Who cares about War Crimes?

By   /   March 23, 2017  /   19 Comments

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The book co-authored by Nicky Hager and Jon Stephenson, “Hit and Run”, contains allegations that some people have said could amount to war crimes.

Why does it matter? Horrible things happen in war, so let’s just get over it. Right?

The book co-authored by Nicky Hager and Jon Stephenson, “Hit and Run”, contains allegations that some people have said could amount to war crimes.

Why does it matter?  Horrible things happen in war, so let’s just get over it.  Right?

Well, no.  There are rules around armed conflict that we, as a state, have agreed to be bound by.  These rules provide the parameters within which, for example, we can legally kill someone, how we treat prisoners of war, and the type of weapons that we can use.

The technical term for these rules is “international humanitarian law”.  This may seem confusing at first, and also paradoxical, in that there is surely nothing “humanitarian” about war at all?

But, in truth, the law of armed conflict attempts to bring an element of humanity back into war.  At its core, it is about ensuring a humanitarian ethos in conflict.

The high point in setting these rules was the 1949 Geneva Conventions (there are four of them, along with three additional protocols).  Arising out of the horrors of the Second World War, these Conventions were supposed to avoid the mistakes of that conflict by setting clear rules around the conducting of hostilities.

There is a strong incentive for the parties to an armed conflict to respect these rules.  As soon as one of the parties fails to comply, then the other parties are likely to follow suit.  This results, of course, in less protection for your own people involved in the conflict.  Of course, some groups do not care about that (such as armed non-state actors like ISIS), but normally states will have this direct incentive to ensure compliance to be able to demand the same treatment of their own citizens.

Beyond this direct incentive, there is an undeniable moral element to compliance with the rules of armed conflict.  If a country wants to hold itself out as a moral example to others on the international stage, then compliance with these rules is a bare minimum.

Therefore, compliance with these rules is absolutely critical.  It is essential to how we, as a country, act internationally as humanely as possible in a context that actually speaks to the worst of humanity.

The core feature of international humanitarian law is the principle of distinction.  The International Committee of the Red Cross (ICRC), which is responsible for monitoring compliance with international humanitarian law, describes this principle as being:

The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

In very basic terms, then, you can kill a soldier, but not a civilian.

So fundamental is this rule that the International Court of Justice has held that the principle of distinction was one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law” (Nuclear Weapons Advisory Opinion – as quoted by ICRC).

A “war crime”, then, is a grave (or serious) breach of international humanitarian law (as per the Geneva Conventions and the Rome Statute for the International Criminal Court).  Specifically, under the Geneva Conventions, this includes wilful killing and destruction of property “not justified by military necessity and carried out unlawfully and wantonly”.

It is for this reason that some people have said the allegations in the book could amount to a war crime.  The killing of the civilians is clearly not allowed by international humanitarian law and, on the face of it, the allegations in the book would amount to a breach.

There are also other allegations in the book.  These include that the wounded were not taken care of, that an insurgent was tortured, the wilful destruction of property – all of which would be additional breaches of international humanitarian law.  Potentially, there could be a further question around whether the alleged attacks could amount to a reprisal against a civilian population, which is also forbidden.

Also relevant, perhaps, is whether the New Zealand troops could be said to be part of an occupying force in Afghanistan.  As an occupier, you have certain additional duties to protect the occupied population.

Clearly, then, there are a number of legal issues that could potentially arise out of what is alleged to have happened.  These issues, including the question of whether the NZ troops aided and abetted any other members of the ISAF force in committing any war crime, must be determined.

Of course, things in war are not so black and white.  War is complex, and especially in Afghanistan, where one insurgent (be it Taliban, Hesbi-e-Islami, or Al Qaeda) looks the same as a civilian.  It is an extraordinarily complex theatre of war that our troops were operating in.

It might be that the New Zealand troops did everything they could under these difficult circumstances.

The point right now is that we have no way of knowing that.  Now that these allegations have been raised in the open, there must be an equally open and transparent investigation into whether they can be established and whether there are any legal consequences that necessarily flow.

The military should welcome such an investigation.  The military needs to constantly hold itself to the highest of standards in what are the most difficult of circumstances.  From this point on, the military should simply accept this and seek to recover the faith of the New Zealand public into how our military conducts itself.

The alternative is unthinkable.  The alternative is a New Zealand that does not care, that does not believe in acting morally, and refuses to uphold the principles that we are supposed to fight for.

