The Treaty Debates are organised by Te Papa in partnership with the New Zealand Centre for Public Law at Victoria University of Wellington. Audio of the debates can be accessed here.
On 27 July, the New Zealand Centre for Public Law and the public audience were treated to a guest lecture by Justice Edwin Cameron. Cameron J now serves on the Constitutional Court of South Africa. He has previously served on the Supreme Court of Appeal and the High Court. Justice Cameron had a highly successful career in human rights law practice, a Rhodes Scholar, and honorary doctorates in law from King’s College London and the University of the Witwatersrand.
Justice Cameron gave a touching presentation on the HIV/AIDS crisis in South Africa, and the role the Constitutional Court has played in bringing change to the negative stigma so often associated with HIV/AIDS victims. He spoke of his personal background, and how being diagnosed with HIV/AIDS changed his life forever. Cameron J discussed the unique nature of the HIV/AIDS epidemic in South Africa. Unlike Western nations, where HIV/AIDS transmission rates are dramatically lower, Central and Southern Africa face disproportionately high levels of HIV/AIDS transmission rates. In telling the audience of his own personal battle, Cameron J touched on another contributing issue; the extreme cost of HIV/AIDS antiretroviral medication. Cameron J explained that he was fortunate enough in his earlier years to have the income capacity to obtain the best medical treatment to fight the disease; yet his fellow South Africans were unable to access adequate treatment under the apartheid regime and Mbeki Government.
He spoke of Mbeki's extremely conservative reluctance to recognise the threat of not addressing the HIV/AIDS epidemic to the social prosperity of South Africa. The TAC took their case that adequate mother-to-child antiretroviral medication should be government-provided to the Constitutional Court of South Africa and the action of the TAC.This case played an important role in deciding that under the South African Constitution, the ambit of the right to health care should include HIV/AIDS treatment. This was a clear message by the judiciary to the Mbeki Government; HIV/AIDS denial should not continue. Cameron J urged the importance of the judiciary in upholding a secondary right under their Constitution - such that the right overlaps the policy function of the Executive to a large extent.
This lecture inspired the New Zealand audience with much fundamental food-for-constitutional-thought. How far should the judiciary extend itself in affirming fundamental human rights? How far should the judiciary go in influencing public policy? The different attitude towards the legitimacy of judicial power over such matters, driven by the different constitutional context, was striking. While in NZ, judicial interference over health policy would quite likely to be ultra vires of judicial power, in South Africa, it was a legitimate exercise of power granted under a unique Constitution.
Justice Cameron gave an impressive lecture on the effect HIV/AIDS has had on his personal and professional life. The unjust discrimination of HIV/AIDS victims in South Africa, combined with the inequalities of access to health care, was clear motivation for a leading public figure to press for change. Cameron J has not only worked on the HIV/AIDS cause in his time on the Bench, but also in voluntary and scholarly work (see Witness to AIDS). He has received the Nelson Mandela Award for Health and Human Rights (2000); Stellenbosch University's Alumnus Award (2000), Transnet's HIV/AIDS Champions Award and the San Francisco AIDS Foundation Excellence in Leadership Award (2003). He also received the Brudner Prize from Yale University for his commitment to AIDS improvement. Cameron J left an inspirational, yet remarkably courteous, message for governments that HIV/AIDS victims deserve full respect for their rights to adequate medical treatment.
Dr Nils Melzer
Legal Adviser, International Committee of the Red Cross, Geneva
Lecture 11 June 2010
The New Zealand Centre for Public Law was fortunate to have Dr. Nils Melzer speak on the evolving nature of international humanitarian law in relation to the challenging, yet grey, determination between civilians and combatants during warfare. Dr. Melzer holds a PhD in law from the University of Zurich, and has been specialising in his works regarding the use of police, counter-terrorism and military force. He has also worked for the International Committee of the Red Cross (ICRC) as a Field Delegate in the Balkans and the Middle East (1999-2002), and as an Operational Legal Adviser for the Middle East and Africa (2002-2004).
Dr. Melzer focused his insightful lecture on a vital aspect of battlefield conflict; who is a fighter, and whom has the legal right of protection as a citizen? The guise of warfare has dramatically evolved. Traditional ‘Red Coat’ armies, where by their clothing made them soldiers easily recognisable, has shifted to face modern face of conflict; where non-State belligerent actors disguise themselves in civilian clothing (for example). This has lead to the new increased risk of erroneous and arbitrary attack on protected persons under international law from the confusion between friend and foe.
