Mercenary Activities (Prohibition) Bill

I move, That the Mercenary Activities (Prohibition) Bill be now read a first time. I will propose that the bill be referred to the Foreign Affairs, Defence and Trade Committee. This bill contains legislation needed for New Zealand to become a party to the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which entered into force in 2001. The bill establishes new criminal offences for activities involving mercenaries that are not currently punishable under New Zealand law.

The use of mercenaries in armed conflicts is an age-old phenomenon. In recent decades, however, the international community has tried to curb this practice. These attempts reflected growing concern that the use of foreign mercenary forces could impede the exercise of the right to self-determination and violate the fundamental rights of individuals, including the right to life. New Zealand has long opposed the use of mercenaries.

The involvement of mercenaries as an additional party to a conflict impedes peaceful resolution of that conflict. During the Bougainville crisis, for example, the Papua New Guinea Government considered the use of foreign military personnel. New Zealand opposed this, arguing that the crisis would be resolved only through a comprehensive peace process. The mercenaries, in the end, were withdrawn, and the ensuing peace process did prove successful.

By passing this bill and becoming a party to the convention, New Zealand will demonstrate its belief that the use of mercenaries is unacceptable as a method of conflict resolution, and that this issue needs to be tackled at the international level. The convention identifies particular conduct involving mercenaries that should be proscribed. This includes the conduct of the mercenaries themselves, and those who recruit, use, finance, or train them. The convention also includes measures aimed at increasing international cooperation, so that individuals who commit the specified acts can be brought to justice.

The bill’s definition of “mercenary” reflects the definition in the convention. It encompasses two types of mercenary, both of whom have the objective of making a profit from participating in conflict. The first type is a person who is recruited to fight in a foreign, armed conflict. This definition is based on a provision in the first protocol to the Geneva conventions. In this context, the monetary incentive must be measurable, with the person being paid substantially more than members of the armed forces of the parties to the conflict for corresponding duties. The second type of mercenary is a person who is recruited to participate in a concerted act of violence in another country—for example, an act aimed at overthrowing the Government. Again, the person’s main objective in performing the act must be to make a significant financial gain.

The definition of “mercenary” is not intended to catch those persons who join foreign armies on the same basis as locally recruited staff, or those persons who are motivated to fight overseas by personally held convictions rather than profit. The definition would not catch New Zealanders recruited into the legitimate armed forces of other countries, such as Australia and the United Kingdom. Nor would it encompass those working overseas for companies or non-governmental organisations in security related activities, as long as those activities do not include fighting in a civil conflict.

These definitions reflect the international consensus on those who clearly should be regarded as mercenaries. There are, however, calls for the definition to be extended to reflect current realities, including the increasing involvement of mercenaries in criminal activities such as illicit trafficking, including arms and drugs, and even selective assassinations. Extending the scope of the convention has been the subject of recent recommendations by the United Nations Special Rapporteur on Mercenaries. However, in this bill the definition of a mercenary remains as currently described in the convention.

The bill creates five new offences, each with a maximum penalty of 14 years’ imprisonment. The approach taken is to model the new offences on similar existing offences where possible. For example, the offences relating to recruitment and financing are similar to those in the Terrorism Suppression Act of 2002. The bill also creates two offences relating to the training of mercenaries as a precondition to or after recruitment. The bill aims to catch those who intentionally train people to be mercenaries in order that they can sell their fighting skills to other countries for profit. It does not therefore cover those in the New Zealand armed forces who train our troops, or who, as part of their duties, go overseas to assist with the training of the armed forces of other countries. It would also not catch ex - New Zealand soldiers who assist with upskilling the armed forces of a particular country. What is caught, however, is the situation where those being trained are part of an army for hire, prepared to go anywhere, or fight in any war, or overthrow any Government, for money.

Extraterritorial jurisdiction is taken in certain circumstances—for example, allowing prosecutions of New Zealand nationals, or of others alleged to have committed a convention offence who are found in New Zealand but for some reason are not extradited. Other provisions include those relating to cooperation with other States in their criminal investigations and proceedings, and are similar to those in the Terrorism Suppression Act.

These new offences will discourage the use of New Zealand as a base for mercenary activities. The broad jurisdiction allowing prosecution here for acts done overseas will help ensure that mercenaries do not regard New Zealand as a safe haven. The bill will put New Zealanders on notice that they cannot, under our law, agree to be recruited to fight and kill simply because it is lucrative to do so. This bill therefore reaffirms New Zealand’s long-standing position that it does not condone the use of mercenaries. I commend this bill to the House.

