Judge O'Scannlain speaks on Guantanamo Bay and the US Supreme Court

Click here for AFLANZ member Greg Thwaite's report on a lunch speaker hosted by AFLANZ at the Auckland Officers' Club on 16 August 2004.

Auckland Meeting

This report was recently forwarded by AFLANZ Vice President, Bruce Stainton:

"With the Wanganui-based television personality President visiting Auckland, there was an excuse for Auckland-based members of AFLANZ to hold a social meeting at the Northern Club on 13 March.

"Called at short notice, many had prior engagements and sent apologies but the grapevine worked for those who were not on the Vice-President's e-mail list and special thanks to Rod Thomas for further advertising through the dependable senior service network.

"The meeting canvassed the previous conference briefly and the work of the committee since and was able t to give an early warning order on the next conference to held in Trantham later this year. Support for the conference, particularly noting the long period of time since the JAG Department, DLS staff and panel members have had an opportunity to gather for separate and combined working and social sessions was evident. There appeared general approval to the Committee's planning.

"After the President's informal (and, for him,) brief address, Judge Russell Johnson entertained and informed us all with an outline from a Judge Advocate's perspective of a recent New Zealand Army court martial held in the Aldershot Court Room and the scene visit to Bosnia where local civilian witnesses' evidence was given.

"For those of us who are used to the relative ease of court martials in New Zealand, there was keen interest in the treatment of the more unfamiliar, namely overseas witnesses with no jurisdiction to summons to New Zealand and the importance of good communication and assistance pre-trial between counsel to prepare forward arrangements which would be acceptable to the Judge Advocate and President once the court was sworn in. Once again, the repeated requests by the Judge Advocates and members of the Courts Martial Appeal Court in various judgments and in reports of the need to give jurisdictional authority to Judge Advocates pre-trial, to deal with pre-trial applications and arrangements was underlined in this address.

"Thanks to those who attended (including two German law trainees observing at Greg Thwaite's office) who all contributed to a very successful and convivial get-together. Notably the future of military and international law was more the focus than the past and the wide range of talent and diverse interest and skills in military and international law at present must be of comfort to DLS and JAG given the high workload of overworked regular force staff.

"Thank you on behalf of the Committee and those present to Judge Johnson for both hosting the meeting at the Northern Club and providing, at short notice, a thoroughly worthwhile debrief."

AFLANZ member reports from East Timor (11 November 2001)

AFLANZ member, Major Steve Taylor, deployed to East Timor May-November, reports from the NZ Forward Operating Base at Suai, where he is the NZ Battalion Group legal officer. Steve returns to NZ on 24 November. He will be relieved in Suai by Captain Digby Cowdell. Safe return, Steve and bon voyage, Digby!

Legal Basis

"The NZDF role in East Timor is to contribute to the United Nation’s mission to provide a safe and secure environment for the people of East Timor to build their new nation, with help from a variety of other agencies. We are also assisting in the establishment of their own Defence Force.

"The brief of the Battalion legal officer is to advise the Commanding Officer and his soldiers, on a wide range of legal issues. The work falls into three groups: Operations, Personnel and General Law. The first are the legal constraints, duties and justifications of military operations – acting lawfully as peacekeepers must. Personnel law includes military discipline, compensation, investigations and Courts of Inquiry. The lesser area of general law includes those matters of a civil nature which can affect anyone – family law matters, civil disputes, wills etc.

"Everything we peacekeepers do in East Timor has a lawful basis. We are there as a contributing nation as part of UNTAET – United Nations Transitional Authority East Timor, created by the UN Security Council Resolution 1272, on 25 October 1999 to provide security. By subsequent resolution, we are directed to respond robustly to the militia threat in East Timor. In doing so our soldiers respect the Law of Armed Conflict, and are restricted operationally by the UN Rules of Engagement(ROE).

"East Timor is not a situation of open armed conflict. We are here as peacekeepers, not "peacemakers", use force only when necessary, and if so the minimum required in a graduated way. Lethal force may be used to in self defence, to protect designated property, and only as a last resort.

"The NZ Court of Inquiry and subsequent UN Board of Inquiry, following the cross border contact with the TNI soldier raised interesting and important legal issues. It was found that our soldiers, acted within the ROE Their greater returned fire was justified to eliminate the threat to their lives. It was a classic case of self defence. At the BOI our soldiers gave evidence without identification of themselves, their section or any other sensitive operational matters.

"There is clear UN policy on disarming locals carrying weapons, and our powers of arrest and detention of either criminal offenders or security suspects. I am proud to say that during all of the NZ presence in East Timor, there has never been an allegation of misconduct by Kiwi soldiers against the local people. I believe the NZ soldier has a special affinity towards the local people.

