Rogue Pakeha.

• Jurisdiction: Australia
• Date: 22 March 2007
• Author: Simmons, Laurence

How not to speak of brothers? Jacques Derrida, Rogues: Two Esssays on Reason.

The tradition of the oppressed teaches us that the 'state of emergency' in which we live is not the exception but the rule, Walter Benjamin, 'On the Concept of History'.

Ahmed

In a state of some desperation several years ago, as I sat down to begin to write what has become this article, I was informed on Radio New Zealand News that Ahmed Zaoui, the Algerian refugee academic who has been granted legal refugee status in New Zealand, had spent five hundred days in solitary confinement in Paremoremo maximum security prison outside Auckland without receiving a fair judicial hearing. He was then to go on to spend a further two months detained in the cells of Auckland Central Remand Prison at Mt Eden, only to be released on bail on 9 December 2004 into the care of Catholic Dominican Friars on the condition that he observe a curfew between 10pm and 6am and report twice a week to the Auckland Central Police Station. As you are reading these words almost three years later, Ahmed Zaoui is still incarcerated there. I say 'incarcerated' because this bail is still a form of detention and it is tenuous. He does not know if or when he might be returned to prison or be taken to the airport in the middle of the night and deported. It is impossible for you, or for I, to comprehend the fear, the frustration, the anguish and, despite his many supporters, the extreme loneliness of Ahmed's isolation.

The 'Zaoui case', as it has come to be known, is the cause of my profound shame as a New Zealander. A shame so deep that I have asked myself if I should leave the country for which on so many different levels--emotional, historical, topographical even--I feel such a profound attachment. Ahmed Zaoui too literally--too close for my comfort--evokes the Italian philosopher Giorgio Agamben's notion of homo sacer, a man reduced to bare life no longer covered by any legal or civil rights. Agamben argues that a subject whose rights of citizenship have been removed enters a zone of suspension, neither living, in the sense that a political animal lives, in the community and bound by law, nor dead and, therefore, outside human intercourse and the rule of law that constitutes the community of citizens. Agamben writes that, since it underwrites the actual political arrangements in which we live today, we are all potentially exposed to the condition of bare life; it is the contingency into which our political arrangements might dissolve.

You and I, and Ahmed, stand before the law. I want to ask what does standing before the law mean in Aotearoa New Zealand at the beginning of the 21st century? (1)

State of Exception

Giorgio Agamben has argued that a state of exception has become 'the dominant paradigm of government in contemporary politics'. (2) He notes the force of emergency powers that has gripped the world since the events of September 11 and identifies the military order issued by George W. Bush on 13 November 2001 as one that opens a gap between politics and the law. This is the 'order' which subjects citizens and non-citizens suspected of terrorist activities to indefinite detention. The rights to counsel, means of appeal and repatriation stipulated by the Geneva Convention have not been granted to any of the detainees in Guantanamo Bay. On 21 March 2002, the United States Department of Defense issued further guidelines for Guantanamo under which some of the prisoners would be tried by military tribunals, but should these tribunals acquit someone of a crime the Department of Defense made clear that acquittal would not necessarily end detention. It also made it clear that those tried in this venue would have no rights of appeal to US civil courts, maintaining that a number of detainees would not be given trials at all, but rather would be detained indefinitely. The prisoners at Guantanamo are not even called 'prisoners' by the US Administration, for to call them that would be to acknowledge the internationally recognized rights pertaining to the treatment of prisoners. They are, instead, 'detainees', those held in waiting, those for whom there may be a waiting without end. It is important to ask under what conditions some human lives cease to become eligible for basic, if not universal, human rights. By detaining some prisoners indefinitely, the state appropriates for itself a sovereign power that is defined over and against existing civil, military and international legal frameworks. In the very act by which state sovereignty suspends law, or warps the law to its own uses, it expands its own domain and builds on the means by which validation of its own power can take place.

