Mercenary Activities (Prohibition) Bill

, on behalf of the Minister of Foreign Affairs and Trade: I move, That the Mercenary Activities (Prohibition) Bill be now read a second time. This bill implements into New Zealand domestic law the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which came into force in 2001. The bill creates five separate offences: criminalising the conduct of mercenaries, and the recruitment, use, financing, and training of mercenaries. It also includes measures relating to international cooperation, investigations, and prosecutions, so that individuals can be brought to justice.

The majority of the Foreign Affairs, Defence and Trade Committee recommended that the bill be passed with some amendments. I welcome these amendments, which give greater clarity to the definition of “mercenary” and to the activities that are targeted by those new offences. The bill will ensure that mercenaries and mercenary activity will not go unpunished by New Zealand, and will therefore fill a gap in our existing law.

Passing this legislation will allow New Zealand to become a party to the mercenaries convention. Such a move will demonstrate to the international community that New Zealand is committed to discouraging the use of mercenaries in the world today, and will show our support for the growing concern internationally that the use of foreign mercenary forces can impede the exercise of the right to self-determination and also violate human rights. New Zealand has long recognised the impediments that mercenaries can cause to the peaceful resolution of conflicts, and opposed their use in the Bougainville crisis. New Zealand opposed the use of foreign military by the Papua New Guinean Government, and argued that the crisis would be resolved only through a comprehensive peace process, which, as we can see, has happened.

Turning to the specifics of the bill, the definition of mercenary reflects the definition in the convention, which targets two types of mercenaries. The first is a person who is specifically recruited to fight in an armed conflict and is motivated by profit. The second is a person who is recruited to take part in a concerted act of violence and, again, whose motivation is profit. These are what we would term “true mercenaries”—that is, what people have traditionally envisaged by the term “mercenary”. The convention is not aimed at covering all the people who might sometimes be loosely referred to as mercenaries in today’s world. That is outside the scope of the convention and outside of what we see as the appropriate focus of this bill. Our concern is to put in place provisions that proscribe the form of mercenary activity that has been recognised as being of the greatest concern.

In response to concerns expressed by some submitters, the select committee recommended several amendments to the definition of mercenary, to remove doubt as to the type of person who would be covered by these new offences. Those amendments make it clearer that only those involved in armed combat as combatants—that is, those who actually take part in hostilities—will be considered the first type of mercenary. I support this amendment. In addition, a further amendment is designed to clarify the circumstances in which a person will not be considered a mercenary. Those are when the person is taking part in a peace support mission—for example, in mine clearance, the delivery of humanitarian aid, domestic policing, or other similar lawful activities involving the protection of individuals or property. Clearly, those activities were not intended to be covered by the convention or the bill, and, accordingly, I welcome this being made clearer in the bill.

There has been criticism of the workability of the existing definitions—a point of concern mentioned by National and New Zealand First members. I believe that determining who should and should not be considered a mercenary is not easy. However, the definition used in the convention and the bill represents a useful and viable first step to encompass at least those generally regarded as true mercenaries. There have also been calls internationally for the convention to be amended so that the definition can more accurately reflect today’s reality, including the use of so-called mercenaries in criminal activities, such as arms and drug trafficking.

By becoming a party to the convention through the passage of this bill, New Zealand will be well placed to contribute actively to the international discussions around the appropriate scope of the term “mercenary” and to influence any negotiations concerning amendments to the convention, whether in relation to the definition, or more generally. The increase in the event of private military companies around the world, particularly in Iraq, gives rise to the question of how in the future the international community should tackle regulation of these new organisations. However, such issues go beyond the scope of this bill, which is aimed at criminalising the activities of the true or traditional mercenaries, and implementing the mercenaries convention as it currently stands.

Moving on to the definition, the bill contains new offences that will make it illegal to recruit a person to be a mercenary, use a person as a mercenary, finance a mercenary, train a mercenary, or take part in hostilities or a concerted act of violence as a mercenary. The bill allows for extraterritorial jurisdiction to be taken in certain limited circumstances. For example, this will allow the prosecution of New Zealand nationals who are involved in those mercenary activities outside New Zealand, and the prosecution of people who are found in New Zealand and for some reason have not been extradited or face charges elsewhere.