"All soldiers, including those within the battalion group from Fiji, Ireland, Nepal and Singapore, are regularly briefed on their legal obligations. After the contact on 28 July with the rogue Indonesian soldier, who had fired across the border at a NZ patrol, we responded with controlled lethal force to eliminate the threat, and did so lawfully, as was confirmed by the subsequent Court of Inquiry.

"It has been necessary to consider and brief our soldiers on our powers to stop, question, search, apprehend and detain. This became relevant when it was believed the grenade had become a preferred weapon of the militia. While random searches are not permitted, random stopping and questioning is: if the response to questioning is such as to give rise to a suspicion on reasonable grounds, the person is to be apprehended for security reasons or on suspicion of criminal offending.

The Elections

"Election Day 30 August was a pivotal day for the people of East Timor, and for the NZ peacekeepers who are here, with the United Nations Peacekeeping Force, to provide security within our area of operations from external and internal threats, and to contribute to the UN objective of rebuilding this country.

"Remarkably the day passed without any serious violence or incident of note, throughout East Timor. We had all worked very hard, preparing to meet any militia or other threat group and had prepared for the worst case scenarios. We thought it unlikely the militia would want direct contact with our rifle patrols, having learned the hard way that there were safer options for them, in carrying out their campaign of violence and intimidation, with a view to coercing the East Timorese to be part of Indonesia. We did not discount UN workers, civilians or local political candidates being targets.

"Our focus had been up to the election period, which began with political meetings on 15 July, to include the Election Day on 30 August and the official announcement of the results on 5 September. The political party FRETILIN gained 55 of the 85 seats in the Constituent Assembly, not the expected two thirds majority to enable it impose its own constitution without cross party consultation. Independence for East Timor is now likely to be on 20 May 2002.

"As the Election Day drew to a close, at the NZ Base there was a mood of cautious elation, that our mission was succeeding. On 5 September, when the results were officially announced, the day was also incident free, and well within the capability of the UN civil police service CIVPOL to take care of.

"It was hard to believe that a liitle over two years ago, East Timor was ablaze, following an orgy of murder, arson and destruction, brought about by the departing militias, sponsored, and encouraged in an operation planned and carried out by the TNI (Indonesian Army) to punish the people of East Timor for their voting against integration with Indonesia.

"The magnitude of this obscenity includes a litany of mass murder, torture, intimidation, rape, abduction, the forced deportation of more than 250,000 to West Timor, more than 200,000 compelled through fear to flee to the mountains, and the wilful destruction of 80% of homes and nearly every school and health facility.

The Refugees Returning

"After the elections, our operations moved into a different phase, with a large number of refugees returning from West Timor camps to their homes in East Timor. In the two year period from October 1999, 185,519 refugees have returned to East Timor, but it is estimated that 60,00 to 80,000 remain in Indonesia. The TNI and POLRI (Indonesian Police) have now undertaken operations to restrict the militia influence and intimidation in the refugee camps – arresting militia leaders and taking large quantities of weapons and ammunition.

"For the NZ peacekeepers, there continue to be security issues, with a concern that there may be terrorist elements among the returnees.

"With the refugee phase security issues still remain at the forefront. Our Rules of Engagement remain unchanged, but the likely scenarios have changed with the militia threat being contained, with progress through the election period and now to the return of the displaced from the refugee camps in West Timor.

CIVPOL & Law and Order.

"NZDF policy during the election (and refugee) period is clear: Our primary role is to maintain security. We will continue to disarm armed East Timorese, and apprehend and detain security suspects, and in the absence of CIVPOL, criminals.

"While CIVPOL has the primary responsibility for law and order, we can be involved with law and order situations if called upon to assist CIVPOL, if their capacity has been exhausted, or we discover serious criminal offending. We do so in accordance with the ROE to afford protection to civilians from imminent threat of physical violence.

"The NZ Battalion has had an excellent relationship with CIVPOL, the regional commander being Superintendent Bas Bailey of Lower Hutt. Four of his staff are NZ police, together officers from Australia and the US. The emerging East Timorese Police Service will need international help for many years before it can be stand alone.

Other Issues.

"Huge progress has been made in East Timor by UNTAET, but there is still an enormous amount of work to be done to bring a about a functioning government, administration and the provision of the services required in a democratic and free society.

"Sadly domestic violence in East Timor is commonplace. This issue is to be addressed at a national conference in the capital Dili and specific legislation is likely. We have urged PKF to have a clear policy and training. Our soldiers have been briefed that we do not stand by, and we are to do what is reasonable and necessary to deal with domestic violence.

