Chris Kerr: Failure to act casts shadow over our rights record

Dr Wayne Mapp, Minister of Defence. Photo / Janna Dixon

Opinion

Memos on Afghanistan torture don't answer key questions, says Chris Kerr, Amnesty International Aotearoa New Zealand's advocacy and government relations manager.

After more than 14 months of silence, Defence Minister Wayne Mapp last month released two brief memorandums he received from the Chief of New Zealand's Defence Force regarding possible responsibility in relation to torture in Afghanistan.

But the memorandums, while addressing some of the activities of the Provincial Reconstruction Team and SAS, leave several crucial questions unanswered.

How big is the problem of torture in Afghanistan? The Chief of the Defence Force recently expressed "considerable concern" at the findings of a report by the United Nations Assistance Mission in Afghanistan released last month into the treatment of detainees held by the National Directorate of Security and Afghan National Police.

The report found compelling evidence that numerous detainees had been tortured, including some who said international forces had been involved in their capture or transfer, and that torture was practised in several Afghan prisons.

Yet the report to a large extent simply reiterates the findings of successive past investigations, including by Amnesty International. If the Defence Force is surprised by the report's findings, it has not been paying close enough attention.

The documents released by the minister do provide some welcome clarity, confirming that one person detained by the SAS during its operations since September 2009 is in a joint US-Afghan facility and is being monitored by the Defence Force. On the other hand, the memorandums crucially fail to provide factual or legal clarity in relation to individuals detained during joint operations by the SAS and the Crisis Response Unit of the Afghan National Police.

The memos do note that members of the SAS have "been with" the unit on 58 occasions when people "have been arrested by the CRU". In such operations, the memorandums claim, the "actual arrest of a person subject to Afghan jurisdiction is conducted by a member of the CRU" while SAS members "may provide certain technical capabilities and assistance" and "may need to become engaged or act in self-defence when a person poses an immediate threat to which the CRU cannot respond".

Based on what is known about the practices of international forces in Afghanistan more generally, it seems likely that the vague language contained in the memos conceals a reality in which the person is initially deprived of liberty by, or with the assistance of, the SAS, presumably in many if not all cases by being held at gunpoint by SAS forces, with the New Zealand forces then taking care to ensure that it is an Afghan member of the Crisis Response Unit who slaps on the handcuffs which, at that point, merely formalises the "arrest".

The memorandums rely on this technical distinction to claim that, as a visiting force, the Defence Force can assert no rights to protect people "arrested by the authorities of the host state" in this manner (and, by implication, that New Zealand can bear no responsibility for what subsequently happens to them).

As a consequence, the memos simply avoid addressing several key questions in any detail. One is the compatibility with New Zealand's international human rights obligations of the decision to provide "technical" support or "engagement" in relation to such arrests (which, however described, plainly constitute a form of participation by New Zealand in the arrests) in the face of the longstanding indications that some of these people are thereby exposed to clear risks of torture. Another is the failure of New Zealand to track or monitor the subsequent situation of such detainees.

The minister himself conceded in remarks to the Listener that in joint operations "there is a responsibility" of New Zealand in relation to the arrest.

This presumably includes New Zealand's responsibility to refrain from helping to expose anyone to a risk of torture, and indeed to take positive steps to prevent torture.

Yet it is precisely these questions that the memos sidestep by invoking the "actual arrest by Afghans" fiction and by seeming to assert that New Zealand would be responsible only if its agents specifically intended to facilitate torture (as opposed to giving assistance which New Zealand knows or should know helps exposes the person to a real risk of torture).

The Prime Minister and Minister of Defence have both refused to accept an independent investigation into these matters, yet the documents the minister has released seem carefully constructed to avoid answering some of the most important questions.

It increasingly seems that only an independent investigation has any chance of giving the public clear answers about the role and responsibility of the Defence Force in Afghanistan. New Zealand should in any event, effective immediately, refuse to allow its forces to take part in operations that expose those captured to a likelihood of detention by the National Directorate of Security.

At minimum, the Defence Force should insist as a pre-condition to its participation that anyone deprived of liberty in such operations is first taken into NZDF custody and transferred to another force only in a manner compatible with New Zealand's human rights obligations.

The continued failure of the authorities to take these basic steps unnecessarily casts a shadow over this country's human rights record, which none of us should be willing to accept.