Nuclear Free Act - Iraq

13 December 1999

Patron: x President CTU - Ken Douglas ONZ

President of Honour, Gerald O'Brien

President, John Urlich J. P.

Senior Vice President, Desmond Brough

National Secretary, Barney Richards

PO Box 703 Wellington, New Zealand

Fax: O'Brien 64-4-3848357

Phone: O'Brien 64-4-3848331

Fax - Phone: Urlich 64-4-9040011

Fax - Phone: Brough 64-4-3883173

Fax - Phone: Richards 64-6-3648940

E Mail : [email protected]

PEACE COUNCIL OF AOTEAROA NEW ZEALAND INCORPORATED.

9/12/99

The Rt Hon Phil Goff MP
Minister of Foreign Affairs
Parliament Buildings
Wellington

Dear Minister,

RE SANCTIONS ON IRAQ AND OUR NUCLEAR FREE ACT.

The Peace Council had on many occasions written to the former Minister of Foreign Affairs and Trade, the former Prime Minister, and the chair of the Foreign Affairs Select Committee, appealing to government on humanitarian grounds not to send our frigates to the Gulf to impose sanctions. We drew their attention to the fact that such actions also violated our Nuclear Free Act and to governments' obligations as a member of the UN and as signatories to the UN Charter and Conventions.

The US and its allies bombed Iraq back to the stone age in a deluge of 40days and 40 nights of bombing in 1991 and imposed an embargo which restricted food and medicine supplies that resulted by UN assessments in the deaths of over one million people. Surely a human catastrophe?

Chief of the US Air Force, at that time' General Brent Snowcroft admitted the war was fought about oil (so that the US had control of it), although the pretext of waging the war was that the world had to get rid off Saddam's weapons of mass destruction.

Instead of supplying the Iraqi people with humanitarian aid, Government deployed the frigates to support the US Navy in the Gulf in what was and still is a vindictive act. The Security Council permanent members bear a heavy responsibility for its decisions violating the UN Charter.

* It allowed the US president to unilaterally declare war on a member state of the UN.

* It gave the US the right to decide who could have weapons of mass destruction.

* Despite the World Court ruling that the use of nuclear weapons are illegal, all permanent members of the SC possess nuclear weapons with the intention they may use them.

* All permanent members of the SC are in breach of Article 6 of the NPT.

* Western industrial nations supplied Saddam with weapons of mass destruction in its war against Iran and the Kurds. President Reagan turned a blind eye to the use of poison gas on the Kurds.

US Naval Forces in the Gulf violated the following international conventions.

* The Geneva Convention says "Starvation of civilians as a method of War is prohibited."

* The UN sub-committee on Human Rights concluded in 1994 that blockades, sanctions and freezing of assets were " terrorist acts."

* The UN declaration of Human Rights

* The Convention on the Rights of the Child

In its correspondence with the Minister of Foreign Affairs and the former PM Jim Bolger, the Peace Council unveiled many disturbing facts concerning the Iraq embargo

* The UN resolution to deploy the Multi-national Interception Force (MIF) has passed its used by due date by several years. The US had no blank cheque from the UN to blockade Iraq and refuses a Security Council review on the issue.

* The US has many times since the Gulf War resumed unilateral bombing operations on Iraq a sovereign state, contrary to the UN Charter and in contravention of international law by using force. One million Iraqi children have died since the Gulf War because of sanctions and from nuclear radiation due to some 40 tons of depleted uranium shells that were used by US led forces.

* The US, not the United Nations, requested the deployment of the NZ navy to assist them in the Gulf.

* The NZ Commander comes under the complete control of the US Commander, not the Secretary General of the UN, in all operations in the Gulf on the false assumption the US has a UN mandate.

* Parliament has not been allowed to debate the issue of support for the US Navy since the deployment of HMNZS Wellington in 1995. The operational expenditure of the NZ Navy in the Gulf has been appropriated from other budgets as if to avoid debate in parliament and suggests a break- down in our Westminster system of accountability.

* In August 1998, the Foreign Affairs Select Committee acting Chairperson denied the Peace Council and another NGO the right to speak in support of their submissions on the Iraq embargo when they called to and appeared at the hearing...

The New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act.

Section 15 of the above named Act effectively prevents the public from taking legal action against the Crown thereby denying the right to Natural Justice & the Rule of Law.2 S15 negates clause 5 sub2b since it allows the Attorney General alone, to decide whether the Act has been breached.