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About the author

Michael Timmins

Michael Timmins is an expert in international human rights law. Specialising in refugee rights, Michael has worked in Egypt, the United States, Australia, Thailand, Pakistan and his home country of New Zealand across roles in advocacy, academia, and government. He is also a member of the Child Poverty Action Group's Management Committee. Michael’s writing covers international human rights, counter-terrorism, international environmental law, rule of law and accountability issues, as well as anything interesting happening in international relations.

19 Comments

  1. “Who cares about war crimes”?

    I do and so do many people I know. Whilst not always agreeing with the application of international law, there is nothing morally or legally justifiable about killing innocent people.

    It is particularly disturbing to hear that the Defence Force, which has spent decades building up a reputation as an organization of honour, has been implicated.

    However, if Hager is found to have misled the public, he should apologize to the Defence Force in public.

    • Sam Sam says:

      There is no honour in any of this, it just doesn’t exist. We don’t even follow our own legal processes so there is nothing to appologise for. Even if w start retroactively prosecuting people for past wrong doings we could go right back to the treaty of waitangi, and the treaty of waitangi is opposed by more people than is opposed to the war on terror so we cant even talk about this with out being hypocritical.

      Ok so you want to start appologising, well start then

    • reason says:

      I suggest watching this documentary as from 3mins 30 second mark it deals with a “raid” which kills pregnant women and others …..

      It is American “special forces” ….. But are ours any better?

      Note the political denials at the 17-19 minute mark.

      “There should be no investigation”

      https://www.youtube.com/watch?v=TN4Sn5u_pK0

      • Sam Sam says:

        New Zealand is relaxinf our old Styre rifles with american type AR-15’s but unlike america who spends about $300k per year on training, feeding and pay, the results of which are average at best (thousands of civilian deaths ect) in new zealand we spend no more than $200k, Training, equiping ect. SAS troopers get a lot more than this but this is a base form with which to sculpt SAS troopers.

        So acheiving better results than the americans based on weapons systems, training and pay scaling isn’t all that mentionable.

        When NZDF wins, it isn’t based on weapon systems or anything civi’s do to support the services for obvouse reasons. NZDF wins because of decesions individual service person makes, because we just don’tgive them any useful tools in executing missions. Neither did Clark, niether has John Key given NZDF the tools to effectively prosecute the orders our head of state has been giving NZDF.

        In conclusion NZDF operators recieve less treasure than yanks but achieve largly the same results so we do do better with less.

  2. esoteric pineapples says:

    A public inquiry would have already been ordered by now if the victims were white, and preferably Anglo-Saxon

  3. Policy Jeff says:

    Another reason for respecting these rules is to protect our own soldiers who have a very difficult job. They have the rest of their lives to live and relive and relive every night what they did. Killing people is not natural, but at least following the rules must ease their consciences, knowing what they did was honorable. Conversely, any innocent women and children they killed would haunt their dreams forever.

  4. J S Bark J S Bark says:

    In the endless conflicts around the world since this law was enacted in 1949 and after, how many of the participants have actually observed these laws?

    My sense and experience (I’m 65) tells me: none.

    That includes the British, the Americans, the French, and all the other half-wit nations and organisations with various axes to grind.

    None of these fuckhead outfits have been held to account. I’ve got more chance of getting a speeding ticket on my bicycle than see these militaristic mass murderers brought to justice in the Hague.

    Important? Yeah right…

  5. Alex says:

    I’d encourage you to reserve judgement of our Defence personnel until after this is cleared up. They are literally not allowed to represent themselves in public or organise or do anything that any other reasonable person accused of wrong doing would do.

    • Otto Mann says:

      Alex, you might be right. But our poolitical “masters” are indeed allowed to comment. And thius far all we’ve heard from the pricks are obfuscations, , deflection and lies. It’s also noticeable that English’s language has imperceptibly “mellowed” from “nothing to see hear, move along, sheeple” to “we’ll see, maybe”.

      The heat is getting to those responsible for this atrocity. They can’t duck it any further.

  6. Jack says:

    And during those years how many children have been killed in NZ at the hands of shit carers?

    • J S Bark J S Bark says:

      What, you mean like CYFs?

      • In Vino says:

        I think JS Bark is right: both Alex’s and Jack’s replies are diversionary. Defence gags its own for its own purposes – no let-off from the light of public scrutiny.

    • Otto Mann says:

      Jack, so we can’t address any potential criminality because you’re willing to deflect our attention elsewhere? That’s a piss-poor moral compass you have there, my friend.

      Next time you get burgled or assaulted, let us know. I’ll throw the “how many children have been killed in NZ at the hands of shit carers” argument right back into your souless eyes.

  7. Mike in Auckland says:

    Quote:
    “There are rules around armed conflict that we, as a state, have agreed to be bound by. These rules provide the parameters within which, for example, we can legally kill someone, how we treat prisoners of war, and the type of weapons that we can use.”