Other provisions in the bill include providing for international cooperation with other States in relation to criminal investigations and proceedings in relation to mercenary activity. It was pointed out in the select committee process that few of our usual like-mindeds have become party to the mercenaries convention. Although that is true, New Zealand needs to make its own decision as to whether it wants to ensure that mercenary activity is outlawed in this country, and whether the obligations in this convention accord with New Zealand’s views that the use of mercenaries should not be supported—as they do. Accordingly, the Government supports this bill. We do not want New Zealand to be seen as a safe haven or a soft spot for mercenaries, and this bill will ensure that. I commend this bill to the House.

I state for the record that the National Party opposes this bill, athough it does not in any way condone mercenary activity, as was pointed out in the select committee process. The Minister was kind enough, during the course of his explanation to the House, to acknowledge that there were still some doubts about, and difficulties with regard to, the definition of “mercenary”, but he said he believed it was a “good first step”—to quote the Hon Chris Carter. That may be the case. We on the Opposition side of the House certainly acknowledge that the amended definition is an improvement. I acknowledge that the intent of the legislation is, in its purest form, the right step to take. However, in our minority view—together with New Zealand First—there are three major areas about which I still have grave concern.

The first is the definition of “mercenary”, although we acknowledge the intent of that and the improved definition brought forward by the Foreign Affairs, Defence and Trade Committee after what was a long, involved, and complex discussion with legal advisers from many departments about the way in which “mercenary” should be defined. There was a UN special rapporteur’s report that regarded the original definition as inadequate in operational terms. Whether or not that special rapporteur has had the opportunity to comment on the amended definition, I say countries should proceed with caution before ratifying international conventions when reports such as the special rapporteur’s report consider the original definition to be inadequate. We go on to state in the minority report that, in our view, the amended definition does not address those concerns. Although, as I said earlier, we acknowledge that the intent is there and that this legislation is a step in the right direction, I am concerned about any legislation that attempts to define what a mercenary is in, for the sake of argument, two paragraphs—those contained on pages 2 and 3—when the select committee then feels compelled to include two larger definitions of what is not a mercenary. It seems to members on the Opposition side of the House that that is no way to draft law when we consider these issues.

The other concern that we have is, of course, that the signatories to the UN convention concerned do not exactly represent the countries that we have traditionally had a security or defence relationship with. In particular, the US, the UK, and Australia have not ratified or, in fact, signed the convention. That is quite an important point to make—they have not even signed, let alone ratified, the convention.

I also worry about—and we made this point as the third point in the minority report—the issue that we continue to place into our domestic law international conventions that, in many ways, have marginal relevance to our domestic circumstances. Whilst Opposition members do acknowledge that the intention of the legislation is pure, the issue is the workability of legislation that has as its core definition—in an attempt to put in place for readers of the legislation a clear understanding of what a mercenary is, and bearing in mind that members of the House have just heard the Minister say he acknowledges that the definition is less than satisfactory—a definition of “mercenary” that is smaller than the definition of who is not a mercenary. That cannot be a good basis on which to create certain and clear law.

On the basis of that and the other two points I mentioned in the course of my speech, National will oppose this bill.

I rise—

💬 John Key: Here’s a mercenary.

That is rich, coming from that member. If we asked people in London, they might be able to provide a definition of that member.

I rise to support the Mercenary Activities (Prohibition) Bill. I do it with some amazement, given that the member who spoke before me told the House that he and his party are opposed to the bill. He talked about the need to define what a mercenary is. There is a definition within the bill, but let us—for those people outside this place who have more common sense than some on the opposite side of the House—go through what we believe a mercenary is. A mercenary goes to any conflict, any time, any country, anywhere, to do anything for commercial gain, without reservation. A mercenary does not consider whether the cause is righteous. A mercenary does not consider the sovereignty of nations, or whether there is a mandate from the United Nations. No, a mercenary goes anywhere, anytime without reservation, for the dollar. A mercenary is simply motivated by commercial gain, and is not concerned with issues of command or control—but is definitely concerned with issues of commerciality.

