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.

No other NATO country has stomach for the future there, and certainly not Britain with five fewer soldiers this week.

The UN is reduced to a cipher that acknowledges through Security Council resolutions what NATO decides to do, which is what Washington decides to do.  We witness unilateral hegemony masked in regional alliance diplomacy masked in an illusion of global legitimacy.  Everybody’s nightmare.  Especially the Afghanis.

The Afghanistan intervention began in the name of self-defence, post-9/11.  That was the first mistake – by the UN.  Terrorism has to be seen as an international crime, for an effective jurisdictional reach.  It is not a matter of war between states, even if you are harbouring them.

Issuing the Manichean ultimatum of ‘for or against’ us in the ill-described ‘war on terror’ was the second mistake – by the US.  Getting sucked into that false choice was the third – by New Zealand.

In ’01, the Taliban were an extremist regime, unrecognized at the UN.  They should have, could have, been handled differently, through tough sanctions that would have eventually brought them around or down, as happened with others (Rhodesia, Libya).  Inter-state invasions and air-strikes on wedding celebrants tend to glorify the extremists.  The diplomatic battle lines harden along with the military, to the point of sclerosis.

Now the situation is redolent of Vietnam, with the West, not the UN, fighting an extremist regime of a fundamentally different culture.  There is no win-win to these, not in the Middle East, not in South Asia.  The Viet Cong are today’s Taliban.  The Vietnamese won, then stabilized, then reconciled, then became a respected member of the international community.  The US lost, then stabilized, then reconciled, yet fails to learn the searing lessons of global leadership.

The US claims, with continually less conviction and credibility, that the conflict in Afghanistan is about self-defence.  If it is US self-defence, let them state it clearly and fight it alone.  If it is NATO self-defence, the same goes.  If it is the self-defence of the West, how do we prove that New Zealand is threatened by the Taliban?

I do not feel threatened by the Taliban.  I find some of their policies odious.  That is not the basis for self-defence.  Al Qaeda is different.  They are a terrorist organization and should be subject to criminal jurisdiction.  But you need to separate the two out.  The previous US administration policy of deliberately conflating them has sown an impenetrable policy thicket from which it is not easy to emerge.

Afghanistan is no longer about self-defence, it is about nation-building.  You do not do nation-building from Washington.  You do it from New York– through genuine plans drawn up by the Secretariat and put forward to the Security Council.  You do not receive reports from NATO.  The only non-UN official inside the UN Secretariat building is a NATO liaison officer.

Until the West agrees to an equal input into Security Council policy-making by China and Russia, the strategic skew will always undermine crisis management and nation-building.

The counter-terrorism operation in Afghanistan never had a sound legal basis.  Now OEF has been conflated into ISAF, the stabilization force.  While that force is legal, it has lost its political credibility, because the premise on which it rests (legitimate representative government) has collapsed.  Time the Security Council terminated its mandate.

The NZ-SAS, having been attacked already, stand to be attacked again.  Our troops are capable and tough.  All the more reason to make sure they are legal and properly deployed.  They are there, we’re told, to prove we can play our part.  But in what?

Are we confined simply to numerical additionality of vanishingly modest proportion, or are we capable of thinking for ourselves?  We tend to lump our SAS in with the All Blacks.  The SAS is different.  If you fight and kill, you must make sure it is legal and it is politically wise.  Karzai’s Afghanistan is neither, with or without Abdullah.

It is time to bring the SAS home.