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 third time. This bill implements into New Zealand domestic law the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries, which entered into force in 2001. The bill criminalises the conduct of mercenaries and the recruitment, use, financing, and training of mercenaries. It allows New Zealand to demonstrate to the international community that we are committed to stamping out the use of mercenaries, and to 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 violates human rights. New Zealand has long recognised the impediment that mercenaries can cause to the peaceful resolution of conflicts. In the Bougainville crisis New Zealand opposed the use of foreign mercenary personnel by the Papua New Guinea Government. We argued that the crisis would be resolved only through a comprehensive peace process, and we are pleased that has happened. It only confirms our belief that mercenary activity should be prohibited.

Although there has been some criticism of the definition of “mercenary” used in the convention, it is nevertheless important to become a party to the convention in order to plug a gap in New Zealand’s law. This bill covers 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 may sometimes be loosely referred to as mercenaries in today’s world. That is outside the scope of the convention, and outside 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 greatest concern. We see this bill as a useful and viable first step towards encompassing at least those generally regarded as true mercenaries.

Some people have claimed that the definition contains too many elements. Of course, in the context of this legislation it is intended that only a small number of people will be caught by the definition, so it needs to contain more, rather than less, detail in order to ensure that it does not incidentally catch others. Changes have also been made by the Foreign Affairs, Defence and Trade Committee, to obtain greater clarity in the definition. For example—and this addresses some of the points raised by Opposition speakers—it is now spelt out that people on peacekeeping missions who are carrying out mine clearance, delivering humanitarian aid, and providing policing and security services that protect individuals or property are not mercenaries. There have also been calls internationally for the convention to be amended so that the definition more accurately reflects 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 better placed to actively contribute to international discussions around the appropriate scope of the term “mercenary”, and to influence any negotiations concerning amendments to the convention.

The bill also includes measures relating to international cooperation in investigations and prosecutions, which are important to ensure that individuals can properly be brought to justice. It was pointed out during the select committee process that few of the usual like-minded countries to New Zealand 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 the convention accord with New Zealand’s view that the use of mercenaries should not be supported—as they do. Some concern has also been expressed by members that this convention is not relevant. In reply to that comment, I would say that mercenary activity needs to be tackled at the international level and domestically, and that this convention provides us with the opportunity to manifest our commitment to that end. An issue was also raised—and I depart from the Minister’s notes here—by Mr Franks. I think Mr Franks’ concern has been reduced as a result of his conversation with the officials and myself, in that he has been told we still have protections for those who might otherwise be extradited.

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 that does not occur. I commend the bill to the House.

I thank the stand-in Minister, the Hon Harry Duynhoven, for his comments on the third reading, but they still have not resolved for members on this side of the House the three or four main issues that we raised at the second reading and extensively throughout the Committee stage. If the Committee stage had been a tennis game, I would say that it was probably 40:love to the Opposition because I do not recall a Minister sitting in the chair, taking a call, and answering any of the issues raised by Opposition members during that time.

There are four outstanding issues. First is the definition of “mercenary”. The Hon Harry Duynhoven tried to convince the House, in his contribution on the third reading, that it was all a bit tough and a bit tricky and that we did not really want to capture anybody who was not whatever a true mercenary is, so for that reason the definition had to be somewhat more extensive. Members on this side of the House say to him that if that is the case, the term “mercenary” should be defined properly. The Minister should not then move on to include a definition of what is not a mercenary that is larger than the definition of what is a mercenary. We say to Government members that we will continue to oppose this bill to its dying moments because the Government has been unable to convince us that the bill is sure enough, unambiguous enough, and certain enough to dispatch our concerns about the definition of “mercenary”.

The second issue raised by members on this side of the House is simply that we are about to pass domestic legislation ratifying a convention that puts us way out of step with our traditional allies, the US, Australia, and the UK, and finds us in company with countries such as Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, and, as my colleague Ron Mark pointed out, Libya. It seems to members on this side of the House that signing up to such important conventions should be done in, around, or slightly ahead of, in some cases, our traditional and historic friends and allies. That is not the case here.

