James Farmer

LEGAL COMMENTARY

September 11 - 20 Years On

Thursday, September 09, 2021

Like such landmark events as the first landing on the Moon, the killing of President Kennedy and the death of Princess Diana (on my birthday actually), we all remember where we were at the time. In the case of the terrorist attacks on the Twin Towers in New York and the Penatagon in Washington on September 11, 2001, I was participating in putting Ansett Australia into voluntary administration. Ansett was at that time a fully-owned subsidiary of Air New Zealand and I was Acting Chair of the latter. More could be said about that and the sequel which ultimately led to the New Zealand Government taking a majority shareholding in Air New Zealand but I want here to talk more about the sequel to the terrorist attacks in the United States and its relevance to New Zealand today.

There were 19 al Qaeda terrorists, based in the US at the time. As is well known, the attack was master-minded by Osama bin Laden, a native of Saudi Arabia.

What is lesser known in this country is that in 2003 various lawsuits (since consolidated) were issued in New York against the Kingdom of Saudi Arabia on behalf of the families of the 3000 victims of the attacks, injured survivors and insurers who have paid out billions of dollars in compensation for property damage. The claims made in the litigation allege that agents, officials and employees of the Saudi Government provided assistance to the hijackers and plotters. It is alleged also that al Qaeda’s development into a sophisticated terrorist organization was driven principally by financial and operational support from “da’wa organisations” (said to be charities) established and sponsored by the Saudi Government. An attempt by that Government to strike out the court proceedings failed.

To facilitate the hearing of the proceedings on its merits, on 27 September 2016 the US Congress enacted the Justice against Sponsors of Terrorism Act which, in the case of foreign States designated as sponsors of terrorism, removed the defence of sovereign immunity normally accorded to foreign States in accordance with principles of international law. That enactment has allowed the litigation to proceed. The current position that has been reached is that former Saudi officials have been deposed under oath, although the depositions and certain Government documents presently remain under seal.

How does this concern New Zealand?

Followers of the America’s Cup will know the answer immediately. Jeddah, in Saudi Arabia, is on Team New Zealand’s short list for the hosting rights of the next Defence by the Royal New Zealand Yacht Squadron of the Cup as well as sponsorship of Team New Zealand’s campaign. Note the words “Royal New Zealand” and note too the words “New Zealand” in Team New Zealand.

Elsewhere many have expressed dismay at the abrogation by Team New Zealand of its moral obligations to the New Zealand Government, the people of New Zealand and the Auckland Council in its moves to take the Defence away from New Zealand. I have written on the same subject in this column, first in December 2017 when it was first mooted after the Cup was won in Bermuda and then again more recently.

When the last Defence was held here earlier this year, it was (rightly) said by Team New Zealand: “The AC75s and the unprecedented broadcast reach of the exciting racing from Auckland’s stunning Waitemata harbour have really put Auckland and the America’s Cup at the forefront of international sport”.

If the next Defence is conducted in Saudi, what will the Team New Zealand PR department write then?

Jeddah is widely regarded as being the likely winner of the “hosting fee” contest. To begin with, it is unlikely to have internal critics of funding the Event that exist in the other two foreign cities on Team New Zealand’s short list (Cork and Valencia). And Saudi Arabia has shown that it is willing to throw money around to seek to buy respectability in international sport. The Guardian on 28 March 2021 reported that Saudi had “spent at least $1.5bn on high-profile international sporting events in a bid to bolster it reputation”, what was described as “’sportswashing’, the practice of investing or hosting sporting events in a bid to obscure the Kingdom’s poor human rights record, and tout itself as a new global venue for tourism and events”. The Guardian had reported earlier (on 2 September 2019) on the establishment of a Saudi Sports Development Fund which has successfully bought and brought to Saudi motor sport (including Formula 1 later this year), boxing, wrestling, basketball, football and golf. The Guardian described these Government-backed endeavours as “a soft power tactic to help distract from the kingdom’s ongoing human rights abuses”.

The Guardian, in both articles, referred specifically to the Saudi intervention in Yemen, part of a war that has killed over 100,000 people including 12,000 citizens and left 14 million people at risk of starvation. Further, a recent US Intelligence report named Crown Prince Mohammed bin Salman as ultimately responsible for the murder and dismembering in the Saudi Consulate in Istanbul of journalist Jamal Khashoggi in 2018, followed by a death threat by a senior Saudi official against a United Nations Investigator, Agnes Callamard, who was investigating that murder.

So here is the question.

It is clear that Team New Zealand, or rather those that control it, do not recognise a moral obligation to the country whose name they have appropriated so far as the venue for the next Defence of the America’s Cup is concerned. But, arguably even more importantly, will it recognise an obligation to the international reputation of this country? Or does Team New Zealand simply believe “we won the Cup, therefore we own it, it is ours to sell to the highest bidder and if that means aligning New Zealand to a country that more than any other has fostered terrorist activity, that’s not our problem”.

Jim Farmer

9 September 2021

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