Late last May, the Minister of Defence released a redacted Cabinet paper detailing New Zealand’s decision in August 2022 to deploy two infantry training teams totalling up to 120 personnel to the United Kingdom. The purpose of these teams was to create approximately 800 ‘battle casualty replacements’ (out of over 17,000 so far) for the Armed Forces of Ukraine (AFU), with the British program commonly using conscripts. The deployment added to artillery training that had begun the previous May, involving 30 New Zealand Defence Force (NZDF) staff, and one team of 66 personnel was recently authorised to remain in the United Kingdom until June next year.
The ongoing training deployment is part of New Zealand’s ‘unprecedented’ set of mandates concerning Ukraine, which is also addressed in Cabinet papers released by the Minister of Foreign Affairs. These mandates include the country’s first ever unilateral sanctions against almost 1,600 persons, entities and assets, predominantly Russian but also Belarussian and Iranian. Other notable measures are the NZDF’s transportation of donated weapons and munitions in Europe and the deployment of 14 intelligence analysts to the United Kingdom—a significant deployment, given that comparatively small numbers of intelligence specialists are required to support large numbers of combat staff.
The Defence and Foreign Affairs Cabinet papers present numerous justifications for these actions, but they do not stand up to scrutiny. Rather, the papers reveal a preoccupation with what officials describe as ‘contributing to ongoing collective security interests’ in order to derive ‘significant upside reputational benefits’: i.e., to prove New Zealand’s continued relevance to the United States and its other traditional military partners.
The foremost reason for New Zealand’s involvement in the conflict—to demonstrate support for the United States—is the first to be mentioned in the infantry training paper, albeit not in those terms. Under the subheading ‘Relation to Government priorities’, officials state that the NZDF deployment would enable New Zealand ‘to support our strategic interests in the defence of the international rules-based system and is a demonstration of our values and independent foreign policy’.
Although the term ‘international rules-based system’ may sound benign, as professor of international and political studies Clinton Fernandes has explained, it ‘differs sharply from the United Nations-centred international system and the international order underpinned by international law’. In fact, the phrase is a ‘euphemism’ for US empire, the expression of which, in the form of NATO expansion, political scientist John Mearsheimer has described as the ‘taproot’ of the crisis in Ukraine. By the same token, officials’ related claim that New Zealand’s actions were taken ‘to avoid precedents being set for similar action by other states’, when US aggression since 9/11 alone has led to the deaths of over 4.5 million people, is too ridiculous to consider seriously, although one of New Zealand’s leading international relations specialists has proven equal to the task.
Officials are on similarly shaky ground when they align New Zealand’s response with ‘support for international law and the United Nations Charter’. At issue here are New Zealand’s unilateral sanctions, the use of which Foreign Affairs Minister Nanaia Mahuta defended last year on the basis that Russia’s use of its veto as a permanent member of the Security Council required New Zealand to circumvent UN mechanisms. The Draft Articles on Responsibility of States for Internationally Wrongful Acts (DARS) seems to support the sanctions in this instance, as Article 48 permits countries indirectly affected by aggression to take countermeasures on the grounds that ‘the obligation breached is owed to the international community as a whole’. However, as UN Special Rapporteur on unilateral coercive measures Alena Douhan has explained, limitations on countermeasures do not allow unilateral sanctions to be applied in violation of human rights—for example, without due process or as punishment for acts that are not criminal offences. Both limitations apply to New Zealand’s sanctions, the general rationales for which include simply being a ‘family member of person of strategic or economic significance to Russia’.
Relatedly, drawing on Article 49 of the DARS, Douhan argues that unilateral sanctions may only be applied against persons who are ‘immediately responsible for the policy or activity of a state’, which leaves only ‘a very narrow list of individuals’—certainly not all 1,589 targets on New Zealand’s list to date. For these reasons the sanctions cannot be considered legal countermeasures. Instead they appear to be unilateral coercive measures, which the Special Rapporteur, the Human Rights Council and the General Assembly have stated are illegal under international law.
The Cabinet paper on infantry training provides another attractive reason for New Zealand’s actions concerning Ukraine: ‘protecting its territorial integrity and sovereignty’. But consideration of New Zealand’s recent actions abroad casts doubt on its commitment to this principle. For example, New Zealand has acknowledged China’s position that Taiwan is part of its territory since the early 1970s. Yet in 2018 the frigate HMNZS Te Mana, designed to support aircraft carriers and other military ships belonging to larger powers like the United States, was intercepted while taking part in provocative military exercises in the South China Sea that undermine the ‘One China’ policy. New Zealand also participates in the world’s largest international naval exercise, Rim of the Pacific, which China necessarily views as the manifestation of an ‘Asian NATO design’ that threatens its territorial integrity and sovereignty.
Finally, officials advocate for the training deployment on the basis that it will provide a ‘significant retention opportunity for the New Zealand Army at a time when attrition is high, partly as a result of the low tempo of military activity in the wake of the NZDF’s support to New Zealand’s COVID-19 response’. The tendency to blame Operation Protect for the NZDF’s staff shortages is not wholly supported by the NZDF Capability and Readiness Update as at June 2022, which states that attrition of civilian and military personnel increased following its cessation. The key factors driving attrition, according to the document, are low pay and a competitive labour market. This claim is supported by a recent report stating that attrition has slowed following a bonus being paid to defence staff and news of an imminent salary increase.
Under the subheading ‘Legal Considerations’, officials articulate the circumstances in which New Zealand’s participation in the training program could be curtailed: while ‘there is no evidence to-date that the AFU are conducting themselves unlawfully in the conflict’ and ‘there is nothing specific or substantial to indicate a human rights breach may occur’, were officials to be ‘made aware of specific or substantial information which indicate a human rights breach may occur, the training would be suspended while a revised risk assessment was carried out’.
But it was already public knowledge that members of the AFU, which is pervaded by neo-Nazi groups, were acting unlawfully. On 4 August 2022, eleven days before Cabinet approved the deployment, Amnesty International published a report revealing that Ukrainian soldiers have ‘put civilians in harm’s way by establishing bases and operating weapons systems in populated residential areas’, including in hospitals and in 22 out of 29 schools inspected. These tactics, according to the report, ‘violate international humanitarian law and endanger civilians, as they turn civilian objects into military targets’.
Amnesty International rightly states that the AFU’s illegal tactics do not justify Russia’s aggression, including the use of indiscriminate attacks using cluster munitions (Ukraine has also used cluster munitions, and it has recently received more from the United States, despite the latter describing Russia’s use of these weapons as a potential war crime). However, according to the logic of Cabinet’s conditions, New Zealand should have delayed the deployment to conduct a revised risk assessment. Instead, officials acted as if the report did not exist. In fact, likely to deflect such criticism, in a more recent Cabinet paper the corresponding condition was revised to denote ‘specific or substantial information which indicates a human rights breach may occur as a consequence of our training support’ (my emphasis), allowing ministers to deny a causal link between the training program and the AFU’s conduct.
As New Zealand has proven unable to produce a defensible argument for some of its key mandates on Ukraine, the least it could do is supplement these actions with calls for a ceasefire and diplomatic settlement that would remove the need to create tens of thousands of battle casualty replacements. So far it has pressed Russia to engage in negotiations (when it had already done so), but without exerting the same pressure on the United States (which has dismissed peace talks). Doing so would constitute genuine support for Ukrainians, who continue to suffer from the actions of New Zealand’s closest military partners.
Clinton Fernandes, Jun 2023
AUKUS is an investment in US shipyards rather than the Australian economy. We are not buying submarines so much as subsidising the US Navy’s submarine budget.