Further, Clause 5 (sub2) of this Act provides that no person, who is a NZ citizen or person ordinarily resident in NZ, and who is servant or agent of the Crown, shall, beyond the NZ nuclear free zone: -- sub2 (b) "Aid, assist or abet any person to manufacture, acquire, possess or have control over any nuclear explosive device."

* The former Attorney General (AG), Sir Douglas Graham, said that the AG consent was required "because in the case of prosecution under the Act there may be special public interest factors to be taken onto account." This surely should matter for the courts, not the AG to decide?

* . The Peace Council pointed out that nowhere in the Act was there a definition or meaning of what is a "special public interest . "Further, it was pointed out that English law proclaimed that "No man can be judge in his own cause." Yet, that is just what the AG powers in s15 allowed for.

* The Attorney General declared his role was a constitutional one, however, by the power invested in his position as AG under s15 makes him a one-man constitutional court contrary to our system of jurisprudence.

* Hon David Lange, a former Attorney General acting like a one person constitutional court said " there is absolutely nothing to suggest NZ could not be involved in an exercise involving nuclear armed ships so long as it did not exercise control over nuclear armaments"

* David Lange overlooked the fact that the prime purpose of the Act was to comply with the public's demand of outlawing nuclear weapons. Clause 5 sub2 b clearly lays stress on the words "aid", and "abet". The deployment of NZ frigates in the Gulf in a supportive role to the US Naval Command in the Gulf is an inducement that aids and abets the use of nuclear weapons It therefore violates our Nuclear Free Act and international law.

* Mr Lange argued that: "You're guilty of a crime if you are party to the crime. If you are aware have and pursue the ingredients of the crime. But if you are there when the crime was committed you are no more guilty than if you are walking along the street when the bank was burgled."

* Mr Lange does not deal with the issue of the "intent" to commit crime. According to the law, if you associate with someone who possesses and carries an illegal weapon (and in circumstances left to its military commanders to decide) with the intention to use it and thereby commit an illegal act, then you are an accessory after the fact and equally as guilty. So as an accomplice, in the case of nuclear weapons, you don't have to pull the trigger. The International Court of Justice (ICJ) has ruled that the use of nuclear weapons is illegal. In the context of the Gulf the US navy carries nuclear weapons on its ships and submarines. US foreign policy rests on its "first strike" capability, euphemistically called "nuclear deterrence" which has been reiterated by President Clinton.

* In answer to a question the Peace Council raised " Was the US nuclear deterrence policy taken into account before the decision was taken " ie to send the Te Kaha to the Gulf. The Minister of Foreign Affairs and Trade replied; "No, except in respect of ensuring that the deployment facilities complies fully with New Zealand and International law." This statement is erroneous in law since to threaten a nation with nuclear weapons means you intend to use them and according to the ICJ this is illegal.

* David Lange interpretation of Clause5 sub2b of the Nuclear Free Act signals that any action under s15 of the Act is bound to fail and thus pre-empts the public's right to challenge government's actions through the courts. S15 runs contrary to the spirit and the letter of the Nuclear Free Act and contradicts s3, which states the Act shall bind the Crown.

* Prof. Rod Alley, a former member of the Public Advisory Committee on Disarmament and Arms Control which advises Government on arms control matters said in August 1990 "the Act would appear to prevent NZ operating alongside nuclear forces in the Gulf."

CONCLUSION

On the evidence, s15 of the Act runs contrary the Rule of Law and Natural Justice. The arguments advanced by the Hon David Lange and Sir Douglas Graham are not sustainable as it contradicts Clause 5sub2b.

The Peace Council can only conclude that Clause 15 was written into the act to prolong the Cold War ideology so as to provide an opening to restore the nucleaer alliance with the US and its allies. This assumption is supported by several facts.

* Building of Waihopai satellite under the Lange Government and building of a matching satellite last year by the Shipley government
* The support given by our frigates to the US navy as hitherto outlined
* The Secret military agreements that are being maintained.
* The silence over Indonesia's killings in East Timor, and Irian Jaya over 25 years.
* Military support for Indonesia in spite of its human rights record.

The Peace Council calls for the new Coalition government to:

* bring back the Te Kaha forthwith
* remove s15 from the Nuclear Free Act
* show moral leadership in the Asia Pacific Region
* renew our commitment to the UN Charter and all international conventions
* provide humanitarian aid to Iraq.
* review the Waihopai satellite complex to prevent its use in nuclear attacks and spying for political purposes.

Yours in Peace

John Urlich,

National President

cc Prime Minister, Margaret Wilson, Attorney General, Matt Robson, Assoc AG, Jeanette Fitzimons, Greens, Hon Winston Peters, NZ First

*** NOTICE: In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. ***

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