💬 Hon Dr Michael Cullen: Free-trade deals.

My colleague Michael Cullen mentions free-trade deals. Mercenaries go simply for commercial gain.

💬 Hon Dr Michael Cullen: Without reservation.

Without reservation. I looked at the minority report of the National Party, and in it, again, that party speaks of the US, the UK, and Australia, which are our allies. They have always been our allies and remain so, and I and others on this side of the House stand by them. This Parliament has always stood by them, and generally in a bipartisan way. But how members can oppose this bill in this House is beyond me.

Again, I ask—[Interruption] I tell Mr Mapp to pipe down. Again, I ask Mr Power to reflect on recent days and on his recent statement—because I come back to it. He said: “Without reservation we will support our close allies Australia, the United States, and Britain when and wheresoever our commitment is called upon.” A mercenary is called upon to go anywhere, any time, for commercial gain. Such people forget about the righteousness of the cause; they just go. They put their lives on the line not for honour but for a dollar. Mercenaries have no principles apart from income.

💬 John Key: No principles.

No principles at all. They are not concerned, at the end of the day, with the value of the lives of their troops. They are not concerned with any principle; they are concerned simply with a commercial outcome—to go and make a quid. Whether their own men and women come back is immaterial to them.

When looking at this bill, one cannot help reflecting again on the words of Simon Power. I am not comparing him with a mercenary—that would be unparliamentary. But I am drawing attention again to a party and a defence spokesperson who cannot think for themselves, and who believe that we should turn the clock back in history and simply be led by the nose. I say again that I am for New Zealand engaging in international conflict, where appropriate. I am for New Zealand engaging our troops, but in contemporary times it has to be on our own terms and based on more principled reasons than simple trade commerciality. On that point, we can draw an analogy between that party’s foreign policy and this bill. With what Mr Power has done this week, the mask has fallen away from the National Party’s defence policy, and now every New Zealander knows that the defence policy under a National Government will not be based on righteousness at all, or on the interests of either New Zealand or our wider allies; it will be based on a mercenary concept—not a mercenary principle—called political expediency. As a Government, one does not send troops to fight for their country and, possibly, die, because one wants to do a better trade deal. One does not do that.

What this bill implements is the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which entered into force in 2001. How on earth could a political party in this House oppose that? How could it oppose outlawing people whose only principle in going to war to topple Governments, or whatever, is to make a quid? In the same breath, how could any party come out and say it will not base its foreign policy on anything strategic, will not look after its troops at home, but will say: “Boys and girls, we’re off.” because it will support whomever, wherever, without reservation?

I invite Mr Power, and I am sure the Minister of Defence would facilitate it, to go around to every military base right around the country—Burnham, in my patch—make the same speech, and ask the men and women when they are getting into a Hercules to fly off what they think of his statement. Unlike mercenaries, soldiers need to know when they go to battle that they are going there for a purpose. They do not go into battle, knowing they may not come back, because of their pay. If they just wanted pay they would do a safer job. All soldiers want to know that their Parliament backs them, and that they are going there for a reason, which is to defend their country, to defend their allies, for a principle—not like mercenaries, who simply go for commercial gain. They do not want to be told that we are sending them because maybe, hopefully, just maybe, we might get a trade deal with an ally.

I do not hold the United States responsible for that in any way. I have a lot of empathy and respect for that nation and its people, but I doubt whether Donald Rumsfeld would send his troops into harm’s way simply to secure a trade deal.

💬 Simon Power: No one has.

Mr Power is right. He did not say that. His party articulated it, and he went one step further. He said: “It doesn’t even matter. We’re not going to send them for a trade deal. We don’t need that reason. We will send them without reservation.”

