by Kennedy Graham
The latest reports of coalition forces in Afghanistan handing over detainees to Afghan authorities who then torture them have concentrated the mind here once more in New Zealand.
In Britain, the High Court has upheld a ban on British forces transferring prisoners to the Afghan National Directorate for Security (NDS) because of the risk they may be tortured.
Both Keith Locke and I have raised this issue with the Government in the past, and I did so again yesterday during General Debate.
The Government says it is investigating whether New Zealand’s SAS soldiers there have handed prisoners over to the Afghan NDS. Defence Minister Wayne Mapp has confirmed that the SAS works with the Afghan unit, which has transferred prisoners to the Centre named in the British judgement.
What the Government is keen to avoid acknowledging, and desperate for the NZ public to remain in the dark over, is that there is a potential risk that our soldiers there are individually liable in criminal law for their actions, not only under international law but in NZ domestic law too.
We should consider, in particular:
- the 1998 Statute of the International Criminal Court (Article 8 on war crimes) and its NZ counterpart, International Crimes and Criminal Court Act 2000 (Section 11.2.c);
- the 1949 Geneva Conventions (Common Article 3) on inhuman treatment of prisoners and its NZ counterpart, the Geneva Conventions Act 1958 (Section 3); and
- the 1984 Torture Convention (Article 3) and its NZ counterpart, the Crimes of Torture Act 1989 (Section 3).
I am not asserting categorically that NZ soldiers have violated these NZ laws. But it is not impossible. If our soldiers have directly captured individuals and handed them over, this is a clear violation of our criminal law. If they are jointly engaged in military operations with the Afghan forces which do the direct capturing, the legal situation is less certain, but there may still be an indirect association.
The NZ Government may well be the slowest cab off the ranks to investigate and launch any prosecution of our own people (compare Canada and the UK). But our soldiers’ vulnerability may extend beyond New Zealand. If any of them were in another country where there may be a greater disposition to prosecute (even Canada or the UK), then a NZ national may be caught in the legal crossfire. And there is also the case of a Kiwi soldier with dual citizenship – what of the legal responsibilities of that other country’s government?
This is more than just a matter of state responsibility for which the Government should investigate. It involves the personal interests of our individual soldiers, for whom the Government carries a responsibility to ensure they are not given legally precarious roles.
The government owes our soldiers a duty not to put them into situations where they will have no option but to capture and transfer. The dilemma is that this is essentially part of their mandate – their reason for being there.
That is why the Green Party has called for the return of the SAS, but for the continuation of New Zealand’s Provincial Reconstruction Team whose mandate is nation-building rather than ‘security’ and ‘stabilisation’ in what has become a civil war situation.
The issue of possible war crimes is too important a matter for the Government to envelop in a shroud of secrecy and bland prime ministerial assurances.
There may be a need for an independent enquiry into this matter.