💬 Jill Pettis: This man changed the National Party policy at a regional conference.

Screeching from the other side of the Houses does not make the member any more likely to address the issues that have been raised by Opposition members. The member who is screeching from the other side of the House should take a call and answer some of the concerns we have listed very carefully, very methodically, and very clearly.

The third thing we are concerned about is the continuing trend of this Government to put into domestic law conventions and international agreements that have very marginal relevance to our own domestic circumstances. We have highlighted that problem throughout the passage of this debate. The last issue I wish to raise relates to the certificate as to State parties under the mercenaries convention. In the break, the officials managed to advise me, with the blessing, or consent, of the Minister that the wording contained in clause 14 is a standard-recipe clause used in these cases. I would simply say to members of the Government who are about to vote for this legislation that just because it is done all the time does not make it right.

The Government has failed to convince members on this side of the House that this definition of mercenary is sufficiently tight, clear, and unambiguous to create good law. The National Party will continue to oppose this legislation and will vote against it in the third reading for those reasons.

I rise in the third reading debate to once again make it clear that New Zealand First opposes this bill. Let me make it very, very clear, for the benefit of the senior Government whip: New Zealand First is not opposed to dealing with the people the Government is choosing to describe as the true or traditional mercenary. We are not opposed to that. We are not opposed to outlawing renegade private armies that fight for fortune, and not for ideology, the integrity of the sovereign State, or its borders. We are not for those people. We will assist any Government that brings to this House sane legislation that seeks to deal with those people. However, we are against legislation that is ambiguous—so ambiguous and so broad in its net that it scoops up people the Government says it does not intend to scoop up. Indeed, the Government, by its own words, in the inclusion of amendments to this legislation, has gone out of its way to try to deal with the problem the United Nations says exists with the convention—that problem being that it is hard to define what a true mercenary is.

The Government has recognised that problem to the extent that it has tried to include paragraphs—big paragraphs—to try to define what a mercenary is not. The problem is that those definitions are still ambiguous. In this world, which has moved on since 4 December 1989, the use of private armies and private companies in security work has absolutely exploded across the world. Legitimate Governments, sovereign States, and democratically elected leaders to this day are using, more than ever, private companies to put people in to assist countries to preserve their democracy and sovereignty through the use of private, contracted, defence personnel. Our reading of this definition wraps those people up, and improperly so.

The Minister raised a number of issues, with the true mercenary one being a big argument. I have consistently asked the Government what the urgency is about this legislation and who brought it to the Table. When we asked the officials at the Foreign Affairs, Defence and Trade Committee nobody could answer the question: why are we doing this? What is the pressing urgency? When I ask why we are debating this bill under urgency, a very clear reason should be given as to why this matter must be dealt with now, but there is not. It only leaves the cynics to presume that maybe other motives are in play. If the Government wanted to deal with arms and drug trafficking, that would be fine—so does New Zealand First—because that is about organised crime. I believe that every member in this House would want to bring down organised criminal networks. We do not need this legislation to do that. We need better security relationships with our traditional allies and with our trading partners, and that brings me to my next point.

Who signed up to this treaty? Whom are we throwing our hat in with? Libya! Excuse me! Libya signed the agreement on 4 December 1989, when on 21 December 1988 it blew a Pan Am aircraft out of the skies over Lockerbie, killing everybody on board. Is that a credible signatory? The only thing this legislation does is bring our integrity into question. Why should we be hopping into bed with people like Gadaffi and telling the world that he is a leader in the campaign again mercenaries? He is not, never has been, and never will be. For us to be throwing our hat in alongside of him brings disservice and discredit to New Zealand, not credit. Who else is a signatory to that treaty? Azerbaijan, Barbados, Belarus, Cameroon, Costa Rica, Croatia, Italy, the Maldives, Qatar, and Saudi Arabia. Traditionally, they have always used contract personnel, and to this very day they still do.