National intends to support this bill to the select committee, but we will be watching its passage through that committee with some interest. My understanding is that there are some reasonably significant Western nations that are not party to this convention, and it will be an interesting process to compare those countries’ views on the applicability of a piece of legislation such as this with the bill that will probably now proceed to the Foreign Affairs, Defence and Trade Committee.

Whilst the bill will implement the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries—the Mercenaries Convention—there are questions to be asked about extraterritorial jurisdiction. In particular, questions need to be asked about the way that this convention would impact on the domestic law of New Zealand, and how that compares with other countries, such as the US, Australia, the UK, and Canada, which, I understand, are not implementing this particular convention. So whilst the National Party will be supporting this bill to the select committee, it will at the same time reserve the right to look closely during its passage at the matters I have just raised.

I rise to support this bill. My colleague the member for Roskill has already spoken about the reasons why the Government has brought this bill through. Just last Wednesday I returned to New Zealand after spending 6 days in the Solomon Islands. While there, I saw what ethnic conflict and the militarisation of gang warfare can mean in a community. We live in a Pacific that has some tensions and hotspots. Papua New Guinea is another country in our region that the Minister of Foreign Affairs and Trade has spoken about, and where mercenaries have been an issue.

New Zealand has a proud record in international relations, in supporting the UN, and in being party to conventions to deal with a range of issues—from disarmament, to preventing nuclear proliferation and mercenary activity. It is very important that this country be a powerful voice in the world community, speaking out against the recruitment of individuals as mercenaries and the fuelling of conflict that can happen even in our region. I strongly support this bill.

New Zealand First will not be supporting the Mercenary Activities (Prohibition) Bill. From the practical military experiences of our caucus—not shared by other caucuses—New Zealand First believes that this bill is not well considered. In fact, under this bill’s definition, a member of our caucus would have been a mercenary.

💬 Hon Phil Goff: Nonsense!

It is quite true—he would have been a mercenary. This bill is merely a belated attempt to try to catch up with, and become part of, the international politically correct community. It does not accept that mercenaries have been, and still are, a legitimate part of armed conflict worldwide. It is not our intention to support an ill-considered attempt to merit international favour at the cost of a long tradition that many of our ex-soldiers have been a party to.

If I had to go to the select committee, I could quote people who in other years have been part of other armed forces, who have worked in the best interests of a country, and have maintained stability for Governments abroad. In this country, those people would be considered liable under this bill and fined or convicted for up to 14 years. That really is a nonsense. This bill is a quick attempt to become part of the international politically correct community.

My colleague who has just arrived in the Chamber will speak further on the matter. New Zealand First does not support this bill for the reasons I have given, and which will be outlined further.

It is good to hear Mr Peters speaking up. The ACT party, too, will not be supporting this bill. It is a bit rich that the Minister of Foreign Affairs and Trade, Mr Phil Goff, is sponsoring this bill and talking about all the damage that mercenaries do around the world, when he is a man who was quite happy to go to the bunker with Yasser Arafat, cuddle up to him, hold his hand, and present a smiling face to the world, then have the—well, one cannot say it, can one?

💬 Simon Power: The temerity.

He has the temerity to come back to New Zealand, climb on his little soapbox, and say: “Here is what New Zealand is going to do to sign up to an international convention.” Are the leading First World nations signing up to this, I ask Mr Power? I do not think so.

💬 Hon Phil Goff: What about Italy and Belgium, for instance?

What about the United States and the UK? They always run off to their mates. So we say “No”, and we say “Shame on Mr Phil Goff.”, who is quite happy to be photographed with international terrorists, then come down here and climb on his high horse. The ACT party is against this bill.

The Green Party will be supporting this bill. It is about time that this Government took action in this way, because there has been a very serious problem with mercenaries around the world for many years, particularly in Africa, where the operations of mercenaries have caused political crises and undermined the ability of the peoples of those countries to determine their own future in a proper manner. We can go back to the early 1960s when the mercenaries were very involved in the Congo, leading to the overthrow of the Lumumba Government and, for many years, to great chaos and death, particularly in eastern Congo, which has not really recovered since. There is ongoing violence in the eastern Congo today, and I think that the actions of the mercenaries 40 years ago contributed to that situation.

