Have POWs captured by NZers been mistreated by the US?

The redeployment of the SAS to Afghanistan this week will once again put New Zealand troops in the midst of one of the dirtiest campaigns in America’s ‘War on Terror’. Of late, everyone from Amnesty International to the United Nations has been having a go at the Americans over their mistreatment of prisoners in Afghanistan. How clean are New Zealand’s hands on this issue?

Our SAS troops have previously fought alongside US forces in Afghanistan on two deployments as part of ‘Operation Enduring Freedom’ (OEF). It is quite likely they took prisoners, but didn’t hold on to them for long.

The earlier SAS contingents were only about 50 men and would clearly have been part of a larger US-led coalition unit. A recently released confidential paper from our Foreign Affairs Ministry, dated ‘for action’ on 2 April 2004, explains what would have happened to any prisoners. Referring to New Zealand’s other significant deployment under Operation Enduring Freedom, the Ministry says that any “detainees [taken on board the frigate] would be handed over to other coalition forces, most likely the US.”

Over the last three years I have repeatedly asked our Government whether the SAS has taken any prisoners and handed them over to US interrogators; I have never received an adequate answer. Defence Minister Mark Burton and the Defence Force have simply refused to comment “on security grounds”.

But is the real reason security, or embarrassment? More and more information is emerging about the torture and death of prisoners at US prison facilities at Bagram airbase in Afghanistan and Guantanamo Bay in Cuba. This mistreatment has not been accidental; it has flowed, to some extent, from official policy. New terms have entered the American military vocabulary. People are no longer tortured; they are put in ‘stress positions’ or subjected to ‘sensory manipulation’.

It has been easy for interrogators to get carried away because their government declared detainees to be ‘enemy combatants’, not prisoners of war, and therefore not subject to all the protections of the Geneva Convention. This legal interpretation has been challenged by lawyers around the world, but not by New Zealand. The confidential memo referred to above holds that it was “extremely unlikely that anyone detained by NZ SAS forces in Afghanistan (or during other OEF deployments) would qualify for Prisoner of War (POW) status.” Because of this, “there is no residual legal obligation on New Zealand as the detaining power” to ensure that Geneva Convention-standard treatment is applied following the transfer of the detainee to another country’s custody.

The Foreign Affairs Ministry does try to cover itself by adding that “It would, nonetheless, be appropriate for New Zealand to seek some form of prior assurance from the country that takes custody of the detainee that the minimum fundamental guarantees of human rights and due process provided under international law would be observed. New Zealand’s policy against the use of the death penalty should also be noted”.

The problem is that these assurances given by the United States haven’t been worth the paper they were written on. We now know about the widespread mistreatment of the prisoners at Bagram airbase. And we know that Guantanamo Bay is full of alleged Taliban and Al Qaeda fighters who have been rotting there for years without trial.

Our Government was wrong to accept the Americans’ narrow definition of a POW. It is true the 1949 Geneva Convention, like the 1907 Hague Convention, does require soldiers to carry fixed distinctive insignia recognisable from a distance – and Taliban and Al Qaeda fighters often wore civilian clothes. But fighters without insignia, specifically militia and armed volunteers, are covered by other sections of the Geneva Convention. In 1977 the whole Convention was updated with a Protocol designed to cover liberation movements. Insignia wasn’t required as long as the fighters, when engaged in an attack, distinguished themselves from the civilian population.

Given that most of the wars today are internal, it is important that both government and non-government forces are protected by the Geneva Convention. In the past non-government groups, such as Nelson Mandala’s African National Congress, have accepted that they are bound by the Geneva Convention.

The First Protocol to the Convention states clearly that torture, inhumane and degrading treatment, and coercing a prisoner, are all unlawful. Detainees must also be provided with the counsel of their choice, who can then “freely visit” and interview them “in private.” All of these rights have been abused at Guantanamo Bay.

New Zealand should be defending these Protocols, not accommodating the Bush Administration’s false interpretation of them. The shocking revelations about what went on in American detention centres should prompt us to have another look at the role of our SAS in Afghanistan. The Government can no longer avoid debating the issue by cloaking everything in secrecy. The SAS deployment might help New Zealand pick up brownie points in Washington, but it may also undermine our commitment, in practice, to internationally accepted human rights standards.