"Sadly, I was involved in assisting Fiji Coy with their inquiry in to the death of SSgt Rakabu on 10 September, which will also be the subject of a PKF Board of Inquiry. We gave Staff Rakabu a magnificent farewell from FOB Suai, on 11 September, with a blend of military and Maori protocol. We all felt the loss of a brother, but as he would have wished, we remained focussed on our mission, to progress the people of East Timor down the path to nationhood, and to retain a safe and secure environment.

General.

"About ten per cent of NZBATT 4 were from the Territorial Force of the NZ Army, all volunteers. The significant TF contribution of a diverse range of skills and abilities, resulted in a capable and versatile force. About eight per cent of NZBATT 4 were female, possibly the highest ratio of any troop contributing nation.

"Army life in East Timor has been most rewarding. Apart from the heat, humidity and the remote chance of being shot, it has been a great experience. It has been a privilege to be working with our dedicated young NZ soldiers, intent on giving the people of East Timor, a chance to rebuild their lives and provide a future for them and the children, who still greet us with a wave and a grin saying Kia Ora Boy!"

Conference Page

Click here for images and other news of AFLANZ's excellent annual conference in Christchurch on 3 and 4 October 2001!

Captain Kevin Barry of NIMJ speaks at Massey University

The Centre for Defence Studies at Massey University in Palmerston North hosted Captain Kevin Barry, USCG (Ret) of the National Institute of Military Justice, in association with AFLANZ, at a buffet dinner on the evening of 16 October.

Captain Barry gave a very timely and insightful presentation entitled, "Modern military justice in the United States: Some reflections in the wake of The Cox Commission and the terrorist attacks on America". This presentation, which developed a theme which Captain Barry explored at AFLANZ's annual conference in Christchurch, was very well received by a gathering of military law students, academics and members of AFLANZ.

AFLANZ and the Centre for Defence Studies were very grateful to Captain Barry for his taking the time to speak, and also honoured to be able to host him.

Hon Sir John White elected Distinguished Fellow

The Honourable Sir John White, MBE, QC was elected as the first Distinguished Fellow of AFLANZ by the Annual General Meeting in Christchurch on 4 October 2001. This honour is reserved for persons who have made an exceptional contribution to the objects of AFLANZ over a long period. It confers life membership of the Association. Sir John is a former Judge Advocate of the Fleet, Judge Advocate General of the NZ Army and RNZAF and, post-1986, Judge Advocate General of the Armed Forces. Details of Sir John's exceptional contribution to military law in New Zealand may be found in a profile published at [2001] NZAFLR 25.

More news from our man in East Timor... (12 September 2001)

We have reached the two thirds mark of the NZBATT4 deployment. Our focus had been up to the election period, which began with political meetings on 15 July, to include the Election Day on 30 August and the official announcement of the results on 5 September. Fretilin gained 55 of the 85 seats in the Constituent Assembly, not the expected two thirds majority to enable it impose its own constitution without cross party consultation. Independence for East Timor is now planned for March/April 2002.

With the refugee phase security issues still remain at the forefront. Our Rules of Engagement remain unchanged, but the likely scenarios have changed with the militia threat being contained, with progress to the elections and now the return of the displaced from the refugee camps in West Timor.

NZDF policy during the election (and refugee) period is clear: Our primary role is to maintain security. We will continue to disarm armed East Timorese, and apprehend and detain security suspects, and in the absence of CIVPOL, criminals. While CIVPOL has the primary responsibility for law and order, we will be involved with law and order situations when CIVPOL capacity has been exhausted, or we discover serious criminal offending and we do so in accordance with the ROE to afford protection to civilians from imminent threat of physical violence.

It has been necessary to consider and brief our soldiers on our powers to stop, question, search, apprehend and detain. This became very relevant when it was believed the grenade had become a preferred weapon of the militia. While random searches are not permitted, random stopping and questioning is, and if the response to questioning is such as to give rise to a suspicion on reasonable grounds, the person is to be apprehended for security reasons or on suspicion of criminal offending.

Sadly domestic violence in East Timor is commonplace. This issue is being addressed at a national conference in Dili and specific legislation is likely. We have urged PKF to have a clear policy and training. Our soldiers have been briefed that we do not stand by, and we are to do what is reasonable and necessary to deal with domestic violence.

