Report of the Foreign Affairs, Defence and Trade Committee

Transcription

1 International Treaty Examination of the Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security Report of the Foreign Affairs, Defence and Trade Committee The Foreign Affairs, Defence and Trade Committee has conducted an international treaty examination of the Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa, and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security, and has no matters to bring to the attention of the House. The National Interest Analysis for the treaty is appended to this report. Hon Peter Dunne Chairperson

2 Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa, and Tonga concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order National Interest Analysis Date of Proposed Binding Treaty Action New Zealand signed the Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa, and Tonga concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order and security on 24 July The Agreement entered into force between the Government of the Solomon Islands and the Government of New Zealand by way of an exchange of notes completed on 24 July The Agreement will enter into force between New Zealand and the remaining parties upon the conclusion of an exchange of notes between each party notifying the other of the completion of its constitutional requirements. The Minister of Foreign Affairs and Trade considers that the subject-matter of this agreement is likely to be of interest to members of the Foreign Affairs, Defence and Trade Committee, such as to warrant referral under the international treaty examination process. However binding treaty action has been taken prior to the completion of the parliamentary examination process, under the international treaties examination process urgency mechanism (Cab Manual 5.90), in order to ensure that New Zealand personnel in the Solomon Islands would enjoy the jurisdictional protections provided by the Agreement from the outset of their deployment. The urgency mechanism has not been used previously. Under this mechanism, formal treaty action exceptionally can precede referral to the Foreign Affairs, Defence and Trade Committee as long as the treaty is tabled as soon as possible after the binding action has been taken, together with a National Interest Analysis and an explanation from the government as to why it was considered necessary to take urgent action. The Minister of Foreign Affairs and Trade wrote to the Chair of the Foreign Affairs, Trade and Defence Committee advising of the Government s decision to rely on the urgency mechanism in this particular case and the reasons for its doing so. Reasons for New Zealand to become party to the treaty Whenever New Zealand is contemplating deploying its police and/or its armed forces overseas, it is preferable to have a status of forces agreement (SOFA) with the host country setting out the legal responsibilities of the parties. A SOFA of this kind provides a legal framework for resolving issues that may arise from the deployment. This can be especially important with respect to issues such as legal jurisdiction and compensation for claims, where in the absence of such an agreement we would need to rely on customary international law. 1

3 Under this SOFA agreement New Zealand personnel have legal immunity (for acts carried out in the course of official duties that is only New Zealand, not the Solomon Islands, has jurisdiction over New Zealand personnel. With respect to compensation for claims, it has been agreed that claims between the Solomon Islands and assisting countries be waived. The SOFA, also clarifies issues of command and control. Advantages and Disadvantages to New Zealand of the Treaty entering into force Advantages to New Zealand of the Treaty entering into force The Agreement provides New Zealand with a legal framework governing key issues related to the deployment in the Solomon Islands. In the absence of the Agreement, New Zealand would have to rely on customary international law. Such protection as exists under customary international law for the armed forces of another country may not be regarded as extending to police personnel. New Zealand personnel enjoy the legal protections guaranteed under the Agreement from the outset of their deployment in the Solomon Islands. In terms of legal jurisdiction, New Zealand personnel will enjoy immunity from legal proceedings (which includes criminal, civil and disciplinary proceedings) in the Solomon Islands for all acts or omissions carried out in the course of official duties. This is an important measure to safeguard New Zealand personnel who may be involved in an incident where, if it were not for the provision in the Agreement, they would be subject to legal proceedings in the Solomon Islands. Compensation claims generally between the parties and the Solomon Islands will be waived. Any claims not covered under the Agreement (i.e. third party claims) will be subject to consultation between the parties. This will enable any well-founded claims to be considered on a one-off basis, without creating an expectation that there may be a source of funds easily accessible for possibly ill-founded claims. The Agreement clarifies the role and relationship of police and armed forces participating in the visiting contingent and provides for our police and armed Forces to retain national command for its personnel. Thus, under the Agreement police will have recourse to a red-card facility that effectively allows police members of the visiting contingent if necessary to refuse to carry out tasks or orders that are inconsistent with their national laws and procedures. Under the Agreement while both the police members and armed forces would be subject to the control of the Australian head of the relevant forces (as defined in the Agreement), New Zealand would retain national command. Disadvantages to New Zealand of the Treaty Entering into Force A possible disadvantage of this Agreement is that, while members of the visiting contingent will have legal immunity for acts carried out in the course of official duties, for acts that fall outside of official duties, the Solomon Islands will cede jurisdiction only if the sending country can under its domestic law exercise jurisdiction over its personnel overseas. In some SOFAs, receiving countries have been willing to cede jurisdiction to the sending state for offences committed outside official duties without conditioning it on the sending state s ability to prosecute. However, the inclusion of such a qualifier at the request of the 2