The next question I asked the officials was what compliance test had ever been conducted on these outstanding leaders of the international community—like Gadaffi and Croatia. What compliance test has been run over them? What measures and what tests were conducted to see that they are indeed complying with the convention that they would have us support? The answer is none. There has been no compliance test, and no measure, and we have no idea of their level of collusion with mercenary companies that the Government describes as true mercenaries. We have no idea. We are signing up to fluffy, feel-good legislation that we cannot enforce, and if we do, we will run the risk of scooping up people whom we should not be attacking.

The test of the credibility of this convention lies in the fact that the United Nations itself questions its value. The United Nations wants to work with the Labour Government of Britain towards regulating the industry, and so gaining better control in a more legitimate and appropriate fashion. For the life of me I do not understand why this Labour Government, which looks so fondly on Tony Blair as a wonderful Labour leader and a fine example of Labour Governments, does not listen to him. This Government should pause for a moment to listen to what Tony Blair’s Government has to say. Tony Blair has put his finger on it. He said that that is not the way to deal with the issue that we have quite rightly recognised. That saddens me—no it does not, really, because I know a heck of a lot of people out there who used to vote Labour and who do not agree with this nonsense. They do not agree with the logic. They do not agree with passing law under urgency that is ambiguous, unenforceable, and therefore meaningless.

I shall go to the final area of concern from New Zealand First’s perspective. I refer to the international implications of New Zealand now seeking to be party to, or allowing itself to be forced into, arresting, detaining, deporting, or extraditing people whom another country says are mercenaries, who are not here recruiting converts to Falun Gong but who are recruiting mercenaries who have the aim of going back to China and undermining the sovereign State of China and its legitimate Government. What a horrible position to now be put in—and all for what? There is no gain here. One risk that lies in here and has not been dealt with is the diplomatic risk of embarrassment at being at loggerheads with the people with whom we trade and on whom our economy depends, all because we want to be alongside Libya, Qatar, Saudi Arabia, and Mauritania. Well, I am sorry, but that is not logical. That does not make sense, and this House has better things to do. This Government has better legislation, which New Zealand First will support, sitting in the wings and waiting to come to the House. Instead, it is here dealing with this nonsense. New Zealand First opposes this legislation.

I rise to indicate United Future’s support for the third reading of this legislation. We listened to the debate throughout the Committee stage, and did not hear any arguments put up by Opposition speakers that would cause us to change our position of support. The bill was in large part guided through the Foreign Affairs, Defence and Trade Committee by the Hon Peter Dunne, who has a vast amount of experience in foreign affairs, and we in United Future stand behind him in supporting the third reading.

I rise for the ACT party to record our opposition to the passage of this bill that criminalises mercenaries. As earlier speakers have said, this bill has nothing to commend it to New Zealanders. There was apparently an argument that appealed to the majority on the Foreign Affairs, Defence and Trade Committee that the bill is in the interests of the world community. It is not easy to see even then why that should be so.

We heard nothing from Government members during the Committee stage to reassure those of us who are concerned about the very long tradition of brave people who have made their living by fighting—sometimes for ill and sometimes for good—other people’s fights. We heard no comment about or response to the fact that this law would have criminalised the people who manned the Flying Tigers, which provided the only assistance the Chinese had for some years in their battle with the most awful foe, the Japanese. There was no attempt to explain why New Zealand should put itself in a position whereby, had this law been in force at the time of the Japanese aggression on China, we would have been obliged to arrest and hold those pilots, should they have come to New Zealand, and to hand them over to the authorities in the north of Japan—that is as the situation seems to me when I look at this legislation.

I heard no answer to the concern I expressed that if there had been technical experts who were being paid more than Franco’s troops, they could not have assisted the International Brigades. I met a woman—I think it was last Friday evening—who must have been 85, and who had been in the International Brigades. She was a New Zealander passionately committed to the cause of socialism, and when Franco’s troops, assisted by Nazi planes, were overrunning Spain, she took herself off—to the great alarm of her father—to assist in Spain. She happened to be a nurse, so would not have fallen foul of this law. But anyone who had been prepared to defend Guernica from the German planes would have been paid, just as the Flying Tigers were.

💬 Hon Marian Hobbs: They didn’t get paid.

