclude by mentioning that most fundamental yardstick of lawmakers: do no harm. I have seen the law of un-intended consequences at work in the legislature. I'm comforted in the knowledge that you are all at the coalface of the issues to be addressed this week and I look forward to reading the conference proceedings.

I know that you will create many new ideas, forge enduring relationships and make commitments to carry the value of the next four days on into the future. In all these things, you have my support. To our international guests, please make the most of New Zealand's hospitality. Enjoy your stay and have a safe journey home. Justitia in Armis.

ENDS

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