There are a number of mercenary organisations around the world, one of the two best known, perhaps, being Executive Outcomes, based on South African military officers who served the apartheid regime in South Africa for many years and then engaged in mercenary activities as the apartheid regime went down. Another firm, Sandline International, is notorious for its activities, firstly in Africa. It is led by a chap called Tim Spicer. I have just been reading an article on him, and he does not like the term “mercenary”; he prefers the term “contract soldier”. I think that would also fit the definition of “mercenary” in this bill—somebody whose primary purpose is private gain. I think that would fit contract soldiers.

Not only did Sandline International develop its operations in Africa and cause havoc and distress there in its pursuit of money, using its military capability; it then moved into our region in the 1990s, into Papua New Guinea. Its activities there caused a military coup when the army got upset about the Government of the day hiring Sandline to move into Bougainville to take charge there and smash militarily its independence movement.

We all know that the proper solution to that problem in Bougainville was a peaceful one. New Zealand to its great credit initiated the peace process there, and we did that by bringing all the parties for a start to Burnham military camp, getting them sitting down and talking to each other, and out of that evolved a very successful peace process. The very people whom Sandline International was brought in to smash, like Joseph Kabui, are now the leaders in Bougainville in a very peaceful situation. It is great credit to New Zealand that it went down that track, as opposed to the mercenary track that others were promoting.

We have had problems in New Zealand with mercenaries that perhaps this bill would cover. I remember back to 1989, when there were advertisements in the New Zealand newspapers—the Christchurch Press is an example, I think it was in July 1989—by the Papua New Guinea Government for New Zealand helicopter pilots to fly helicopters on service in Bougainville for the Papua New Guinea army. I complained at the time, but there was no avenue for rectifying that complaint. In fact, New Zealand pilots were hired, much to the discredit of New Zealand, because there were rumours about very bad things done in those helicopters, including throwing people out of those helicopters while they were on operational missions—that is, people who had been captured in Bougainville. New Zealand was associated with that; there is no definite proof that a New Zealand pilot was flying the helicopter at the time that someone was thrown out of the window, but there were helicopters flown by New Zealanders in Bougainville for Papua New Guinea for money at that time. They would be defined as mercenaries under this bill, and rightly so.

Also, we have a case of a chap called Alen Robbie who was working for a group in Auckland called Group 4 Security Ltd, back in the late 1990s, and he was recruiting for Sandline International. That was a very bad thing. Again, at the time I complained to the Minister who has presented this bill, but there was no redress at the time that a New Zealander in Auckland was involved in recruiting for Sandline International. This bill will help deal with that particular problem, too.

The definition in the bill is very appropriate: that is that one has to have the primary purpose of private gain, but some companies around the world do fit into a bit of a grey area in this respect. Some of them are American companies, which may have something to do with why some Governments that other speakers referred to have not gone along with this international approach of putting a ban on mercenaries.

We have companies like Military Professional Resources Inc. that have been involved in what we might call training, but it is a bit more than training, in places like Croatia. This group was very much involved in training Croatian soldiers prior to enduring the Kryena campaign back in the 1990s where the Croatian Government, in those areas that had a lot of Serb civilians in them, launched a big operation, and hundreds of civilians were killed and some 170,000 people were driven from their homes. There has been a lot of concern about that operation ever since.

As an article in the Nation magazine indicates, there is a sort of grey area here between what is training and what is participating in a war. As Phil Goff pointed out, the definition is that one has to actually participate in a war. This article says that in a sense, whether Military Professional Resources Inc. directed the campaign is secondary: “Once you provide training there is no way to control the way the skills you have taught are used.” said Loren Thompson, a military specialist at the conservative Alexis de Tocqueville Institution. Given Croatia’s record, he thought that training that Military Professional Resources Inc. did in that case could have helped prosecute that slaughter of many innocent people and the evacuation of 170,000 people from their homes. Technically, while training is not covered under this bill, and there is an exemption, as Phil Goff pointed out, for agencies that are involved just in security operations, there is a bit of a grey area there, so that in practice we might find it difficult to work out where the start and finish point is, in terms of whether a person or group is mercenary in practice. That is something we will work together on within the international community. It is good that New Zealand in this bill is being a good international citizen, working with others around the world to get rid of the scourge of mercenaries, of people who, for money, go around killing other people.

Debate interrupted.