I support this bill. I believe that all New Zealanders, including former military personnel, returned service personnel, and people who have never served in the forces, can stand up when asked and articulate a simple, common-sense definition of what a mercenary is—everybody, that is, except members opposite. They have told us tonight they will oppose this bill because they cannot quite understand the definition. What they are really saying is they will oppose this bill without reservation. I am glad that over the last couple of days we have finally seen the National Party foreign policy out in the open. Every defence personnel, soldier, airman, and navy personnel around New Zealand has read that quote and quickly drawn in a breath.

I invite National Party members, for their own sakes, for the honour of this House, and possibly also for—if they can think about it—the honour of our service personnel, to think again about the nature of this bill. I ask Dr Lockwood Smith, a senior colleague of Mr Power and a former Minister, whether he agrees with Mr Power’s statement. After all, Dr Smith is a former Minister for International Trade. I am told he was not a bad one, either. I know he will stand up and have a crack at me. Will he stand up tonight and say: “I sign up to my defence spokesperson’s defence and foreign policy.”? Will he say “Yes” or “No”? I invite National Party members to rethink their position on this bill.

I will put on the record first up that New Zealand First is opposed to this bill and will vote against it. There are very clear and specific reasons why.

The first comment I would make is that as much as doctors get tired of hearing politicians—particularly politicians who have had no experience in the medical field, at all—tell them what is clinically possible or impossible, what is medically possible or not possible, and how the health system should be run, so, too, do soldiers get very bored and tired of hearing from politicians who have never worn a uniform, never served overseas, and who are well known and well reputed for showing up on Anzac Day. Those soldiers tend to hear speeches such as the one we have just heard and shake their heads.

💬 Clayton Cosgrove: That member never showed up at the dawn ceremony.

I will allow myself to be deflected for a moment, because that member is a goddam liar. That member knows full well that I was at the dawn parade, as I have been for the last 16 years in Christchurch, and elsewhere for many years before that. So before the member starts chucking around aspersions of that sort he had better sort himself out, because he is a liar.

The ASSISTANT SPEAKER (Hon Clem Simich): Mr Mark—

I am sorry. Did I say something wrong? I withdraw and apologise.

The ASSISTANT SPEAKER (Hon Clem Simich): You know exactly what you said. Have you withdrawn and apologised?

I withdraw and apologise, because it is the rule of the House.

I go back to the minority report that New Zealand First and National documented, which states quite clearly the reasons we oppose this bill. The first reason is the definition of “mercenary”. The definition lacks clarity. In fact, it would be fair to say that the definition is all over the place. It has more holes and more gaps than one could imagine—enough for any shonky bush lawyer to drive an articulated truck through.

The second reason is that the parties to the convention—we have been very polite in the bill—do not include traditional friends and allies, particularly the United States, the United Kingdom, and Australia. But let us be blunt about it. When one looks at the list of the parties that are signatories to the convention, who the heck are they? There is Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Croatia, Georgia, Guinea, Libya—that is a good one, is it not? Libya has signed this convention. Well, holy do! We will not talk about Lockerbie, will we?

There is Senegal, the Seychelles—[Interruption] Well, I suppose they should. They were invaded by Mr Hoar and a group of mercenaries. There is Uzbekistan, the Ukraine, Turkmenistan, and Mauritania.

The point is that people have not heard of most of those countries. Most of those countries do not share the same values that we in the West do. Most of those countries have, at some time or another, employed mercenaries. When I asked officials to validate for me how many of those countries still, to this day, enforce the convention—that do not use mercenaries and do not condone them—they could not tell me. No one has done an audit on the countries that signed this convention to see whether they are complying.

But what do we have in New Zealand? We have this politically correct little nanny Government that wants to tell everybody how to mind their own business—everything from smacking to golly knows what—and now it wants to sign up to this convention, along with Mauritania and Qatar.

Even Saudi Arabia is mentioned in the bill. When I was serving in Oman as a contract officer, who was manning the borders?

💬 Clayton Cosgrove: Is that pc?

The borders of Saudi Arabia were manned on our side—the good guys’ side—by a mercenary battalion from Baluchistan. The border down on the Yemen was protected by two Belushi mercenary battalions, all led by British and Omani officers. On the other side—the people we were keeping an eye on—were Pakistani mercenary battalions. But it is good to know that Saudi Arabia, which employs mercenaries—along with every other Middle Eastern State—is a signatory to this highly credible, highly enforceable convention.

