Partnered Operations, Transfer of Detainees and Common Article 1: New Zealand Government Releases New Policy Framework for Offshore Detention

[Marnie Lloydd is Senior Lecturer and Associate-Director of the New Zealand Centre for Public Law at Te Herenga Waka–Victoria University of Wellington, with extensive experience in the international humanitarian sector. Alberto Costi is a Professor of Law at Te Herenga Waka–Victoria University of Wellington.]

[Disclosure: Both authors acted as independent experts invited to provide feedback on an earlier version of the policy discussed in the piece.]

The New Zealand Government made public on 7 December 2022 its new “Policy Framework for humane treatment of detainees in offshore deployments”, which may interest Opinio Juris readers working on issues related to IHL, particularly detention, partnered operations and the contested obligations under Article 1 common to the Geneva Conventions 1949.

Background: Recommendation of the Government Inquiry into NZDF Operations in Afghanistan

This policy document is one concrete response to recommendations made in the Report from New Zealand’s Government Inquiry into Operation Burnham released in 2020.

That Government Inquiry looked into allegations of civilian harm and certain detention issues during New Zealand Special Air Service (NZSAS) operations in Afghanistan in 2010. While the New Zealand forces were found not to have violated IHL related to the conduct of hostilities, the Report identified some improprieties around detention policies and procedures; specifically, respect for the principle of non-refoulement related to partnered operations involving NZSAS and a specialist police unit, the Afghan Crisis Response Unit (CRU), and the transfer of detainees to Afghan authorities (see Chapters 10 & 11 of the Operation Burnham Report).

The Report made four key recommendations to the New Zealand Government, all four of which were accepted:
(1) review of New Zealand Defence Force’s (NZDF)  organisational structure and administration relating to record-keeping and retrieval processes;
(2) establishment of an office of the Independent Inspector-General of Defence outside the NZDF organisational structure;
(3) promulgation of a Defence Force Order setting out how allegations of civilian casualties should be dealt with; and
(4) development and promulgation of effective detention policies and procedures in relation to persons detained by New Zealand forces in operations they conduct overseas, persons detained in overseas operations in which New Zealand forces are involved together with the forces of another country, and the treatment of allegations that detainees in either of the first two categories have been tortured or mistreated in detention (including allegations that New Zealand personnel may have mistreated detainees). The Policy Framework addresses the latter recommendation.

Policy Framework for Humane Treatment of Detainees in Offshore Deployments

New Zealand’s new policy document articulates the country’s vision that New Zealand armed forces, police and other agents involved with the detention of people during overseas deployments must comply with international law. Its purpose is to set out effective detention policies and procedures, including how allegations of torture or mistreatment in those offshore contexts are dealt with, under constant review by Government ministers and agencies.

Part A of the Policy sets out seven “requirements” including respect for IHL, the prohibition of torture, the principle of non-refoulement and minimum standards of treatment and material conditions in detention facilities (Requirements 1, 2, 4 and 7).

Of greater interest perhaps, Requirement 3 provides an explicit re-statement of obligations pursuant to Article 1 common to the four Geneva Conventions 1949. Requirement 5 demonstrates a conscious effort to stamp out possible complicity in partnering arrangements – to reflect New Zealand’s compliance with its legal obligations and values, relevant agencies will consider whether “there is a real risk that their support or partnership is likely to assist” or facilitate a wrongful act. Finally, Requirement 6 articulates a commitment to report, investigate and address allegations of mistreatment.   

Part B of the Policy Framework then sets out procedures and risk mitigation measures for the relevant agencies before, during and after deployments to operationalise the policy requirements.

The Policy Framework does not replace more specific, operational-level guidance or procedures that will be prepared for any particular context of deployment.

Of note, the Policy Framework takes what it describes as “law plus values approach”. It thus refers to both the applicable law – sometimes in a very straightforward way, for example, simply re-stating that New Zealand will respect its applicable international legal obligations – but also creates policy requirements underpinned by international legal obligations and minimum standards New Zealand agencies and personnel will be expected to apply when deployed offshore, whether required by law or not (see para. 14).

Detention in Partnered Operations

Important for a country with limited resources like New Zealand, whose deployments often occur in partnered operations and which generally does not maintain detention facilities abroad, is the assessment of whether to engage in such operations and when it does, how “to guarantee the humane transfer and detention of Detainees” and avoid more generally, any complicity in IHL and human rights violations perpetrated by partner nations with whom New Zealand cooperates.

Related specifically to transfers of detainees between partnered forces and the respect for the principle of non-refoulement and common article 1 – which as noted above provided the underlying impetus for the Policy – we draw attention to how the Policy differentiates between situations in which New Zealand is a detaining authority and situations in which it is “directly and substantially involved” in a detention operation, i.e. in a partnered operation. The Policy sets out in some detail indicators New Zealand would rely upon to determine whether there has been “direct and substantial involvement” regarding detention and, thus, the resulting legal and policy implications. These indicators include the level of control and nature of involvement in the detention operation’s initiation, planning and preparation, as well as its execution (see paras 5-7).

Otherwise, as could be expected, the described pre- and post-transfer measures include formal written assurances from a partner about the latter’s respect for international legal instruments and standards of which the Minister of Foreign Affairs “must be satisfied as to the reliability” (para. 45), and post-transfer monitoring of relevant detainees to ensure their humane treatment (see para. 47.2).   

Concluding Reflections

We are still analysing the full Policy Framework. Nevertheless, we find the intentional thought given to these issues and detailed setting out of a position by a government commendable in itself. We note that the Policy emphasises the need for effective pre-deployment planning and detailed detention risk assessments (see para. 16 and Part B) and then an ongoing monitoring of, and measures to ensure, respect for international law for the duration of an operation. We also note that possible measures to ensure respect for international law may include New Zealand “no longer partnering with certain forces, or avoiding certain detention facilities [that] do not meet the standards and material conditions expected” by the government. This testifies to efforts to minimise risks of complicity (paras 27 and 41) and maximise respect for IHL, human rights and other international law instruments, including soft law standards on treatment of detained persons, that permeate the Policy Framework.

Finally, the setting out of New Zealand’s position about different levels of involvement in partnered operations resulting in detention – whether one agrees with the legal reading or not, and albeit that in a few places, the “law plus values approach” blurs a clear reading of New Zealand’s interpretation of the applicable law – goes to a recent call from scholars for states to engage more constructively in debates about the ambiguities around the negative and positive duties found in Common Article 1.

Only future experience will tell whether adjustments will be needed to make the Policy Framework operational and what effects the policy might have on the willingness of other states to engage with New Zealand or on the ability of New Zealand to engage with other states when contemplating international deployments.