The basic protection rule under Geneva Conventions recognises the two basic principles of warfare in modern times. The first is military necessity. Forces must be able to exercise the ability to do anything to overcome an enemy. However, this often conflicts with the other principle – humanity. The principle of warfare humanity acknowledges there must be limitations on military necessity, and to protect ordinary persons from unjust attack. Therefore, it has been established that those civilians that directly participate in hostilities lose the right of protection. However, the concept of ‘directly participate’ has left open major questions. What does “directly participate” actually mean? Who is exactly a citizen? What does loss of protection actually mean?
The ICHC has sought to clarify this ambiguous concept. By defining exactly what ‘directly participate’ means, the ICHC seek to advance the protection of the civilian population by providing a line in the unclear sand. Forces can easily define who is ‘directly participating’ in the battle, and who is not.
The ICHC believe that a ‘civilian’ is anyone whom is not a member of the armed forces or any organised, armed force to the direct conflict. There is a de facto assumption that those who retain a ‘continuous combat function’. The ‘civilian’ loses protection of international humanitarian law by performing specific acts designed to support a party to an armed conflict that directly causes harm to another party. This is witnessed by directly adversely affecting its military operations or military capacity. It does not include those that indirectly support one party over another, such as civilians paying taxes to a government which funds the army. Anyone who directly inflicts injury, death and destruction on another person or objects from the opposing party surrenders legal protection.
So what does a ‘loss of protection’ actually mean? There is a general rule that all feasible actions must be taken to ensure the persons being attacked are actually a target and therefore lose residual protection. Armed actors must be able to be absolutely certain in their assessment of an enemy about to be attacked. However, just because a party loses full legal protection does not mean there is no unbridled power on their military force. There are an array of customs and rules that prohibit any acts that are inhumane or unnecessarily cruel. The ICHC also argue that if a belligerent actor can easily arrest or capture an enemy without killing them, then that option should be the deployed as the most feasible. Citizens regain protection when they are not directly participating in the hostility or they have disassociated themselves from that aggressive group. For example, a soldier ‘taking the weekend off’ would not be considered as directly participating in the hostility whilst on holiday – thus a citizen.
Dr. Melzer expressed authoritative propositions to resolve the ambiguity in the civilian/combatant difference of warfare under international humanitarian law. Whilst not binding, the ICHC recommend developments to the international community for their consideration, and eventually crystallise into international customary law. For the near-packed theatre, Dr. Melzer sought to persuade the audience of the necessity to evolve the grey shades of humanitarian law into black and white definitions between citizen and combatant.
There is a pressing need to improve New Zealand's public law and to contribute to its development for the benefit of all New Zealanders and the international community.
This was the focus of a public lecture delivered by Justice David Baragwanath at Victoria University's New Zealand Centre for Public Law on 28 April. The lecture, entitled "A Capital Opportunity: Creating a New Zealand Jurisprudence in Public and International Law", was the third in a series in which Justice Baragwanath examines the creation of a New Zealand Jurisprudence.
Justice Baragwanath said improvement in our public law needed to come in two ways:
- by identifying and casting out relics or "hand-me-down laws" that are alien to New Zealand conditions; and
- "by reaching out and adopting from any source whatever ideas, including the unfamiliar, which will suit our needs."
These changes had to occur both domestically and in terms of the international component of this country's public law.
Justice Baragwanath saw an increasing number of pointers to the development of two broad and simple themes:
- "Domestically, judicial review on the procedural grown of unreasonableness is now, together with thesubstantive element of dignity of the individual, the basic expression of the rule of law"; and
- "Internationally, it is the function of states and courts to act in aid of one another and, where that is not feasible, other dispute resolution systems must be created."
With the evaporation of the "neo-liberal recipe for social well-being", shown by the disaster of the leaky building epidemic, he concluded New Zealand needed a more serious principle for judicial review and for forming an international perspective than either the "reasonableness tautology" of Lord Greene in Wednesbury or "seat of the pants" pragmatism. "
We should search for principle," he said.
"New Zealand has set standards in many areas. Our blind following of others' doctrines in the Building Act 1991 and related policies took us up a false and costly path."
Republished, with permission, from LawTalk (17 May 2010) at 13. The NZ Centre for Public Law would like to thank LawTalk for giving permission to reprint this text on our website.