Graham Kennedy: General Debate 
Text is incorporated into the Bound Volume 
Graham Kennedy: General Debate 
[Sitting date: 17 June 2009. Volume:655;Page:4385. Text is incorporated into the Bound Volume.] 
Dr KENNEDY GRAHAM (Green) 
: 
 I am delighted to welcome Cam Calder to this House. I rise to address the question of the possible redeployment this year of the SAS in Afghanistan. I trust that the Government will accept my comments in the constructive spirit in which they are advanced. No more responsible decision befalls a Government than deploying a country’s armed forces overseas. This pertains especially to the deployment of our highly capable SAS. The skill and courage shown by people such as Willy Apiata simply heightens that political responsibility. Part of that responsibility is to ensure that any deployment we make overseas is lawful so let me address the legal implications of what we are being asked to do. 
Since 1945 member States of the UN are free under the charter to use armed force on two occasions only. The first occasion is in self-defence under article 51. The second occasion is when the United Nations Security Council authorises force under article 42. On 7 May in answer to a question from me the Minister of Foreign Affairs the Hon Murray McCully stated that the Government always ensures that its force deployments are made pursuant to relevant UN Security Council resolutions. 
Yesterday in answer to another question from me the Minister advised that the previous Government cited Security Council Resolutions 1368 and 1373 as the legal basis for the deployment of our SAS in Afghanistan from 2001-05. He is at least factually correct in respect of Resolution 1368 which expressed the Security Council’s readiness to take all necessary steps to respond to the 9/11 attacks—namely the right of individual or collective self-defence. But the inherent right of self-defence is an interim right—to use force in response to armed attack. Under article 51 that right must not affect the authority of the Security Council to take action necessary to restore peace and security. The Security Council did that when it established the stabilisation force the International Security Assistance Force under Resolution 1386 in December 2001. 
Resolution 1368 2 months earlier neither mentioned nor explicitly authorised the counter-terrorism mission that subsequently became known as Operation Enduring Freedom. Since September 2001 Operation Enduring Freedom has mutated into an indefinite counter-terrorism campaign unguided by the United Nations. The Security Council never even acknowledged its existence until October 2003 22 months later and then only by meekly calling upon the International Security Assistance Force to work in close cooperation with the Operation Enduring Freedom coalition. Today resolutions authorising the International Security Assistance Force endorse collaboration between it and Operation Enduring Freedom. At no stage however has the Security Council authorised Operation Enduring Freedom in its own right. This critically important point was totally lost yesterday on the Minister of Foreign Affairs who kept getting confused between the two operations. 
Eight years after Resolution 1368 was passed it might reasonably be queried whether UN member States have a legitimate self-defence claim in 2009 in Asia after the attacks of 2001 in America. It is of course politically self-evident that Operation Enduring Freedom reflects US perceptions of its self-defence against terrorism and by extension that of coalition partners that share a similar view to that of the US. But that does not in itself meet the higher threshold required in the UN era of ensuring the lawful use of force under the charter. Alas the point was simply too challenging yesterday for the Minister who pleaded for more time. 
It fails the standard test of our era to turn a blind eye to military power when the use of that power is not sanctioned in law. Operation Enduring Freedom I repeat has never received an explicit UN authorisation. An oblique reference from a different force’s mandate does not suffice. It would be folly for New Zealand to agree to any further deployment of its SAS in Afghanistan without an explicit mission mandate from the UN Security Council. In the event that the Government consciously flouts its binding obligations in international law let us be very afraid for the future. I call upon the Government to provide an assurance that under the current legal situation there will be no further SAS deployment by this country to Afghanistan as part of Operation Enduring Freedom. Thank you. 
The debate having concluded the motion lapsed.