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.
Published in Featured | Justice & Democracy by Kennedy Graham on Thu, August 19th, 2010
Tags: Afghan National Directorate for Security, afghanistan, britain, Geneva Conventions, International Criminal Court, NZSAS
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on the trolls and those who are unable to keep on topic
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Since when has the PRT’s mandate been ‘nation building’? Last I looked at the NZDF website they were saying the PRT’s primary task was security (which actually seems to be something Bamiyan locals want – the comments I’ve heard from locals have been completely dismissive of the PRT’s reconstruction and development efforts).
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I am all for transparency, particularly when it is concerning the government, but mark my words, the day will come when people will wish for the anonymous, secret, closed door policies of the old days. What people aren’t recognizing is the trend of transparency which extends all the way into the most private parts of our lives. The day will come when there are no more secrets, period. Big Brother will be watching everybody, everywhere, every minute of every day.
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“…most men have bound their eyes with one or another handkerchief, and
attached themselves to some one of these communities of opinion.
This conformity makes them not false in a few particulars, authors of a few lies, but false in all particulars.
Their every truth is not quite true.
Their two is not the real two, their four not the real four; so that every word they say chagrins us, and we know not where to begin to set them right”:
Ralph Waldo Emerson- Self Reliance
- 1841 – From ‘Essays”,
In that we are a party to this shameful war, New Zealand is guilty of collusion in any or all of the War Crimes involved, more of which come to light every day.
We have no military business in the Middle East, and pretending otherwise is simple and dangerous foolery.
Thomas; Governments typically Fear the Truth – they invest in Avoiding any suggestion of liability.
The only person my cohorts in the Public Service truly feared, was the Auditor General (who ‘missed’ that which was in plain and clear view).
As one who is about to engage in litigation so the truth may surface – I note our Government is playing with a stacked deck – five aces, and any amount of jokers.
“The ugly truth is out there, but you have to want to know it.”
Sheldon Richman
Unfortunately, our access to “truth” comes haphazardly through the courage of individuals – such as Mr Assange.
The Election of so many Independant MP’s in Australia, demonstrates peoples sense of frustration with a tired and unworkable bureaucracy.
IMO regarding Lies, there are, never were, any ‘good old days’.
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We have no military business in the Middle East, and pretending otherwise is simple and dangerous foolery.”
Well said sir.
I’m currently living in London, but spent a large part of my life living in Auckland – for some reason both the UK and NZ have become involved in an illegal war which appears to have no sensible end in sight.
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Hi Tom & Welcome – (just munching on a kiwi) – and poor Doctor Kelly over there – tell the truth and get yourself killed hey?
Let us know who and why Tom – we can ALL make educated guesses.
My but Tony Blair has gone from hero to Nero…
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