by Kennedy Graham
The news on Wednesday that one of the people killed in a US drone strike over Yemen last year was a New Zealander came as sobering news.
The question of how to deal with international conflict in the 21st century, including the global terrorism, is fraught and arouses passions. It evokes complex legal, moral and political issues. Yet in the final analysis we are each obliged to make a single overall judgement on the issue – ‘yes’ or ‘no’.
So I asked a question of the Prime Minister in the House on today (Thursday). This is the exchange.
The purpose of my question was to elicit the Government’s position on what is known by some as ‘extrajudicial killing’, in this case of a New Zealand citizen – and known by others as ‘targeted assassination’. The reason I raised it in the House today was because a NZ citizen was killed. That gives it immediate national political concern.
But the activities of the individual in this case are extraneous to the principle. The underlying issue is global.
And that is: what is the current state of international law, and political judgements underpinning it, and how might it keep pace with the change in military technology.
Currently, international law reflects the traditional distinction between a combatant and a civilian. That reflects 17th-century to 20th-century armed conflict. With the diminution of inter-state warfare, armed conflict has trended to become sub-national (civil war) and trans-national (global instability/terrorism). And modern technology is allowing unmanned lethal platforms to become engaged in both.
And since 2001, some major powers (not all) are seeking to introduce a third category – ‘unlawful combatant’. Such an individual seems not the have the right of due process. But that is disputed and not (yet?) part of international law.
And so if an individual is not an armed combatant, then the legal dimension of killing him/her is now very uncertain and unclear. Does international law apply, and/or humanitarian law and/or domestic human rights law?
Had I had more opportunity, I would have called for a study of this issue in New Zealand, to reflect what is starting to occur at the United Nations.
I am not saying the New Zealander was innocent or guilty of anything – that is a separate matter, something not explored through legal process by the US or New Zealand.
I am saying that the Government needs to be careful about how it responds to US drone killings, especially of its NZ citizens.
I thought it was an interesting exchange. And I appreciated the level and considered response of the minister on behalf of the Prime Minister – given the seriousness of the matter.
But one area I would disagree with: I do not think the NZ Government can just shrug and dissociate itself from US actions in this issue, simply because we do not own drones.
Minister Joyce suggested that I was conflating US and NZ policy on an issue that was essentially confined to the US.
I disagree. Drones are becoming part of international conflict – there are some 76 countries now that have them. New Zealand, every country, has an obligation to form a view of the legitimacy/legality of their use in conflict and for surveillance.
This the Government steadfastly refuses to do.