The question of the definition has been long debated. I have a message for Mr Cosgrove. Most soldiers listening to this debate would say to him: “Excuse me, Mr Cosgrove, when I have finished in the Army I want to go and do contract work. I want to go and serve with the Brits. I want to go and serve with the Aussies, or with any like Government organisation that will have us, pay well, and have us doing some good work.”

There are many New Zealanders who, if this definition were interpreted the wrong way, would be facing charges. But then, being smart, we could take this definition and tear it apart. I could still be a mercenary and not break the law. I simply would take a contract that does not require me to wear a uniform. I could take a contract that does not require me to be at the sharp end as point man in an infantry section. I could be a battalion commander and, from behind the scenes, direct and command 980 men to do the work for me. Under this legislation I could not be prosecuted. Under this legislation I am not the one personally pulling the trigger.

I know that the Government’s—and the world’s—intention is to clamp down on mercenaries of the type that one hears about in movies, comic books, and Soldier of Fortune magazines. The dilemma that we have to live up to and face is who was sending mercenaries into Afghanistan when the Soviets were occupying it. Mr Locke may be able to tell us that, because I think he was on the side of the Soviets who were liberating Afghanistan—or was he on the side of the Taliban who were liberating it from the Soviets? I am not quite sure.

The fact is that our allies, the Western nations, used retired servicemen to go in and train the mujahedin in anti-aircraft drills, how to knock out Soviet aircraft, how to knock out Soviet helicopters, and how to destroy the BTR-80s—the ones that look like LAVIIIs. The mujahedin knocked about 1,300 of those things off. We had people over there teaching them—not just the official, seconded Defence Force personnel, but extra contract Defence Force personnel. I guess the message here is that if they are doing it for us it is OK, but if they are doing it for the Taliban, it is not. Well, that is a subjective position to take.

The bottom line is that no matter how one looks at the definition in this bill, there are gaps, holes, and areas where the law can be simply worked around. It is unworkable, unenforceable, touchy, feel-good, fluffy legislation designed to allow New Zealand to join the ranks of such countries as Croatia, Saudi Arabia, Qatar, Ukraine, Uzbekistan, and Turkmenistan. I am sure that so far as Labour voters are concerned, we will fit very well alongside those countries. There is a degree of hypocrisy in this bill. Aspects of this bill make it totally unenforceable, and for the life of me I do not understand why we would want to pass legislation that we know to be unenforceable.

New Zealand First is opposed to this bill. We will vote through it. We may well try to make some amendments part way through the Committee stage, but given this Government’s propensity to not be flexible during the Committee stage of any bill—in fact, Government members tend to just sit there doing their knitting—I do not see that we will have any joy, and we will be forced to vote against it at the third reading, as well.

The Green Party will be supporting this bill to enable us to implement the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It is a historic problem in the world, going back well into history. But more recently many countries—in Africa in particular—have suffered by the injection of highly paid mercenaries into civil conflicts.

We go back to the Congo in 1960, and beyond. New Zealand has had a particular concern with the use of mercenaries in our Pacific region—most recently in Bougainville where the Sandline International mercenaries were coming in with a huge amount of equipment. They were going to smash the Bougainville Revolutionary Army in a way that would have continued the conflict in that country, which was killing so many people, for many years. Thankfully the Sandline International mercenaries were kicked out before they got into action, and New Zealand was involved in a peace process that has led to peace and development in that country. It is a case study of how bad mercenaries can be.

It is interesting that the question of mercenaries is raised today in relation to Iraq, and I think the Minister raised that question as well. Some of the people serving there, outside of any official armies, are sometimes called soldiers of fortune. They are involved, to one degree or another, in the fighting in that country. Ron Mark is wrong. One does not need a rifle in one’s hand to qualify as a mercenary, under this bill.

Debate interrupted.

The House adjourned at 10 p.m.