At this distance in Aotearoa New Zealand we may simply feel that these decisions and guidelines are merely symptomatic of a conservative, right-wing administration in the United States from which our own government has distanced itself; that they somehow refer exclusively to Guantanamo Bay. But it is crucial that we understand that this 'state of exception' has itself no exceptions. John Howard, closer to home in Australia, a nation made from immigrants, opened his refurbished Lager for detained refugees at Woomera in 1999, (3) a site which the then Australian Minister of Immigration and later Attorney-General, Phillip Ruddock, notoriously informed us was not to be considered a 'holiday camp'. (Since when, we might ask, have corrugated iron sheds in a dustbowl, sewn-up eyelids and lips, traumatized children, distraught adults and attempted suicides been the stuff of vacation high-jinks?) Even more telling was the Howard government's subsequent decision to excise over 2000 islands from its sovereign territory in order to stop 'illegal' landings. (4) These islands are now paradoxically inside and outside Australia's borders and this 'exceptionalism' has the borders retreating in front of those who wish to cross them. What happens, we might ask, when the 'illegals' begin to hit the cities of Darwin and Perth? But all this, it might be countered again, is simply Australian business. New Zealanders regularly denounce, with a certain smugness it has to be admitted, Australia's state of Aboriginal (non)relations and, after all, 'we did take some of those Tampa refugees ...'. Nevertheless, I firmly believe that the state of exception is no longer an historically or geographically limited problem and that it has also become the rule here in Aotearoa New Zealand.

For one reason or another, the existence of such spaces devoid of law seems so essential to the legal order that it must make every possible effort to assure some form of relation with the former. It is as if the law, in order to guarantee its own functioning, must necessarily entertain a relation to anomie. Contemporary forms of sovereignty exist in a structurally inverse relation to the rule of law, emerging precisely at that moment when the rule of law is suspended and withdrawn. Agamben insists, 'what is excluded in the exception maintains itself in relation to the rule in the form of the rule's suspension. The rule applies to the exception in no longer applying, in withdrawing from it'. (5) 'What is at issue in the sovereign exception,' he maintains, 'is not so much the control or neutralization of an excess as the creation and definition of the very space in which the juridico-political can have validity'. (6) I want to explore briefly, and it can only be briefly here, one local example: the recent legislation concerning the seabed and foreshore. The law of 18 November 2004, which gave ownership of the seabed and foreshore to the state, neutralized the Treaty of Waitangi that gave Maori tribes 'full exclusive and undisturbed possession of their Lands and Estates, Forests and Fisheries and other properties which they may collectively or individually possess', (7) a quasi-legal article which many interpret as including the foreshore and seabed, a view that had been upheld by the Court of Appeal, which found that no government legislation had ever 'extinguished customary rights'. (8) The United Nations Committee on the Elimination of Racial Discrimination, after being asked by the South Island tribe Ngai Tahu to consider the legislation, issued a report on 12 March 2005 stating that the foreshore and seabed legislation discriminates against Maori by extinguishing the possibility of establishing Maori customary title over the foreshore and seabed, and by not providing an effective means of redress. (9)

The act by which the state annuls its own law has to be understood as an operation of sovereign power or, rather, the operation by which a lawless sovereign power comes into being, or indeed re-emerges in a new form. (10) The state produces through the act of withdrawal a law that is no law, a court that is no court, a process that is no process. Our government has become instrumentalized, deployed by tactics of power that in the end it does not control, but this does not stop it from using power to reanimate its sovereignty. The legislation on the foreshore and seabed, as was clear to many at the time, was an aporetic formulation: if political entities form an order, can that order be a sovereign order? However, if the order is sovereign, then the political entities that form it are not. There can be no sharing of sovereignty. At the same time, if the political entities that constitute a given order of sovereignty are not themselves sovereign, then those political entities must be non-existent. They are simply part of another order, and subordinate to it. (11)

Rogue State

The term etat voyou appeared in French as the translation of what the US administration has been denouncing for several decades under the name of 'rogue state', that is, a state that respects neither its obligations as a state before the law of the world community nor the requirements of international law: the war of strategy directed against the 'axis of evil'...