PKF Legal Section is now headed by LTCOL Mike Kelly AM, an expert in the law of armed conflict and a veteran of many peacekeeping missions, notably in Somalia. A PKF legal conference was held in Dili on 5 September, at which the interesting issues of the Tactical Coordination Line, Code of Discipline for the East Timorese Defence Force, jurisdictions of PKF and CIVPOL, domestic violence and the proportionality aspect of the ROE were discussed.

The NZ Court of Inquiry and subsequent PKF Board of Inquiry, following the cross border contact with the TNI soldier raised interesting and important legal issues. Thankfully, our soldiers, (well briefed as they are!) acted within the ROE. Their greater returned fire power was justified to eliminate the threat to their lives. It was a classic case of self defence. At the BOI our soldiers gave evidence without identification of themselves, their section or any other sensitive operational matters.

Sadly, I am now involved in assisting Fiji Company with the inquiry in to the death of Staff Sergeant Rakabu on 10 September, which will also be the subject of a PKF Board of Inquiry. We gave Staff Rakabu a magnificent farewell from FOB Suai, on 11 September, with a blend of military and Maori protocol. We have all felt the loss of a brother, but as he would have wished, remain focussed on our mission, to progress the people of East Timor down the path to nationhood, in a safe and secure environment.

Best wishes for a successful conference. - Steve Taylor.

11 September 2001 (EST) - Message from AFLANZ President

AFLANZ President, John Rowan QC, sent the following message of condolence to the President of our sister organisation in the United States, the National Institute of Military Justice, today:

Eugene,

Please accept our deep condolences at the appalling attack on your country and the horror and personal distress it has caused. Given its scale there may be members of your Institute or family friends or associates that are directly affected. Please assure them that they are in our thoughts and prayers, although we are far away and feel powerless to directly assist.

Despite distance if there is anything we can do please let us know.

It often seems that at such a time the need for law and order and true justice can be temporarily obscured but as those of us who practice in the area of military law know well it becomes even more important.

Yours aye

John Rowan QC

Justice for Private Manning?

AFLANZ Treasurer, Craig Ruane, who recently returned from serving as special prosecutor with the United Nations in Dili, was recently interviewed by the New Zealand Listener in respect of the procedures currently in place to deal with persons who are alleged to have committed atrocities in East Timor. The article in which Lieutenant Colonel Ruane is quoted deals in particular with the Indonesian prosecution of Jakobus Bere, the militia commander who allegedly boasted about killing New Zealand peackeeper, Private Leonard Manning. See Matt Philp, "Ordinary Crimes", New Zealand Listener, vol. 179, no. 3193, July 21 - 27, 2001, pp. 28 - 29.

News from our man in East Timor...

The Legal Staff Officer, 4th NZ Battalion Group, sent this report on his activities for AFLANZ members in May:

"NZBATT 4 has been in East Timor for a little over a month. We are all busy and happy to be here, working to provide security within our area of operations, to enable the UN to rebuild this nation, so that the East Timorese may re establish their lives, and take over the process of nationhood.

Our Battalion Group comprises 577 Kiwis, 186 Fijians, 155 Nepalese, 32 Irish and 70 from Singapore. Ten per cent of the NZers are from the Territorial Force, and 8% are female.

The LSO's routine work is both of operational and personnel matters. The former includes advise on weapon states and types, on going Rules of Engagement training. advice and training on the PKF policy on disarmament, apprehension and detention, advice on protected emblems, contracts, and numerous inquiries. The personnel matters include advise on orderly rooms, discipline - unauthorised weapon discharges, and as to medical , media and contractual arrangements with locally employed civilians.

Some interesting new issues have arisen, including the adequacy of the present PKF powers of search, TCL (border) issues, illegal cross border trade, and UN Regulations interfacing with military necessity.

I attended the PKF Legal Officers' conference in Dili last week, with legal officers from Australia, UK, Thailand, Jordan, and Korea. We all have similar challenges, except that the ANZACs in Sector West, have more contact with the militia and other threat groups.

Life at the FOB (Forward Operating Base) is not unpleasant. Although at times it is hot, humid, and muddy the experience so far has been most worthwhile, and a privilege to be a small part of the NZDF team, helping to give the East Timorese a future.

[The Government] has authorised NZBATT 6. A TF LSO may be required. It's only a year away. It is a most rewarding experience. The RFLs and the PT are now aged graded! Regards to you all."

Best wishes, Steve, from us all in AFLANZ. Safe return.

For more information about UNTAET and the peacekeeping mission in East Timor, click here

Mock court-martial at Massey University

The first courses in military law offered by a New Zealand university are making their mark at Massey University's Palmerston North campus. Students of 149.230 Military Law practised what they have been learning about court-martial practice and procedure at a mock court-martial on 3 May 2001. Click here for more...