4 Solomon Islands Government was considered reasonable, so as to ensure that members of the visiting contingent cannot escape prosecution where prosecution seems appropriate. The inclusion of this qualifier has drawn attention to a gap under New Zealand law in such a situation. Currently New Zealand can exercise jurisdiction over its personnel for offences committed overseas as part of deployments only where these offences are committed by members of the New Zealand Armed Forces (Armed Forces Discipline Act 1971) or by police serving in a United Nations force (United Nations (Police Act) 1964). New Zealand cannot currently exercise jurisdiction over police serving in non-un operations or over civilians serving in overseas operations. The inability to do so under New Zealand law may mean that, if these personnel were involved in offences falling outside of official duties, they may be prosecuted and imprisoned in the Solomon Islands. Legislation has been introduced in the House (the Crimes and Misconduct (Overseas Operations) Bill) to fill this gap in order to allow New Zealand to exercise its jurisdiction over police and civilians serving in overseas operations such as that underway in the Solomon Islands in the same way that we can for armed forces personnel and police serving in UN operations. This ought to minimise any potential exposure of New Zealand police and civilian members to prosecution and imprisonment in the Solomon Islands, or in other third countries where we might similarly want to provide help of a similar kind in the future. It also ensures that such personnel would not have impunity from prosecution for offences for which in the host country they are granted full immunity. They would be subject to prosecution in New Zealand, subject to the same protections as would be available to them had the acts or omissions been committed in New Zealand in similar circumstances. On balance, it is in New Zealand s interest to be party to this Agreement because it provides increased protection to personnel deployed in the Solomon Islands to assist in the restoration of law and order. Obligations (i) Under the Agreement New Zealand would be obliged to: consult with the Solomon Islands Government if a significant withdrawal of members of the Visiting Contingent, other than for the purpose of rotation, is to take place (Article 3); withdraw 3 months after receipt of a written request from the Government of Solomon Islands for the visiting contingent to withdraw (Article 3); record, where possible, particulars of weapons and ammunition seized or destroyed (Article 9); deal with claims arising in the Area of operations (i.e. the territory of Solomon Islands, all areas where it exercises maritime jurisdiction, and the superjacent airspace) (Article 13); 3

5 waive claims against any other party in respect of loss of, or damage (including loss of use) to, property owned, hired or chartered by a Party and used by the Visiting Contingent; of maritime salvage of any vessel or cargo owned by a Party and used by the Visiting Contingent; and of personal injury or death suffered by any member of the Visiting Contingent (Article 13); consult on claims not otherwise covered under the Agreement (Article 13); take all appropriate measures to ensure that the laws and regulations of Solomon Islands are observed and respected (Article 10(1)); ensure that appropriate action (consistent with its laws and practices) is taken where an assisting Country asserts the jurisdiction over a member of the Visiting Contingent (Article 10(5)); provide assistance in carrying out necessary investigations into any offences alleged to have been committed by a member from an Assisting Country where criminal or civil immunity has been waived (Article 10(7)); take all appropriate measures to ensure the maintenance of discipline and good order among its members of the Visiting Contingent (Article 11) act in a manner consistent with their obligations under international law (Article 12); be responsible for the salary, allowances, removal expenses, costs of transport to Solomon Islands, and medical and dental expenses of its members of the Visiting Contingent (Article 16(4)); establish headquarters, camps, training areas, or other premises as may be necessary and cover the personal accommodation and transport costs of its members of the Visiting Contingent unless otherwise negotiated (Article 17); settle by consultation or negotiation between the Parties, and not to refer to any third party or tribunal for resolution, any matter arising with respect to its interpretation, application or implementation of the agreement (Article 22); and notify the other signatories in writing of the completion of the constitutional formalities by its laws for the entry into force of this Agreement (Article 24). (ii) Under the Agreement New Zealand police would be obliged to: work co-operatively with the Government of Solomon Islands and its authorities, and to consult with the Commissioner of the Solomon Islands Police Force (Article 5(5)). carry out tasks or orders consistent with the laws, procedures and standards of conduct applicable to them in New Zealand Article 5(6)) (this is the basis for the red-card enabling New Zealand police members to refuse to carry out an order if it is considered inconsistent with our laws or practice). arrange consultations between Police Commissioners if a request is made by a Police Commissioner of a country contributing personnel to the Participating Police Force, with respect to the application or implementation of Article 5 (status of participating police force) (Article 5(10)) 4

