New Zealand is stopping people going to fight in the Syrian civil war. Can we do that?

I was going to post on the Japanese whaling ship Shonan Maru No 2 entering NZ's Exclusive Economic Zone while shadowing the Sea Shepherd boat, the Steve Irwin. The post was going to express my general lack of concern that it chose to do so, and point out that New Zealand's general angsting over the sustainable harvesting of Minke whales is somewhat at odds with the fact that we continue to earn a large chunk of our collective living from doing things like this. 

But then I talked to someone who actually knows a lot about the issue of international whaling, and realised that the whole morass is so complicated that I have little-to-no hope of accurately capturing it in a blogpost. So, instead, I'm going to write about something nice and simple ... the civil war in Syria.

Or, more accurately, the revelation that the Government has cancelled a bunch of New Zealanders' passports out of concern that they intend going over to Syria to fight in its civil war. Although, it isn't clear just how many people actually are involved; this NZ Herald story quotes John Key as saying there's been "fewer than 10 people ... since 2005, including some who were believed to be heading to Syria to fight." But on Morning Report, the spokesman for Syrian Solidarity New Zealand said he knew only of two brothers who had been affected. 

Whatever the numbers involved, the fact that anyone had been stopped from leaving NZ to get involved in Syria got me interested in the legal basis for any such move. Because the default position is set out pretty clearly in the New Zealand Bill of RIghts Act 1990, s.18(3): "Everyone has the right to leave New Zealand."

And, in line with this general default position, the Passports Act 1992 states that "Except as provided in this Act, every New Zealand citizen is entitled as of right to a New Zealand passport."

So the Minister's action will have a pretty major consequence for the individual affected. Which is why the grounds upon which the Minister can take this step are actually a lot narrower than holding generic "national security" concerns. Rather, the Minister must believe on reasonable grounds three things:

1. That the individual concerned is a danger to NZ's national security because he or she intends to engage in or facilitate a "terrorist act" (there are a couple of other sorts of actions mentioned, but this is the only one relevant to the current discussion);
2. That there's no other way to stop the individual doing this; and,
3. Cancelling the passport will stop them doing it.

Note something about this. It is not a ground for the Minister to take away someone's passport that, as John Key says, "we believe somebody is going into a war zone ... to fight in a way we don't think is a sensible step for them to take." Nor can the Minister do it just because she or he thinks that "an individual is at risk or could be radicalised by the experience."

Instead, the Minister must reasonably believe that at the time of the cancellation, the individual involved has the concrete intention to carry out, or help others carry out, a "terrorist act".

Let's accept that the reference to "terrorist act" can encompass such actions committed overseas, and not just in New Zealand (because that fits the context and intent of the legislation). And let's also accept that the Minister is right to think that taking away peoples' passports is the only way to stop the people still in NZ doing such things overseas, and it will be effective in so doing. (However, it is less clear whether that applies to NZers who already are fighting in Syria ... how will cancelling their passports whilst they are over there stop them from committing any particular actions in that conflict?) That then leaves the critical question ... what is a "terrorist act"?

To work that out, we need to go to another piece of legislation - the much maligned Terrorism Suppression Act 2002. In section 5, it gives a definition of "terrorist act" that encompasses a range of different sorts of activities. But if we focus our attention on the Syria situation, the relevant one is "a terrorist act in armed conflict" (because there is no doubt that the situation in Syria is one of "armed conflict"). And this phrase is itself defined (in s. 4(1)) as being an act:

• that occurs in a situation of armed conflict; and
• the purpose of which, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing any act; and
• that is intended to cause death or serious bodily injury to a civilian or other person not taking an active part in the hostilities in that situation ... .

Note this last requirement. It is not a "terrorist act" under New Zealand law to go into a civil war situation and volunteer to fight for one side against people fighting for the other side. In fact, it is not against any New Zealand law to do so. Therefore, merely saying "I plan to go to Syria to fight for the anti-Assad forces against the Syrian Government's armed forces" is not in itself grounds to cancel a New Zealander's passport. It's not even enough for the Government to fear that a person doing so might, in the process, become "radicalised" and come back to NZ as a fervent convert to radical Islam and the concept of armed Jihad. You can't cancel a passport based on fears about what a person might become, rather you can do so only on the basis of their present intentions to do (or help others to do) certain things.

Consequently, the Minister must believe on reasonable grounds that the person's intention in going to Syria is to carry out actions there that involve causing death or serious bodily injury to people other than the Syrian armed forces (or the armed forces of other factions in the confict), or to "facilitate" such actions. Because it is only such actions that are "terrorist acts" in the Syria context, and only an intent to commit or facilitate terrorist acts will do to cancel a passport.

However, I'm guessing the real world is a lot messier than this nice legal analysis. In particular, given the pretty brutal and confused nature of the Syria conflict, trying to distinguish between groups that are "fighting fair" by only shooting at people on the other side who are carrying guns and groups that are being "terrorists" because they are aiming to kill anyone and everyone who is on the other side is not very easy. And even if a New Zealander goes over to Syria with the intention of "fighting fair", if they are going to be fighting as part of a group who use "terrorist" tactics, then she or he will be "facilitating" such actions. And that is a ground to stop them from leaving NZ (by cancelling their passport).

So I'm going to presume that rather than targetting every NZer who is thinking about going to Syria to fight for the cause (whatever that may be), the Minister is getting advice from the SIS (with help from information gleaned by the GCSB and its overseas friends) that certain individuals plan to link up with certain groups who have a past record of behaving badly in the conflict by targetting civilian non-participants. Because if the Minister is acting on anything less than this, it doesn't seem lawful to me.