    And:
    “Of course, things in war are not so black and white. War is complex, and especially in Afghanistan, where one insurgent (be it Taliban, Hesbi-e-Islami, or Al Qaeda) looks the same as a civilian. It is an extraordinarily complex theatre of war that our troops were operating in.”

    In summary, there are massive challenges for soldiers that must abide to the Geneva conventions. And collaborating with the US and Afghan forces, that makes it even more of a challenge, as we have heard repeatedly, how the US forces have broken the rules and continue to do so. Afghan soldiers also often feel underpaid and are thus prone to corruption, added to low motivation, so it is an environment where it is near impossible to operate according to the rules.

    Taleban, same as other groups, use things like IEDs and suicide attackers and so forth. What happened though seems like a revenge attack on villagers, where at least some participating soldiers of whatever nation that was involved did break the rules of engagement, and at least willfully risked civilian deaths – perhaps intentionally killed indiscriminately.

    In any case, it would have been better to stay out of Afghanistan, that is NZ soldiers. But were we not told, they would only be engaged in “reconstruction” and offering humanitarian aid?

    It is murky, and Mr Mateparae has questions to answer also, he was even appointed to be Governor General, which I found hard to believe, after the initial allegations that were already made years ago.

    We can expect that this will all be swept under the carpet, and if any commission of inquiry is established, at least under this government it will act only as a whitewashing committee, nothing else.

  8. darth smith says:

    any inquiry will need to wait for a change of government national have lied from the beginning and will block any investigation thats not in there interests

    • bert says:

      BREAKING NEWS!

      Lawyers to act on behalf of civilian families who lost loved ones and on behalf of N.Z’s wanting the truth.

      John Key… they are coming for you.

  9. saveNZ says:

    I think a lot of people would care about war crimes if it was reported appropriately….

  10. JustMe says:

    During the week a couple of my work colleagues were talking about this book. But their attitude was they viewed Nicky Hager as an attention seeking person. I listened to them talking about Hager and didn’t say anything because in their dislike of Hager they had forgotten about the 3 year old girl who was killed.. They showed their shallowness by criticising Hager. They are both parents whereas I don’t have children. But my thoughts were on the little 3 year old who had a right to live but whose life was snuffed out with a bullet most likely fired by a NZ SAS person. Not liking a person who is probably telling us what truly happened in a place like Afhganistan shows they are probably listening to all the bullshit and lies this government has fed us over a long period of time. Brainwashing is effective where this government is concerned amongst those who think the government is as pure as the driven snow.
    But the world over politicians and the military will say Fatima was a ‘casualty of war’.
    I am of the opinion nowadays that when this government denies something has happened then sure as Hell it has happened. And no amount of denial by the current prime minister will change my thoughts.
    Sure there will be an Inquiry into what happened in Afghanistan but looking at past ‘Inquiries’ I believe the outcome will be ‘There is no evidence….. blah.blah.blah…” In other words there will be nothing found or confirmed and the matter will be consigned to the waste disposal bin.

  11. Pat O'Dea says:

    in¦teg|rity

    [ɪnˈtɛɡrɪti]

    NOUN

    1/ the quality of being honest and having strong moral principles.

    “a gentleman of complete integrity”

    synonyms: honesty · uprightness · probity · rectitude · honour · [more]

    2/ the state of being whole and undivided.

    “upholding territorial integrity and national sovereignty”

    synonyms: unity · unification · wholeness · coherence · cohesion · [more]

    https://www.bing.com/search?q=integrity+meaning+in+english&form=EDGNTC&qs=AS&cvid=2ebd1333edca4e71949c8908f2a48710&pq=integrity+meaning&cc=NZ&setlang=en-US

    What can only be called, ‘shut up’, phone calls, are being made to families and members of serving SAS, by the NZDF. Calling on them to act with “integrity” (i.e. Don’t breach the SAS oath of silence).

    One spouse who received a call said it felt like the SAS was trying to put a spin on the story and considered the call “bizarre”. The person’s partner is currently serving in the Middle East.

    http://www.stuff.co.nz/national/90841098/sas-calling-for-integrity-in-wake-of-afghanistan-death-revelations

    By making such phone calls to family of Serving SAS and demanding “Integrity”, the NZDF show themselves to have some twisted understanding of the second meaning of the word integrity, but zero understanding of the first.

    2/ “upholding territorial integrity and national sovereignty”
    synonyms: unity · unification · wholeness · coherence · cohesion

    1/ 1/ the quality of being honest and having strong moral principles.
    synonyms: honesty · uprightness · probity · rectitude · honour · [more]