6 (iii) Under the Agreement New Zealand Armed Forces will be obliged to: work co-operatively with the Government of Solomon Islands and its authorities (Article 6(3)); exercise the powers, authorities and privileges exercised by members of the Solomon Islands Police Force. Article (Article 6(4)); arrange consultations with other national commanders if a national military commander of a country contributing personnel to the Participating Armed Forces makes such a request (Article 6(6)). (iv) Under the Agreement New Zealand Personnel in general will have: Immunity from legal proceedings in the Solomon Islands for all acts or omissions carried out in the course of official duties. Criminal jurisdiction will not be exercised over visiting contingent members for actions taking place in the Solomon Islands (e.g. Outside the course of official duties) if such jurisdiction is asserted by the assisting country. Reservations are not specifically provided for in the text although article 23 provides for the variation or suspension of this agreement subject to the parties agreeing. Economic, Social, Cultural and Environmental Effects There are no immediate economic, social, cultural or environment effects on New Zealand per se, but the Agreement is likely to contribute and benefit the regional security in the Pacific by allowing countries to help restore peace and security and civil order, to facilitate the more effective functioning of Governmental institutions, and to help revive the Solomon Islands economy. This is reflected in the Agreement itself whereby the signatories have noted that deteriorating law and order and security in the Solomon Islands poses a threat to the good governance and economic prosperity of the Solomon Islands. They also acknowledged the need to assist the effective functioning of government, the restoration of confidence in law and order, and the economic recovery of Solomon Islands. Costs While there are costs associated with the deployment of police, armed forces and other civilian personnel, there are none consequential on the terms of the Agreement itself. Future Protocols None are likely or anticipated. Implementation Currently under New Zealand law we do not have any basis for exercising jurisdiction over police personnel serving in non-un operations or for civilians involved in such operations. The absence of a mechanism under New Zealand law to assume jurisdiction over New Zealand police and civilians may mean under the Agreement that, if these personnel were 5

7 involved in offences falling outside of official duties, then they might be prosecuted and imprisoned in the Solomon Islands for them. The Crimes and Misconduct (Overseas Operations) Bill has thus been prepared and introduced into the House to allow New Zealand to exercise its jurisdiction over police and civilians serving in overseas operations such as that underway in the Solomon Islands. Its introduction would thus minimise possible exposure of New Zealand police and civilian members to such prosecution and imprisonment in the Solomon Islands, or other countries where similar operations might be undertaken in the future. It would also prevent such personnel having impunity from prosecution in situations where they enjoy immunity, subject to the usual protections available to them e.g. for acts undertaken in the course of official duties. Consultation The views of the New Zealand Police and the New Zealand Defence Force have been considered. Withdrawal or Denunciation The Agreement will expire on the complete withdrawal of the Visiting Contingent from the Area of Operations unless otherwise agreed by the Parties The Assisting Countries may at any time withdraw any or all of their members of the Visiting Contingent from the Area of Operations after consultation with the Government of the Solomon Islands. The Government of the Solomon Islands may at any time in writing request withdrawal of the Visiting Contingent from the Area of Operations. On receipt of such written notice, the Visiting Contingent must withdraw prior to the expiration of 3 months from the date of receipt of that notice. 6