We have this awesome stateswoman, Marian Hobbs, saying that they would not have been paid. Why were the Flying Tigers paid when they were trying to defeat the Japanese? Does that mean that because they helped the Chinese patriots against Japan they should be criminals, but that those in the International Brigades should not? Of course, with any money the International Brigades would have employed people to help with servicing. As in almost every modern war, people are needed to service equipment, and those people would be caught under this legislation

I asked also for clarification as to how this bill could be in New Zealand’s interests, when it exposes us to the potential for requests from big and menacing northern neighbours—perhaps from Indonesia, which does not like our attitude to Aceh. If there are some New Zealanders out there who fall foul of the Indonesians, or if there are some Aceh refugees down here who are raising money to try to defend their kith and kin, this measure says we should hand them over.

Why is that in our interests? Why is it in our interests even to give such countries a weapon to beat us around the ears with? Sure, the officials can say to us that we do not have to, and that the Attorney-General can stay a process; sure, the officials and the Minister can say there is always an opportunity for people to go to court to try to defend themselves against extradition. Yes, there is, but they still have to make sure they do not fall within the tests.

These definitions are fatuous. They are so poor that after saying what the conduct is that represents people as mercenaries—and basically it means those who are more highly paid than the people they may fight alongside—they then state that a number are not mercenaries, even though they are doing those things. So we get subclauses (2) and (3) of clause 5.

I have also had assistance—and I thank the Minister for the advice from the officials—on the meaning of clause 7. I was concerned that it made recruiting a wider offence than that of being a mercenary, and I am not reassured. Clause 7 does not have the qualifications that appear in clause 5. It does not have what I believe to be essential exceptions to the mercenary definition, and therefore we have an even wider opportunity for some malign Government to use it.

I am indebted to Mr Ron Mark for his comparison with the attitude of the Chinese Government to Falun Gong. I understand that China is not a party to this treaty, for which we can be grateful. Of course, it could become a party to it at any stage, and we imagine it would be an extremely cynical party that would use these provisions in the same way that it misuses other statements of intent, and in the same way that it is trying to renege on the promises it made to Hong Kong.

This is entirely unnecessary legislation, or if it is necessary, that necessity has not been explained. We have a Government that loves to go off to attend battle commemorations, a Prime Minister who will not miss any opportunity to be photographed alongside old soldiers, and a Government—her Government—that is paying no attention to the old soldiers in this House who are attesting to the honour of mercenary activity. We have a Government that may well need to sponsor and use people who can go and fight—or who can support others fighting—in our region.

Our region is not benign. There are many competing interests. There is a power vacuum—or there would be if the Australians had reneged as disgracefully as New Zealand has on defence commitments. We have a near vacuum in some areas, and it may well be that mercenaries are the best way in which we can support those who share our values. This bill will make that a very difficult thing to do.

💬 Hon Rick Barker: So if you do it for money it’s OK?

Mr Barker, braying as he usually does, did not bother to take a call. We will not hear him make a speech, but he brays that doing it for money is wrong. I take it that the member is here out of altruism. I take it that he has not been banking his pay cheques. Does that taint everything said in this House by the member? Does that make what would otherwise be worthy, brave, and courageous activity all wrong?

💬 Ron Mark: If they’re supporting communist ideology, it’s OK!

It is OK if it is supporting communism—I thank Mr Mark.

💬 Mr SPEAKER: The member will come back to the bill, please.

The contribution made by the Ministers or from any member on that side has been conspicuous, indeed! The only reason offered in this entire debate for passing this legislation is that fighting and being paid is somehow not appropriate.

But this bill does not actually do it. The only offence here arises if some people are paid more than others. If people are alongside a conscript army, or beside the poor kids in Africa who are forced to fight for nothing, then they are mercenaries, but if they are alongside some highly paid Arab soldiers, who could easily be paid more than them, then it is not mercenary activity. Could the Government please justify that? There are plenty of calls in this debate. I am sure there will be space for it. I long to hear it. We would give leave if the Government needed more time. We would love to hear an explanation of just how this bill can be in New Zealand’s interest. There has been no explanation throughout the debate.